Bombay High Court
Kateshwar @ Sanjay Bhagwan Hedau vs State Of Maharashtra Through P. S. O. P. ... on 6 March, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
1 APEAL567-13&577-13&443-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.567/2013
with
CRIMINAL APPEAL NO.577/2013
with
CRIMINAL APPEAL NO.443/2015
...
CRIMINAL APPEAL NO.567/2013
Nilesh @ Nilu s/o Rajesh Naidu,
Aged about 25 years,
Occ: Auto Driver,
R/o Mini Mata Nagar,
Near Boudha Vihar,
C/o in the house of Shankarsingh
Rathod, Kalmana, Nagpur.
At present resident of in front of
NIT Garden, Trimurthi Nagar, Nagpur. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
District Nagpur .. RESPONDENT
Mr. C.R. Thakur, Advocate for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
....
CRIMINAL APPEAL NO.577/2013
Dinesh @ Lucky s/o Surichand Pardhi,
Aged about 28 years,
::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:08 :::
2 APEAL567-13&577-13&443-15.odt
Occ: Auto Driver,
R/o C/o Subhadrabai Ghudge,
Sasne Layout, Jaitala, Nagpur. .. APPELLANT
.. Versus ..
State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
(Nagpur City). .. RESPONDENT
Mr. A.C. Jaltare, Advocate for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
....
CRIMINAL APPEAL NO.443/2015
Kateshwar @ Sanjay Bhagwan Hedau,
Aged about 30 years,
Occ: Auto Driver,
R/o Kumbharpura, Pahila Fatak,
Near Shastri Garden, Panchpaoli,
Nagpur, Presently resident of
Subhash Nagar, (Sant Tukdoji Nagar),
C/o Manoj Kalbande, Nagpur.
At present Convict No.C-8743,
detained in Central Prison at Nagpur,
Accused No.3 in S.T.No.540/2011 .. APPELLANT
.. Versus ..
State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
Nagpur .. RESPONDENT
::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:08 :::
3 APEAL567-13&577-13&443-15.odt
Mr. R.M. Daruwala, Advocate (Appointed) for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
....
CORAM : B.R. Gavai & Kum. Indira Jain, JJ.
DATED : March 6, 2017.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No.540/2011 dated 30.09.2013 thereby convicting the appellants for the offences punishable under Sections 302, 342 and 394 read with 397 jointly read with Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.500/- each, in default of payment of fine to suffer R.I. for six months for the offence punishable under Section 302 read with 34 of the I.P.C. and further sentencing them to suffer R.I. for 6 months and to pay a fine of Rs.100/- each, in default of payment of fine to suffer S.I. for one month for the offence punishable under Section 342 read with 34 of the I.P.C. and further sentencing them to suffer R.I. for 10 years and to pay a fine of Rs.500/- each, and in default of payment of fine to suffer S.I. for 6 months for the offence publishable under Section 394 r/w 397 jointly read with Section 34 of the I.P.C. , the appellants have ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:08 ::: 4 APEAL567-13&577-13&443-15.odt approached this Court.
2. The prosecution story as could be gathered from the material placed on record is thus:-
That PW3 Rewaram Inwate lodged an first information report with M.I.D.C. Police Station on 28.07.2011 stating therein that on 27.07.2011 at around 10 p.m. his cousin deceased Vinod and his friend PW2 Suresh @ Bunty Bopche had gone for labour work. They returned at around 7 p.m. , took their meal at around 10 p.m. Deceased Vinod and PW2 Suresh left the house of the first informant Rewaram at around 11 p.m. since they were to go to their native place. At around 12.15 p.m. when PW3 Rewaram had contacted the deceased on his mobile No. 9637838444. Deceased Vinod had received his call, however, he only could hear the voice "Jaldi Baitho, Chalo", before the phone was cut-off.
On 28.07.2011 at around 8.30 p.m. , Suresh @ Bunty Bopche came to the house of the complainant Rewaram and disclosed to the first informant that in the last night when they left the house of complainant Rewaram, he and deceased Vinod hired auto-rickshaw so as to reach M.P. Bus Stand but the said auto driver left them in the middle of the way and, therefore, they hired another auto-rickshaw so as to reach M.P. ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:08 ::: 5 APEAL567-13&577-13&443-15.odt Bus Stand. In the second auto-rickshaw along with the driver, two other persons were there. When they were proceeding towards M.P. Bus Stand, persons present in the auto-rickshaw started beating deceased Vinod and Suresh. However, Suresh jumped from the auto-rickshaw and ran away. He was wandering throughout night and then he reached the house of the complainant Rewaram.
At around 9 a.m. Rewaram had received phone call of his nephew Jitendra who told him that at around 7.50 a.m. police he found one dead body in the open ground at Brahmanwadi Jaitala and when he went to the spot, he saw the dead body. He recognised the same to be of deceased Vinod. His nephew Jitendra also told him that somebody assaulted on the head of the deceased Vinod who had sustained severe head injuries.
Thereafter Rewaram went to the Police Station and lodged the oral report. On the basis of his oral report below Exh.29, the first information report below Exh.30 came to be registered. The investigation was set in motion. During investigation, the Investigating Officer found the involvement of the present appellants and, therefore, arrested them. After completion of the investigation, the charge sheet came to be filed in the Court of the learned Judicial Magistrate First Class, ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 6 APEAL567-13&577-13&443-15.odt Nagpur for the offence punishable under Sections 302, 342, 394 read with 397 and 504 read with Section 34 of Indian Penal Code. Since the offence under section 302 of the Indian Penal Code was exclusively triable by the Court of Session, same came to be committed to the Court of Session.
3. The learned trial Judge framed the charges below Exh.15. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentenced the appellants as aforesaid. Being aggrieved thereby, the present appeal.
4. We have heard Mr. R.M. Daruwala, learned counsel appointed in Criminal Appeal No. 443 of 2015, Mr. C.R. Thakur, learned counsel in Criminal Appeal No. 567 of 2013, Mr. A.C. Jaltare, learned counsel in Criminal Appeal No. 577 of 2013 and Mr. V.P. Maldhure, learned Additional Public Prosecutor for the respondent/State.
5. The learned counsel for the appellants submit that the conviction is based only on the testimony of PW2 Suresh Bopche. It is further submitted that his testimony is not free from doubt and as such the conviction on the basis of his sole ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 7 APEAL567-13&577-13&443-15.odt testimony would not be sustainable.
6. The learned Additional Public Prosecutor on the contrary submits that the learned trial Judge has given sound and cogent reasons and as such no interference is warranted in the present appeals.
7. With the assistance of the learned counsel appearing for the appellants and the learned Additional Public Prosecutor, we have scrutinized the entire evidence on the record.
8. Since the fact of the death being homicidal is not argued, it will not be necessary for us to refer to the medical expert's evidence.
9. The prosecution case largely rests on the testimony of PW2 Suresh Bopche. Both the deceased as well as PW2 Suresh were hailing from village Kawadiya. He states that his friend Vinod was residing with his brother Rewaram at Manewada, Nagpur and he was residing with his sister Biran at New Kailash Nagar, Nagpur. Both of them were working with one contractor namely Kanhere. On the day of incident, the contractor had given him Rs.1000/- and Rs.800/- to deceased ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 8 APEAL567-13&577-13&443-15.odt Vinod. After receiving the said amount, they had returned to the house of Rewaram. They became fresh at the house of Rewaram and both of them went to consume liquor. Both of them consumed one nip of liquor and thereafter they returned to the house of Rewaram. Deceased Vinod talked with his wife. At the house of Rewaram, they had meal of chicken. Thereafter Vinod was telling him that he has to go to his village Kawadiya. Rewaram and his wife were telling to Vinod that he should go to village in the morning and should not go at night. However, he and Vinod left the house of Rewaram so as to go to village at around 10 to 10.30 p.m. They started proceeding to reach the M.P. Bus Stand from Manewada. They stopped one auto for going to M.P. Bus Stand. However, auto driver told them that he will take them to half the distance since he is not proceeding towards M.P. Bus Stand and he told the fare charges of Rs.60/-. Said auto driver reached them upto half distance. Thereafter they started walking towards M.P.Bus Stand. One auto-rickshaw came near them. They asked auto driver whether he will reach them at M.P. Bus Stand. The auto driver told them that he will charge Rs.100/- for M.P. Bus Stand. Vinod and PW2 sat in the said auto so as to reach at M.P. Bus Stand. Three persons were already there in the auto. They started beating them and they were trying to ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 9 APEAL567-13&577-13&443-15.odt snatch money from them. PW2 Suresh and Vinod told them that they should not beat them and they should take amount and mobile from them and allow them to go. The accused were telling that they will kill them and they will not leave them. Thereafter the auto rickshaw was brought to a place where there was one big compound. Accused Dinesh kicked PW2 Suresh in the auto and hence he was forcibly thrown out of the auto and he fell down. Accused no.1 Nilesh was beating to deceased Vinod Inwate. Accused Kateshwar was driving the auto. All the three accused were beating PW2 Suresh and Vinod. Accused No.1 Naidu threw a big stone on the head of deceased Vinod and killed him. PW2 Suresh was frightened and he started running away. Accused Dinesh chased him. He further stated that he was running and also asking the address of the house of Rewaram. Thereafter at about 8 a.m. in the morning, he reached the house of Rewaram and told about the incident to Rewaram. Rewaram also received call of Jitendra Inwate about the murder of Vinod. Thereafter Rewaram went to the Police Station and filed his complaint. After two days, his statement came to be recorded. Police asked him about the registration number of the auto and he told them the number of the auto to be "3899". The accused persons are identified by the said witness in the dock. The clothes of the ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 10 APEAL567-13&577-13&443-15.odt said witness were also seized by the Police. There are various contradictions and omissions in his evidence. Apart from that he has admitted in his cross-examination that he was with Police for inquiry for two days and he was kept in one room of Police Station and Police were making inquiry for 2-3 times with him. He has further admitted that Police left him after two days when the accused persons were brought and the Police were taking doubt on him.
10. No doubt that the conviction could be rested on the sole testimony of a witness. However, the evidence of such a witness has to be found to be cogent, reliable and trustworthy and the one which inspires confidence in the mind the Court.
11. It is not disputed that the present appellants are not known to PW2 Suresh. In his deposition, he does not refer to the test identification parade. Be that as it may. As could be seen from the evidence of PW7 Pandurang Wankhede, the test identification parade wherein PW2 has identified all the three accused persons, was conducted. The evidence of PW7 is below Exh.36. He states in his examination-in-chief that PW2 has identified the accused in the test identification parade out of 21 persons standing in line. The perusal of the cross- ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 :::
11 APEAL567-13&577-13&443-15.odt examination as well as identification parade memorandum would reveal that it is not mentioned in the memorandum of identification parade that the dummy witnesses were similar like that of accused persons. It would further reveal that this witness has admitted that the Police Officer brought Suresh Bopache to him and introduced him. 21 persons were standing in a row on the ground. Thereafter the said witness and the witness Suresh Bopache proceeded towards the ground where 21 persons were standing in a row. There he told accused persons to stand where they want to stand in a row. As per his suggestion, they took their places. It could thus be clearly seen that the accused were made to stand in a queue after PW7 and PW2 came on the ground. As such PW2 was very well made aware as to who are the accused persons before they were made to stand in a queue along with 21 dummies. We find that the said identification parade cannot be said to be free from doubt. In these circumstances, we find that the identification of the accused persons for the first time in the dock and the conviction of the appellants/accused on the sole testimony of PW2 Suresh without any corroboration would not be sustainable in law.
12. In addition to the testimony of PW2, the prosecution ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 12 APEAL567-13&577-13&443-15.odt has relied on the memorandum under Section 27 of the Evidence Act below Exh.82 of accused no.1 Nilesh on the basis of which the pant which was allegedly used by the accused at the time of the commission of the offence came to be seized. However, it is to be noted that the seizure is from an open ground i.e. from a place which is accessible to one and all. Similarly the prosecution also relies on the memorandum below Exh.80 of the accused no.2 Dinesh. The said recovery is from the house of accused no.2 Dinesh which is inhabited by the other members of the family. The clothes are said to have been seized from a cot below mattress. We, therefore, find that even this recovery also cannot be said to be from a place which was exclusively within the knowledge of the accused no.2. It is further to be noted that in the Chemical Analyser's report no blood is detected on the clothes seized from the said accused. On the contrary, the C.A. Report would show that the clothes which are seized from PW2 appear to be washed and are found to be stained with blood group "O".
13. The another circumstance on which the prosecution relies is the recovery of mobile of the deceased while arresting the accused. However, the said mobile set is not identified by anyone to be belonging to the deceased. The only link which ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 13 APEAL567-13&577-13&443-15.odt the prosecution wants to rely on is that from the SIM in the said mobile, the accused had telephoned one Ravindra @ Sonu Ramesh Madavi and upon inquiry with Ravindra, the investigating officer came to know about the name of the accused Dinesh. However, said Ravindra Madavi is also not examined.
14. If we discard the testimony of PW2 Suresh, then the case would come within the ambit of circumstantial evidence. The Apex Court in the case of Sharad Birdhichand Sarda .vs. State of Maharashtra reported in (1984) 4 Supreme Court Cases 116 has laid down the following principles:-
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(17) and Ramgopal v. State of Maharashtra(18). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 14 APEAL567-13&577-13&443-15.odt exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra('19) where the following observations were made: [SCC para 19, p.807:
SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 15 APEAL567-13&577-13&443-15.odt for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
15. It could thus be seen that in a case based on circumstantial evidence, before an order of conviction is passed, the prosecution will have to prove beyond reasonable doubt each and every incriminating circumstances. Not only that but the prosecution will have to establish the chain of proven circumstances which leads to no other conclusion than the guilt of the accused. As has been held by Their Lordships that apart from there being grammatical difference between "may have" and "must have", there is also a legal distinction between the accused might have committed the crime and it is only the accused who has committed the crime. As already discussed hereinabove, we find that firstly the prosecution has failed to establish the incriminating circumstances and in any case has failed to establish the chain of proven circumstances which leads to no other conclusion than the guilt of the accused. We find the appeals deserves to be allowed.
16. The criminal appeals are allowed. The conviction and ::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 ::: 16 APEAL567-13&577-13&443-15.odt sentence awarded to the appellants/accused for the offences punishable under Sections 302, 342, 394 and 397 read with Section 34 of the Indian Penal Code vide judgment and order dated 30.09.2013 passed by the Additional Sessions Judge, Nagpur, in Sessions Trial No. 540/2011 are quashed and set aside. The fine amount, if paid, be refunded to the appellants. The appellants are ordered to be released and set at liberty forthwith, if not required in any other case.
17. Fees payable to the learned counsel appointed for the appellant in Criminal Appeal No. 443/2015 are quantified at Rs.5000/- (Rupees Five Thousand Only).
(Kum. Indira Jain, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
::: Uploaded on - 09/03/2017 ::: Downloaded on - 10/03/2017 00:45:09 :::