Incriminating evidence is required to convict – Bombay High Court

cri. apeal no.714.16 judgment.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 714 OF 2016 Sachin Subhash Londhe Age 25 yrs. Resident of Peth Taluka Walva District Sangli State of Maharashtra At the instance of Islampur Police Station Tal. Walwa Dist. Sangli in respect of Mr. Prosper D’souza appointed Advocate for the Appellant Ms. P.P. Shinde APP for the Respondent State JUDGMENT RESERVED ON JUDGMENT PRONOUNCED ON CORAM : SMT. SADHANA S. JADHAV N.J. JAMADAR JJ 8th SEPTEMBER 2020 1st OCTOBER 2020 JUDGMENT : PER SADHANA S. JADHAV J. The appellant herein takes exception to the judgment and order dated 7th April 2016 passed by the Additional Sessions Judge Islampur in Sessions Case No.514 thereby convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer RI for life and pay fine of Rs.2 000 in default to suffer RI for three months The factual matrix of the case is as follows : cri. apeal no.714.16 judgment.doc On 22nd July 2014 at about 10.00 pm an information was received by the Peth Naka Police Station that one male person is lying in a pool of blood in a shed. The Police Constable Rajendra Patil was deputed to verify the said information and thereafter Mr. Kamble and PSI Mali reached the spot. They saw one male person lying in a pool of blood in the shed of one Shivaji Hotel. They found him to be dead. An information was recorded in the Police Station. At that time one Shamrao Tulshiram Pawar reached the spot and identified the dead person as his son Amol. The statement of Mr. Shamrao was recorded on the strength of which Crime No.1514 was registered for an offence punishable under section 302 of IPC against the unknown person. The investigation was set in motion. In the course of investigation it had transpired that on 22nd July 2014 at about 7.00 pm the deceased Amol Pawar and his friends were consuming liquor One Sachin Londhe had joined them. Sachin had left the liquor shop at 8.00 pm and had again visited the shop at about 9.15 pm. He was accompanied by Amol Pawar. They purchased liquor and then a quarrel had ensued between both of them. The cousins of Amol viz. Sudhir and Namdeo Kamble had seen the quarrel and had attempted to pacify them and asked them to return to their respective houses. Soon thereafter at about 11.00 pm it was learnt that Amol is lying in a pool of blood. Hence Sachin i.e. the present appellant was arrested on 24 th cri. apeal no.714.16 judgment.doc July 2014. It is further the case of the prosecution that while in Police custody the accused had disclosed to the Police that after consuming Alcohol Amol was abusing him by referring to his mother without any rhyme or reason and therefore the accused had assaulted him with a stone lying nearby. The Police had also seized the blood stained clothes of the accused The prosecution in order to substantiate the charge against the accused has examined 10 witnesses. The accused had admitted the scene of offence panchanama inquest panchanama and post mortem report under section 293 of Cr.P.C. The material witnesses who would throw light on the prosecution are PW2 Shamrao Pawar first informant PW4 Sudhir Kamble brother in law of deceased Amol PW6 Pintu Pawar person working in liquor shop of Suryakant Choudhari at Peth Naka PW7 Ananda Kamble cousin of PW4 PW9 Sanjay Patil and PW 10 Rajendra Patil who was attached to Islampur Police Station on 22nd cri. apeal no.714.16 judgment.doc PW2 Shamrao Pawar happens to be the father of deceased Amol. He has deposed before the Court that on 22nd July 2014 Amol had left the house at 7.00 am with Nashir Kureshi and returned at 9.00 am after consuming liquor. At about 4.00 pm he had again left the house with Nashir Kureshi. He did not return till 9.30 pm. PW2 had presumed that he must have gone to visit his wife who had gone to her maternal house. At about 10.45 pm Sanjay Pawar informed PW2 that Amol was lying in front of Shivaji Hotel after consuming alcohol. On the spot he saw Amol lying in a pool of blood and registered FIR which is at Exh.16. In the cross examination PW2 has volunteered that on 22nd July 2014 there was heavy rain and so some shops were closed. That the tourist buses halt at Manikandan hotel at night. It is elicited in the cross examination that after the Police reached on the spot within no time Sudhir and Anand Kamble also reached on the spot. The Police had enquired with them but since nobody knew about the incident the complaint was lodged against unknown persons. PW4 Sudhir Kamble in his deposition before the Court has cri. apeal no.714.16 judgment.doc stated as follows That on 22nd July 2014 at about 9.00 pm he along with his cousin brother Ananda Kamble had been to Peth Naka to see off their relatives to Mumbai. They had gone on motor cycle. After the relatives had left they noticed that Amol and Sachin were quarreling near the shed of Shivaji Hotel. They pacified the quarrel and told them to go to their respective houses and at 11.00 pm he had received a call that somebody had murdered Amol with a stone and therefore he reached the spot. He saw the dead body. He acted as a pancha for inquest panchanama which is at Exh.9On 24th July 2014 the accused appellant was arrested The statement of PW6 Pintu Pawar who was working in the liquor shop was recorded by the Police and he had disclosed that although the accused and the deceased did not consume alcohol together but while leaving the liquor shop the deceased was abusing the accused. The witnesses had no knowledge what happened thereafter VII) On 25th July 2014 the scene of offence was shown to the Investigating Officer by the accused. On 25th July 2014 blood stained clothes were seized by the Police at the instance of the appellant. The appellant had kept the clothes in a cupboard in his house The learned counsel for the appellant submits that there is no material on record to show that the appellant is the author of the injuries sustained by the deceased or that he has caused the homicidal death of deceased Amol. As against this the learned APP submits that there is enough material to show that the accused was lastly seen in the 1 cri. apeal no.714.16 judgment.doc company of the deceased. That the evidence of PW6 Pintu would show that while leaving the liquor shop the deceased was abusing the accused and that there is a recovery of blood stained clothes of the accused. According to the learned APP there is no explanation regarding concealment of the blood stained clothes of the appellant In view of the above the question which falls for determination is as to whether the prosecution has brought on record convincing and cogent material to implicate the appellant in the alleged homicidal death of Amol Pawar. Firstly on the date of incident the deceased had left his house in the company of Nashir who is not examined by the prosecution. Witnesses PW4 and PW7 have candidly agreed in the cross examination that the Police had told them that only if they would say that there was a quarrel between the accused and the deceased they could proceed to file a case against appellant. It is in the light of this that the witnesses had disclosed that upon seeing the altercation between the accused and the deceased they had pacified both of them. It cannot be overlooked that the father of the deceased had learnt about the incident at about 10.30 pm and by 11.30 pm the witnesses PW4 and PW7 had reached the spot however they had not 1 cri. apeal no.714.16 judgment.doc disclosed to anyone nay the Police who was present on the spot Silence of PW4 and PW7 from 22nd July 2014 to 24th July 2014 speaks volumes for itself. The statement of PW6 Pintu was recorded much later and even if the evidence of PW6 is taken without addition or subtraction it would show that it was the deceased who was abusing the accused. It is clear that there was no enmity between the accused and the deceased. Neither there was any motive to eliminate the deceased. The evidence is otherwise. It would show that they were in the liquor shop at the same time but the accused had left the liquor shop even before the deceased and after he had returned he was accompanying the deceased who was waiting alone in the shop The memorandum of the accused showing the scene of offence is totally misplaced for the simple reason that the scene of offence was already known to the investigating agency and the witnesses. A stone was also lying on the spot. In fact the scene of offence panchanama is dated 23rd July 2014 and it was recorded during the period 2.50 am to 5.10 am i.e. a day prior to the arrest of the accused appellant. FIR was recorded at midnight of 23rd July 2014 and therefore disclosure of the scene of offence at the instance 1 cri. apeal no.714.16 judgment.doc of the accused appellant needs no consideration. The scene of offence panchanama shows that the said shed was being used as a kitchen platform. There were three iron tables and two wooden benches and the door of the Hotel was locked and that there was trail of blood at a distance of 3 ft. from the kitchen door and it appeared that there was a splash of blood. The recovery of blood stained clothes coupled with the Forensic Science Laboratory report does not show that the blood on the clothes of the accused were that of the deceased. Blood group of the deceased could not be determined and therefore finding of the blood staines on the clothes of the accused would not be an incriminating Since the evidence of PW4 and PW7 does not inspire confidence it can be held that the prosecution has utterly failed to bring on record any clinching material against the accused. The evidence of last seen is also infirm and cannot be relied upon. In the case of Kanhaiya Lal Vs. State of Rajasthan4 SCC 715 the Hon’ble Apex Court has held as follows : 1 cri. apeal no.714.16 judgment.doc “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime Mere non explanation on the part of the appellant in our considered opinion by itself cannot lead to proof of guilt against the appellant.” Much weight cannot be attached to the alleged recovery of blood stained clothes and knife as the blood group of the deceased on his clothes and knife is inconclusive The case of the prosecution is not supported by credible evidence which would eliminate the innocence of the accused and establish that it is none other than the accused who must have caused the homicidal death of the deceased Amol. All this would show that the death of Amol Pawar is shrouded with mystery. Hence taking into consideration the totality of the facts and evidence in our view the circumstances relied upon by the prosecution are not established by convincing evidence and they do not form a complete chain pointing to the guilt of the appellant and hence the appellant deserves to be acquitted. Hence we pass the following order : 1 cri. apeal no.714.16 judgment.doc i) Appeal is allowed ii) The conviction and sentence imposed upon the accused appellant Sachin Subhash Londhe vide judgment and order dated 7th April 2016 passed by the Additional Sessions Judge Islampur in Sessions Case No.514 is hereby quashed and set aside iii) The accused be released forthwith if not required in any other offence iv) Fine amount if paid be refunded v) Appeal is disposed of This order will be digitally signed by the Private Secretary of this Court. All concerned will act on a digitally signed copy of this (N.J. JAMADAR J (SMT. SADHANA S. JADHAV J 1

Summary: Bombay High Court held that mere non-explanation on the part of the appellant, by itself cannot lead to proof of guilt against the appellant held by Justice Smt.Sadhana S.Jadhav and Justice N.J. Jamadar in the case of Sachin Subhash Londhe Vs State of Maharashtra [Criminal Appeal No 714 of 2016]. In the present case, the police had received an information that one male person was lying in a pool of blood in a shed at one Shivaji Hotel. The deceased was identified and upon investigation it was found that the appellant and the deceased after had an argument while the deceased was intoxicated. After two hours of this incident, the body of the deceased was found in the shed of the hotel. It had transpired in the investigation that deceased was hurling abuses to the accused and therefore, the accused had assaulted the deceased with a stone. Charges were filed and the appellant was convicted by Additional Sessions Judge for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to a rigorous imprisonment for life and a fine of Rs.2,000/-. The appeal has been initiated challenging the said decision before the High Court. The appellant submitted that there is no material on record to show that the appellant is the author of the injuries sustained by the deceased or that he has caused the homicidal death of deceased. The question for determination before the court was whether the prosecution has brought on record convincing and cogent material to implicate the appellant in the alleged homicidal death. The Court after examining the witnesses observed that, “It is clear that there was no enmity between the accused and the deceased. Neither there was any motive to eliminate the deceased. The evidence is otherwise. It would show that they were in the liquor shop at the same time but the accused had left the liquor shop even before the deceased and after he returned, he was accompanying the deceased who was waiting alone in the shop. The recovery of blood-stained clothes coupled with the Forensic Science Laboratory report does not show that the blood on the clothes of the accused were that of the deceased. Blood group of the deceased could not be determined and therefore, finding of the blood stains on the clothes of the accused would not be an incriminating circumstance.” The High Court while squashing the conviction and sentence imposed upon the accused/appellant heavily relied on the case of Kanhaiya Lal Vs. State of Rajasthan [(2014) 4 SCC] where the Hon’ble Apex Court had held that “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.” Hence, taking into consideration the totality of the facts and evidence, the circumstances relied upon by the prosecution were not established by convincing evidence and they did not form a complete chain pointing to the guilt of the appellant and hence, the appellant deserves to be acquitted. Hence, they passed the following order:- (i) Appeal was allowed. (ii) The conviction and sentence imposed upon the accused (Sachin Subhash Londhe) vide judgment and order dated 7th April 2016 passed by the Additional Sessions Judge, Islampur in Sessions Case No.51 of 2014 was hereby quashed and set aside. (iii) The accused has been released forthwith, if not required in any other offence. (iv)Fine amount, if paid, be refunded. (v) Appeal was disposed of. Click here to read the Judgment Judgment Reviewed by – Savita