Case: Bhagwat Vs. The State of Maharashtra

2. The facts leading to the institution of the appeal can be stated as follows :Deceased Kiran was the wife of Balaji Munde. Balaji is real brother of first informant Mahadev. They are residents of Dadahari Vadgaon, Tahsil Parli. Age of Mahadev was around 22 years at the relevant time. The incident took place on 5.1.1999. Balaji was in service and for service, he was out of station. The father of first informant namely Sopan was out of station as he had gone to Parbhani to see relatives. On that day, the first informant Mahadev had gone to field with his bullocks.3. At about 12.00 noon the deceased came to the field with lunch box for first informant. After noticing the deceased, Mahadev went towards hut to have lunch. He noticed that the lunch box was kept in the hut, but deceased was not present in the vicinity. He gave calls to deceased, but there was no response and so, he started searching for deceased. He went towards the lands of village Loni and when he was proceeding towards canal which divides Loni Shivar and Dadahari Vadgaon Shivar, the accused emerged from Tur crop situated beyond the canal. After seeing the first informant, the accused became frightened and he started running away. The first informant gave call to the accused, but he did not give response. The first informant then crossed the canal and he went towards the field where there was standing crop of Tur. There he noticed that Kiran was lying and on her face, there was big stone. He noticed that she was dead. He returned to the village and informed the incident to his father and uncle. Father had returned to the village in the meantime. They went to police station and Mahadev gave report. The crime at C.R. No. 7/1999 came to registered in Parli Rural Police Station for the offences punishable under section 302, 404 of IPC at about 16.15 hours. In the report, Mahadev informed that accused had taken away gold ornament like Mangalsutra, ear rings and Nathani (ring, ornament of nose) of deceased.4. During the course of investigation, the enquest panchanama was prepared by police in presence of the panch witnesses. No injuries were found on the dead body. The dead body was referred for P.M. examination. Doctor noticed that there was scratch over right middle finger on dorsal side of length of 1.5 c.m. and he noticed one contused abrasion over right cheek having size 1 c.m. x 1 c.m. These injuries were caused within 48 hours and they were antemortam in nature. The P.M. was conducted on 6.1.1999 between 1.00 p.m. and 2.10 p.m. Doctor gave opinion that the death took place due to cardio respiratory arrest due to asphyxia which was caused by smothering (gagging).5. During the course of investigation, police prepared spot panchanama on 5.1.1999 and the stone which was found on the dead body was taken over. A map showing the location of the spot was shown in the spot panchanma. Statements of witnesses, who include one Rode and the members of family of Mahadev came to be recorded. Rode gave statement on 6.1.1999. Statements of some other witnesses of village Dadahari Vadgaon came to be recorded on 8.1.1999 as they had seen the accused on 5.1.1999 and they had noticed that he was running. The accused was not available for some time. Ultimately on 2.2.1999 he surrendered before police and he came to be arrested. After completion of investigation, chargesheet came to be filed for offences punishable under sections 302 and 394 of IPC. Prosecution examined in all 13 witnesses. The Trial Court has acquitted the appellant of the offence punishable under section 394 of IPC. The Trial Court has believed Mahadev and also the other witnesses, who had seen the accused in the vicinity at the relevant time.

Reasoning: These circumstances create probability that incident was not disclosed by Mahadev immediately to anybody and delay was caused in giving F.I.R. The probability that Mahadev was not in the company of Bhimrao Rode for about three hours can create another probability that there was opportunity for commission of offence to Mahadev. The absence of injuries on the dead body is a circumstance in support of this probability. The circumstance of non recovery of ornaments is also supporting suchprobability. When her ear rings were there, Mahadev falsely contended that ear rings were also stolen. Due to these circumstances Mahadev cannot be believed.Though the record shows that for few days after the incident, the accused was not arrested and it is the case of prosecution that he was absconding, there is also circumstance that on the same night accused was in the company of the witnesses examined by the prosecution and they did not notice any suspicious thing. Had the crime not registered against the accused, in ordinary course, police could have registered the crime even against Mahadev (PW 2). His conduct of not admitting the relationship with the accused of the first wife of his brother, not admitting that he was married show that there is something suspicious in respect of Mahadev. The deceased was carrying of four months and that can be seen from the P.M. report. Portion of the Sari of the deceased was found to be gagged in to the mouth of the deceased and there was smothering. Then on the face of the deceased a stone was kept. These circumstances create a probability, there was no resistence and somebody known to the deceased had done the act. In addition to these circumstances, there are circumstances as mentioned above which are not explained by the prosecution. Only because Mahadev was saying that he had seen the accused running away from the brooklet, the crime was registered against him. No allegedly stolen articles are recovered from him and there is no other incriminating circumstance against the accused. The circumstance mentioned in the evidence of Mahadev even if it is accepted can at the most create suspicion against the accused. On the basis of such suspension, conviction cannot be given for offence of murder. 16) In the case reported as AIR 1992 SUPREME COURT 2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has given essential ingredients to prove the guilt by circumstantial evidence and they are asCircumstances from which conclusion is drawn should be fully proved.(2) Circumstances should be conclusive.(3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) Circumstances should exclude the possibility of guilt of a person other than the accused."It is true that the circumstances quoted are evidence in view of section 3 of Evidence Act and are relevant under section 8 of Evidence Act and circumstantial evidence can be used for conviction, but chain of evidence must be so complete, that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. The relevant circumstances of the present matter are already quoted and they have created other probabilities. This Court holds that the Trial Court has committed grave error in convicting the accused for the offence of murder.