Case: Triveni @ Gaunda Motilal Shah Vs. State of Maharashtra

according to PW-7 Investigating Officer the appellant/accused was arrested and brought before him on 31.1.2009 i.e. after about eight days of the incident. However, that time the clothes were not taken charge of which the appellant/accused was then wearing. However, they were taken charge of on 2.2.2009 and said clothes allegedly were having blood stains. This is in fact a glaring discrepancy in the evidence of the prosecution and which has been over-looked by the trial Court while appreciating this evidence as to recovery of blood stained clothes from the person of the appellant/accused holding this circumstance against him.10. Now coming to the substantive evidence of PW5 Sangita Pawar, according to her she was working as labour in Laxmi Metals Rolling Mill and was knowing the appellant/accused being a co-worker. According to her, one day he told that his sister-in-law would be coming from village and he requested PW-5 to find out a room on rent for her. Accordingly on one day, one woman and two children came to the house of PW-5. That time PW-5 was on duty, hence she remained at the house of PW-5. That time according to PW-5, that woman told that her husband was beating her after consuming liquor. Thereafter the appellant/accused came to her house with money asking for finding a room for the woman. Accordingly, PW-5 found one room in which said woman and children stayed for 2-3 days and thereafter she left the place. Subsequently during the investigation police recorded the statement of PW-5 and accordingly she stated before the Court. During the cross-examination of PW-5, it was brought on record that she knew the name of that woman as Neelu. Apparently the woman was wife of the deceased. As against this evidence of PW-5, according to PW-7 Investigating Officer the name of wife of the deceased was Kamala and he sent one Constable to search said Kamala wife of the deceased and accordingly she was brought from Malegaon. Her statement was recorded. However, it is a factual position that said Kamala, wife of the deceased was not examined. Here again the discrepancy as to real name of said woman and non-examination of said wife of the victim, is again a mitigating circumstance against the case of prosecution and again this aspect has been over-looked by the trial Court while appreciating the case based on circumstantial evidence.11. It is also a factual position apparent from the substantive evidence of PW-7 Investigating Officer that one Ravindra Gupta, brother of the victim, had identified the said dead-body and the said dead body was of Satyanarayan Gupta. As against this, again the same PW-7 in his examination-in-chief further stated, as appearing in para-6 of the notes of evidence, to the following effect :"On postmortem report dead body was shown as unknown. Therefore, by issuing letter I requested Medical Officer to quote his name as "Avdesh Gupta"."12. By pointing out this evidence of PW-7, it is strongly submitted on behalf of the appellant that the identity of the dead body is not established beyond reasonable doubt that it was a dead body of husband of the said Kamala. This is more so in view of absence of examination of said Kamala and also in the absence of examination of one Ravindra Gupta allegedly brother of the victim.13. In view of the above, the entire case of the prosecution only rests on the substantive evidence of PW-2 Mohanlal Jain i.e. the victim, last seen in company of the appellant/accused and the co-accused. Again on this aspect, the time-gap between the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e. PW-4 Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries were ante-mortem in nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according to PW-1 Ashokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot, PW-1 noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according to PW-2 there was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.

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

Explanation:
1[ds]13. In view of the above, the entire case of the prosecution only rests on the substantive evidence ofMohanlal Jain i.e. the victim, last seen in company of the appellant/accused and theAgain on this aspect, thebetween the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e.Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries werein nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according toAshokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot,noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according tothere was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.