Case: Moreshwar &amp; Another Vs. The State of Maharashtra

2. The prosecution story in brief, as could be gathered from the material placed on record, is thus :Waman Bhiwapurea Sarpanch of Gram Panchayat, Thutra, received an information on 21.4.2011 that the dead body of unknown person was lying on the road side. As such, he went to the spot, saw the dead body and informed about the same to Police Station, Gadchandur vide report at Exh.53. Accordingly, A.D. No.9/2011, u/s. 174 of the Code of Criminal Procedure came to be registered. P.S.I. Arvind s/o. Dewaji Gurukarinquired into the Marg. He recorded spot panchanama (Exh.40) and Inquest panchanama (Exh.42). From the spot, he also seized one big stone stained with blood, a small stone, simple earth and earth smeared blood (Exh.44). The dead body was sent to hospital for post mortem along with police questionnaire. Dr. Sanjay Ramesh Umateconducted autopsy on the dead body of deceased and opined in his P.M. Notes, that the cause of death was injury to the external genitals and bleeding thereafter with fracture thoracic ribs. The Investigating Officer also took blood sample and seized clothes of the deceased.3. On the next day i.e. on 22.4.2011, at around 11.30 a.m., father of the deceased lodged report below Exh.37 alleging therein that accused no.1 Sevaklal had come to his residence at 11.00 a.m. on 20.4.2011. He further stated in the said oral report that, around 4.00 p.m., accused Sevaklal had alone come to his house and without informing anything, went away taking deceased Shankar along with him. He has further stated that deceased Shankar did not come to the house. He received information on 21.4.2011 that his son was found dead on Gadchandur to Rajura road near Thutra Bus Stand. It is further alleged in the said oral report that there was a relationship between accused no.1 and original accused no.2 Suvarna wd/o. Shankar Kasti. The report further states that the first informant had a suspicion that accused no.1 has committed murder of his son. On the basis of the said oral report, the First Information Report came to be lodged below Exh.38. Investigation was set into motion. Accused no.1 was arrested on 16.5.2011. During his police custody, on his memorandum below Exh.103, his clothes, mobile phone sets and five sim cards came to be recovered. Hero Honda Motor cycle was also seized. Accused no.3 was also arrested on 17.5.2011. On memorandum u/s. 27 of the Indian Evidence Act, 1872, his mobile hand set and mobile phone of deceased, handkerchief, Sim Card and clothes came to be recovered from the house of hisIt further appears that the confessional statements of accused nos. 2 and 3 were also recorded by the learned Judicial Magistrate, First Class, Rajura. Statements of various witnesses were also recorded.4. After conclusion of investigation, charge sheet came to be filed in the Court of Judicial Magistrate, First Class, Rajura. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the learned Sessions Judge at Chandrapur vide order of the learned Judicial Magistrate, First Class, Rajura dt.18.7.2011. The learned Sessions Judge framed charges against the present appellants as well as original accused no.2 Suvarna wd/o. Shankar Kasti for the offences punishable under Section 302 r/w. 34 of the Indian Penal Code, under Section 201 r/w.34 of the Indian Penal Code and under Section 120B of the Indian Penal Code. The charges were read over to the accused, to which they pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge acquitted original accused no.2; however, passed an order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeals are filed.5. Mr.R.M.Daga, learned Counsel for original accused no.1/appellant herein submits that the present case is based solely on the circumstantial evidence. He submits that unless prosecution proves each and every incriminating circumstance beyond reasonable doubt and further proves the chain of circumstances which are so interlinked to each other that they leads to no other conclusion than guilt of the accused, the order of conviction would not be sustainable. The learned Counsel submits that insofar as the circumstance regarding the accused last seen with the deceased is concerned, the only evidence is that of Namdeo s/o. Rama Kastiand Angad s/o. Bhaskar BandgarIt is further submitted by the learned Counsel that, according to this witness, accused no.1 was last seen in the company of the deceased at around 3.30 to 4 p.m. However, as against this, as per evidence of Billukumar s/o. Baby Pillethe deceased was last seen in the company of accused no.3 at around 8.00 p.m. It is further submitted that the evidence in respect of the accused last seen in the company of deceased would not be of any assistance to the case of prosecution inasmuch as it is not accused no.1 who was lastly seen in the company of the deceased but it was accused no.3 who was lastly seen in the company of the deceased. The learned Counsel submits that the other circumstances regarding recovery of mobile handset and clothes would not be of much relevance. It is further submitted that the mobile which was seized from the accused was belonging to him and hence, naturally the mobile was found in the custody of the accused. Insofar as seizure of clothes is concerned, the report of Chemical Analyser shows that no traces of blood are found on the clothes.

Court's reasoning:
27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of athe presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523   has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession ofIt must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.