Allowed

Ramesh Govind Thakur v. the State of Maharashtra

Bombay HC3 Apr 2008APEAL/192/2006

Case brief

AI extract

What is this about?

In an appeal against life imprisonment for murder under Section 302 IPC, the High Court at Bombay allowed the appeal. The court held that the prosecution failed to establish motive, the last-seen theory (specifically a 44-hour gap), the authenticity of seized articles due to lack of sealing and timing discrepancies, and the admissibility of the extra judicial confession.

What did the court decide?

The conviction under Section 302 IPC is set aside. The appellant is directed to be released forthwith if not involved in other offences.

Ramesh Govind Thakur Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2008)

¶1

 (-1-)

¶2

MGN

¶3

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

 APPELLATE SIDE, CRIMINAL JURISDICTION

¶5

 CRIMINAL APPEAL NO.192 OF 2006

¶6

 Ramesh Govind Thakur )
 Age 30 years, C/3204, Circle )
 6/4, Kolhapur Central Prison, )
 Kalamba, Kolhapur-4416 007 )
 Residence: resident of Nepal, )
 Dhanakadi, Taluka Monel, Dist. )
 Kailali, At present resident )
 of Khanvali, Taluka Lanja. )...Appellant

¶7

Vs.

¶8

 The State of Maharashtra...........Respondents

¶9

 Dr. Y.M. Choudhari, for the Appellant.
 Mrs. V.R. Bhosale, A.P.P. for Respondents

¶10

CORAM: F.I.REBELLO&

¶11

SMT.V.K.TAHILRAMANI,JJ.
DATED: 3rd April,2008

¶12

JUDGMENT (PER F.I. REBELLO, J.)

¶13

 . The Appellant herein was charged for the

¶14

 offence of murder of Hiravati @ Hiru Shankar Narkar
 by assaulting her with sickle and thereby committed
 an offence punishable under Section 302 of the
 Indian Penal Code. The charge was framed on 11th
 March, 2005. The learned Sessions Judge after
 examining the witnesses by his judgment dated 15th
 July, 2005 convicted the Appellant for the offence
 punishable under Section 302 of the I.P.C. and
 sentenced him to suffer imprisonment for life. It
 is this against this order that the Appellant is in
 Appeal before this Court.

¶15

 (-2-)

¶16

 2. On behalf of the Appellant his learned
 Advocate submits that there are no eye witnesses and
 the prosecution case is based entirely on
 circumstantial evidence. The prosecution it is
 submitted before the Sessions Court relied on the
 following incriminating circumstances:- Motive;
 Last seen; Seizure of blood stained underwear;
 Recovery of blood stained clothes belonging to V and
 of a blood stained sickle; Extra judicial
 confession and Injuries on the accused person.

¶17

 . It is further submitted that the prosecution
 has not led any evidence of any witness to prove the
 motive. As so far as the circumstances of last
 seen, according to the learned Counsel P.W.6 has
 deposed that she saw the deceased on Monday
 (2-8-2004) at 6.00 p.m. in the house of the accused
 when both the Accused and his wife were present.
 According to the prosecution the incident occurred
 at 11.00 p.m. on 2nd August, 2004. The evidence on
 record does not prove the last seen theory or of
 incriminating the accused or advancing the

¶18

 prosecution case. In so far as seizure of blood

¶19

 stained underwear which was seized vide Panchanama
 Exhibit 15, the C.A. report shows that no blood or
 semen was found on the said underwear. Therefore,
 this cannot be considered as an incriminating

¶20

 (-3-)

¶21

 circumstance against the accused. In so far as
 recovery of blood stained cloths it is submitted
 that the cloths were recovered on 9th August, 2004
 as per the prosecution case on the statement of the
 accused. The evidence of P.W.5 would, however, show
 that the cloths and sickle were seen by her at the
 Police Station when the statement was recorded on
 6th August, 2004. It is further submitted that no
 witness has identified these cloths in evidence
 before the Court as belonging to the deceased or the
 sickle as the one used for the offence. It is also
 pointed out that the seized articles were not sealed
 and on this ground also the evidence could not have
 been considered. In so far as extra judicial
 confession is concerned, it is submitted that in the
 evidence of P.W.8 the omission in his statement was
 put to him. Apart from that the purported extra
 judicial statement was made to P.W.8l when the
 appellant was in the custody of the police at the
 police station. Considering Section 26 of the
 Indian Evidence Act the extra judicial confession
 would not be admissible. In so far as the injuries
 on the person of the accused is concerned, it is

¶22

 submitted that though it is contended that the
 accused was arrested on 7th August, 2004, he was
 already in the custody of the Police from 6th
 August, 2004. That has not been explained. In
 these circumstances that evidence also is of no

¶23

 (-4-)

¶24

 consequence. At any rate it is submitted that the
 chain of circumstantial evidence which had to be
 established to prove that the involvement of the
 appellant had not been established and consequently
 the Appellant should be acquitted of the offence.

¶25

 2. On behalf of the Respondent State, learned
 P.P. has sought to contend that there is no
 infirmity with the findings recorded by the learned
 Additional Sessions Judge and in these circumstances
 the conviction ought to be sustained.

¶26

 3. At the outset we may point out that the law
 as settled is that all proved circumstances must
 form a chain of which no link must be missing and
 they must unequivocally lead to the guilt of the
 accused. We may refer to the law as decided. In
Ashish Batham vs. State of Madhya Pradesh, 2002
Cri., L.J.4676 the Supreme Court once again
 reiterated the law and referred to the judgment in
Hanumant Govind Nargundkar & Anr. vs. State of

¶27

Madhya Pradesh, AIR 1952 S.C. 343 where the Court
 observed as under:-

¶28

 "In dealing with the substantial evidence
 the rules specially applicable to such
 evidence must be borne in mind in such cases
 there is always the danger that conjecture

¶29

 (-5-)

¶30

 or suspicion may take the place of legal
 proof and therefore, it is right to recall
 the warning addressed by Baron Alderson to
 the jury in Reg. V. Hodge, (1838) 2 Lewin
 227) where he said:

¶31

 "The mind was apt to take a pleasure in
 adapting circumstances to one another, and
 even in straining them a little. If need
 be, to force them to form parts of one
 connected whole; and the more ingenious the
 mind of the individual, the more likely was
 it, considering such matters, to overreach
 and mislead itself, to supply some little
 link that is wanting to take for granted
 some fact consistent with its previous
 theories and necessary to render them
 complete."

¶32

 It is well to remember that in cases where
 the evidence is of a circumstantial nature,
 the circumstances from which the conclusion
 of guilt is to be drawn should in first
 instance be fully established, and all the
 facts so established should be consistent
 only with the hypothesis of the guilt of the
 accused. Again, the circumstances should be
 of a conclusive nature and tendency and they

¶33

 (-6-)

¶34

 should be such as to exclude every
 hypothesis but the one proposed to be
 proved. In other words, there must be a
 chain of evidence so far complete as not to
 leave any reasonable ground for a conclusion
 consistent with the innocence of the accused
 and it must be such as to show that within
 all human probability the act must have been
 done by the accused."

¶35

 4. We have heard the learned Counsel for the
 Appellant as also the learned Public Prosecutor. In
 so far as motive is concerned, though the
 prosecution examined 13 witnesses no evidence on
 that aspect has come on record. The prosecution has
 been unable to establish the motive. On the
 contrary it has come on record that the deceased was
 known to the Appellant and his wife. P.W.6 in fact
 states on the day of the incident she had seen the
 deceased sleeping in the house of the appellant at
 about 6.00 p.m. This would show that the Appellant
 and his family were on friendly terms with the
 deceased. Nothing contrary has been brought on
 record to show any motive. Motive has not been

¶36

 established. Motive may not be relevant in a case
 where the evidence is overwhelming, but it is a plus
 point for the accused in cases where the evidence is

¶37

 only circumstantial. See Sakharam vs. State of

¶38

 (-7-)

¶39

M.P. (1992) 2 SCC 153.

¶40

 . The prosecution in this case has not been
 able to establish any motive.

¶41

 5. We next come to the issue of circumstances

¶42

 of last seen. The evidence on record is of P.W.6
 Bhagirathi Vishnu Kokare, who had deposed that she
 had seen the deceased sleeping in the house of the
 Appellant at 6.00 p.m. and the appellant and his
 wife both were present at the house. The
 prosecution case is that the incident had happened
 on 2nd August, 2004 at 11.00 p.m. In terms of the
 evidence of the Doctor who did the Post-mortem P.W.7
 it is in his evidence that the deceased must have
 died more than 24 hours before the P.M. The P.M.
 was conducted between 4 to 6 p.m. on 4th August,
 2004. The death, therefore, could have occurred any
 time previous to 4.00 p.m. of 3rd August, 2004.
 Therefore, between the appellant being seen with the
 deceased at 6.00 p.m. on 2nd August, 2004 and 4.00
 p.m. on 3rd August, 2004 there is a gap of 44
 hours. It is true that in the evidence of P.W.5
 Sharmila Shankar Bodekar it has come on record that
 at 12.00 p.m. that day the accused came to her
 house on bicycle and demanded liquor which she
 refused. There is no explanation coming from the
 prosecution about the deceased’s whereabouts after

¶43

 (-8-)

¶44

 6.00 p.m. till the complaint filed by P.W.1
 Kamalakant Krishna Kamat who was informed on 3rd
 August, 2004 that one dead body was lying near the
 electric pole. He has also deposed that the face
 was practically smashed. The body was naked and the
 hairs were missing. As explained earlier on that
 very night the appellant had been to the house of
 P.W.5 after midnight.

¶45

 6. In so far as seizure of blood stained
 underwear of the Accused is concerned though it was
 seized under a Panchanama. The article was at item
 No.5 of the report of the C.A. The result shows
 that there was no blood detected on Exh.5 and
 similarly no semen was detected on exhibits 5, 7, 8
 and 9. The purported recovery of the underwear of
 the appellant is, therefore, of no consequence.

¶46

 7. The next circumstance is recovery of blood
 stained cloths belonging to the deceased and the
 blood stained sickle. The first infirmity in this
 seizure is that neither the Panchanama Exh.17 nor
 Panch P.W.3 have stated that the articles were
 sealed upon seizure or any time soon thereafter.
 The I.O. in his evidence has admitted that he did
 not seal the articles after recovery. In the matter
 of circumstantial evidence failure to seal the
 articles must be viewed with suspicion. Reliance if

¶47

 (-9-)

¶48

 at all if required can be placed on the judgment of

¶49

 the Supreme Court in Sahib Singh vs. State of

¶50

Punjab, AIR 1997 S.C. 2417 and in Salim Akhtar
alias Mota vs. State of Utter Pradesh,2003 All M.R.
(Cri.) 1167. The second aspect of the matter is
 that the recovery was effected on 9th August, 2004.
 P.W.5 Sharmila, however, deposed that she had
 identified the articles belonging to the accused
 which were shown by her to the police at the time of
 recovery of her second statement including sickle.
 In other words the evidence of this witness will
 show that the articles were already in possession of
 the Police on 6th August, 2004 on which day her
 second statement was recorded. The recovery,
 therefore, effected on 9th August, 2004 at the
 purported instance of the Appellant will have to be
 rejected. The third aspect of the matter is that
 the identity of the clothes as belonging to the
 deceased was not established through any witness
 before the Court. This is one more circumstances
 for rejecting the purported recovery.

¶51

 7. Lastly on behalf of the Appellant learned
 Counsel pointed out that the Panch who was present
 when the Panchanama was drawn was staying 24 Kms.
 away from the Police Station at different village.
 No explanation has been given as to why a person was
 called to act as a Panch staying 24 Kms. away. In

¶52

 (-10-)

¶53

 our opinion it is not necessary to consider this
 aspect considering our finding that the recovery has
 to be rejected.

¶54

 8. The other major circumstantial evidence is
 the extra judicial confession purported to have been
 made by the Appellant to the P.W.8. P.W.8 Jagdish
 Jaywant Kadam in his evidence has deposed that the
 Appellant was working as a servant for him and that
 he had confessed to the killing of the deceased. In
 the cross examination it was put to him that in the
 statement recorded, this was not so recorded. His
 only answer was that he cannot assign any reason why
 it is not appearing in the statement. If such a
 statement had been made in our opinion as an extra
 judicial confession it would have found a place in
 the statement recorded by the Police. Apart from
 that we have to consider Section 26 of the Indian
 Evidence Act, which sets out that no confession made
 by any person whilst he is in the custody of a
 police officer, unless it be made in the immediate
 presence of a Magistrate, shall be proved as against
 such person. Admittedly on that day as per the
 evidence of P.W.8 himself he visited the appellant
 when in police custody and met him with the
 permission of P.I. Bhosale. Considering the
 mandate of Section 26 in our opinion this evidence
 also will have to be rejected.

¶55

 (-11-)

¶56

 9. In our opinion as from the evidence it is

¶57

 clear that the prosecution has been unable to prove
 motive, or establish the last seen theory, or prove
 the recovery of the sickle and clothes of the
 deceased and the purported extra judicial
 confessional statement of the appellant. In our
 opinion it is not necessary to consider the various
 other contentions raised on behalf of the appellant
 by the learned Counsel. The prosecution has not
 been able to show any evidence linking the guilt of
 the appellant to the accused. In our opinion,
 therefore, the Appeal will have to be allowed.

¶58

 10. In the light of that the conviction of the
 Appellant under Section 302 of the I.P.C. is set
 aside. The Appellant is directed to be released
 forthwith, if he is otherwise not required in any
 other offence.

¶59

 . Muddemal articles to be disposed of
 according to law.

¶60

(SMT.V.K.TAHILRAMANI,J.)(F.I.REBELLO, J.)

Ramesh Govind Thakur v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ramesh Govind Thakur v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Barkya @ Balu Yadav Khalge Vs the State of Maharashtra

The State of Maharashtra Vs Pravin Ashok Rakh

The State of Maharashtra Vs Pravin Ashok Rakh

Kulappa Vithal Teli Vs the State of Maharashtra

The State of Maharashtra Vs Nityanand @ Nitu Ganpat Yadav and Ors.

Krishnath Yashwant Powar Vs the State of Maharashtra