1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 159 OF 2005 ANTYA GOVIND BOMBA ) R/o. Satpala, Taluka Vasai ) Dist. Thane. At present in Jail C.No.2427 Kalamba Central Prison Kalamba 416 007, Kalapur ) .. APPELLANT VERSUS THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. Abhaykumar Apte for appellant (appointed). Ms. U. V. Kejariwal, APP CORAM:SMT.RANJANA DESAI & SMT.RANJANA DESAI & SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ DR. D.Y. CHANDRACHUD,JJ DR. D.Y. CHANDRACHUD,JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 10TH JULY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:-30TH JULY, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellant ("the accused" for convenience) was tried in the court of Additional Sessions Judge, Palghar at Palghar in Sessions Case No. 363 of 2001 for offence punishable under Section 302 of 2 the Indian Penal Code ("IPC" for short). By judgment and order dated 6/1/04 learned Sessions Judge convicted him of the said offence and sentenced him to suffer life imprisonment. Being aggrieved by this judgment and order the accused has preferred this appeal. 2. Gist of the prosecution case may be shortly stated: . PW 1 complainant Yamunabai, PW 5 Jaywantibai, one Santibai and the accused are the residents of village Pendharpada, Murbad. They are all migrant labourers. Every year they used to come to Vasai to do work on daily wages. Ladkibai (for convenience "the deceased") was also the resident of village Pendharpada. The deceased had two sons and two daughters from her first husband Laxman who died ten years back. For about three years prior to the incident in question the accused was staying with the deceased. They were staying together as husband and wife. First wife of the accused had left the accused because he ill-treated her. . The accused had come along with other workers to Satpala for work. They were staying under the shed 3 of the building owned by PW 6 Anant Naik. According to the prosecution the deceased was reluctant to continue her relationship with the accused because her children had grown up. On 5/9/01 at about 7 p.m., the deceased, the accused and others completed their work and came back to the place where they were staying. They cooked their food. The accused and the deceased had their dinner at about 9 p.m. PW 1 Yamunabai, PW 5 Jaywantibai and Santibai also had their dinner. Thereafter PW 5 Jaywantibai and Santibai slept on the ota of the cycle shop. The deceased and the accused slept on the ota of a bakery. There was some exchange of words between the accused and the deceased for some time. PW 1 Yamunabai, PW 5 Jaywantibai and Santibai went to sleep. According to the prosecution during the night PW 1 Yamunabai heard sound of footsteps indicating that somebody was running away. She woke up and saw the accused running away towards Satpala. She went towards the deceased and saw that one stone was lying near her side. Blood was oozing from her head. Ladkibai was dead. PW 4 Vanita and PW 5 Jaywantibai have also given somewhat similar version of the incident. PW 7 PI Arjun Kurle was attached to Virar Police Station at the relevant time. He 4 received information about the murder of one lady at Satpala on telephone from Head Constable Sarang who was attached to Agashi outpost. PI Kurle went to Satpala along with police constables. First Information Report ("FIR" for short) of PW 1 Yamunabai came to be recorded. It is at Exhibit-A. On the basis of the FIR investigation was set into motion. The accused was absconding. He was arrested on 8/9/01 at Dahanu. After completion of the investigation the accused came to be charged as aforesaid. 3. In support of its case the prosecution examined as many as seven witnesses. PW 1 Yamunabai is the complainant. PW 4 Vanita Thakare and PW Jaywantibai are the labourers who claim that they had seen the accused running away. PW 2 is Dr. Alokkumar Singh who had done post-mortem on the deceased. PW 6 Anant Naik is the owner of the building, in the compound of which the labourers were staying. He has acted as a pancha to the spot panchnama Exhibit-50. PW 7 is PI Arjun Kurle, who was attached to Virar Police Station as Police Inspector at the relevant time. He has given the details of investigation conducted by him. 5 4. The defence of the accused was one of denial. According to him he has been falsely involved in this crime on suspicion. After perusing the evidence on record, learned Sessions Judge came to a conclusion that the prosecution has proved its case beyond reasonable doubt. He, therefore, convicted the accused as aforesaid and hence this appeal. 5. We have heard Mr. Abhaykumar Apte, learned counsel for the appellant-accused. Mr. Apte submitted that the case against the accused rests on circumstantial evidence. He submitted that apart from the evidence of the three ladies that they had seen the accused running away in the night, the prosecution does not have any other cogent evidence to substantiate its case against the accused. Learned counsel submitted that evidence of these three witnesses also does not inspire confidence. There are material omissions in their evidence. Learned Counsel further submitted that the fact that the accused was arrested about two days after the date of incident cannot be taken against him because absconding by itself does not necessarily lead to the guilt of the accused. There must be other clinching 6 circumstances indicating his guilt. Such evidence is absent in this case. Learned counsel submitted that the impugned judgment and order is based on conjectures and surmises and hence deserves to be set aside. 6. Learned APP Ms. Kejariwal on the other hand submitted that the chain of circumstantial evidence is complete and it points directly to the guilt of the accused. She submitted that in this case no other hypothesis but that of the guilt of the accused is possible on the basis of evidence adduced by the prosecution. Learned APP submitted that, therefore, the impugned judgment and order be confirmed. 7. Dr. Alokkumar Singh who was at the relevant time working as medical officer at the Virar Rural Hospital had done post-mortem on the deceased. He had prepared post-mortem notes which are at Exhibit-12. The injuries suffered by the deceased are described in the post-mortem notes as under: . "1) fracture of left parietal bone, it was a compound fracture of size 2 x 2cms, 1cm. wide. 7 2) C.L.W. behind left ear vertical of size 7 cm x 2 cm. tissue deep 3) C.L.W. over right middle finger lateral aspect horizintal 3cm x 1 cm x 3 x 2 cm deep." . The cause of death is stated as "Cardiorespiratory arrest secondary to head injury". There can be, therefore, no doubt that the deceased died due to head injury which led to cardiorespiratory arrest. 8. The prosecution story rests on the evidence of three labourers, who were working along with the accused and the deceased at the agricultural land at Satpala. According to PW 1 Yamunabai the accused was the second husband of the deceased. The deceased used to tell the accused that she cannot continue her relationship with him because her children had grown up. However, the accused, kept following her everywhere. According to PW 1 Yamunabai on the day of incident all of them returned from their work from Satpala. They had their meals. She, PW 5 Jaywantibai and Santibai slept on the ota of the house of one cycle owner. The accused and the deceased slept on the ota of 8 another house. There was some exchange of words between the accused and the deceased. According to her after sometime she heard sound of footsteps suggesting as if someone was running away. She woke up. In the light of street light she saw the accused running away towards Satpala Naka. All of them went towards the deceased. There was a stone lying near her. She was dead. According to Yamunabai police recorded her FIR which is at Exhibit-A. 9. In the cross-examination she has reiterated that she saw the accused running away when she woke up. She has stated that when she witnessed the accused running away she was in a sitting position. Therefore, when the incident of stone throwing took place she was sleeping. Though she says that she heard the sound of footsteps, surprisingly she does not say that she heard the cry of the deceased. If she could wake up because of the sound of footsteps, it is inconceivable that she would not hear the cry of the deceased. According to the prosecution the stone which was lying near the deceased weighed about 20 Kg. If such a stone was thrown on the deceased, which led to her death she must have certainly raised a loud cry. The fact 9 that Yamunabai does not refer to any such cry, in our opinion, makes her evidence suspect. 10. PW 4 Vanita is also a labourer. She was working with Yamunabai, the deceased and others at Satpala. She has also stated that the accused was staying with the deceased. According to her the children of the deceased from her first husband did not like the accused staying with the deceased. She has stated that on the date of incident after their evening meal, the deceased and the accused slept on the ota of the bakery whereas she and other labourers slept on the ota of a cycle shop. According to her she woke up from the sleep hearing the cries of Jaywantibai "Poryano Utha", (daughters wake up from sleep). She has further stated that when she woke up she saw the accused running away from the spot of incident in the street light. In her cross-examination she has stated that when she saw the accused running away from the spot she was in a sitting position. An omission has been brought on record that she had not told the police that on hearing her mother’s cry "Poryano Utha" she woke up. The evidence of Vanita also cannot be relied upon for the same reasons which persuade us to hold that Yamunabai is not a reliable witness. 10 She has also not seen the actual incident. She has added that her mother woke her up. However, this was not disclosed by her to the police. She does not say that she had heard any cry of the deceased. It is unsafe to rely on the evidence of such a witness. 11. PW 5 Jaywantibai is the mother of PW 4 Vanita. She has also deposed about the relationship between the deceased and the accused. According to her after their meal the accused and the deceased slept on the ota of a bakery while she and others slept under the shed of the cycle shop. She has further stated that she woke up from sleep when she heard the footsteps of the accused. In the street light, she saw him running away from the spot. According to her thereafter she went towards the deceased along with others. She found a stone lying on the other side of the deceased. She noticed that the deceased had received head injury and blood was oozing from it. In her cross-examination a significant omission has been brought on record. She had not disclosed to the police that she woke up from the sleep after hearing the sound of footsteps of the accused caused while he was running away from the spot and that she saw him in 11 the street light. In our opinion, no reliance can be placed on her evidence. 12. Thus evidence of PW 1 Yamunabai, PW 4 Vanita and PW 5 Jaywantibai does not inspire confidence. In any case even if it is assumed for a moment that it is credible, all that it states is that the accused was seen running away from the spot. To bring home guilt to the accused some other evidence connecting the accused to the crime in question is necessary. The prosecution has not been able to establish any strong motive to kill the deceased. The fact remains that the accused and the deceased were staying together. In fact on the day of incident they chose a different place to sleep. Barring a feeble attempt to suggest that there was some exchange of words between the accused and the deceased and that the deceased used to tell the accused that she does not want to continue her relationship, there is nothing on record to suggest that their relations were strained. The prosecution has not been able to establish any strong motive to kill the deceased. 13. It is pertinent to note that the accused was arrested at Dahanu on 8/9/01 by Kasa Police Station 12 at Patilpada, District Dahanu. Exhibit-32 is the arrest panchnama which is brought on record by PW 7 Arjun Kurle. Exhibit-32 states that there were no blood stains on the clothes of the accused. 14. PW 7 PI Arjun Kurle has stated that information was received by Virar Police Station about the arrest of the accused by Kasa Police Station. Therefore, Head Constable Sarang went to Kasa Police Station and he brought the accused to Virar Police Station. At Virar Police Station Panchnama Exhibit-32 was drawn. Under this panchnama the accused was taken in custody by Virar Police Station in their C.R. No,. 159 of 2001. Clothes worn by the accused were taken charge of. Surprisingly it is stated in this panchnama that there were blood stains on those clothes. PW 7 PI Kurle has also stated that there were blood stains on the clothese of the accused. But this case of the prosecution is falsified by the Chemical Analyser’s report which is at Exhibit-40. Exhibit 40 states that on Exhibits 12 and 13 i.e. full shirt and half pant respectively of the accused no blood was detected. Thus the prosecution story that blood stained clothes were seized from the person of the accused must be discarded. It 13 appears to be a concoction and the Chemical Analyser’s report completely exposes this concoction. 15. It is true that the accused was arrested two days after the date of incident. Undoubtedly absconding can be a relevant circumstance, however, the accused cannot be convicted merely on the basis of the fact that he was absconding. There has to be other cogent material to establish the involvement of the accused. In Matru alias Girish Chandra v. The State of U.P., AIR 1971 SC 1050, the Supreme Court has discussed the relevance of the accused’s conduct in absconding from the scene of offence. We may quote the relevant observations of the Supreme Court. . "Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of self preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but 14 its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused." 16. In this case, there is no other clinching evidence which can form a chain of circumstances pointing directly to the guilt of the accused. Therefore, the fact that for two days the accused was not traceable by itself would not lead to his guilt. 17. In our opinion, therefore, the prosecution has failed to establish its case beyond reasonable doubt. The circumstances on record do not conclusively establish the guilt of the accused. They do not point unerringly to the guilt of the accused. The accused must, therefore, get benefit of doubt. The impugned judgment and order of 15 conviction and sentence must, therefore, be set aside. Hence the following order: . The judgment and order dated 6/1/04 passed by the Additional Sessions Judge, Palghar in Sessions Case No. 363 of 2001 is quashed and set aside. Accused Antya Govind Bomba is ordered to be released unless otherwise required in any other case. Appeal is disposed of. JUDGE JUDGE IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 159 OF 2005 ANTYA GOVIND BOMBA .. APPELLANT VERSUS THE STATE OF MAHARASHTRA .. RESPONDENT Mr. Abhaykumar Apte for appellant (appointed). Ms. U. V. Kejariwal, APP CORAM:SMT.RANJANA DESAI & SMT.RANJANA DESAI & SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ DR. D.Y. CHANDRACHUD,JJ DR. D.Y. CHANDRACHUD,JJ. DATED:30/7/2008 16 P.C.: . For the reasons separately recorded in the judgment, this court has passed the following order: . "The judgment and order dated 6/1/04 passed by the Additional Sessions Judge, Palghar in Sessions Case No. 363 of 2001 is quashed and set aside. Accused Antya Govind Bomba is ordered to be released unless otherwise required in any other case. Appeal is disposed of". JUDGE JUDGE