2008 ALL MR (Cri) 350
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

NARESH H. PATIL AND P.R. BORKAR, JJ.

Naresh S/O. Uttam Gaikwad Vs.State Of Maharashtra

Criminal Appeal No.76 of 2006,Criminal Appeal No.189 of 2006,Criminal Appeal No.190 of 2006

29th November, 2007

Petitioner Counsel: Shri. P. S. SHINDE,Shri. S. G. SHINDE
Respondent Counsel: Shri. V. B. GHATGE

Penal Code (1860), Ss.364, 300 r/w. S.34 - Abduction and murder - Proof - Accused persons allegedly took away victim who was unwilling to go with them in autorickshaw, beat him and left him in unconscious state - Victim later succumbed to injuries - Victim was taken away in darkness - Identification of accused by witness present at relevant time or by rickshaw driver could not be relied on - No test identification parade held - Motive not established - In absence of any evidence to show that there was any dispute or quarrel between victim and appellants, evidence regarding 'last seen together' cannot be said to be sufficient - Further evidence of rickshaw driver does not show any use of force or deceitful means in taking away victim - No sufficient proof of identity of accused persons who abducted victim - Conviction of accused persons, set aside. (Paras 9, 12-17)

Cases Cited:
Bodh Raj alias Bodha Vs. State of Jammu & Kashmir, AIR 2002 SC 3164 [Para 15]
Malleshappa Vs. State of Karnataka, 2008 ALL MR (Cri) 280 (S.C.)=2007 AIR SCW 6100 [Para 15]


JUDGMENT

P. R. BORKAR, J.:- These three appeals are filed by three accused who are original accused Nos.1, 3 and 4 in Sessions Case No.69 of 2005 and in which the learned 4th Ad-hoc Additional Sessions Judge Jalna on 4-1-2006 convicted them for an offence punishable under sections 364, 302 both read with section 34 of the Indian Penal Code and sentenced each to suffer rigorous imprisonment for 5 years and a fine of Rs.1,000/- for offence punishable under section 364 read with section 34 of the Indian Penal Code and sentenced each to suffer imprisonment for life and to pay fine of Rs.4,000/- for offence punishable under section 302 read with section 34 of the Indian Penal Code.

2. Originally five accused persons, including present appellants, were put on trial for committing kidnapping and murder of Shivlal Yadav at Jalna on 29-3-2005 between 8.00 and 8.30 p.m. It is the prosecution case that deceased Shivlal is brother-in-law of PW-11 Vimalbai Yadav. On 29-3-2005 at about 8.30 p.m. the present appellants and other two accused had gone to the house of PW-11 Vimalbai Yadav and enquired if her brother Dhulkumar Yadav was at the house. Then they were told by Vimalbai that he was not present. They stated that they would take away Shivlal, the brother-in-law of PW-11 Vimalbai. Shivlal stated that he had ache in stomach and would not come. But in spite of pleadings by PW-11 Vimalbai Shivlal was taken away in an auto rickshaw which was driven by PW-7 Sk. Rafiq s/o. Hakim. As per the evidence of PW-7 Sk. Rafiq, a boy was taken in the rickshaw from Chandan Zhira area and the accused persons had taken him near a brick klin near Moti Talav at Jalna. It is stated that the accused No.3 Sk. Zakir gave a currency note of Rs.100/- to PW-7 Sk. Rafiq.

3. It is further prosecution case that on 30-3-2005 when PSI Bhalchandra Mohanrao Kadam (PW-1 - Exhibit 27) was on duty near Jamna Nagar he received a wireless message that in Moti Talav some clothes and one dead naked body were lying and he should go and enquire. PSI Kadam went to the spot and found a person in unconscious naked state, he was injured. He was about 25 to 30 years of age. PSI Kadam took that person in a vehicle to the Civil Hospital Jalna. PSI Kadam lodged complaint for committing offences punishable under sections 307, 201 both read with section 34 of the Indian Penal Code against unknown persons. The injured person died while under treatment at hospital at Aurangabad where he was shifted for better treatment. It is also prosecution case that the police gave publication to news item that an injured person was found and he was taken to Government Hospital at Aurangabad where he died.

4. Since Shivlal had not returned back, PW-11 Vimalbai was waiting for him. She told neighbours. She had recently delivered so she stayed at home. After her husband returned home at about 10.30 p.m., she told him that Shivlal was taken away. They tried to contact the police on telephone but they could not contact. On the next day mother of PW-11 Vimalbai namely Savitribai Yadav came. When she came to know about the incident, she went to the police and later on identified the dead body of Shivlal at Aurangabad. Thereafter on the basis of the names given by PW-11 Vimalbai, the police first arrested accused 1 and 3 and later on other accused persons. Since Shivlal had expired in Government Hospital, Aurangabad, inquest was drawn at Aurangabad.

Post-mortem on the dead body was performed by Dr. Rajendra Kagne (PW-8 - Exhibit 40) on 3-5-2005, who noted several abrasions and contusions all over body of deceased Shivlal. They were more than 14 in number. Some of the small abrasions were taken as one injury. The main injury on head was 4 irregular infected wounds on both scapular region of size (a) 8 x 6 c.m., (b) 7 x 6 cm., (c) 4 x 3 cm. which corresponds with internal injuries. On internal examination following corresponding injuries were noticed.

"Under scalp multiple intermingled contusion of various size over left frontal, parieto temporal region, Right fronto-parieto temporal and Right side of occipital region brown in colour.

No evidence of fracture.

Meninges intact, congested subdural haemorrhage seen. More pronounced at both parietal and occipital region, reddish.

Diffuse subarachnoid haemorrhage seen. Brain matter congested and oedematous."

There was injury almost on every part of body including scrotum. But there was no fracture, incised wound, weal mark or CLW. Abrasions and contusions were 4/5 days old and age of infected head injury could not be given. Injuries were caused by hard, blunt and rough surface. According to the doctor the cause of death was head injury associated with multiple injuries.

5. Thereafter, the police arrested the accused and interrogated them. The clothes of some of the accused were attached. On the directions of the Superintendent of Police the investigation was taken over by Police Sub Inspector Rajput of Kadim Police Station Jalna. It is stated that accused No.3 - Sk. Zakir was arrested and he showed the spot to the police. The police seized the clothes of accused No.3. So far as attachment of clothes of accused 1, 3 and 4 is concerned, they were attached from their houses. There is CA report and spot panchanama. However, the CA report and the spot panchanama cannot be considered as a link whereby involvement of the appellants could be established.

6. The only material evidence against the accused is of rickshaw driver Sk. Rafiq s/o Hakim (PW-7 - Exhibit 39) and PW-11 Vimalbai Yadav (Exhibit 45). PW-11 Vimalbai Yadav stated that 7 to 8 months before her deposition, at about 8.30 p.m. accused Zakir, Naresh, Kishore and one person whose name she was not knowing had come to her house in a rickshaw. They asked about Dhulkumar. Vimalbai told them Dhulkumar was not at the house and she could not say when he would return. Those persons told Vimalbai to give message to Dhulkumar that he was called in the city. Thereafter those accused persons told PW-11 Vimalbai that they were taking away Shivlal with them. Shivlal told the accused persons that he had ache in stomach and would not come. But the persons took him with them in spite of requests by PW-11 Vimalbai. PW-11 Vimalbai further deposed that at 10.30 p.m. when her husband came to home she narrated the whole incident to him. Her husband then tried to contact the police on telephone but there was no response. They told to the neighbourers. On the next day the mother of PW-11 Vimalbai came and PW-11 Vimalbai told her mother that Zakir and Naresh had come and they took Shivlal. Thereafter her mother went to the police station. The witness identified the accused persons in Court as persons, who had come to her house.

7. In the cross-examination PW-11 Vimal admitted that her house is at the centre of the locality and surrounded by other houses. There is a Masjid nearby. The witness could not tell the number of the auto rickshaw. According to the witness, Dhulkumar used to come home in drunken condition. He was not having good relations with the members of the family. Dhulkumar had friendship with bad people and he was of quarrelsome nature. It is suggested to PW-11 Vimal that she was taking names of the accused at the instance of Dhulkumar.

8. In the cross-examination PW-11 Vimalbai stated that she was knowing accused No.2 Kishore by face as he used to come to her house. But she did not mention the name of Kishore in her statement before Police. PW-11 Vimalbai did not state that she was knowing other accused persons prior to the incident. She only stated that she was knowing accused Kishore. In these circumstances, question arises whether really identification by PW-11 Vimalbai in Court of accused Nos.1, 3 and 4 is sufficient. In the cross-examination PW-11 Vimalbai admitted that she could not notice the face of auto rickshaw driver as it was night time and there was darkness. If that was so, whether she had really opportunity to see the faces of accused Nos.1, 3 and 4. It is also not clear who gave her names of these three accused who are appellants before us. If really Kishore had been with other accused persons, definitely PW-11 Vimalbai would have remembered him first and would have told police that Kishore had come with other persons. But it is clear that the learned Sessions Judge did not believe the evidence of PW-11 Vimalbai that Kishore had come with other persons and the learned Sessions Judge acquitted accused No.2 - Kishore. There is no appeal against the said acquittal. Under these circumstances there is a reason to believe that there is tendency on the part of the witnesses to involve innocent persons.

9. If we consider the evidence of PW-7 rickshaw driver, a person who, according to prosecution, had seen the accused persons picking Shivlal from his home and accompanying him thereafter. In the evidence he did say that accused persons before Court had hired his rickshaw on 29-3-2005. There were 5 persons. The auto rickshaw was hired. The rickshaw was taken to Chandan Zhira where it was stopped before one house. One boy of Chandan Zhira came with them. Accused No.3 - Zakir paid him Rs.100/- and PW-7 went away along with his rickshaw. PW-7 further deposed that he left the boy and the accused persons near brick kilns adjacent to Moti Talav. In the cross-examination on behalf of accused Nos.1, 3 and 4, he stated that he was not knowing who were those passengers who had boarded his rickshaw. He volunteered that they were all drunkards. He stated that he did not know the accused persons by name. He further deposed that he did not recognise the passengers who travelled in his rickshaw and who he had left near brick kilns. He further deposed that he came to know from news item about the incident (murder). In the cross-examination on behalf of accused Nos.2 to 5 PW-7 Sk. Rafiq stated that there was dark at the spot and therefore he did not see the faces of the passengers and under pressure of police he gave the statement. He admitted that nobody had hired his rickshaw. This witness, in spite of his admission in the cross-examination, was not declared hostile by the learned A.P.P. and under these circumstances it is clear that the identification of the appellants by this witness cannot be trusted.

10. It is also argued before us that the examination-in-chief of PW-7 Sk. Rafiq shows that no force was used in taking away Shivlal. According to PW-7 Sk. Rafiq he stopped the rickshaw in front of one house and one boy of Chandan Zhira came to them. He left those accused persons and the boy near brick kilns near Moti Talav.

11. In this case unfortunately no test identification parade is held in spite of the fact that neither PW-7 Sk. Rafiq nor PW-11 Vimalbai was knowing the original accused Nos.1, 3 to 5 prior to the incident. No other evidence like circumstantial evidence is brought on record to connect any of the accused with the crime. Assuming for some time that somebody had taken away Shivlal in a rickshaw and he was beaten and thrown at a lonely place near Moti Talav, still it cannot be said that there is sufficient evidence to hold that the present appellants were the persons who had taken part in taking away or causing injuries to Shivlal.

12. Here we may refer to the evidence of PW-10 - Savitribai Yadav (Exhibit 44) who had come to the house of PW-11 Vimalbai on the next day and who had gone to the police station and who identified Shivlal in the Government Hospital, Aurangabad. Her evidence is necessarily of hearsay nature so far as the main incident is concerned. The evidence of PW-10 Savitribai is useful only for holding that the person who was found by the police lying injured near Moti Talav and who was taken first to Civil Hospital Jalna and then to Government Hospital Aurangabad was Shivlal. Beyond that the evidence of PW-10 Savitribai is not useful. Unfortunately, in this case the Panch witnesses including PW-5 Pradeep Kakade, have turned hostile. In view of the above circumstances in our opinion the evidence on record is insufficient. It does not prove the guilt of the appellants beyond all reasonable doubt.

13. The prosecution case nowhere discloses what was motive of or reason for the accused to take away Shivlal and beat him. As disclosed by PW-11 Vimalbai, after accused persons came, they first enquired regarding Dhulkumar and also left a message for him. Absolutely no explanation is coming forth why deceased Shivlal was taken away by accused. Evidence of rickshaw driver Sk. Rafiq shows that Shivlal of his own joined accused and went with them, though the evidence of PW-11 Vimalbai is to the effect that he was unwilling. One more thing that needs consideration is that in absence of any evidence to show that there was any dispute or quarrel between Shivlal and the appellants, evidence regarding 'last seen together' cannot be said to be sufficient.

14. In the Charge learned Sessions Judge wrongly used word "kidnapped" as sections 459 to 461 of the Indian Penal Code disclose kidnapping can be of a person from India or of a male minor under 16 years of age or of a person of unsound mind. Kidnapping cannot of a 22 years normal boy. But, there could have been abduction as defined in Section 362 of the Indian Penal Code. Abduction requires that accused should by force compel or by any deceitful means induce a person to go from any place. The evidence of the rickshaw driver does not show any use of force or deceitful means in taking away Shivlal.

15. Two reported cases were cited before. The first is the case of Bodh Raj alias Bodha Vs. State of Jammu & Kashmir, AIR 2002 SC 3164. In para 32 Their Lordships observed as follows:-

"32. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. ...."

In second case in the matter of Malleshappa Vs. State of Karnataka, 2007 AIR SCW 6100 : [2008 ALL MR (Cri) 280 (S.C.)], it is laid down that singular circumstance of 'last seen together' was not sufficient to base conviction in the circumstances of the case.

16. In the facts of the case the present appeals deserve to be allowed as there is no sufficient proof of identity of accused Nos.1, 3 and 4 as persons who abducted deceased Shivlal. There is no motive or reason proved why appellants - accused were interested in beating Shivlal severely and leaving him at a lonely place. Shivlal was found in naked and injured state by PSI Kadam.

17. In the result, Criminal Appeals Nos.76 of 2006, 189 of 2006 and 190 of 2006 are allowed. The judgment and order dated 4-1-2006 of the 4th Ad-hoc Additional Sessions Judge Jalna in Sessions Case No.69 of 2005 to the extent of conviction and sentence of the appellants are quashed and set aside. The appellants in all these three appeals are acquitted of the offences punishable under section 364 read with 34 and section 302 read with 34 of the Indian Penal Code. They be set at liberty if not required in any other crimes. Fine amount, if paid, be refunded to the appellants.

Appeals allowed.