Shivdatta @ Biltu Subhodchandra Sah v. The State of Maharashtra

(d) Genitals 1%

The above burn injuries do not show signs of redness and interrupters were present at right thigh areas. Brain: Brian matter shows thin filn of sub arachnoid hemorrhage all over on cut sections which were pale.”

9.2. PW-12 opined that the cause of death was hemorrhagic shock followed by cut throat injuries and it was unnatural. PM notes are proved by PW-12 evidence (Exh.40).

10. PW-2 – Ajay Saha deposed that on 14.07.2013 he had last seen Bharat alive at around 10:30 p.m. That on 15.07.2013 in the morning at around 06:30 a.m., when Bahadur Singh alarmed him about the incident when he went to Bharat’s room to deliver bread, they both entered the room and saw him lying in a pool of blood with his throat slit. In his cross examination, he has stated that on 14.07.2013, Appellant and one Sapan were working in his house preparing sandwiches early in the morning and left at about 7:00 a.m.

11. PW-3 – Kalu Modi deposed that the Bhishi which he was conducting had 18 members including Bharat. That it came to an end on 15.02.2013 upon which Rs.51,000/- was paid to Bharat on 09.07.2013. PW-4 – Amitkumar V. Panjiyara, neighbour of Appellant noticed that Appellant was residing with PW-6 - Sameer Mandal in his room which belonged to Smt. Gupta (landlady). He inquired with Appellant about his new clothes and the new bag. Appellant replied that he had won a lottery and from the proceeds he had purchased new clothes and bag. PW-6 has deposed that Appellant had met him at noon on 13.07.2013 and thereafter on 15.07.2013 at his house alongwith the new bag. That he learnt on 20.07.2013 after Appellant was arrested that he had committed murder of Bharat. PW-7 and PW- 8 are pancha witnesses to recovery and seizure of articles from Appellant. No defence witness has been examined by the Appellant, save and except Appellant having filed his written arguments before the Trial Court.

12. Prosecution’s case is entirely based on the circumstantial evidence. According to prosecution, the incident occurred during the intervening night of 14 & 15.07.2013. The weapon (knife) was found lying next to the dead body of Bharat which was seized under panchanama (Exh.22). It is alleged that, it was used to commit murder of Bharat. According to prosecution, medial evidence supports and corroborates the chain of circumstances. PM report has opined that Bharat’s death took place due to hemorrhagic shock followed by cut throat injury and it was homicidal.

13. According to prosecution, since Bharat had successfully completed the tenure of Bhishi in June 2013 and received the Bhishi amount of Rs.51,500/- from PW-3, Appellant to commit robbery of the said amount, murdered Bharat. Hence, according to prosecution Appellant had motive to rob Bharat and committed his murder. However, it is pertinent to note that the total Bhishi amount which Bharat received from PW-3 was Rs.51,500/- whereas prosecution recovered and seized an amount Rs.61,500/- in the present case. It is pertinent to note the Appellant however has denied that these amounts were recovered by prosecution either from his person or at his instance. In this respect evidence of the prosecution pancha witnesses become extremely relevant. PW-8 has deposed that when he was led to the Sulabh Sauchalaya at that time he was standing outside the said Sulabh Sauchalaya and 5 to 10 persons were present whereas the police officers investigating the crime went inside the Sulabh Sauchalaya and from bathroom No.11 recovered and seized various documents. PW-8 has further stated that when the recovery of the bag was made from Smt. Gupta’s home, except her no other person was present in the room. Smt. Gupta is not examined by prosecution to believe and support its case of recovery against Appellant. It is clearly seen that the amount of Bhishi which was received by Bharat and the total amount recovered from Appellant do not tally and there is a complete mismatch. It is the prosecution case that Appellant had spent certain monies in buying new clothes and bag. If the spent money is added to the amount/money recovered from the Appellant, then the Appellant was having an amount in excess of Rs.68,300/- or more with him. In view of the complete mismatch of the amount of Bhishi which was received by Bharat on 09.07.2013 i.e. almost 5 days prior to the date of incident and the recovered amount. It cannot be therefore stated that, the prosecution has been successful in proving the theory of motive on the basis of the aforesaid evidence.

14. Before we advert to our findings it would be apposite to reiterate the settled law on circumstantial evidence. The Supreme Court in paragraph Nos.[5] and 6 in the case of Sanwat Khan and Ors. vs. State of Rajasthan[1] has held as under:-

14.1. The Supreme Court has held that even if the stolen property is recovered from the possession of the accused, it does not mean that he had also committed the murder and that the accused himself is the same person who has committed both the crimes. In the present case it is alleged that Appellant has stolen the amount of Bhishi money from Bharat’s room and killed him for that reason. To substantiate its case for theft the prosecution has relied on seizure panchanama Exh.28 and

29.

15. However it is seen that admittedly the evidence given by the prosecution witness regarding the Bhishi amount does not match and is incoherent to the evidence pertaining to recovery and seizure of Rs.65,300/-. It is further seen that the prosecution has not proved the fact that the currency notes to the extent of Rs.65,300/- recovered are the same currency notes which allegedly went missing from Bharat. Admittedly there is no oral evidence about the denomination of the cash amount which was possessed by Bharat and more importantly the denomination of the cash amount totaling to Rs.65,300/- which was seized from the Appellant subsequently. In the absence of material evidence it cannot be assumed that due to extreme poverty the Appellant was compelled to commit the crime and stole the money from Bharat when there is an apparent mismatch of the alleged money possessed by Bharat (proceedings of Bhishi) and the monies recovered from Appellant. This is a very strong circumstance which is not proved by prosecution. It is further seen that there is no evidence of any witness whatsoever of having seen the Appellant either in the company of Bharat or having committed house tresspass of Bharat’s room. Hence, if it is the case that Appellant committed the crime on the basis of circumstantial evidence, then all such circumstances should be strong enough so as to eliminate any improbability whatsoever.

16. It is further seen that conviction of Appellant is entirely based on the testimony of PW-8, the memorandum pancha who has witnessed the seizure of the wallet and Identity card alongwith jeans, trouser and black bag containing of Rs.20,000/- belonging to the Appellant from the Sulabh Sauchalaya. On reading of the PW-8’s deposition it is seen that the theory of planting the material in the public toilet from where the seizure recovery was made cannot be ruled out. It was the duty of the prosecution to record the statements of the persons present in the public toilet at the time when the police officers visited the same for the purpose of recovery at the behest of Appellant. Prosecution has not examined any such person / witnesses who were present there to identify the place of concealment of the articles in the public toilet. Even PW-8, the memorandum pancha himself states that when he was led by the police officers to the public toilet he stood outside the public toilet and the police officers went inside and brought the incriminating material which is noted in the memorandum pancha. The said witness therefore does not inspire confidence of this Court. Hence, the recovery is doubtful and cannot be accepted. It also does not helps in establishing the chain of circumstances as having been proved beyond all reasonable doubts.

17. In the case of Hanumant and Ors. Vs. State of Madhya Pradesh[2], in paragraph Nos.11 and 12, the Apex Court while dealing with circumstantial evidence has given certain guidelines and rules applicable to such evidence and held as under:-

18. The Supreme Court in the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra[3] has laid down the fundamental principles to be kept in mind while adjudicating a criminal case founded on circumstantial evidence. Paragraphs 31 and 32 of aforementioned decision are relevant and read thus:

31. It causes us some surprise that the learned Additional Sessions Judge, Akola, who tried the case, has not shown any awareness of the fundamental principle which governs cases dependent solely on circumstantial evidence. Nowhere in his judgment has the learned Judge alluded, directly or indirectly, to the principle that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.

32. The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of U.P. [(1976) 1 SCC 542: 1976 SCC (Cri) 72: AIR 1976 SC 69] and Chandmal v. State of Rajasthan [(1976) 1 SCC 621: 1976 SCC (Cri) 120: AIR 1976 SC 917] in which the rule governing cases of circumstantial evidence is reiterated. But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. In the first place, “shadow of doubt”, even in cases which depend on direct evidence is shadow of “reasonable” doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.” [emphasis supplied]

19. In the case Sharad Birdhichand Sarda Vs. State of Maharashtra[4], in paragraph Nos.153 to 158, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under:-

20. In the case G. Parshwanath Vs. State Of Karnataka[5], in paragraph No.11, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under:- “11. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of roof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that “men may tell lies, but circumstances do not”. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved fact, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even thought it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

21. In the case Surajdeo Mahto Vs. The State of Bihar[6], paragraph Nos.29 and 30 the Apex Court while enunciating the “last seen theory” has propounded its principle and held as under:-

29. The case of the prosecution in the present case heavily banks upon the principle of 'Last seen theory'. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a 3-judge bench of this Court in the case of Satpal v. State of Haryana (2018) 6 SCC 610 has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the Accused, would by itself, only be a weak kind of evidence. The Court further held: “...Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the Accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

30. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the Accused.”

22. In view of the above settled law and in the peculiar facts and circumstances of the present case discussed above, we are of the opinion that, prosecution has completely failed to establish the circumstances to prove that Appellant is the author of the crime. Prosecution has failed to prove the charges against the Appellant beyond all reasonable doubts and thus Appellant deserves the benefit of doubt.

23. Hence the following order:-

(i) Criminal Appeal is allowed;

(ii) Judgment & Order dated 4th & 8th April 2015 passed by the learned Additional Sessions Jude, Grater Bombay in Sessions Case No. 968 of 2013 is hereby quashed and set aside;

(iii) The Appellant stands acquitted of the offence punishable under Sections 302, 449, 392 r/w 397, 436 and 201 of IPC;

(iv) The Appellant be released forthwith from prison, if not required in any other case/cases. Fine if any, paid by Appellant shall be returned to Appellant.

24. Before parting with the Judgment, we would like to place on record appreciation for the efforts put in by Mr. Mandar Soman, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant. He was thoroughly prepared in the matter and rendered proper and able assistance to the Court. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]