2003 ALL MR (Cri) 1896
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.G. PALSHIKAR AND D.B. BHOSALE, JJ.

State Of Maharashtra Vs. Bhalchandra Nemgonda Chougule & Anr.

Criminal Appeal No.825 of 1987

15th July, 2003

Petitioner Counsel: Mrs. P. H. KANTHARIA
Respondent Counsel: Mr. C. R. SONAVANE, Mr. A. C. SHAH

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Circumstantial evidence - Circumstances must be of an incriminating character - All proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.

In a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in a case of circumstantial evidence the Court requires to bear in mind the cumulative effect of all the circumstances in the given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. Moreover, the principles governing the appreciation of evidence in a case dependent upon the circumstantial evidence are that each circumstances relied upon by the prosecution must be established by cogent, succinct and reliable evidence. The circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstance must be of an incriminating character. All the proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. [Para 8]

(B) Evidence Act (1872), S.3 - Penal Code (1860), S.302 - Appreciation of evidence - Motive - Murder case - Case based on circumstantial evidence - Failure of prosecution to prove motive - Failure would be fatal in the case of circumstantial evidence as the chain of circumstances cannot be said to have been complete.

Ordinarily, failure of the prosecution to establish the motive does not necessarily mean that the entire prosecution case has to be thrown over board, particularly when the evidence of eye-witness is truthful and trustworthy. However, in a case of circumstantial evidence the motive goes a long way to prove the guilt of the accused. Motive would form one of the main links in the chain of circumstantial evidence. In the present case court finds no reason for the accused to kill deceased in the face of their relationship. Absence of motive in such case or failure on the part of the prosecution to prove alleged motive would be fatal in the case of circumstantial evidence and if it is not proved, the chain of the circumstances cannot be said to have been complete. [Para 12]

Cases Cited:
Tota Singh Vs. State of Punjab, AIR 1987 SC 1083 [Para 5]
Dhana Vs. State of Madhya Pradesh, AIR 1996 SC 2478 [Para 6]


JUDGMENT

D. B. BHOSALE, J.:- The appellant-State has assailed the judgment and order dated 28th April, 1987 rendered by the learned Addl. Sessions Judge, in Sessions Case No.35 of 1986, by which the respondents-accused have been acquitted of the offences punishable under Sections 302, 201, 177, 182 of the Indian Penal Code and under Sections 25 and 27 of the Indian Arms Act. Respondent-accused no.1 was charged and tried for the said offences on the allegation that on 24th January, 1986 between 10.30 and 11.30 a.m. at village Padali he committed murder of one Shamrao Maruti Maidankar by firing gun shot. In so far as respondent-accused no.2 is concerned he was charged for the offences punishable under Sections 201, 177 and 182 I.P.C. on the allegation that he having reason to believe that the murder of deceased Shamrao was committed by accused no.1 caused to disappear some evidence of commission of offence of murder, namely, the pistol used in commission of the offence and blood stained clothes of accused no.1 with an intention of screening him from legal punishment. For the sake of brevity hereinafter the respondents shall be referred to as "accused".

2. The case of the prosecution stated briefly is that the deceased Shamrao had constructed R.C.C. Building in village Padali. About a year prior to his death, he had shifted from village Padali to Tasgaon and was residing there along with his family. Deceased Shamrao intermittently used to visit village Padali to look after his grape-garden. Accused no.1 was resident of village Padali and used to reside in the building, constructed by deceased Shamrao, with his wife and children. Accused no.1 and deceased Shamrao were good friends. Whenever deceased Shamrao used to visit village Padali he would stay with accused no.1 in his house. The eldest daughter of accused no.1, who was studying in the High School at Tasgaon, used to stay with the family of deceased Shamrao. It is alleged that the illicit relations were developed between Shamrao and the wife of accused no.1. On 22nd January, 1986 at about 11 p.m. deceased Shamrao came to Padali in taxi since he had to go to village Pali. On 23-1-1986 accused no.2 and deceased Shamrao in the night left Padali for village Pali in taxi. On their way to Pali, they came to Vita and met P.W.10 Anna Sathe, a close friend of deceased Shamrao. They stayed overnight in the house of Anna Sathe and in the morning accused no.2 along with the family members of P.W.10 went to Pali in a taxi whereas deceased Shamrao and P.W.10 Anna Sathe went to Pali on the motor-cycle of Anna Sathe. In the night, deceased Shamrao and accused no.2 left Pali for Padali on the motor-cycle. Shamrao stayed in the house of accused no.1 that night. It is the case of the prosecution that on 24th January, 1986 accused no.1, who was not at home earlier had come back from Tasgaon to his house at Padali. Accused no.1 enquired with P.W.3 Shantabai the whereabouts of deceased Shamrao when she disclosed that he had gone to grape-garden. P.W.3 Shantabai supplied milk to accused no.1 and went away. It is alleged that Shamrao left from grape-garden for home around 9.30, who apparently did not reach home, before accused no.1 reached his home at 10 a.m. It appears that P.W.2 Bhimrao also came back for filling petrol in the motor-cycle of accused no.2 from the store-room of his house. P.W.3 at the relevant time was in the cattle-shed which was at close distance from the house of the accused. It is alleged that when she was in the cattle shed, she heard cries coming from the house of accused no.1. She, therefore, rushed to the house of the accused and noticed the dead body of Shamrao lying in the pool of blood and accused no.1 alone was in the house near the dead body and was weeping and crying intensively. Crowd gathered near the house of accused. Accused no.2 reported the incident in writing to the PSI Tasgaon through P.W.13 Mulani. On receipt of the report, P.S.I. Subhash Patil along with the police staff reached village Padali. A complaint was lodged by P.W.2 Bhimrao pursuant to which the crime was registered against accused nos.1 and 2. Investigation was set in motion and on completion of the same the charge-sheet was filed against the accused on 27th March, 1986 for the offence punishable under sections 302, 201, 182 read with 34 IPC and under section 3 read with sections 25 and 27 of the Indian Arms Act. The charge was framed against the accused for the aforestated offences. The accused entered the plea of not guilty and claimed to be tried. The defence propounded by the accused was of total denial.

3. The learned Addl. Sessions Judge, Sangli, on appreciation of the depositions of witnesses and the exhibits placed on record by the prosecution, has acquitted the accused of all the charges by the impugned judgment.

4. We heard learned counsel for the parties at considerable length. We have meticulously gone through the depositions of the witnesses. We perused the various exhibits proved by the prosecution to substantiate their case. We have also perused the impugned judgment.

5. Before we proceed to appreciate the evidence and examine the impugned judgment, it would be advantageous to make reference to the well settled position of law, enunciated by the Supreme Court to be considered while dealing with criminal appeals against acquittal. The Apex Court in Tota Singh & Anr. Vs. State of Punjab, AIR 1987 SC 1083 in paragraph 6 has observed thus :

"This Court has repeatedly pointed out that the mere fact that the appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."

6. Similarly, the Apex Court in Dhanna and Ors. Vs. State of Madhya Pradesh, AIR 1996 SC 2478 in paragraph 11 made following observations :

"Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed."

We have recently, while dealing with the case, State of Maharashtra Vs. Haribhau Krishnaji Deshmukh and Ors. in Criminal Appeal No.511 of 1987 against acquittal, considered the entire case law right from Privy Council upto the Judgment of the Supreme Court in AIR 1996 SC 2478 and in paragraphs 22 and 23 of our judgment dated 13th June, 2003 held thus:

"22. In our opinion, the scope and extent of powers of the High Court under section 379 of the 1978 Code is well defined and has been disclosed by the above referred judgment of the Supreme Court of India. In our opinion, the consistent and well settled law on the point is that the High Court can interfere with the order of acquittal only when:

1) The appreciation of evidence by the trial Court is perverse or the conclusion drawn by it cannot be drawn on any view of the evidence.

2) Where the application of law is improperly done.

3) Whether there is substantial omission to consider the evidence existing on record.

4) The view taken by the acquitting Court is impermissible on the evidence on record.

5) If the order of acquittal is allowed to stand it will result the miscarriage of justice.

23. We will have, therefore, to apply this test of strong and compelling reasons to interfere with the order of acquittal every time. We will be applying these principles in the present case to determine whether the interference with the order of acquittal impugned in this case is must."

7. The Apex Court has thus laid emphasis on the general principle of criminal jurisprudence that the presumption of innocence in favour of the accused is further strengthened by the acquittal. It further holds that if two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. In other words, unless there is absolute assurance of guilt, the appellate Court is not expected to interfere with the order of acquittal. Keeping in view the aforestated position of law, we have gone through the entire evidence and also the judgment to find out whether the judgment of trial Court could be characterised as perverse or whether there is any manifest illegality and the conclusion arrived at could not have been possibly arrived by any Court acting reasonably and judiciously.

8. The prosecution case, in the present appeal, rests on the circumstantial evidence. There is no eye-witness to the alleged incident nor there is any witness who claims to have heard gun shot though the alleged incident occurred in the house of the accused which was surrounded by many other houses in the village. It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in a case of circumstantial evidence the Court requires to bear in mind the cumulative effect of all the circumstances in the given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. Moreover, the principles governing the appreciation of evidence in a case dependent upon the circumstantial evidence are that each circumstances relied upon by the prosecution must be established by cogent, succinct and reliable evidence. The circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstance must be of an incriminating character. All the proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. Keeping in view the aforestated well settled principles of law enunciated by the Apex Court in various judgments in criminal cases of circumstantial evidence, we proceed to consider the instant appeal.

9. The prosecution has brought on record the following circumstances which, according to them, are sufficient to prove the guilt of the accused. The circumstances enumerated by the trial Court in paragraph 20 of the judgment read thus :

1. Deceased Shamrao had illicit intimacy with the wife of accused no.1 Bhalchandra and, therefore, accused no.1 Bhalchandra had the motive in committing the murder of deceased Shamrao.

2. Deceased Shamrao left his grape-garden on the day of incident at about 9.30 a.m. for going to house.

3. The prosecution has established the presence of accused no.1 Bhalchandra in his house at about 10 a.m.

4. Accused no.1 Bhalchandra alone was present initially nearby deceased Shamrao who was lying in the room in occupation of accused no.1 Bhalchandra.

5. The shirt and the trousers on the person of accused no.1 Bhalchandra arrested within few hours from the murder of Shamrao were having human blood of 'O' group, the blood of deceased Shamrao.

6. Motor-cycle on which deceased Shamrao had come to village Padali from Vita of P.W.10 Anna Sathe was missing from near the house of accused no.1 Bhalchandra and the accused no.1 Bhalchandra carried the motor-cycle to Vita and handed it over to P.W.10 Anna Sathe at about 11 a.m. and disclosed him that deceased Shamrao was shot dead.

7. The investigating officer, succeeded in tracing out the fire-arm, namely, country pistol used in committing murder of deceased Shamrao in the room.

8. Accused no.1 Bhalchandra had the opportunity to cause murder of deceased Shamrao.

10. Ms. Kantharia, learned Addl. Public Prosecutor, strenuously urged that all the aforestated circumstances have been proved beyond reasonable doubt and they are sufficient to form a chain. The learned Addl. Sessions Judge has scrutinised the entire evidence of the prosecution to examine every circumstance and has reached the conclusion that none of the circumstances has been proved beyond reasonable doubt. Ms. Kantharia placed heavy reliance upon the evidence of PWs.2,3,6,7,8 and 9 to contend that almost all the circumstances stand proved by these witnesses.

11. The first circumstance relied upon by the prosecution is motive for committing the murder of deceased Shamrao by accused no.1. The prosecution has placed reliance upon the evidence of P.Ws.2 and 6 to prove the alleged motive. Admittedly, deceased Shamrao and accused no.1 were extremely good friends. Their friendly relationship is evident from the fact that the daughter of accused no.1 was staying at Tasgaon with deceased Shamrao and his family for pursuing her studies. It has also come in the evidence that Shamrao had requested P.W.3, wife of his brother P.W.2 Bhimrao, to supply milk to the accused free of cost. Shamrao used to stay with accused no.1 whenever he would visit village Padali. Moreover, it is not disputed by the prosecution nor is it reflected in the evidence of any of the witnesses that relations of Shamrao and accused no.1 had strained on any count before the alleged incident. P.W.2, who has made a bald statement in his evidence regarding illicit relations between deceased Shamrao and the wife of accused no.1, could not state the source of his information, nor could he give any other particulars to substantiate his statement. In so far as P.W.6 is concerned, he has not stated anything about the illicit relations between Shamrao and the wife of accused no.1. In the absence of an evidence to substantiate the allegation of illicit relations, the prosecution cannot be said to have proved the said allegation. We find it extremely difficult to accept the contention of Ms. Kantharia, learned A.P.P. that the motive in the present case has been proved by the prosecution on the basis of the evidence of P.Ws.2 and 6.

12. Ordinarily, failure of the prosecution to establish the motive does not necessarily mean that the entire prosecution case has to be thrown over board, particularly when the evidence of eye-witness is truthful and trustworthy. However, in a case of circumstantial evidence the motive goes a long way to prove the guilt of the accused. Motive would form one of the main links in the chain of circumstantial evidence. In the present case we find no reason for the accused to kill Shamrao in the face of their relationship. Absence of motive in such case or failure on the part of the prosecution to prove alleged motive would be fatal in the case of circumstantial evidence and if it is not proved, the chain of the circumstances cannot be said to have been complete. We, therefore, find no infirmity in the findings recorded by the learned Sessions Judge in so far as the motive is concerned.

13. After having considered the evidence of P.W.2 and P.W.3, the learned Addl. Sessions Judge has held that the presence of accused no.1 in his house at 10 a.m. has not been proved beyond reasonable doubt. Evidence of the witnesses, not only P.W.2 and P.W.3 but even the other witnesses such as P.W.6 and P.W.7, in our view, though is sufficient to prove that accused no.1 was in village Padali, is not sufficient to establish his presence in the house at the relevant time. None of the witnesses has stated that they had seen accused no.1 entering the house and he was seen in the company of the deceased before his death. When he was first seen by P.W.3 Shantabai, Shamrao was already dead. She was very much present near the house of accused no.1, but she does not state to have seen accused and Shamrao together or heard gun shot or found the movements of the accused suspicious. Accused was not at home that day morning and he had returned Padali at 10.00 a.m. Moreover, no witness states that at the relevant time he was armed with any weapon much less the pistol. The circumstance no.6 relied upon by the prosecution also creates doubt about the presence of accused no.1 before the death of deceased Shamrao in his house. P.W.8 and P.W.10 have stated that accused no.1 had gone to village Vita to deliver the motor-cycle which was brought by deceased Shamrao from his friend P.W.10 Anna Sathe. He had gone to village Vita to deliver the motor cycle at 11 a.m. The timing given by P.W.8 and P.W.10 tallies. At the same time, witness, P.W.2 and P.W.3 in particular, state that accused no.1 was seen at 11 a.m. near the dead body of the deceased Shamrao. This confusion of timing creates doubt about the presence of accused no.1 just before the death of deceased Shamrao. Ms. Kantharia, learned A.P.P., however, submitted that how did accused no.1 come to know that the motor-cycle of P.W.10 Anna Sathe had to be delivered at Vita. She submitted that going of accused no.1 to Vita to deliver the motor-cycle itself indicates that he had met the deceased before going to Vita. The evidence on record, however, in our view, is not clear and sufficient to prove beyond reasonable doubt that accused no.1 went to Vita before or after the death of Shamrao. As a matter of fact, the argument of Ms. Kantharia goes against the prosecution. It proves that Shamrao was alive and told the accused to deliver motor-cycle to P.W.10. None of the witnesses states that the accused left in their presence on the motor-cycle to reach it to Vita before or after the alleged incident. Moreover, it is quite possible that the deceased himself might have told accused no.1 to deliver the motor-cycle to Vita since he had told P.W.10 Anna Sathe that he would do so on 24th Jan., 1986. In view of this, it cannot be said that circumstance nos.3, 4 and 6 have been proved beyond reasonable doubt. Finding of blood stains on the clothes, i.e. shirt and trouser of the accused, also creates doubt in view of the prosecution case of killing Shamrao with pistol. If Shamrao was killed by gun shot, the question of finding blood stains on the clothes of the accused may not arise. In this view of the matter, the prosecution cannot be said to have proved all the circumstances beyond reasonable doubt and they inevitably and exclusively point the guilt of the accused. It cannot be said that each circumstance relied upon by the prosecution is established by cogent, succinct and reliable evidence. They definitely do not provide a chain. We find no reason to interfere with the findings recorded by the learned Addl. Sessions Judge.

14. In view of our findings in respect of the allegation of murder against accused no.1, the charge against accused no.2 does not stand to test. If accused no.1 is entitled an acquittal, accused no.2, who is charged for the offence causing to disappear evidence of commission of main offence of murder with an intention to screen accused no.1 from legal punishment, also deserves to be acquitted. Even otherwise, we did not find sufficient material on record to substantiate the allegations against accused no.2.

15. In such state of affairs, we confirm the findings recorded by the trial Judge. In our opinion, these findings are not perverse. There is no strong and compelling reason to interfere with such well balanced order of acquittal made on proper appreciation of the evidence on record. In other words, the evidence as available does not raise a conclusion only of guilt and, therefore, the impugned judgment does not warrant interference.

16. We, therefore, dismiss the appeal against the acquittal. We hereby confirm the acquittal and bail bond, if any, stands cancelled.

Appeal dismissed.