Case: Pravin Vs. The State of Maharashtra

was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul Ronghe (PW-1) is not corroborated by any other evidence. Prosecution has not examined mother of Rahul Ronghe (PW-1).21. Cross-examination of Rahul Ronghe (PW-1) shows that he is not a reliable witness. He has given answers to the material questions evasively. Some of the questions put to him were within his knowledge. But, he intentionally did not admit or deny them specifically. His cross-examination shows that he himself was a mental patient undergoing treatment of a Psychiatrist at Aurangabad. Therefore, the evidence of Rahul Ronghe (PW-1) that he saw blood stains on the face of appellant is not reliable.22. Regarding circumstance concerning discovery of shirt by the appellant (the learned trial Court has relied on this circumstance). It is pertinent to note that Rahul Ronghe (PW-1) has not stated in his evidence that, when appellant came to him in the night, he did not see shirt on his person. He has stated that after 56 days. He was called by police and shown the shirt of appellant and he identified that it was the same shirt which was on his person in the night of incident. Amol Bonde (PW-2) has also stated the same thing.23. It is pertinent to note that Rahul Ronghe (PW-1) should have stated in his evidence that when appellant came to him in the night at about 1.00 a.m., he did not see the same shirt on his person. Therefore, discovery appears to be doubtful. Moreover, on perusal of the Memorandum panchanama and Discovery panchanama, it is clear that Memorandum panchanama was completed at about 12.40 p.m. on 5.6.2014 and Discovery panchanama started at about 12.45 p.m. on the same day. As per the cross-examination of Sachin Sahebrao Kale (PW-4), a panch witness, Police Station, Walgaon is at a distance of 15 minutes from Kalamgaon and 20 minutes are required to go to the spot where the shirt was kept. Ten minutes were required to start to go after execution of Exh.35.24. Exh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kale (PW-4), the shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghe (PW-1) has not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.25. Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per the cross-examination of Sachin Kale (PW-4), more than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.27. The learned trial Court has taken into consideration that the appellant has not explained as to how there were blood stains of blood of deceased on his shirt. It is pertinent to note that prosecution has first to prove its case against the accused beyond reasonable doubt. Thereafter, burden shifts on the accused. In the case of Suresh Vithal Parkar .vs. The State of Maharashtra reported in 2015 ALL MR (Cri) 1287, it is held that prosecution has not established exact time of death nor has it established presence of accused in house at about time when offence was committed. In absence of such evidence, failure of accused to offer any explanation u/s.106 cannot be used as a circumstance against accused nor can a presumption of guilt be drawn on his failure.28. In the present case, as per the evidence of Rahul Ronghe (PW1) (in cross-examination), the appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bonde (PW-2), customers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant. Hence, we allow the appeal and pass the following order.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. Evidence of Rahul Rongheitself shows that the appellant came at about 1.00 a.m. and slept by his side. As perof Amol Bonde (PW2), there are 24 Dhabas on Amravati road and the customers used to visit Dhabas for dinner. Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to note that, when, as per the evidence of Rahul Ronghe (PW1), the appellant came to him at about 1.00 a.m., it shows that the appellant must have left Dhaba after 12.00 midnight. As per the evidence of Medical Officer, the death was after 2.00 a.m. in the night. Death must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear that prosecution has miserably failed to prove that appellant was lastly in the company of deceased.18. When the case of prosecution is based on last seen theory, then time of death is very material. Honble Supreme Court in the case of Nizam and another .vs. State of Rajasthan reported in ABC 2015 (II) 276 SC has held that where time gap is long, it would be unsafe to base the convicting on the last seen theory. In the case of Gambhir .vs. State of Maharashtra reported in AIR 1982 SC 1157   Honble Supreme Court has observed that .....it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmis company and the time of death of the deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmis house.19. In the present case, there is a long gap between the time of death and the appellant lastly seen in the company of deceased. As per the evidence of Medical Officer Dr.Abhishek Naidu, time of death of deceased was from 8 to 12 hours from the time of post mortem. Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took place in the night in between 2.6.2014 to 3.6.2014. Therefore, death might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of Rahul Ronghe(PW1), appellant came tohim at about 1.00 a.m. in the night and slept by his side. Therefore, the evidence of last seen adduced by the prosecution is not proved.20. Rahul Ronghehas stated that, early in the morning. his mother woke him up and told that there is blood like stains on the face of appellant. Appellant was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul RongheExh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kalethe shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghehas not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per theof Sachin Kalemore than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.In the present case, as per the evidence of Rahul Ronghe (PW1) (inthe appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naiduprobable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bondecustomers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant