Case: Vijay Vs. State of Maharashtra

( 2 ) STATED briefly the prosecution case is that the deceased Mala was the daughter of Dadaji (P. W. 4 ). She was married to the accused onThe accused is the son of Ramchandra Dumore, a practising lawyer at Yavatmal. At the relevant time, the accused was plying autorickshaw. After marriage, Mala came to reside with the accused at Yavatmal, where the accused was residing with parents, brother, brothers wife Manda and their children. At the time of first Akhadi festival after marriage, Mala had been to her parental home and during her aforesaid visit she informed her parents brother and other relatives that she was not happy at her matrimonial home, She told them that the behaviour of her husband with her was not proper. However, she returned to her matrimonial home with the accused when he had been to her parental home to fetch her back. At that time, the accused and Mala both had expressed their desire to visit Malas parental home again at the time of Rakshabandhan festival.( 3 ) ONat about 8 or 8. 30 P. M. after taking meal the accused went to sleep in his bed room which was at the entrance of the house. Manda and Mafa, however, watched a movie on Television till 11 or 11. 30 P. M. and thereafter they went to sleep in their respective bed rooms. On the next day morning at about 6 A. M. Smt. Sushila Gupta, one of the tenants of the father of the accused, staying in the same house but in different block, raised an alarm on seeing a sari and feet in a drainage behind the latrine. She informed Manda about the same who on reaching there found that it was Mala and hence she informed herabout it. By that time, several other persons including the accused gathered there. Soon thereafter, i. e. at about 7. 15 A. M. the accused went to Yavatmal City Police Station and reported to the police about the death of his wife, on the basis of which a Marg No. 115/96 was registered. This initiated an enquiry and while an enquiry of the same was in progress, the accused himself lodged his report in the matter onand confessed that he himself committed the murder of his wife. On the basis of the said First Information Report, an offence came to be registered against the accused as Crime No. 547/96 under Section 302 of Indian Penal Code. The accused then came to be arrested and during the course of the investigation, it was transpired that a quarrel had taken place between the accused and Mala as the accused was not prepared to take Mala to her parental home for Rakshabandhan festival though promised. On Malas insistence, the accused slapped her due to which Mala got annoyed picked up a razor blade from a cupboard and caused injury to the sole of the accused by means of it. Thereafter on the pretext of going to answer the natures call, the accused asked Mala to get water for him and while Mala was fetching the water the accused strangulated her with a Shela (scarf) and thereby caused her death. Thereafter by breaking Malas Mangalsutra and keeping some clothes and purse in the courtyard of his neighbour Waghela, the accused made a show of commission of4 ) DURING the investigation of the aforesaid crime, a Shela (scarf) came to be recovered at the instance of the accused and a broken Mangalsutra from his autorickshaw. After due completion of investigation, acame to be filed against the accused in the court of Chief Judicial Magistrate who committed the case to the Sessions5 ) TO a charge (Exh. 6) framed against the accused under Sections 302, andof the Indian Penal Code the accused pleaded not guilty and claimed to be tried. He raised a plea of alibi contending that on the fateful night he had been to village Rui an in his autorickshaw with Kawdu Jadhav D. W. 1 in order to bring Kawdus family members to Yavatmal. According to the accused, he returned home onin the morning at about 5. 30 A. M. and only thereafter he learnt from Manda that Mala was lying dead in drainage behind latrine and pleaded his innocence.( 6 ) IN the course of the trial. , the prosecution examined 13 witnesses, while the accused examined one witness Kawdu Jadhav in support of his defence. Considering the oral and documentary evidence on record, the learned Judge of the Special Court, Yavatmal found the accused guilty of the offence punishable under Section 302 of Indian Penal Code and sentenced him as stated above. However, she acquitted the accused of the offence punishable under Sectionof the Indian Penal Code.

Reasoning:
( 12 ) UNDISPUTEDLY the prosecution case basically hinges upon an important circumstance based on the theory of last seen together. It isthat in a case of circumstantial evidence where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased the circumstance of the deceased having been last seen alive in the company of the accused will have to be taken as a circumstance of incriminating character. It is no doubt true that in Kanda Padayachis case cited supra on behalf of the State it is held by the Apex Court that on an admission of a fact however incriminating but by not itself establishing the guilt of the maker of such admission does not amount to confession and admissibility of such statement is not barred under Section 26. However, in Rhatris case cited supra on behalf of the appellant I accused, the Apex Court held that a confessional statement made by the accused to the police is inadmissible as is barred under Section 25 of the Evidence Act. Further, in a decision in Prem Thakur v. State of Punjab (supra) the Apex Court observed as under:117 The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed. In the present case admittedly, the prosecution depends wholly uponcircumstantial evidence and when the prosecution case hinges only upon circumstantial evidence then the Apex court in its aforesaid decision held in paragraph No. 11 as under: 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It isthat inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.