Oral Judgment: (M.G. Giratkar, J.)
1. Appellant has challenged his conviction for the offence punishable under Section 302 of the Indian Penal Code, for which he is sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.500/; in default of payment of fine, to suffer rigorous imprisonment for six months.
2. The appellant is convicted in Sessions Trial No.78 of 2012 by Additional Sessions Judge, Achalpur. Being aggrieved by the Judgment of conviction, the appellant has filed the present appeal.
3. The case of prosecution, in short, is as under:
On 27.4.2012, the complainant was working in his field. His wife came to him with a tiffin. She told that deceased Arbaj had been to play. They returned in the evening, but they did not find Arbaj. Therefore, complainant and his family members searched deceased Arbaj till midnight. They did not find Arbaj. Next day, in the morning, they started searching Arbaj. Complainant met Sheikh Akhtar s/o. Shaikh Nazir (Coolie) (PW-6). He told him that he saw appellant carrying deceased Arbaj towards Depo road. He saw that Arbaj was having a packet of biscuit. Sheikh Akhtar (PW-6) also disclosed him that Arbaj was taken towards Gaurkheda road. Thereafter, he searched Arbaj towards Gaurkheda and in the agricultural fields, but he could not found the deceased.
4. On the same day, after 2.00 p.m., he went to search Arbaj towards Kharpi. Arbaj was not found. He returned back at about 5.00 p.m. Then he went to Gujari market. One person told him that his wife was weeping near Police Station. Therefore, he went to Police Station, Paratwada. There he came to know that police had left for post mortem room. He returned home. His wife told him that Arbaj was killed by appellant Kasamoddin. Next day morning, he was called in the Police Station. He lodged report suspecting the appellant as an assailant. He suspected the appellant because 45 months before the date of incident, the appellant was residing in his house. There was dispute on account of money.
5. Complainant Jalil Kha Khaju
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Kha (PW-1) has stated in his report that appellant had given him Rs.7,000/-. He was demanding that amount. The complainant had returned Rs.3,000/- in piecemeal. As regards balance amount of Rs.4,000/-, the complainant promised to repay the same. But appellant was continuously asking for refund of money. Appellant quarreled with him. The complainant advised him to have calculation of charges towards food for 4-5 months. Appellant accepted his proposal. Thereafter, he left his house. On account of such dispute in respect of money so given to the complainant, he suspected that the appellant would have committed murder of his son Arbaj. On the report of complainant (vide Exh.12), crime was registered as per Exh.13.6. Before lodging of report by complainant Jalil Kha (PW1), one Sayeedkhan Mohd. Khan (PW-3) had lodged report in the Police Station stating that he had been to collect Ayurvedic medicine and honey in the forest. On 28.4.2012, when he went in the forest to collect Ayurvedic medicine and honey at about 3 p.m., he found dead body of a boy aged about 10-12 years lying on the boundary of a field. Thereafter, he went to Police Station and lodged report vide Exh.19.7. Investigating Officer Sachindra s/o. Bhaurao Shinde went to the spot of incident, prepared spot panchanamaa, seized blood stained stone and clothes of deceased etc., sent dead body for post mortem. He has recorded statements of witnesses. After complete investigation, he filed charge sheet before the Judicial Magistrate, First Class, Achalpur. Offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Sessions Court. Therefore, case was committed to the Additional Sessions Judge, Achalpur for trial.8. Charge was framed at Exh.2 for the offence punishable under Section 302 of the Indian Penal Code. Same was read over and explained to the appellant. He pleaded not guilty and claimed to be tried. Defence of the appellant appears to be of total denial and false implication.9. Prosecution has examined in all total eight witnesses. The case of prosecution is based on circumstantial evidence. Learned trial Court relied only on one circumstance i.e. last seen theory putforth by prosecution by way of evidence of Sheikh Akhtar (PW-6). Learned trial Court has come to the conclusion that there was motive on the part of the appellant to commit murder of son of complainant Jalil Kha (PW-1).10. Learned trial Court has drawn inference that it was a Summer day and therefore, there was not darkness at about 6.30 p.m. Hence, the learned trial Court has come to the conclusion that Sheikh Akhtar (PW-6) identified the accused while taking deceased with him only on the basis of last seen evidence given Sheikh Akhtar (PW-6). Learned trial Court has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and has sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.500/-; in default of payment of fine, to suffer rigorous imprisonment for six months. Hence, appellant before this Court has challenged the Judgment of trial Court.11. Heard learned Counsel Mr.Vishal Mohod for the appellant. He has submitted that the evidence of prosecution is not proved in respect of last seen theory. He has pointed out cross-examination of Sheikh Akhtar (PW-6) and submitted that this witness has clearly admitted in his cross-examination that there was darkness. This witness was sitting in the cabin of a truck. That truck was going with a speed of 60 miles per hour (mph). In such a situation, it was not possible for Sheikh Akhtar (PW-6) to clearly identify the appellant.12. Learned Counsel has submitted that last seen evidence itself is not proved and therefore, burden to explain as per Section 106 of Evidence Act does not come into play. Learned Counsel has submitted that first of all prosecution has to prove that accused was lastly seen in the company of deceased. Prosecution has not proved beyond reasonable doubt that deceased Arbaj was lastly seen in the company of appellant and therefore, appellant/accused cannot be expected to explain about death of the deceased. 13. Learned Counsel Mr.Mohod has submitted that even though there is no evidence against the appellant and considering the sole testimony of Sheikh Akhtar (PW-6), the learned trial Court has considered the facts wrongly and by drawing wrong inference, the appellant was convicted.14. In support of his submission, learned Counsel has submitted that time of death is not mentioned in the Post Mortem report. In case of last seen evidence/theory, there should be exact time of death. In support of his submission, the learned Counsel has pointed out decisions in the cases of Gambhir .vs. State of Maharashtra reported in (1982) 2 SCC 351 and Sunil s/o. Latari Khuje vs. State of Maharashtra reported in 2016 (4) Mh.L.J. 150. At last, it is submitted that prosecution has failed to prove any of the circumstances against the appellant and therefore, the appeal be allowed and the appellant be acquitted of the offence punishable under Section 302 of the Indian Penal Code.15. Heard Mr.Ambarish Joshi, learned Additional Public Prosecutor for the Respondent/State. He has submitted that Sheikh Akhtar (PW-6) was knowing the family of deceased and the deceased. Learned A.P.P. has submitted that Sheikh Akhtar (PW-6) has specifically stated in his evidence that, on 27.4.2012 when he was coming in the truck, he saw the appellant/accused taking the deceased towards village Belkheda. At that time, deceased was having a biscuit pocket in his hand. Learned A.P.P. has submitted that thereafter nobody had seen the deceased and therefore, appellant was lastly seen with deceased is proved by prosecution. Learned A.P.P. has pointed out the decisions which are relied on by the trial Court in the Judgment and submitted that the inference drawn by the trial Court is perfectly legal.16. Learned A.P.P. has submitted that it was for the appellant to explain as to what had happened with the deceased. It was within the special knowledge of the accused and therefore, he should have given explanation as per provisions of Section 106 of the Evidence Act. At last, it is submitted that the Judgment is perfectly legal. There is no merit in the appeal. Hence, appeal is liable to be dismissed.17. The case of prosecution is solely based on the evidence of Sheikh Akhtar (PW-6). That is the only circumstance against the accused. While convicting the accused on the basis of circumstantial evidence, Court has to keep in mind the five principles/panchasheel laid down by the Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. Those are as under:(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should and not “may be” established;(b) 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;(c) The circumstances should be of a conclusive nature and tendency;(d) They should exclude every possible hypothesis except the one to be proved, and(e) 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.18. The circumstances should be so strong that they should point out guilt towards the accused and none else. All the circumstances should be proved and they should form a chain and there should not be a break in the chain. Keeping the above principles laid down by the Hon'ble Supreme Court in mind, we have to scrutinize the evidence on record.19. Jalil Kha Khaju Kha (PW-1), father of the deceased has stated in his evidence that, on the day of incident, he had been to the field. His wife came to him with a tiffin and one tobacco packet. She told that Arbaj had gone to play, but he did not return back in the evening. They searched Arbaj till midnight but could not found him. On the next day, when he was searching Arbaj, he met Sheikh Akhtar (PW-6), who told him that he saw appellant while taking Arbaj towards village Belkheda. He further told that Arbaj was having a biscuit packet in his hand Thereafter, he again searched Arbaj. In the evening, he came to know that his son Arbaj was killed. He went to Police Station. He came to know that the dead body was brought for post mortem. He saw the dead body in the Post Mortem room. Except this, he has not stated anything against the appellant.20. Jalil Kha Khaju Kha (PW-1) has stated in his evidence against the appellant that he lodged report suspecting the appellant because, before the incident, the appellant was residing in his house. He has stated that the appellant was so called brother of his wife. The appellant had given him Rs.7,000/-. There was some dispute and therefore, he was evicted from the house. Accused was demanding Rs.4,000/-. He told the accused to calculate the amount of food etc. Thereafter, the appellant/accused left his house. Therefore, Jalil Kha (PW-1) suspected that the appellant might have killed his son Arbaj.21. Sharukh Khan Jalil Khan (PW-2), brother of deceased has stated that, at about 5.00 pm, he went to watch a movie. Arbaj followed him. Therefore, he gave Rs.10/and told him to go back. His brother Arbaj returned to house. He has stated that, at that time, the appellant was near the deceased, but in the cross-examination, he has stated that there were so many persons and Arbaj had gone to house.22. Other witnesses are the witnesses on panchanamas. Medical Officer Dr.Meraj Ali has stated in his evidence that he conducted post mortem on 29.4.2012. The dead body was decomposed. He could not give any exact time of death in the post mortem report. As per his opinion, the cause of death was shock due to injury to the vital organs/parts.23. Sheikh Akhtar (PW-6) has stated in his evidence that he saw the appellant while taking deceased towards village Belkheda at 6.30 p.m. That time deceased was having biscuit packet.24. After overall scrutiny of the evidence, it is clear that the appellant/accused is convicted only on the basis of evidence of Sheikh Akhtar (PW-6). He has stated in his evidence that he saw the appellant while taking the deceased towards village Belkheda. The case of last seen is to be proved by prosecution beyond reasonable doubt. Cross-examination of Sheikh Akhtar (PW-6) shows that he is not a trustworthy witness on the aspect of last seen evidence. In the cross-examination, he has specifically admitted that when he saw the appellant while taking the deceased, it was 6.30 p.m. There was darkness. He was sitting in the cabin of a truck and the truck was in the speed of 60 miles per hour (mph) and therefore, it was not possible for this witness to identify clearly the appellant while taking the deceased.25. On perusal of the evidence, it appears that the learned trial Judge has made some observation about the time of death etc. It is pertinent to note that nothing is brought on record in the evidence of Medical Officer to show that there was any rigor mortis present on the dead body. In the post mortem report, there is some observation. When the case of prosecution is solely based on the last seen theory, it was for the prosecution to have brought on record the exact time of death in the evidence of Medical Officer. But nothing is in the evidence of Medical Officer to show exact or probable time of death of the deceased.26. It is the case of prosecution that, on 27.4.2012, in the evening, deceased Arbaj was killed. The post mortem report was conducted at about 11 a.m. and was completed at about 2 p.m. The learned trial Judge has made the reference of Medical Jurisprudence and has come to the conclusion that rigor mortis was present on the dead body at the time of post mortem. It was observed that rigor mortis begins after 12 hours after death and lasts for about 24 to 40 hours in winter and 18 to 36 hours in summer. Death of deceased might be at about 7.00 p.m. on 27.4.2012 and post mortem was conducted on 29.4.2012 at about 11.00 a.m. i.e. after 36 hours. This inference is without any base. More particularly, when no evidence is brought on record in the evidence of Medical Officer about the time of death. It was also duty of the Court to get some clarification in the evidence of other witnesses.27. The learned trial Judge relied on some Judgments. Those are altogether different on facts. The learned trial Court relied on the Judgment of the Supreme Court in the case of Sathya Narayan vs. State, 2013 ALL SCR 274. In the said ruling, it was the case of prosecution that deceased was the member of a trust in Ashram. He was residing in the Ashram. When some witnesses heard noise in the Ashram, he was found in the company of accused and therefore, it was observed that it was for the accused to give explanation u/s.106 of the Evidence Act. In the present case, last seen evidence is not proved by prosecution. Therefore, the observation of the learned trial Court is absolutely wrong.28. The learned trial Court also relied on the Judgment in the case of State of Maharashtra .vs. Yeshwant Manohar s/o. Rushi Kodake, 2009 ALL MR (Cri) 1042 . In that case, husband had taken wife. Two witnesses saw the husband while taking the wife. He beat wife, killed her and buried the dead body. After two months, report was lodged. Last seen theory was not relied on by the Court in the said cited Judgment. The said Judgment is wrongly relied by the trial Court.29. The learned Counsel for the appellant has pointed out the decision in the case of Gambhir vs. State of Maharashtra (supra). Hon'ble Supreme Court has observed that “in the case of circumstantial evidence in respect of last seen together, the circumstance that accused was lastly seen in the company of the deceased in the night of occurrence till before dinner time by itself is not sufficient to connect the accused with the crime. Absence of the probable time of death would render circumstances of last seen together unsafe to rely upon in convicting the accused”.30. In the present case, probable time of death is not brought on record by prosecution in the evidence of Medical Officer Dr. Miraj Ali (PW-7). Learned Counsel for the appellant Mr.Mohod has pointed out the decision in the case of Sunil s/o. Latari Khuje vs. State of Maharashtra, [(2016) 4 Mh.L.J. 150] to submit that, in the said case, there was murder of wife by the husband and dead body of wife was found in decomposed state in the house. There was no evidence to show that the husband/accused was present at material time of incident in the said house. Hence, it was observed that inference u/s.106 of Evidence Act cannot be raised against the appellant/accused. Benefit of doubt be given to the appellant/accused.31. In the present case, last seen evidence stated by Sheikh Akhtar (PW-6) is not reliable. There is no other evidence. Probable time of death is not proved. Prosecution has miserably failed to prove that deceased was lastly in the company of appellant and therefore, Section 106 of Evidence Act does not come into play.32. Section 106 of the Evidence Act comes into play when prosecution succeeds to prove that the appellant/accused was lastly in the company of deceased. In the present case, Sheikh Akhtar (PW-6) has stated in his examination-in-chief that he saw appellant/accused while taking the deceased towards village Belkheda at about 6.30 p.m. In the cross-examination, he has specifically admitted that there was darkness. He was sitting in the cabin of truck. The truck was in the speed of 60 miles per hour (mph). Therefore, it was not possible for him to identify the appellant while taking the deceased. Moreover, he was knowing the family of deceased. Therefore, it was his natural conduct to inform the parents of deceased, but he did not do so. The evidence of Sheikh Akhtar (PW-6) is not reliable in view of admission in the cross-examination. Therefore, prosecution has miserably failed to prove last seen evidence as stated by Sheikh Akhtar (PW-6).33. The Investigating Officer has stated about the panchanama in respect of spot which was shown by the accused where dead body was lying. It is pertinent to note that this panchanama is not helpful to the prosecution because it was not within the special knowledge of the appellant/accused. Police was already knowing about the spot where dead body was lying because Sheikh Akhtar (PW-3) himself lodged the report (Exh.19) informing police where dead body was lying and therefore, it is not helpful to prosecution. As per the case of prosecution, clothes of deceased lying on the spot were sent to the Chemical Analyser for examination. As per C.A. Reports on record, human blood was found. Blood group of deceased was not detected. Clothes of accused/appellant were not sent for examination of C.A. Therefore C.A. Reports are not helpful to the prosecution. If really the appellant was the assailant then blood should have been on his clothes because, as per the case of prosecution, he killed the deceased by a stone.34. The evidence of Sheikh Akhtar (PW-6) is not reliable. Except this evidence, there is no other evidence by the side of prosecution against the appellant/accused. Prosecution has miserably failed to prove the circumstantial evidence i.e. last seen evidence as stated by Sheikh Akhtar (PW-6).35. As per the principles laid down by Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda, the circumstances must be of conclusive nature and tendency so as to point out guilt towards the accused and none else. In the present case, there is no other circumstance except the last seen evidence. Last seen evidence is also not proved by the prosecution. The learned trial Court has not taken into consideration the evidence on record and has wrongly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. Hence, we allow the appeal and pass the following order. Appeal is allowed. Appellant/accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Appellant is in jail. He be set at liberty forthwith, if not required in any other crime/case. Seized muddemal property being worthless, be destroyed after lapse of appeal period. Record and proceedings be sent back to the trial Court. Fees of the learned Counsel appointed by the High Court Legal Services Sub-Committee, Nagpur are quantified at Rs.5,000/-.