Bombay High Court
Shegar Kaveriappa Kaunder & Another vs State Of Maharashtra on 18 November, 1998
Equivalent citations: 1999(5)BOMCR179, 1999BOMCR(CRI)~
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER Vishnu Sahai, J.
1. Through these appeals the appellants challenge the Judgment and Order dated 31-8-94 passed by the Additional Sessions Judge, Gr. Bombay, convicting and sentencing them to undergo rigorous imprisonment for life for the offence punishable under section 302 read with section 34 of Indian Penal Code.
2. Since both these Appeals arise out of the same set of facts and a common Judgment, we are disposing them off by one Judgment.
3. In short, the prosecution case runs as under :-
The deceased Samuel used to purchase pepsi cold drink from Raman Nadar (P.W. 2) who was residing in Room No. 89 at Lal Bahadur Shastri Nagar, Dharavi, Bombay-17. On 30-5-90 at about 7.30 p.m. Samuel came to Raman Nadar, took his belongings and told him that he was leaving for his native place the same night. Thereafter, he went away and came to the house of Adilaxmi Naidu (P.W. 6) the wife of appellant Alagarswami in Dharavi at Dhorwada. Adilaxmi was knowing him because he was brother-in-law of her friend Shubhalaxmi. At about 9.00 p.m. the same night, after handing over post office pass book and tiffin box to Adilaxmi, alongwith the appellants, he left for the Railway station. He was seen leaving with them by Adilaxmi. At the time of leaving, Samuel was carrying a black colour bag. At about 1.00 a.m. the same night the appellants came. Their clothes were drenched with water. Next morning at 10.00 a.m. Adilaxmi asked them about whereabouts of Samuel and they replied that Samuel had alighted the train to his native place in their presence.
On 31-5-90 at about 10.30 p.m. after taking dinner, Ashok Kale (P.W. 1) went behind the marshy land, behind Mahim Nature Research Centre, opposite Dharavi B.E.S.T. Depot, for answering call of nature. He had a torch with him. He saw a corpse of a male person in torch light, with a big stone on its head and a small stone on the private part. He returned home and at about midnight, went to Dharavi police station where he lodged F.I.R.
4. The evidence of A.P.I. Balkrishna Shingate (P.W. 8) shows that at about midnight on 31-5-90 Ashok Kale (P.W. 1) came to Dharavi Police Station and lodged the F.I.R. on the basis of which a case under section 302 I.P.C. was registered by him.
5. The investigation was conducted by A.P.I. Balkrishna Shingate (P.W. 8) and P.I. Sawant. The latter has not been examined and the investigation done by him has been proved by P.I. Bajirao Patil (P.W. 9) who was familiar with his hand writing and also conducted a part of the investigation.
On 1-6-1990 at about 12.30 p.m. P.I. Bajirao Patil arrested the appellants. During the course of investigation in the presence of public panchas on the pointing out of appellant Algarswami, Rs. 300/- in currency notes was recovered from Jabakan Nadar (P.W. 3) to whom Algarswami had handed over the said currency notes, (the said money is said to be of the deceased).
It is alleged that blood stained loongi and shirt belonging to the appellant Shegar Kaunder were recovered from him. A transistor belonging to the deceased was also recovered from him. The said recoveries were made under panchanamas. We have not entered into details with res them for reasons mentioned in paras 13 and 14.
On completion of the investigation the appellants were charge-sheeted.
6. The autopsy on the corpse of the deceased Samuel was conducted on 1-6-90 between 3.00 p.m. to 4.30 p.m. by Dr. Shivaji Kachare (P.W. 4), who found on it the following antemortem injuries
1) C.L.W. at above (Left) eyebrow. 2" x 1/2 x 3" round.
2) C.L.W. at behind (Lt.) ear round. 1" x 1/2" x 1/2.
i) Bruises on chin are 1" x 2"
ii) Bruises at Knee joint 1" x 2"
iii) Fracture of frontal temporal bone
iv) Fracture of (Lf) hip joint.
In his examination-in-chief Dr. Kachare stated that the age of the injuries was within 24 hours and they could be caused by a big stone and were sufficient in ordinary course of nature to cause death.
7. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for offences punishable under section 302 read with 34 I.P.C., to which they pleaded not guilty and claimed to be tried. Their defence was of denial.
During the trial, in all, the prosecution examined 9 witnesses. Since there was no eye witness of the incident, prosecution led circumstantial evidence against the appellants and the circumstances were last seen, false explanation of the appellants and recovery. The learned trial Judge believed the said circumstances and convicted and sentenced the appellants in the manner stated in paragraph No. 1.
8. We have heard Mr. M.R. Deshpande for the appellants and Mr. Galena, A.P.P., for State. We have also perused the depositions of the prosecution witnesses, the material exhibits proved and tendered by the prosecution and the impugned judgment. In our judgment, prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt and they deserve to be acquitted.
9. As mentioned earlier, the conviction of the appellants rests on circumstantial evidence. It is well settled that such evidence can only be made a basis for conviction if :--
(a) the circumstances are firmly established;
(b) they unerringly lead to the inference of the guilt of the accused;
(c) they are whole incompatible with the inference of innocence of the accused; and
(d) incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused.
As mentioned earlier the three circumstances on which the conviction of the appellants is founded are last seen, false explanation furnished by them to Adilaxmi (P.W. 6) to whom on 31-5-90 at 10.00 a.m. they disclosed that the deceased previous night had boarded the train for his native place and recoveries on their pointing out.
We now propose examining the evidence furnished by the prosecution in respect of the said circumstances.
10. In respect of the circumstance of last seen, prosecution relies on the evidence of Adilaxmi Naidu (P.W. 6), the wife of the appellant Alagarswami. Her evidence shows that the deceased Samuel was the brother-in-law of her friend Subhalaxmi and consequently was known to her and she, Subhalaxmi and the deceased were residing in Dhorwada, Dharavi, Bombay. She deposed that on 30-5-90 at about 9.00 p.m. Samuel after keeping his post office pass book and tiffin box with her, along with the appellants left for the railway station for boarding a train for his native place. At about 1.00 a.m. the same night the appellants came and their clothes were drenched with water. The next morning at 10.00 a.m. when she enquired from the appellants his whereabouts, they informed her that in their presence Samuel had boarded the train for his native place.
11. It is crystal clear from Adilaxmi's statement that the appellants and the deceased had parted company at about 1.00 a.m. the same night.
In out view if the appellants parted company with the deceased at about 1.00 a.m. the same night (night of 30-5-90) this circumstance of last seen would cease to be incriminating because the evidence of Autopsy Surgeon Dr. Shivaji Kachare (P.W. 4) categorically establishes that the murder of the deceased took place between 3 to 4.30 p.m. on 31-5-90 and 4.30 p.m. on 1-6-90. We say this because Dr. Kachare who performed autopsy on the deceased on 1-6-90 between 3.00 p.m. & 4.30 p.m. in his examination-in-chief has stated that "The age of the injuries was within 24 hours." This obviously means that the deceased Samuel was very much alive when the appellants parted company with him. It is significant to point out that no question was either put by the prosecution or by the learned trial Judge to Dr. Kachare whether the death of the deceased could have taken place on the night of 30-5-90. This being the position, we have to accept the categorical statement of Dr. Kachare to the effect that the age of the injuries of the deceased was within 24 hours.
12. If the circumstance of last seen ceases to be incriminating, then the circumstance that the appellant furnished a false explanation to Adilaxmi (P.W. 6) that the deceased had boarded the train in their presence, would also go. As seen earlier examination-in-chief of Dr. Kachare shows that the deceased could have not died on the night of 30-5-90 and that being so, the explanation of the appellants that he boarded the train on the said night cannot be stigmatized as false.
13. Hence the only circumstance which remains against the appellants is of recoveries on their pointing out. As we have mentioned earlier, on the pointing out of appellant Algarswami, Rs. 300/- in currency notes belonging to the deceased was recovered from Jabakan Nadar (P.W. 3) to whom Algarswami had handed over the said amount and on the pointing out of the appellant Shegar Kaunder, a transistor belonging to the deceased and his (Shegar Kaunder's) blood stained shirt and loongi, on which the chemical analyser found human blood, were recovered.
14. In our view, the said circumstance may at the highest create a very strong suspicion against the appellants or may show that the prosecution case against them may be true, but as Gajendragadkar, J. as he then was, in the case of Sarwan Singh Rattan Singh v. State of Punjab, has observed in paragraph 9 & 12 that-
"but suspicions, however, strong, cannot take the place of proof." Paragraph-12 "but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."
In our view, the said distance referred to by his lordship, has not been covered in the instant case and consequently the appellants are entitled to the benefit of doubt.
15. In the result, these appeals are allowed. The convictions and sentences of the appellants are set aside. They are in jail, and shall be released from jail unless wanted in some other case.
16. Appeals allowed.