Bombay High Court
Rahul S/O Raju Kalamkar (Presently In ... vs The State Of Maharashtra Through Police ... on 18 August, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik, M.G. Giratkar
APEAL 364 to 366, 379 & 530 of 2013 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 364/2013
Amol @ Chintu s/o Krushna Lanjewar,
Aged about 19 years, Occ. - Private,
R/o Nehru Nagar, Near the house of Bandu
Telwale, Prajapati Nagar Chowk,
P.S. Nandanvan, Nagpur. ... APPELLANT
.....VERSUS.....
The State of Maharashtra,
Through P.S.O., P.S. Nandanvan,
Dist. Nagpur. ... RESPONDE
NT
Shri R. M. Daga, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
WITH
CRIMINAL APPEAL No. 365/2013
Jagdish @ Jaggu s/o Vitthalrao Kosurkar,
Aged about 28 years, Occ. - Private,
R/o Garoba Maidan, Mate Chowk,
Plot No. 286, PS Lakadganj,
Nagpur. ... APPELLANT
.....VERSUS.....
The State of Maharashtra,
Through Police Station Officer,
Polce Station Nandanvan,
District Nagpur. ... RESPONDE
NT
Shri R. M. Daga, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
WITH
CRIMINAL APPEAL No. 366/2013
(1) Palash Sanjay Suryawanshi,
Aged 20 years, Occ. - Private Service,
R/o Garoba Maidan, In front of
Buki Clinic, P.S. Lakadganj,
Nagpur.
(2) Manoj @ Chaman s/o Ashok Dasarwar,
Aged about 30 years,
Occ. - Private Service,
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APEAL 364 to 366, 379 & 530 of 2013 2 Common Judgment
(3) Kusum w/o Ashok Dasarwar,
Aged about 56 years,
Occ. - Household
Nos. 2 & 3 R/o. Garoba Maidan,
Nagpur & Vyankatesh Nagar,
Nandanwan Area, Block F,
Flat No. 222, P.S. Nandanwan,
Nagpur. ... APPELLANTS
.....VERSUS.....
State of Maharashtra,
Through P.S.O., Nandanvan,
District Nagpur. ... RESPONDE
NT
Shri R. M. Patwardhan, Counsel for the appellants.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
WITH
CRIMINAL APPEAL No. 379/2013
Rahul s/o Raju Kalamkar,
Aged about 24 years, Occ. - Private,
R/o. Flat No. 265, C/o. Gendlal Kalse,
Near Durga Mandir, Ganesh Nagar,
P.S. Kotwali, Nagpur. ... APPELLANT
.....VERSUS.....
The State of Maharashtra,
Through Police Station Officer,
Police Station Nandanvan,
Dist. Nagpur. ... RESPONDE
NT
Shri L. B. Khergade Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
WITH
CRIMINAL APPEAL No. 530/2013
Girish @ Nanu s/o Ashok Dasarwar
Aged 24 years, Occ. - Private,
R/o Vyanktesh Nagar,
Nandanvan Area, Block F,
Flat No. 222, P.S. Nandanvan,
Nagpur. ... APPELLANT
.....VERSUS.....
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APEAL 364 to 366, 379 & 530 of 2013 3 Common Judgment
State of Maharashtra,
Through P.S.O., P.S. Nandanvan. ... RESPONDE
NT
Shri A. K. Bhangde, Counsel for the appellant.
Shri S. S. Doifode, Additional Public Prosecutor for the respondent
CORAM : SMT VASANTI A NAIK AND
M.G. GIRATKAR, JJ.
DATE : 16 & 18 TH AUGUST, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Since these criminal appeals arise out of the judgment of the Ad-hoc Additional Sessions Judge, Nagpur, dated 27-6-2013 in Sessions Trial No. 158 of 2012, they are heard together and are decided by this common judgment.
2. According to the prosecution case, Dinesh Bukkawan, aged about 29 years was residing in Vyankatesh Nagar, Nagpur and was running a pool parlour in the name 'Master Snookers', near the main gate of Vyankatesh Nagar. Dinesh was earning sufficient income from the pool parlour but he closed down the same in the month of October-2011 and shifted to Bhandara. According to the prosecution, accused no.3-Rahul Kalamkar, the appellant in Criminal Appeal No. 379 of 2013 was working as a servant in the pool parlour of Dinesh. It is alleged that accused Girish @ Nanu, the appellant in Criminal Appeal No. 530 of 2013 and Jagdish @ Jaggu, the appellant in Criminal Appeal No. 365 of 2013, were regularly ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 4 Common Judgment visiting the pool parlour run by Dinesh for playing games. The accused nos.1 to 5 are friends and accused no.6-Manoj and accused no.7 Kusum are the brother and mother respectively of accused no.1-Girish. After Dinesh closed his pool parlour, accused no.3-Rahul became jobless and the accused nos.1 and 2-Girish @ Nanu and Jagdish @ Jaggu started pressurizing Dinesh to sell the pool parlour to them. Dinesh was not ready to sell the pool parlour to accused no.1-Girish @ Nanu and accused no.2-Jagdish @ Jaggu and he had informed about this fact to his brother Pankaj. It is the case of the prosecution that on 9-11-2011, Dinesh left Bhandara for going to Nagpur on his Bajaj Pulsar motorcycle. It is alleged that while leaving the house at Bhandara, Dinesh had told his family members that he would return by evening. The relatives of Dinesh had called him in the afternoon and Dinesh had told them that he would return to Bhandara by evening. That after some time Dinesh stopped receiving the phone calls as his phone was switched off. It is the case of the prosecution that the family members and friends of Dinesh started searching for Dinesh and the brother-in-law of Dinesh - Anil Ambade (PW3) reported the matter to Nandanvan Police Station. The 'missing' complaint was lodged but Dinesh was not traced till 16-12-2012. According to the prosecution, on 16-12-2012, Pankaj, the brother of Dinesh (PW1) and Anil Ambade, the brother-in-law of Dinesh went to the house of accused no.1-Girish, at Flat No.222-F in Vyankatesh Nagar and at ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 5 Common Judgment that time accused nos. 6 and 7, the brother and the mother of accused no.1-Girish, were present in the flat. Since Pankaj and Anil Ambade noticed some foul smell, they enquired with the accused no.7 Kusum about the same and accused no.7 told that it was possible that a rat may have died. PW1 Pankaj and PW3 Anil Ambade then went in the direction from where the foul smell was coming and they noticed a blue coloured drum kept in the bedroom of the flat. Since the foul smell seemed to have been coming from the drum, the cover of the drum was opened and Pankaj (PW1) and Anil Ambade (PW3) saw the dead body of Dinesh in the drum in the sitting position. Immediately, Pankaj, went to Nandanvan Police Station to lodge a report and the first information report was registered.
3. After the recovery of the dead body of Dinesh from Flat No. 222-F, the investigating officer conducted the investigation and a charge- sheet was filed. The charge was read over and explained to the accused persons and since they pleaded not guilty and claimed to be tried, the statements of the accused were recorded under the provisions of Section 313 of the Code of Criminal Procedure. After recording the evidence and hearing the parties, by the judgment and order dated 27-6-2013, the trial Court convicted accused no.1-Girish @ Nanu, accused no.2-Jagdish @ Jaggu, accused no.3-Rahul, accused no.4-Amol and accused no.5-Palash for the offences punishable under Section 302 read with Section 34 of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 6 Common Judgment the Penal Code and sentenced them to suffer imprisonment for life and to pay fine of Rs. 2,000/- each and in default of payment of fine to suffer rigorous imprisonment for six months. The accused nos.1 to 3 were convicted for the offences punishable under Section 120(b) of the Penal Code and were sentenced to suffer life imprisonment and to pay fine of Rs. 2,000/- each and in default of payment of fine to suffer rigorous imprisonment for six months. All the accused were held to be guilty of the offences punishable under Section 201 read with Section 34 of the Penal Code and were sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- each and in default of payment of fine to suffer rigorous imprisonment for three months. While convicting the accused, the trial Court held that the accused nos.1 to 3 had a motive to kill Dinesh as they wanted the pool parlour and he was not ready to sell the same. The trial Court held that the accused nos.1 to 3 had hatched the conspiracy to kill Dinesh in order to grab the pool parlour and that accused no.1-Girish @ Nanu had called accused nos.4 and 5 to Flat No.222-F with a view to convince Dinesh to sell the pool parlour. The trial Court held that the accused nos.1 to 7 had caused the disappearance of the evidence i.e. the dead body of Dinesh, his motorcycle, his mobile phones, his shoes, etc. and had thereby destroyed the evidence of murder and hence, they were guilty of the offences punishable under Section 201 read with Section 34 of the Penal Code. The trial Court held that in ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 7 Common Judgment furtherance of the common intention, the accused nos.1 to 5 committed the murder of Dinesh and therefore, they were liable to be convicted for the offences punishable under Section 302 read with Section 34 of the Penal Code. Being aggrieved by the judgment of the trial Court, the accused nos.1 to 4 have filed separate appeals and the accused nos.5 to 7 have filed Criminal Appeal No. 366 of 2013.
4. Shri Bhangde, the learned counsel for accused no.1-Girish @ Nanu submitted that the trial Court has not considered the entire evidence on record, specially the evidence that could have falsified the case of the prosecution. It is submitted that the prosecution has failed to prove beyond reasonable doubt that the death of Dinesh was homicidal. It is submitted that the postmortem report would clearly show that there were no external injuries on the body of the deceased and the hyoid bone and vertebrae was intact. It is submitted that the opinion that the death could be homicidal is not based on medical evidence but is based on the circumstance that the body of the deceased was found in a drum. It is submitted that neither is the cause of the death of the deceased mentioned in the postmortem report nor is the time of the death of the deceased stated in the same. It is stated that it is vaguely observed in the report that the death could have occurred between 7 to 30 days prior to the conducting of the postmortem procedure. It is stated that there is ample evidence on record to point out that accused Girish @ Nanu was ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 8 Common Judgment not residing in Flat No.222-F at Vyankatesh Nagar, Nagpur and the case of the prosecution in that regard is false. It is submitted that the panch witness to the statement of the accused no's 2, 4 and 5 under Section 27 of the Evidence Act and the alleged recovery has turned hostile and the admissions of the Investigating Officer Shri Nandurkar in his cross- examination would falsify the alleged recovery of the motorcycle and the mobile phones. It is submitted that it is apparent from the admissions of the investigating officer in his cross-examination that the mobile phones, the motorcycle and the shoes that were purportedly recovered by the investigating officer on the basis of the alleged statements made by the accused under Section 27 of the Evidence Act were not identified to be that of deceased Dinesh. It is submitted that the 'last seen together' theory of the prosecution should also fail as Pradeep Rehpade (PW2) has clearly admitted in his cross-examination that though he was called to Nandanvan Police Station 10-12 days after the incident dated 9-11-2011, he had not told the police that he had seen deceased Dinesh along with accused no.1-Girish @ Nanu and accused no.3-Rahul, on 9-11-2011. It is stated that since the time of the death is not known and as per the postmortem examination the death could have occurred between 7 to 30 days before the postmortem procedure was conducted, the 'last seen together' theory cannot be applied even assuming that the prosecution has proved that Pradeep Rehpade had seen accused nos.1 and ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 9 Common Judgment 3 with the deceased on 9-11-2011. It is submitted that there has to be a proximity of time between the occurrence of death and the time when the accused and the deceased were last seen together. It is submitted that since the offences could not have been proved against the accused on the basis of prosecution evidence, the trial Court ought to have acquitted the accused.
5. Shri Daga, the learned counsel for accused no.2-Jagdish and accused no.4-Amol, submitted that the only evidence against accused- Jagdish and accused no.4-Amol is the recovery of the motorcycle and the mobile phone on the statements made by Jagdish and Amol respectively under Section 27 of the Evidence Act. It is submitted by referring to the cross-examination of the investigating officer Shri Nandurkar that the identity of the mobile phone is not proved by the prosecution. It is submitted that it is apparent from the cross-examination of the investigating officer that the prosecution did not take any steps to identify the handset that was recovered from the house of accused no.4-Amol to be the mobile phone of Dinesh. It is submitted that it is clear from the cross-examination of the investigating officer that he had not made any enquiry in whose name the company had issued the handset and in whose name the sim card was issued by the company. It is submitted that the investigating officer had also admitted that he did not find out the IMEI number of the mobile phone and also did not make an ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:55 ::: APEAL 364 to 366, 379 & 530 of 2013 10 Common Judgment enquiry to whom the said mobile phone was sold by the company. It is stated that it is clear from the cross-examination of the investigating officer that the handset that was allegedly recovered from the house of accused no.4-Amol was not identified to be the handset of deceased Dinesh. It is stated that similarly the investigating officer had admitted in his cross-examination that he had not recorded the statement of the contractor of the parking area in the railway station where the Bajaj Pulsar motorcycle of Dinesh was parked. It is stated that it appears from the cross-examination of the investigating officer that he did not ask the contractor whether he had made any complaint about the vehicle lying in the parking area for past several days and had also not asked the contractor of the parking area or the workers in the parking area, who had parked the said vehicle in the parking area by showing the photographs of deceased Dinesh or accused no.2-Jagdish. It is stated that in the aforesaid set of facts, it cannot be said that on the statements allegedly made by the accused nos.2 and 4, the motorcycle and the handset were recovered, more so when the panch witness had turned hostile and has denied that the statements under Section 27 of the Evidence Act were made by the accused nos.2 and 4 in his presence. It is stated that even assuming that the recovery is proved, an offence under Section 302 of the Penal Code cannot be made out against the accused nos.2 and 4 on the basis of the evidence on record. ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 :::
APEAL 364 to 366, 379 & 530 of 2013 11 Common Judgment
6. Shri Khergade, the learned counsel for accused no.3-Rahul submitted that the only evidence that was sought to be produced by the prosecution against the accused no.3 is his statement in regard to the recovery of the shoes of Dinesh from Nandanvan layout. It is submitted by taking this Court through the evidence of the panch witness that the case of recovery of the shoes from the open space is not proved. It is further stated that since the recovery is made from an open space, the same is not reliable. It is submitted that the trial Court has wrongly relied on the evidence of PW2-Pradeep Rehpade in regard to the 'last seen together' theory. It is submitted that it is admitted by PW2-Pradeep in his cross-examination that he had not informed the police at any point of time before his statement was recorded on 2-2-2012 that he had seen deceased Dinesh along with accused no.3-Rahul on 9-11-2011 when he was going to the house of his friend Katekhaye in Vyankatesh Nagar. It is submitted that on the basis of such weak pieces of evidence, which are further not proved, accused no.3-Rahul could not be convicted for any of the offences. It is submitted that there is absence of convincing evidence that accused no.3-Rahul was a servant of deceased Dinesh in the pool parlour and that the accused no.3 had any role to play in the murder of deceased Dinesh.
7.
-- Shri Patwardhan, the learned counsel for the accused nos. 5, 6 and 7 submitted that the clothes on the body of deceased Dinesh as per the description in the 'missing' complaint and the clothes that were found ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 12 Common Judgment on the body of deceased on 16-12-2011 are totally different but this aspect of the matter was not considered by the trial Court while deciding the matter. It is further submitted that the panch witness to the statement allegedly made by accused no. 5 - Palash under Section 27 of the Evidence Act had flatly denied that Palash had made such statement before the police authorities and that the recovery of LG phone of deceased Dinesh was made in his presence. It is stated that the evidence of the investigating officer in respect of the recovery is also not convincing and hence there is nothing against accused no. 5 Palash that could result in his conviction, more so for the offence punishable under Section 302 of the Penal Code. It is stated that the case of the prosecution is unbelievable and the trial Court has erred in not considering the evidence which could have falsified the case of the prosecution. It is stated that the trial Court ought to have considered that the accused nos. 6 and 7 were not present in Flat No. 222-F on 16-12-2011 when the body of Dinesh was allegedly recovered from the drum in the bed room of Flat No. 222-F. It is stated that there is ample evidence on record that would falsify the case of the prosecution that accused no. 1 Girish @ Nanu was in possession of Flat No. 222-F when the offence was allegedly committed on 9-11-2011. It is submitted that in the circumstances of the case, the accused are entitled to be acquitted.
8. Shri Doifode, the learned Additional Public Prosecutor ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 13 Common Judgment appearing for the State of Maharashtra has supported the judgment of the trial Court. It is submitted that the trial Court has rightly convicted the appellants after the motive for murder of Dinesh was proved and the recovery of the mobile phones were made on the statement of Palash and Amol and the Bajaj Pulsar motorcycle of deceased Dinesh was recovered on the statement made by Jagdish under Section 27 of the Evidence Act. It is submitted that there is ample evidence on record to prove that accused nos. 1 to 3 had hatched a conspiracy to kill Dinesh with a view to grab his pool parlour. It is stated that accused nos. 1 to 5 had murdered Dinesh in Flat No. 222-F which was in possession of Girish @ Nanu and had dumped the dead body in the drum inside the bed room of the said flat. It is submitted that when the dead body of Dinesh was recovered from Flat No. 222-F on 16-12-2011, accused nos. 6 and 7 were present in the said flat. It is submitted that on the basis of Exhibit 100, the rent note executed between the landlord Shri Barapatre and accused no. 1 Girish @ Nanu Dasarwar, it could be proved that Girish was the tenant in Flat No. 222-F and that he was in possession of the said flat. It is submitted that since the recovery of the mobile phones, motorcycle and the shoes of Dinesh were made on the statements made by the accused nos. 2, 3 and 4, the trial Court has rightly held that there was ample evidence on record to convict the accused for the murder of Dinesh and destroying the evidence, specially when the motive for killing Dinesh was ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 14 Common Judgment proved by the prosecution. The learned Additional Public Prosecutor sought for the dismissal of the appeals.
9. On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in these appeals :-
(1) Whether the prosecution has proved beyond reasonable doubt that the accused/appellants were guilty of the offences and were liable to be convicted for the same ?
(2) What order ?
10. We would proceed to decide the appeals by noting that the prosecution case is not based on direct evidence and there are no eye witnesses to the alleged murder of Dinesh. The case of prosecution is based on circumstantial evidence. While deciding a case based on circumstantial evidence, the court would be obliged to bear in mind, the well settled principles of law laid down by the Hon'ble Supreme Court from time to time. As early as in the year 1952 the Hon'ble Supreme Court has held in the judgment in the case of Hanumant Govind Nargundkar and anr. Vs. State of Madhya Pradesh reported in AIR 1952 SC 343 that :
"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 15 Common Judgment 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 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 for 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."
The aforesaid principles were reiterated by the Hon'ble Supreme Court time and again and it was held in judgment in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 that :-
"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence :
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (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 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.::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 :::
APEAL 364 to 366, 379 & 530 of 2013 16 Common Judgment
.......
Moreover the prosecution must stand or fall on
its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court."
In the judgment in the case of Kishore Chand Vs. State of Himachal Pradesh reported in AIR 1990 SC 2140, the Hon'ble Supreme Court held thus :
"In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 17 Common Judgment the chain of the continuity of the circumstances is broken the accused is entitled to the benefit of doubt."
It is apparent from the aforesaid judgments of the Supreme Court that while dealing with the case based on circumstantial evidence, it would not be permissible for the Court to pass its judgment on conjectures and suspicion can never take the place of legal proof. It is clear from the aforesaid judgments that in the case based on circumstantial evidence, there must be a chain of evidence so far complete, as not to leave any reasonable ground for 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. Apart from this, the Court must also bear in mind that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is in this background that we are required to appreciate the evidence tendered by the prosecution to prove the guilt of the accused.
11. To prove the case based on circumstantial evidence the prosecution examined as many as 20 witnesses. P. W. No.1 Pankaj, the brother of deceased Dinesh was examined in support of the case of the prosecution that Dinesh had informed him that accused No.1 Girish and accused No.2 Jagdish were pressurising Dinesh for selling his pool parlour and also in support of the case that on 16-12-2011, when Pankaj and Anil Ambade-P.W. 3 had visited Flat No. 222-F in possession of accused No.1 ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 18 Common Judgment Girish, they had found that the dead body of deceased Dinesh was kept in a drum inside the bedroom of the flat. Pankaj admitted in his cross- examination that the pool parlour was run in a rented room and Dinesh used to earn a sum of Rs.25,000/- to Rs.30,000/- from the pool parlour. Pankaj also admitted in his cross-examination that whenever he had called accused No.1 Girish, after the incident he always talked to him and helped them in searching Dinesh. The prosecution examined P.W. 2 Pradeep Rehpade, who had testified that when he came to Nagpur on 9-11-2011 along with his friend Raghunath Bhure for visiting his friend Katekhaye in Vyankatesh Nagar, he saw accused No.3 Rahul, accused No.1 Girish and Dinesh on a motorcycle, triple seat at 2.30 p.m. Pradeep Rehpade, however admitted in his cross-examination that when he was called to the police station, 10 to 12 days after 9-11-2011 he did not inform the police that he had seen Dinesh with accused Nos.1 and 3 on the motorcycle. He also admitted that the police did not ask the address of his friend Katekhaye and also did not verify from Katekhaye whether Pradeep Rehpade had gone to his house. P.W. 3 Anil Ambade deposed in his evidence that he and Pankaj had been to the flat of accused No.1 Girish on 16-12-2011 at 10.30 p.m. and at that time the mother and brother of accused No.1 were present in the flat. He stated in his evidence that when they noticed foul smell, they entered the flat and went in the direction of the smell and opened a blue drum in the bedroom of the flat ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 19 Common Judgment and saw the dead body of Dinesh in the drum. In the cross-examination Anil Ambade however admitted that whenever they had called accused No.1 Girish to search Dinesh, he was ready to help them. P.W. 4 Sudarshan Barapatre was examined by the prosecution to prove that Flat No. 222-F belonging to him was given on rent to accused No.1 Girish and he had executed a rent note at exhibit-100. P.W. 5 Lalit Bais was examined to prove that the dead body of Dinesh was recovered from the drum. This panch witness however stated in his cross-examination that the drum was kept in the balcony. He admitted in his cross-examination that he was a friend of Pankaj, the brother of deceased and both of them resided in Matru-Shruti Nagar, Bhandara. He admitted that he knew Pankaj since ten years. Jagdish Pardeshi, the Police Sub-Inspector to whom the investigation was handed over by Police Inspector Sonvane was examined as P.W. 6 and P.W. 7 Chandrahar Godse, who was posted as Police Sub-Inspector at Nandanvan Police Station was also examined to prove that the dead body of Dinesh was recovered from Flat No. 222-F in Vyankatesh Nagar. P.W. 8 Dr. Rhishikesh Pathak, was working in the Department of Forensic Medicine. The said witness deposed that Dinesh had died approximately seven days to one month before the date of the postmortem examination. He admitted that no opinion was possible about the cause of death of Dinesh due to advanced decomposition of the dead body but the death appeared to be homicidal, considering the ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 20 Common Judgment circumstances. The said witness stated that the early stage of decomposition starts within 24 to 36 hours of death and in the instant case, the dead body was in the advanced stage of decomposition. The witness admitted in his cross-examination that there was no injury on the dead body as could be seen from the postmortem report. He admitted that the hyoid bone and the vertebrae was intact. P.W. 9 Vijay Gadhave was examined as he was the witness for the inquest panchnama. The said witness was also the friend of Pankaj. P.W. 10-Sheikh Kalam was examined for proving the recovery of shoes of Dinesh. In his cross- examination Sheikh Kalam admitted that he was acquainted with the police and that he cannot read and write. He admitted that all the panchnamas were already written and he could not read the panchanamas. He admitted that on the next day, the police had secured his signatures on the papers. P.W. 11, Satish Tambe was examined for proving the recovery of the motorcycle and the mobile phones on the statements made by accused No.2 Jagdish, accused No.4 Amol and accused No.5 Palash. The said witness flatly denied that the recovery was made in his presence and that the aforesaid accused had made such statements. P.W. 12 Anil Banode, the stamp vendor was examined to prove that accused No.1 Girish had purchased two stamp papers of Rs.100/- on 05-11-2011. P.W. 13 Vijay Jane-Police Sub-Inspector was examined to prove that the dead body was recovered from the drum ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 21 Common Judgment from Flat No. 222-F. P.W. 14 Rajkumar Tekam and P.W. 15 Chandrashekhar Maske were examined to prove the inquest panchnama. P.W. 16 Mohammad Ishaq was examined to prove the seizure of the clothes of the accused persons but he did not support the prosecution. P.W. 17 Dr. Vaishali Mahajan was examined to prove the DNA report for proving that the dead body recovered from the drum was that of Dinesh. P.W. 18 Vaishali Ambade, the sister of Dinesh was examined to prove that she had called Dinesh in the afternoon on 9-11-2011 and that he had informed her that he was in the company of accused No.3 Rahul and that he would return to Bhandara at about 5.00 to 5.30 p.m. P.W. 19 Sattyaveer Bandewar, Police Sub-Inspector was examined to prove about the police investigation before the dead body was recovered. The witness, however admitted in his cross-examination that none of the flat owners had informed him that there was any noise in Flat No.222-F on 9-11-2011 or that foul smell was coming from the said flat. The witness admitted that the signature of Pankaj-the brother of Dinesh was not taken on the panchnama for the identification of the boots of Dinesh. He admitted in his cross-examination that before 13-01-2012 there was no statement of any witness that he had seen Dinesh with any of the accused. The witness further admitted that he had not recorded the statements of the adjoining flat owners. He admitted that in the record of the stamp vendor, the address of accused No.1 Girish was shown to be Garoba Maidan. He ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 22 Common Judgment admitted that he had not made any inquiry about the other brothers and sisters of accused No.1 Girish. Lastly, the prosecution examined P.W. 20, Police Inspector Satish Nandurkar, who was attached to the police station on 16-12-2011. He was examined for proving the statements made by accused Nos.2, 4 and 5 under section 27 of the Evidence Act leading to the alleged recovery of the motorcycle, the mobile phones and the boots of the deceased. In his cross-examination, he made some glaring admissions which could show that he had not identified the said articles to be that of deceased Dinesh. At this juncture, we may note that it is always not the quantity of evidence that could lead in proving the case of the prosecution, but it is the quality of the evidence that would matter. We would refer to the relevant evidence tendered by the prosecution witnesses and the significance thereof, later.
12. In defence, accused No.1 Girish alias Nanu examined himself only with a view to prove that he was not residing in flat No.222-F in Vyankatesh Nagar but was residing at Adarsh Nagar, Garoba Maidan Chowk. Accused No.1 Girish alias Nanu produced the ration card to prove that he was residing at Garoba Maidan. When a query was made to the accused No.1 in his cross-examination whether the signature on the agreement exhibit-100 was his signature, he had denied the said suggestion. Accused No.1 Girish examined Dhiraj Kshirsagar, his neighbour for proving that he was residing at Adarsh Nagar, Garoba ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 23 Common Judgment Maidan Chowk and was not a resident of Flat No. 222-F.
13. It would be necessary to first recapitulate the prosecution case. According to the prosecution story, in the month of October, 2011, deceased Dinesh Bukkawan, had closed down his pool parlour at Nagpur and had shifted to Bhandara. Accused no. 3 Rahul was working in the pool parlour as a servant. Accused no. 1 Girish @ Nanu and accused no. 2 Jagdish who were frequently visiting the pool parlour of Dinesh were pressurising Dinesh for selling his pool parlour to them. Dinesh was however not willing to sell his pool parlour to accused no. 1 Girish and accused no. 2 Jagdish. In this background, according to the prosecution, accused nos. 1 to 3 hatched a conspiracy to murder Dinesh with a view to grab the pool parlour. It is the case of the prosecution that the accused nos. 1 to 5 murdered Dinesh on 9-11-2011 in Flat No. 222-F which was in possession of accused no. 1 Girish @ Nanu. The 'missing' complaint about Dinesh was lodged by Anil Ambade (P.W. 3) who is the husband of the sister of Dinesh. Dinesh was however, not traced till 16-12-2011, on which day, according to the prosecution, his body was recovered from a drum in the bed room of Flat No. 222-F. It is the case of the prosecution that at about 10.30 p.m., Pankaj, P.W. 1, the brother of Dinesh and Anil Ambade, P.W. 3 went to Flat No. 222-F and noticed some foul smell. It is alleged that at that time, accused no. 1 Girish @ Nanu was not in the flat and his brother- accused no. 6 and his mother Kusum, accused no. 7 ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 24 Common Judgment were present. It is alleged that Pankaj, the brother of Dinesh and Anil Ambade went inside the flat in the direction from which the smell was coming and after going into the bed room of the said flat, opened the lid of the blue drum that was lying inside the bed room to find the dead body of Dinesh in the drum in the sitting condition.
14. The case of the prosecution as aforesaid, does not appeal to us. Pankaj (P.W. 1) and Anil Ambade were not closely related or associated with accused no. 1 Girish. It is not disclosed by the prosecution i.e. by P.W. 1 Pankaj or P.W. 3 Anil Ambade as to why they went to the flat of Girish at about 10.30 at night and as to how they went inside the flat right till the bed room and opened the lid of the drum which was lying inside the bed room of the flat. The normal human conduct does not permit that persons who are not closely acquainted and familiar to the occupants of a house would straightaway walk into the bedroom of the house and open the lid of a drum located in the bedroom. It is not the case of the prosecution that Pankaj (P.W. 1) and Anil Ambade (P.W.3) were closely associated with Girish or his brother and mother. Pankaj had only met Girish on a few occasions when he had been to the pool parlour of Dinesh. If that is so, we find it difficult to accept that Pankaj, the brother of the deceased and Anil Ambade, the brother-in-law of the deceased would walk into the house of accused no. 1 to whom they were not very closely acquainted and enter into the bed room of his house in ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 25 Common Judgment his absence and open the drum from which they thought that the foul smell was coming. We find that this part of the case of the prosecution is somewhat doubtful. The said case is not worthy of acceptance, as it would not be for a person who is not closely acquainted with another to go into the bed room of the other person in his absence and open the drum in the bed room merely because he had noticed some foul smell. The normal conduct would be, even if they had suspected anything foul, to go to the Police Station immediately and ask the police to come to Flat No. 222-F and make an investigation in respect of the foul smell.
15. Since it is a case of circumstantial evidence, motive would play a somewhat important role in proving the guilt of the accused. It would be necessary to consider whether the prosecution has sufficiently proved that the accused nos. 1 to 5 had a motive to kill Dinesh. It is the case of the prosecution that Dinesh has closed down the pool parlour in the month of October, 2011 and he had shifted to Bhandara. It is noteworthy that the alleged crime was committed on 9-11-2011. It is difficult to accept that within one week from the date of closure of the pool parlour by deceased Dinesh, accused nos. 1 to 3 would hatch the conspiracy to eliminate Dinesh with a view to grab the pool parlour. We fail to fathom as to how the pool parlour could be grabbed by the accused nos. 1 to 3, if Dinesh was murdered. The pool parlour is run in the rented premises as could be seen from the cross-examination of P.W. 1 Pankaj. ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 :::
APEAL 364 to 366, 379 & 530 of 2013 26 Common Judgment Dinesh was earning only sum of Rs. 25,000/- to 30,000/- per month, from the pool parlour. If accused nos. 1 to 3 could not have become the owners or possessors of the pool parlour, by killing Dinesh, it cannot be said that the accused nos. 1 to 3 had a motive for killing Dinesh with a view to grab the pool parlour. If a particular property would come to an accused person by killing another, it could be said that the said person who allegedly kills the other, would have a motive to kill him. In this case, the pool parlour could not have been transferred to the accused nos. 1 to 3 on the death of Dinesh. The pool parlour could not have been grabbed by killing Dinesh. The motive as alleged by the prosecution cannot be a motive to kill Dinesh. In any case, we find that the motive, as alleged by the prosecution is not sufficient enough for committing the heinous crime of murder of Dinesh. The prosecution case in respect of motive cannot be said to be proved on the basis of the evidence of P.W. 1, Pankaj that the accused were pressurizing Dinesh to sell the pool parlour to them. The case of the prosecution that the accused nos. 4 and 5, Amol and Palash were involved in the crime after they were called in Flat No. 222-F by accused no. 1 Girish to convince Dinesh to sell the pool parlour to accused nos. 1 to 3, appears to be improbable. It also cannot be said that the 100 Rupees Stamps secured from the house of accused no. 3 Rahul were purchased by accused no. 1 Girish for purchasing the pool parlour. We are therefore not in agreement ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 27 Common Judgment with the finding of the trial Court that the prosecution had succeeded in proving that the accused nos. 1 to 3 had hatched the conspiracy to murder Dinesh for grabbing the pool parlour.
16. It would now be necessary to consider whether the prosecution has proved beyond reasonable doubt that the death of Dinesh was homicidal. The dead body of Dinesh was sent for post mortem examination after it was recovered on 16-12-2011. The post mortem procedure was conducted on 17-12-2011. According to the post mortem report, the cause of death is not known. Even according to the prosecution case, the cause of death is not known. In the post mortem report, it is noted that no injury was found on the body of the deceased. The hyoid bone was intact and so was the vertebrae. It is further opined in the post mortem report that the death must have occurred between 7 to 30 days before the conducting of the post mortem procedure. The prosecution has examined P.W. 8 Dr. Rishikesh Pathak who was working in the Department of Forensic Medicine and who had conducted the post-mortem procedure. The doctor opined that it was not possible to state about the cause of death due to advanced decomposition of the dead body but considering the circumstances in which the body was found, the death appears to be homicidal. P.W. 8 Pathak has stated in his evidence that the early stage of decomposition starts within 24 to 36 hours after death. The witness had admitted that in the instant case, the ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 28 Common Judgment dead body was in the advanced stage of decomposition. P.W. 8 admitted in his cross-examination that there was no injury on the body, as mentioned in the post mortem report, the hyoid bone was intact and the vertebrae was also intact. When a query was posed to P.W. 8 in his cross- examination whether in such type of cases, the exact cause of death or time of death could be given, he had stated that it depends upon the case. The witness admitted that though a concrete opinion could not be given in respect of the cause of death of the deceased as also whether the death was homicidal on the basis of medical evidence, the body was not sent to the Anatomy Department. It is difficult to gauge on what basis the prosecution has proved that the death of Dinesh was homicidal. It was necessary for the investigating officer and the doctors to ensure that the decomposed body was sent to the Anatomy Department for further examination so as to give an opinion in regard to the cause of the death of the deceased. In the case of the State of Punjab Vs. Bhajan Singh and ors. reported in 1975 SCC (Cri) 584, it is held by the Hon'ble Supreme Court that when the dead body was highly decomposed and the doctor was unable to find out the reason of the death, the failure on the part of the doctor to send the body to the Anatomy Expert may be a ground for drawing an adverse inference against the prosecution. In almost similar set of facts, when the decomposed body was sent for medical examination and the post mortem report did not state about the cause of the death of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 29 Common Judgment the deceased, the Hon'ble Supreme Court held that it was not possible to hold that the death of the deceased was homicidal, specially, when the decomposed body was not sent for further examination to the Anatomy Expert and there were no marks of ligature on the dead body. In the present case, the post mortem report shows that there were no external injuries on the body, the hyoid bone was intact and there was no injury to the vertebrae. The doctors could not have opined that the death could be homicidal only because the dead body was recovered from a drum, when there was no medical evidence, whatsoever to prove that the death of Dinesh was homicidal. It is held by the Rajasthan High Court in the judgment reported in 1988 Cri. L. J. 1054 that when a dead body is found after 1½ months in a decomposed condition and the same is not referred to an anatomy expert, it would be a serious lacuna and the accused would be entitled to the benefit of doubt. In the circumstances of the case, it cannot be said that the prosecution has proved beyond reasonable doubt that the death of Dinesh was homicidal. The trial Court has erred in not considering these aspects of the matter while recording a finding that the death was homicidal on the basis of the recovery of the dead body of Dinesh from the drum, specially when the opinion of the doctors was not based on medical evidence. In the judgment reported in AIR 1991 SC 1224, the Hon'ble Supreme Court had held that when there is no specific evidence as to the cause of death, the prosecution cannot ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 30 Common Judgment proceed on the presumption on the basis of the recovery of an empty cartridge seized from the side of the dead body that the deceased should have been murdered by shooting. In the instant case also, merely because the body of deceased Dinesh was allegedly recovered from a drum, it cannot be said beyond reasonable doubt that the death of Dinesh was homicidal.
17. In view of the aforesaid finding, though the prosecution would not be able to prove the offence against the accused, it would be necessary to deal with the prosecution case in regard to the recovery of the dead body of Dinesh from Flat No. 222-F which according to the prosecution was in possession of Girish. The prosecution has based its case in regard to the possession of accused no. 1 Girish @ Nanu over Flat No. 222-F, solely on the basis of the rent note, Exhibit 100 allegedly executed between accused no. 1 Girish @ Nanu and Shri Barapatre who is said to be the owner of Flat No. 222-F and the deposition of P.W. 4 Barapatre. The case of the prosecution is based on Exhibit 100 - the rent note and the same is sought to be proved on the basis of the deposition of Sudarshan Barapatre - P.W. 4. The prosecution has relied on Exhibit 100
- rent note, the deposition of P.W. 4 Sudarshan Barapatre and the so called presence of accused no. 6 and 7 in the said flat when the body was recovered. The trial Court has relied only on the evidence of Sudarshan Baraptre, P.W. 4 and the rent note, Exhibit 100 to hold that Girish @ ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 31 Common Judgment Nanu was in possession of Flat No. 222-F. It would be necessary to consider Exhibit 100, the rent note allegedly executed between Girish @ Nanu and Sudarshan Barapatre. It is conspicuous to note that Flat No. 222-F was purportedly leased to the accused no. 1 by Sudarshan Barapatre for the period from 1-5-2010 to 1-4-2011 and this period expired a long time before 9-11-2011. The very basis for proving that the flat was leased to the accused no. 1 is shaken by the answer to the query made to the accused no. 1 in his cross-examination. The learned A.P.P. had posed a question to the accused no. 1 as to whether the rent agreement, Exhibit 100 bears his signature and the accused no. 1 had answered in the negative. The prosecution case pertaining to the possession of the accused no. 1 over Flat No. 222-F receives a big jolt by the said answer. The trial Court has however, not considered the evidence of accused no. 1 Girish in his cross-examination. Also, the trial Court has failed to consider that the accused no. 1 Girish had tendered oral and documentary evidence to prove that he was residing at Adarsha Nagar, Garoba Maidan, Mate Chowk for past 22 years. The accused no. 1, Girish had also examined his neighbour, Shri Dhiraj Kshirsagar to prove that he was residing at Garoba Maidan and not in Flat No. 222-F. Further, the trial Court failed to consider that accused no. 1 Girish was not the owner of Flat No. 222-F and on the date of incident on 9-11-2011, there was no agreement of lease between Sudarshan Barapatre and ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 32 Common Judgment accused no. 1 Girish, as even assuming that there was any lease deed executed between the parties, the same had expired on 1-4-2011. The trial Court failed to consider that there was no renewal of lease, after 1-4-2011. We are not inclined to accept, on the basis of the evidence on record, specially the answer of the accused no. 1 to the query made by the A.P.P. that he had not signed on Exhibit 100, that an agreement was executed between Sudarshan Barapatre and the accused no. 1. Sudarshan Barapatre had admitted in his cross-examination that the lease agreement had expired as per the document on 1-4-2011. It is conspicuous to note that though about five other flat owners were residing on the same floor of the building i.e. the third floor of the building, the prosecution has not examined any of the owners or possessors of the neighbouring flats to prove that Girish @ Nanu was in possession of Flat No. 222-F. PSI Nandurkar (P.W. 20), the Investigating Officer had admitted in his cross- examination that the statements of the residents of the adjoining flats i.e. Flat No. 223, 224, 225 and 226 were not on record. The accused no. 1 Girish, had produced the ration card showing that he was the resident of Garoba Maidan. The stamp vendors register, from whom Girish @ Nanu had according to prosecution purchased the stamps for entering into an agreement with Dinesh for the transfer of the pool parlour, had an entry that Girish was residing at Garoba Maidan. Accused no. 1 Girish had denied in his cross-examination that he had taken Flat No. 222-F on rent ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 33 Common Judgment from Sudarshan Barapatre and that he was residing in the said flat. Also, the investigating officer had admitted in his cross-examination that he had not made any enquiry as to who were the brothers and sisters of Dinesh and where they were residing. We are afraid that in the aforesaid set of facts it cannot be said that the prosecution has proved beyond reasonable doubt that at the relevant time on 9-11-2011, accused no. 1 Girish @ Nanu was in possession of Flat No. 222-F, from where the body of deceased Dinesh was recovered. The trial Court has only relied on the evidence of Sudarshan Barapatre and the lease deed at Exhibit 100, though the term of the lease had admittedly expired, to hold that accused no. 1 Girish was the possessor of Flat No. 222-F, without even referring to the other evidence on record which could have created a serious doubt in the mind of the Court whether accused no. 1 Girish was residing in Flat No. 222-F at the relevant time or not.
18. We are also surprised that the body of deceased Dinesh was allegedly recovered from Flat No. 222-F, nearly 38 days after the death. There are 500 to 600 flats in the complex at Vyankatesh Nagar, where Flat No. 222-F is located. In each building, there were 50 to 60 flats. On each floor, there were about six flats. On the third floor where Flat No. 222-F is located, there are other five flats. A dead body, according to the evidence of Dr. Rishikesh Pathak, starts decomposing within 24 Hours from the death. In the instant case, the body was in the advanced stage of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 34 Common Judgment decomposition. We are surprised that none of the flat owners had ever complained about any foul smell in their locality. There is an admission of P.W. 20, PSI Nandurkar in his cross-examination as also the other Investigating Officer, P.W. 19 Satyaveer Bandiwar that the residents of the complex did not mention in their statements that foul smell was coming from Flat No. 222-F or from anywhere in the complex. It is admitted by P.W. 19 PSI Bandiwar in his cross-examination that there always used to be a rush of visitors in the colony. It is admitted by Shri Bandiwar that the statements of the adjoining flat owners were not recorded and the other flat owners, whose statements were recorded did not mention about any foul smell coming out of Flat No. 222-F or from the building in which Flat No. 222-F is located. We normally find that even when a rat or a small bird dies in a house or a flat, it is not possible for the inhabitants of that house or flat to reside in the house even for a hour, as the foul smell of the dead animal or bird would be unbearable after a couple of days from its death. It is difficult to digest that a human dead body was dumped inside a drum in the bed room of a small flat which was admeasuring 350 sq.ft. where three persons were allegedly residing i.e. accused no. 1, his mother who is about 60 to 65 years of age and his brother. It is difficult to digest that a woman aged 60 to 65 years would reside in a house with a decomposed dead body in a drum which bears water to the extent of 1 ft. in height, without complaining. The foul smell ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 35 Common Judgment produced by a human dead body i.e. a highly decomposed dead body would be unbearable even on the third day. Not only would the inhabitants of that flat or house not be able to reside in the same but the adjoining flat owners would also not be able to live peacefully, if a dead body which is in the advanced stage of decomposition, is retained for 38 days. It is difficult to accept that three persons residing in a small flat would retain a dead body in the bedroom for 38 days. Even if a murder is committed in a flat, where some persons reside, in normal circumstances within a short time, the body of the person so murdered would be shifted to some other place. It is possible that a dead body may be dumped in a flat which is not in use at all, however, such is not the case of the prosecution. According to the prosecution, the dead body of Dinesh was retained for 38 days in the flat where accused no. 1 Girish, his mother, aged 60-65 years and his brother were actually residing. We are not inclined to accept the case of the prosecution in regard to the body of deceased Dinesh being dumped in a drum in the bedroom of the flat, where the accused no. 1 Girish @ Nanu and his mother and his brother were residing.
19. In regard to the recovery of the motorcycle, the mobile phones and the boots of Dinesh, it is necessary to note that P.W. 11 Satish Tambe, the witness to the statements under Section 27 and recovery panchanama has flatly denied that the mobile phones were recovered in his presence ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 36 Common Judgment from the house of accused no. 3 Amol and accused no. 5 Palash. He has bluntly stated that nothing has taken place in his presence. The other panch witness to the statement under Section 27 of the Evidence Act and the recovery panchanamas has not been examined, for the reasons best known to the prosecution. It is no doubt true that where the panch witness to the recovery panchanama turns hostile, the recovery could be proved by the prosecution on the basis of the evidence of the investigating officer. However, in such a case, the evidence of the investigating officer should be convincing and reliable. We however, find on a reading of the evidence of the Investigating Officer, P.W. 20, PSI Nandurkar that the said evidence is not convincing. Though in his examination-in-chief, PSI Nandurkar has mentioned about the statements under Section 27 and the recovery of the motorcycle, the mobile phones and the boots, the contents of the panchanamas are not proved by him. Apart from the aforesaid, it could be seen from the cross-examination of the Investigating Officer, PSI Nandurkar that articles that were recovered in pursuance of the statements allegedly made by the accused nos. 2, 3 and 4 were not identified as that of the deceased. P.W. 20- PSI Nandurkar admitted in his cross-examination that he did not make any enquiry about the person in whose name the sim card and the mobiles were issued by the company. P.W. 20 further admitted that he did not take out the EMI number of the mobile phones and also did not make an enquiry from the company by ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 37 Common Judgment issuing letter, to whom the mobile seized under panchanama at Exhibit 151 was sold by the companies. P.W. 20 also did not take out the CDR of the said mobiles. It is admitted by P.W. 20 that he did not record the statements of the relatives of the deceased in order to consider what was the description of the mobile phones and the names of the companies of the mobile phones of Dinesh. He further admitted that he did not record the statement of Prakash Achalwar, the contractor of the parking area in the Railway Station from where the Bajaj Pulsar motorcycle was recovered. Though it was admitted by the investigating officer that Government Railway Police and Railway Protection Force would be working in the said premises, he had not made any enquiry whether any complaint was made by the contractor to the Government Railway Police that the motorcycle was lying in the parking area for more than a month. The investigating officer further admitted that he did not show the photographs of either Dinesh or accused no. 2 Jagdish @ Jaggu to the contractor or the workers that were present at the parking area from where the motorcycle was recovered, to consider who had parked the motorcycle in the parking area in the railway station. The evidence of P.W. 20 PSI Nandurkar does not appear to be reliable and convincing. On the basis of such evidence of the investigating officer, the recovery of the motorcycle, the mobile phones and the boots becomes doubtful, more so, when the panch witness that is examined by the prosecution has bluntly ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 38 Common Judgment denied that the recoveries were made in his presence and the other panch witness was not examined by the prosecution.
20. While recording the aforesaid findings, it would also be necessary to record that the trial Court has erroneously held that the prosecution has succeeded in proving that the accused no. 1 Girish @ Nanu and accused no. 3 Rahul were last seen together with deceased Dinesh at about 2.30 to 3.00 p.m. in Vyankatesh Nagar on 9-11-2011. For holding so, the trial Court has relied on the evidence of Pradeep Rehpade (P.W. 2). Even as per the prosecution case, Pradeep Rehpade is a very good friend of Pankaj, the brother of deceased Dinesh. Pradeep Rehpade has stated in his evidence that his statement was recorded by the investigating officer for the first time on 2-2-2012. Pradeep stated in his evidence that while he was going along with Raghunath to the house of his friend Katekhaye in Vyankatesh Nagar on 9-11-2011, he saw accused no. 1 Girish, accused no. 3 Rahul and Dinesh on a motorcycle - triple seat. It is surprising that though Pradeep Rehpade, P.W. 2 was called to the Police Station by the investigating officer within 10 -12 days from 9-11-2011 after Dinesh went missing, he had not told the investigating officer that he has seen Dinesh with accused no. 1 Girish and accused no. 3 Rahul. It is improbable that when a person is called to the Police Station by the investigating officer in respect of the investigation of a missing person, the person coming to the Police Station would not inform ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 39 Common Judgment the investigating officer that on the date on which the person went missing, he had seen the missing person along with two other persons which he could name. Pradeep Rehpade has admitted in his cross- examination that when he was called to the Police Station 10-12 days after 9-11-2011 by the investigating officer in the matter of the missing complaint of Dinesh, he had not informed the investigating officer that he had seen Dinesh with accused no. 1 Girish and accused no. 3 Rahul. The first thing Pradeep Rehpade could have and should have told the investigating officer when he was called to the Police Station 10-12 days after 9-11-2011 that he had seen accused no. 1 Girish and accused no. 3 Rahul on a motorcycle with Dinesh, on the day when Dinesh went missing. In our view, the case of the prosecution in regard to the 'last seen' theory is untrue. In our view, after the body of Dinesh was recovered on 16-12-2011, Pradeep Rehpade, the friend of Pankaj could not have made a statement on 2-2-2012 about seeing Dinesh with accused no. 1 Girish and accused no. 3 Rahul on 9-11-2011, specially when he had not made the said statement when he was called to the Police Station by the investigating officer 10-12 days after 9-11-2011. Even assuming that Pradeep Rehpade had seen Dinesh with accused nos. 1 and 3 on 9-11-2011, the 'last seen together' cannot be a circumstance which would prove the prosecution case as according to the post mortem report, the death of Dinesh had occurred between 7 to 30 days, before the post ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 40 Common Judgment mortem procedure was conducted. It is held by the Hon'ble Supreme Court in the judgment reported in (2005) 3 SCC 114 that the principle of 'last seen together' comes into play when the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of crime become impossible. The trial Court could not have considered the last seen together theory as one of the major links in the chain of evidence tendered by the prosecution for holding that the prosecution had brought home the guilt of the accused. In the instant case, we find that the prosecution has utterly failed to prove beyond reasonable doubt that the accused nos. 1 to 5 were involved in the murder of Dinesh and the accused nos. 1 to 3 had hatched a conspiracy to eliminate Dinesh with a view to grab his pool parlour and that the accused nos. 1 to 7 had committed the offence of destruction of the evidence. It is well settled that the prosecution case must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. In this case, we find that there is serious infirmity and lacuna in the prosecution case and the prosecution has failed to prove beyond reasonable doubt that the accused were involved in the commission of the offences, for which they are convicted by the trial Court.
21. For the reasons aforesaid, we allow the appeals filed by the appellants. Criminal Appeal Nos. 364, 365, 366, 379 and 530 of 2013 are ::: Uploaded on - 31/08/2017 ::: Downloaded on - 31/08/2017 23:57:56 ::: APEAL 364 to 366, 379 & 530 of 2013 41 Common Judgment allowed.
The accused nos. 1 to 5 are acquitted of the offences punishable under Section 302 read with Section 34 of the Penal Code.
The accused nos. 1 to 3 are acquitted of the offence punishable under Section 120(b) of the Penal Code. The accused nos. 1 to 7 are acquitted of the offences punishable under Section 201 read with Section 34 of the Penal Code.
Since the accused no. 1 is in jail, he may be set at liberty, if he is not required in some other crime.
The bail bonds of accused nos. 2 to 7 stand cancelled.
The record and proceedings should be remitted to the trial Court at the earliest.
In the circumstances of the case, no order as to costs.
JUDGE JUDGE
APTE - KHUNTE - Wasnik
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