S.S. Shinde, J.
1. This appeal is filed by the appellants, aggrieved by the judgment and order passed by the Additional Sessions Judge-2, Ambajogai on 24th December, 2013, thereby convicting the appellants for the offence punishable under section 302 of Indian Penal Code and sentencing to suffer imprisonment for life and to pay fine of Rs.2,000/- each, in default, to suffer further S.I. for three months and further convicting the appellants for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code and sentencing them to suffer two years rigorous imprisonment and to pay fine of Rs.1000/- each, in default to suffer S.I. for one months.
2. The case of the prosecution, in brief, is as under :-
On 25.07.2007 at 04.00 p.m. in the evening in the land namely 'Ramana Forest Hilly' area within the limit of Ambalwadi, Tq. Ambajogai, Dist. Beed, the accused Nos.1 to 4 in furtherance of common intention committed murder of deceased Ram Baburao Masal. It is the prosecution case that, the accused no.1 Ramkishan Hulgunde had suspicion in his mind about illicit relations between deceased Ram Masal and his sister-in-law (wife of his brother). Deceased Ram Masal was frequently visiting the house of accused no.1. Therefore, accused no.1 had doubt about chastity of his sister-in-law, and it was reason and motive behind murder of deceased Ram Masal, by accused no.1 Ramkisan with the help of accused Nos.2 to 4, his friends.
It is further the case of the prosecution that, the accused Nos.1 to 4 have caused disappearance of evidence, therefore, they committed offence under Section 201 r/w Section 34 of the Indian Penal Code.
3. As observed in para no.1 hereinabove, the Additional Sessions Judge-2, Ambajogai convicted the appellants for the offence punishable under Sections 302, 201 r/w 34 of the Indian Penal Code, hence this appeal by the original accused persons.
4. The learned counsel appearing for the appellants submitted that, the prosecution did not establish motive for commission of alleged offence by the appellants. It is submitted that, since the case rests upon the circumstantial evidence, it was necessary for the prosecution to firmly establish motive for commission of offence. It is further submitted that, only one witness has stated about the motive, and that too, vaguely. It is submitted that, the entire prosecution case rests upon the evidence of PW-8 - Rukhminbai Garje who deposed that, the deceased was last seen in the company of the accused persons. It is submitted that, the alleged offence had taken place on 25th July, 2007 and statement of PW-8 was recorded by the Police on 10th August, 2007. There is inordinate delay in recording the statement of PW-8, and the evidence of PW-8 is also not trustworthy so as to rest the conviction of the appellants on the basis of her testimony. The brother of the deceased registered Missing Report on 26th July, 2007. In the said Missing Report dated 26th July, 2007, even suspicion is not expressed about the appellants that, they have committed the murder of the brother of the complainant. It is submitted that, Supplementary statement of the complainant was recorded on 11.08.2007, after recovery of the dead body. It is submitted that, no independent witness has been examined by the prosecution to prove the motive. The dead body was totally decomposed, and therefore, same was not identifiable. Though, the Investigating Officer has stated in his evidence that, he saw the broken mobile handset on the spot, same was not seized. No call details have been inquired/investigated as to phone calls made from the mobile of the deceased as well as accused. Though, the accused Nos.1 and 2 were arrested on 11th August, 2014, and accused no.3 was arrested on 12th August, 2007, an identification parade was conducted on 23rd October, 2007.
It is submitted that, on 27th August, 2007 the photographs of the deceased and also the accused were published in daily news paper i.e. Zunzar Neta. Therefore, the identification parade conducted after three months from the date of incident, looses its significance. It is submitted that, the husband of the PW-8 acted as panch witness to the inquest panchanama, which was conducted on 3rd August, 2007 and there are no reasons forthcoming for not recording the statement of PW-8 either on the next day of incident or immediately after the dead body was recovered. It is submitted that, there is a variance in the version of PW-8 and Naib Tahsildar, who conducted the identification parade as to identification of suspect in the test identification parade. One day prior to conducting the identification parade, the police constable went to the house of PW-8, and therefore, the possibility of tutoring the PW-8 or showing photographs of accused to her cannot be ruled out. It is submitted that, there is no recovery of weapons. There is no C.A. Report. The alleged recovery of ash also not believable in as much as during the said period, there were rains. It is further submitted that, though the PW-8 in her evidence stated that, the person to whom other four persons were pushing was fatty person but P.M. Report shows that, his body was moderately nourished. Therefore, the evidence of PW-8 is not trustworthy.
5. The learned Additional Public prosecutor appearing for the State submitted that, all the circumstances have been firmly established and proved by the prosecution by leading cogent, convincing and reliable evidence. The death was homicidal. The body was identified by the brother of the deceased and also other two witnesses. There were as many as 20 injuries on the body of the deceased. It is further submitted that, the evidence of PW-8 on the point of last seen together has not been shaken in the cross-examination. She identified all the accused persons in identification parade. Therefore, the learned Additional Public Prosecutor submits that, the trial Court has rightly convicted the accused, therefore, this Court may not entertain the appeal.
6. Since this is an appeal against conviction, we would like to reappreciate the entire evidence placed on record, so as to reach to the proper conclusion as to whether the reasons and findings recorded by trial Court are based upon improper appreciation of evidence on record and calls for any interference in exercise of appellate jurisdiction. We have given careful consideration to the rival contentions of the learned counsel for the parties. With their assistance we have perused the entire material placed on record. Upon careful perusal of the material placed on record, it appears that, in order to prove guilt against accused-appellant the prosecution has relied on following circumstances.
A) The deceased Ram Masal was found missing on and after 25.07.2007.
B) The dead body of deceased was found on 03.08.2007 in the Nala of Ramana forest Hilly area of village Abalwadi, Tq. Ambajogai, Dist. Beed.
C) The dead body of the deceased Ram Masal has been identified.
D) The deceased was last seen together with accused Nos.1 to 4, on 25.07.2007 at about 4 p.m. by Rukhminibai Garje.
E) The deceased was found to be died a homicidal death.
F) The accused were seen pulling and pushing the deceased out of rickshaw bearing No.MH23H7346 near the place where the dead body of Ram Masal was found.
G) The accused have been identified by the PW8 Rukhminbai Garje.
H) The auto rickshaw bearing No.MH-23-H-7346 has been seized.
I) Ash of blood stained clothes of the accused No.1 has been seized.
J) The food wear (Chappal) of deceased recovered at the instance of accused no.1 and same has been seized.
K) The accused No.1 Ramkishan suspected that deceased Ram Masal had immoral relations with his (accused No.1's) brother's wife.
7. The case of the prosecution entirely based on circumstantial evidence. It is well settled principle that where the case is entirely based upon circumstantial evidence, the court must take great care while evaluating circumstantial evidence and ensure that the circumstances on which the prosecution relies are fully consistent with sole hypothesis of the guilt of the accused. When a case rests on circumstantial evidence, such evidence must satisfy the following tests;
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should unerringly point towards the guilt of the accused;
(3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else;
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.
8. In the case of Mohd. Mannan @ Abdulo Mannan Vs. State of Bihar, (2011) 5 SCC 317, the Apex Court has reiterated the principles to be borne in mind while dealing with a case based upon circumstantial evidence in evaluation of the evidence adduced in the case. The apex court has observed as under :
"In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."
In the case of Rajendra Wasnik Vs. State of Maharashtra 2012 (7) LJSOFT (SC) 118 = (2012) 4 SCC 37, the Apex Court has held that to sustain conviction founded on circumstantial evidence, circumstances forming chain of events should be proved which should cumulatively and unequivocally point towards guilt of accused and be incompatible with innocence of accused or guilt of any other person.
9. In order to prove its case, the prosecution examined as many as 11 witnesses. PW-1 Bhagwat Baburao Masal i.e. brother of the deceased who lodged the Missing Report, examined as PW-1.In his deposition before the Court he stated that, he resides in Mangalwar Peth, Hamal Galli, Ambajogai. The deceased was his brother. They have joint family. The deceased Ram was doing business of construction. On 25th July, 2007, he was at home. Ram left the house for his work at about 9.00 a.m. He went for work in Chousalkar Colony. He remained there till 12.00 noon. At about 12.00 in the noon one phone call was received on his mobile. Ram told labours to pick material of centering and take it to construction site of Mr. Gambhire. He also told them that, he will come within 15 minutes. After 15 minutes Ram went somewhere. Thereafter, Ram did not return back. On 25.07.2007 in between 6.00 p.m. to 7.00 p.m., he made few phone calls on the mobile phone of Ram. He found phone was not working. On 26.07.2007 he went to Police Station, Ambajogai and lodged missing complaint regarding Ram. He along with his relatives continued search of Ram towards his friends.
10. PW-1 further deposed that, on 3rd August, 2007 he received phone call on his mobile phone from Police Station, Ambejogai. He went to Police Station, Ambejogai. He was taken to Ambalwadi Shivar near 'Visava' Dhaba in Police vehicle. He was taken to forest in deep valley. One body was shown to him, which was lying near Nala. He identified the dead body as of his brother Ram on the basis of diary found in the pocket of pant of deceased and after postmortem the dead body was given in his custody. Then funeral was performed.
11. It is further stated by PW-1 that, the accused no.1 Ramkishan @ Bala Haribhau Hulgunde was close friend of Ram. He used to visit the house of accused no.1 Ramkishan. The accused no.1 - Ramkishan had illicit relations with his brother's wife. He specifically deposed that, on 25th July, 2007, the accused Nos.1 to 4 called Ram in the noon after making phone call on his mobile phone. He was taken in rickshaw owned by accused no.4 Shaikh Javed, and after giving liquor to him for drinking, they took him to deep forest in the area of Ambalwadi and killed him with the help of some sharp weapons. His dead body was thrown in Nala. He stated that, accused Nos.1 to 4 killed his brother. His supplementary statement was recorded by the Police on 11th August, 2007. He identified clothes and diary of his brother in the Court.
12. In his cross examination he stated that, accused no.1 Ramkishan is residing in same lane. Accused Nos.2 to 4 frequently used to come to said lane wherein PW-1 is also residing. He knew all four accused since long. He has specifically stated that, on 26.07.2007 when he lodged missing complaint, he did not suspect the accused persons. On 3rd August, 2007, when he saw dead body of his brother, he had suspicion of accused, but he was not confident. Till the dead body was given in custody of relatives, he did not tell Police regarding his suspicion. He firmly denied suggestion that, dead body was not identifiable. He has further denied suggestion given by the defence that, dead body was not identifiable since the same was decomposed.
13. The evidence of this witness is relevant on two aspects, firstly motive for commission of offence by the accused and secondly, phone calls received on mobile of deceased on 25.07.2007. It has come in his evidence that, on 25th July, 2007 at about 12 noon, some phone call was received on the mobile phone of the deceased. After receiving said phone call, the deceased left the construction site i.e. Mr. Gambhire after informing the labourers working there that, he will come back within 15 minutes. Thereafter he did not return back. Perusal of the deposition of the Investigating Officer, PW-11 whose evidence is at Exhibit - 94 reveals that, he did not cause any investigation/inquiry about calls received by the deceased on his mobile on the date of incident. Infact, the entire prosecution case rests upon the circumstance that, the deceased Ram received some phone call on his mobile on 25th July, 2007 at 12 noon and thereafter he left the place. According to the prosecution case, the said call was made by the accused persons so as to call Ram pursuant to conspiracy to kill him. Therefore, the investigation about calls received on mobile of the deceased was very crucial and important. It has also come in the evidence of PW-11 that he saw one broken mobile on the spot of incident, however, he did not seize it. PW-11 has admitted in his cross examination that, he has not inquired/investigated about call details in respect of conversation of deceased Ram on mobile on the date of incident and though he saw broken hand set at the spot of incident, he did not seize the same. Therefore, whether the call received by deceased Ram at 12 noon on his mobile on 25.07.2007, was really made by the accused or any other person. So also raises serious doubt as to who has really called deceased Ram.
14. So far as motive is concerned, it has also come in the evidence of PW-11 that, it is transpired during investigation that, there was illicit relations between deceased and wife of the accused no.1 Ramkishan and therefore, the accused no.1 killed the deceased Ram. However, there is no evidence to prove this fact. The fact deposed by PW-1 in this regard based upon hearsay evidence. He had no personal knowledge of the said fact.
15. In fact, the PW-1 in his deposition before the Court stated that, there was illicit relationship of accused no.1 Ramkishan, with wife of Ramishan's brother. The deceased Ram used to visit the house of accused no.1 and accused no.1 used to suspect that, the deceased had illicit relations with the wife of brother of accused no.1. PW-1 has disclosed this fact 1st time when his supplementary statement was recorded. PW-1 had no personal knowledge about this fact. PW-11 i.e. Investigating Officer in his evidence has stated that, it transpired during course of investigation that, the deceased had illicit relations with wife of the accused no.1 Ramkishan. Therefore, it has come on record that, there are two contradictory versions about the motive for commission of offence. So far as other three accused persons are concerned, the prosecution has not attributed any motive for their involvement in the commission of offence. It is stated that, other three accused are friends of accused no.1 and therefore, they accompanied with him.
16. It is settled law that, while motive does not have a major role to play in cases based on direct evidence but it assumes importance in cases based on circumstantial evidence. The Supreme Court in the case of Rushipal Vs. State of Uttarakhand reported in 2013 (12) SCC 551, in para 14 held that, it is fairly well-settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. It is further observed that, absence of strong motive is something that cannot be lightly brushed aside.
17. The present case also rests upon the circumstantial evidence, and therefore, absence of strong motive is something that cannot be lightly brushed aside. The prosecution has not firmly established the strong motive for commission of offence by the accused-appellants.
18. PW-2 Dnyanoba Sopanrao Garje was examined at Exhibit - 32. PW-2 in his evidence stated that, on 2nd August, 2007, he was present in the village. At about 6.30 p.m. Shivaji Mahadeo Garje gave him some message. He told him that, dead body of one male person is lying near Nala in the field of forest, which is towards Ambalwadi road to its north side. On the next day at about 6.30 in the morning he along with other 10 to 15 persons went to the spot. Shri Shivaji Mahadeo Garje, Chandrakant Shankar Garje and some other person were also with him. Shivaji Garje showed them spot where the dead body was lying. The place was located in forest towards southern side of Parali-Ambajogai road. The dead body was in highly decomposed condition. Body was lying in Nala. He informed said fact to Police Station Parali (Rural), at about 7.30 a.m. Subsequently, Police came there and prepared panchanama of spot and dead body. There was white colour shirt with checks design and ash colour pant on the body of dead person. There were injuries on the dead body. The Medical Officer came and conducted postmortem on the dead body. Thereafter dead body was given in the custody of the relatives of the deceased. It is relevant to mention here that, this witness in his evidence has stated that, the distance between spot of incident and village Ambalwadi is about 3-1/2 kms.
19. The prosecution examined Shivaji Garje as PW3. He stated in his evidence that, he saw the dead body from close distance. However, nobody could identify it is whose dead body.
20. Upon examining the evidence of PW-2, PW-3 and also other witnesses, it appears that, the body was found to be lying in highly decomposed condition. However, the dead body was identified by the brother of the deceased on the basis of clothes and diary found with the clothes of deceased.
21. The Investigating Officer seized one auto rickshaw (MH-23-H-7346) from the custody of accused Shaikh Vajid Shaikh Babu. PW-4 Husain was called at Police Station (Gramin), Parali-Vaijnath. He was shown auto of Bajaj company black in colour. In his deposition before the Court, he mentioned the registration number of said auto as MH-23-H-7643. He narrated other details about the said Auto rickshaw in his deposition. Upon careful perusal of his evidence, the number of auto rickshaw, which he has stated in his evidence is different, than mentioned by PW-8 in her deposition before the Court. PW-8 Rukhminbai in her evidence stated that, she saw five persons coming out of auto rickshaw No.MH-23-7346.
22. The prosecution examined Kishor Shivajirao Dalvi as PW-5. His evidence is at Exhibit - 45. On 15th August, 2007 he was called by Parali Gramin Police at about 3.45 p.m. It appears that, he was called as witness to record the memorandum statement of accused Sayyad Javed i.e. accused no.2. He narrated the details about the manner in which the accused disclosed, about burning of clothes and also about pair of Chappal of deceased which was thrown by him in bushes. He further stated that, accused Javed produced pair of chappal. It has also come in his evidence that, accused Javed told that, clothes of the accused were burnt. He has shown the spot where ash of burnt clothes was thrown by the accused Javed. From the place pointed out by said accused Police seized ash and same was sealed and then seizure panchanama was drawn.
23. Upon careful consideration of the evidence of PW-5 and Investigating officer, it cannot be said that, prosecution has proved beyond reasonable doubt that, the pair of chappal, which was recovered at the instance of accused Javed was really belongs to deceased Ram. There should have been some investigation on that aspect to ascertain as to whether, the said pair of chappal was as that of deceased-Ram. So far recovery of ash of burnt clothes of accused is concerned, it has come in the evidence of prosecution witness that, the incident occurred during rainy season, and such recovery of ash of burnt clothes after 20 days from the date of incident, that too underneath stone, is difficult to believe. Location of the spot from where the ash was recovered located near the river. In absence of sending the said ash to C.A. and opinion of expert to show that, really said ash is of burnt clothes as that of deceased, or otherwise, such recovery would be of no use to prove the prosecution case and establish any circumstances against accused.
24. The prosecution examined Hanumant Dagdu Bachate (PW-6). His evidence is at Exhibit-50. In his evidence, he stated that, his native place is Dhamoni, Tq. Sonpeth, dist. Parbhani. For last 4-5 years, he is residing at Ambajogai. He is doing work there. On 25th July, 2007, he was working with deceased Ram. He stated that, Ram Masal i.e. deceased was taking contract of Centering. On 25th July, 2007, Ram Masal had taken work at 2-3 places. On 25th July, 2007 at about 9 a.m. he was present near Kaman of Hanumannagar. Ram Masal was also present there. Ram Masal told him that, from Chousalkar colony they should bring material of centring for Gambhire's work. Ram Masal called tempo. Along with deceased and few labourers he went to Chousalkar colony. When they were loading material in tempo, driver told the deceased that, on his mobile he has received phone call of some lady. At about 11.30 to 11.45 deceased again received phone call. He left the place by saying to wait there and he will return within 10 minutes. He asked him and other labourers to take material to the site of Vijay Gambhire and he will come within 15-20 minutes. Thereafter, he left. This witness has stated that, at 3.00 p.m.he made phone call on the mobile of deceased. However, same was not connected. As already observed, there is no investigation by PW-11 about phone calls received on mobile of the deceased on the date of incident. Therefore, prosecution has failed to establish beyond reasonable doubt that, the call which was received at 12.00 noon on mobile of deceased Ram was made by the accused - appellants and they took him in auto-Rikshaw.
25. Prosecution has examined, Dr.Shashikant Shivajirao Salunke, the autopsy surgeon as PW-7. His evidence is at Exh.59. In his evidence, he stated that, he was posted as Medical Officer at PHC, Ghatnandur. On that day, he received requisition letter from Parli Rural Police Station for conducting post mortem of one decomposed dead body on the spot. Therefore, he went to village Amalwadi in Ramna Shiwar. Dead body lying there was taken out from the stream. He conducted post mortem of body which was identified as that of Ram Masal. He started post mortem on the spot on 03.08.2007 from 2.00 p.m, which lasted up to 3.30 p.m. He did notice that teeth were intact, body was moderately nourished and cold, Rigor-mortis was present in hands and legs, signs of decomposition were present. Body was smelling foul smell and maggots were seen coming out through face, nose. There were bullae present over some part of body which tilled with fluid. Skin can be easily peeled off, hairs fallen off and the nose and tongue can not be visualised. Magoots were coming out from nasal, cavity, mouths and ears. There were no injuries to external genitals. Both arms were flexed, fingures incurred. He further stated that, he noticed as many as 20 injuries on the dead body of deceased Ram. He stated that, all the injuries were ante mortem injuries. The injuries No.1 to 14, 16, 19 are possible by sharp edged weapon and injury No.15, 18 and 20 are possible by hard and blunt object. The penetrating injury mentioned in the report are possible by stabbing weapons such as sword, swordstick [Gupti] etc. Brain was soft, pulpy showing sign of decomposition. He has also stated details about examination of Thorax-walls, ribs, cartilages etc.
He has further stated that, injuries mentioned in column No.20 and 21 corresponds to injuries mentioned in column No.17. He has stated that, all the injuries mentioned in column No.17 on the various parts of the body are sufficient to cause the death of person. He has stated that, the death of deceased might have caused 7 to 8 days before the date of conducting postmortem. In his cross examination, he stated that, when he conducted postmortem of the dead body, it was in decomposed condition and there were maggots were coming out through wounds. Eyes, tongue and nose was not visible. Dead body was completely swollen. He has stated that, in case of highly decomposed body for its identification DNA test is required to conducted.
26. Upon considering the evidence of PW-7 and evidence of other witnesses, it appears that, death of Ram was homicidal. However, real question is whether the appellants accused are responsible for his death. As already observed, the prosecution has not firmly established strong motive for killing deceased by the appellant accused. Entire prosecution case is based upon circumstantial evidence, therefore, the prosecution should have proved that, there was strong motive for commission of offence by the accused appellant. At the cost of repetition, it has to be observed that, investigation / enquiry in respect of phone call received on mobile No.9850571643 of deceased Ram at 9.00 a.m. and there-after, more particularly about 12.00 noon onwards was very important, since the prosecution claimed that, appellants/accused called Ram on his mobile at about 12.00 noon on 25.07.2007 and after receiving their call, Ram left the Chousalkar Colony and went along with the accused in auto rickshaw, and accused persons took him in rickshaw, forced him to take liquor and then at about 4.00 to 4.30 p.m. Killed him. However, as PW-11 Pradeep Nandedkar, Investigating Officer has clearly admitted in his cross examination that, he did not make inquiry/investigation about phone calls received on the mobile of deceased Ram on the date of incident. He has also stated that, though he saw broken mobile handset on the spot of incident, he did not seize the same.
27. The prosecution claims that, the deceased was last seen in the company of the accused. Since the entire prosecution case rests upon circumstantial evidence, this circumstance assumes importance. However, the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more needs to establish to connect the accused with the commission of crime, as held by the Supreme court in the case of Kanhaiya Lal V/s. State of Rajasthan reported in (2014) 4 SCC 715. The prosecution in order to establish that, the deceased was last seen in the company of the accused examined PW-8 Rukhminibai Garje at Exh.67. In her evidence, she stated that, her family had landed property in the vicinity of village Ambalwadi. They had some cattle and she used to graze them sometimes. On 25th July, 2007, she was at her house. On that day, at about 10,00 to 10.30 a.m., she was grazing the cattle by the side of the road Ambajogai-Parli. Day long she grazed the cattle and at about 4.00 p.m. started to come back. While she was passing from the land of forest towards the village, at that time she saw one rickshaw having black colour, bearing registration No.MH-23-7346 came and stopped in front of bridge. Five persons got down from that rickshaw. Out of those five person, four persons were pushing and pulling the fifth one who was in the age group of 22-25 years. The person to whom remaining four persons were pushing and pulling was fatty and he was wearing white shirt on his person. As she was alone, she left that place and went towards her village. She has stated that, 10 days after that incident she came to know through her husband that, in the hilly area, below the bridge one dead body of male has been found.
During investigation, it transpired that, the name of that person was Ram Masal of Ambajogai and he was missing since 25th July, 2007. Her husband also disclosed her that, there were several injuries on the dead body of said person and therefore, she remember the incident dated 25th July, 2007 when she saw one fatty person being pulled by four persons and thought, that same person was murdered by those other four persons.
It is stated by her that, after tracing out the dead body, the Police Personnel of Parli (Rural) Police Station visited her house after 8 days for recording her statement. After 2 + months thereafter one policeman from Police Station Parli [Rural] had been to her house. He asked her to attend the office of Tahsildar on next day. Thereafter, on next day, she visited office of Tahsildar located at old Tahsil office Ambejogai at about 3.00 p.m. Firstly, she went in the office of Naib Tahsildar, which was situated on East-North corner of that office. She met Naib Tahsildar, who was alone. She disclosed him that, Police informed her about attending the Tahsil office. Naib Tahsildar asked her to sit. Thereafter, she was called by the Naib Tahsidlar in the meeting hall and accordingly, she went to the meeting hall. In the meeting hall, 8 persons were standing in a row who were of same age group. Tahsildar asked her to identify the persons to whom she saw in auto rickshaw on 25th July, 2007. Accordingly, she identified the persons from that row. The person who was standing at serial No.2 in that row i.e. Ramkishan Haribhau Hulgunde i.e. accused No.1 and another accused at Serial No.5. It appears that, the witness identified the person standing at serial No.5, who was sitting in the Court hall at serial No.3 from the side of witness box. When Court asked his name, she disclosed his name as Sk.Nasir Sk.Faimuddin. So far identification of the person who was standing at serial No.5 in first round is concerned, Naib Tahsildar, who conducted the identification parade stated in his evidence before the court that person standing at serial No.5 was accused Sayyed Javed. Therefore, there is material contradictions about which accused was standing at serial No.5 in row in the first round.
As already observed, PW-8 in her deposition before the court stated that, Shaikh Nasir Shaikh Faimuddin was standing at serial No.5, however, Naib Tahsildar in his evidence stated that, Rukhminbai Garje [PW8] has identified two accused persons i.e. at serial No.2 in row Ramkishan @ Bala Haribhau Hulgunde and at Serial No.5 in row accused Sayyad Javed Sayyad Salim. Therefore, there is contradiction between the version of two witnesses namely PW-8 and PW-9 about who was standing at serial no.5 in row in first round of identification. It has come in the evidence of PW-9 and also in the panchanama of Identification Parade that, in second round of Identification Parade, the person standing at serial No.5 was Sk. Nazir Sk. Khaimu and person standing at Sr. 7th was Sk. Wajid Sk. Baba.
28. Upon perusal of the material placed on record, it appears that, the Investigating Officer send letter to the Tahsildar, Ambajogai for conducting Identification Parade on 31st August, 2007. It is brought on record by the defence that, on 27th August, 2007, in news paper daily 'Zunzar Neta', photographs of deceased and also the accused persons were shown, and therefore, the said photographs were seen by PW-8. Such suggestion was also given in the cross-examination, which was denied by PW-8. It further appears that, by letter dated 15th October, 2007, the Tahsildar communicated to the concerned Police Station that, identification parade would be conducted on 23rd August, 2007 and accordingly identification parade was conducted on 23rd October, 2007. As already observed, the date of alleged incident is 25th July, 2007. Dead body was seen and recovered on 3rd August, 2007. Thereafter considerable time was lapsed. On 10th August, 2007 statement of PW-8, who claims to be witness of last seen together was recorded by the Police. From the date of occurrence almost after about three months, identification parade was conducted in which prosecution claims that, PW-8 identified the accused persons in the said identification parade. In this context, the learned counsel appearing for the appellants is right in placing reliance on the reported judgment of the Supreme Court in the case of Musheer Khan @ Badshah Khan and anr V/s State of M.P. reported in AIR 2010 S.C. 762 wherein in the facts of that case, identification parade was carried out after three months from the date of incident, Supreme Court in the facts of that case held thus:-
"32. In so far as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24.01.2001 and the incident is of 29.11.2000, even though A-5 was arrested on 22.12.2000. There is no explanation why his identification parade was held on 24.01.2001, which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or High Court on such delayed T.I. parade for which there is no explanation by the prosecution."
29. In the facts of the present case also Identification parade was conducted after about three months from the date of incident. Therefore, it looses its importance in as much as there was long time gap and possibility of accused being shown to witnesses cannot be ruled out. In the present case, the defence has brought on record that, the photographs of not only accused but also deceased were published in the news paper daily 'Zunzar Neta' on 27th August, 2007. There is no explanation on the part of prosecution as to delay in conducting identification parade. Upon close scrutiny of the evidence of PW-8, it appears that, there was delay in recording her statement. She has stated in her examination-in-chief that, when her husband told about recovery of dead body on 3rd August, 2007, it came to her mind that, the dead body is of the same person, to whom other four persons were pushing and pulling on 25th July, 2007. Therefore, it is difficult to understand as to why the statement of PW-8 was not recorded immediately thereafter. It is a matter of record that, PW-3 who is husband of PW-8 is witness to one of the panchanama, and therefore, she was fully aware about the prosecution case. In the peculiar facts of this case, recording of the statement of PW-8 by the Police belatedly, after 15 days from the date of incident and 7-8 days after recovery of dead body raises serious doubt about truthfulness of evidence of PW-8. It has also come in the evidence that, PW-3 husband of PW-8 told her on 3rd August, 2007 itself about the recovery of dead body. It has also come on record that, PW-8 went for grazing cattle by the side of Beed-Parli road, which is busy road.
It has come in the evidence of PW-8 that, in Bhopala Shivar, some land was taken by PW-8 for grazing cattle. However, when she was asked about proof of taking land on lease for grazing cattle, she was unable to produce proof to that effect. In her deposition, she has no where stated that, four persons, who were pushing 5th person were carrying any weapons in their hands. The prosecution case is that, the injuries inflicted were by sword. PW-8 has not stated that, they were carrying weapons. It has also come in the examination-in-chief of PW-8 that, she was alone and therefore, she left that place and went towards her village. It has come in her cross examination that, she can not read contents written in English language but she can read English digits. However, while telling the auto rickshaw number, she has not only stated the digits but also stated that, a registration number of rickshaw as MH-23-H-7346. Therefore, it creates serious doubt as to whether the PW-8 had really witnessed the incident as stated by her.
30. PW-8 has stated in her evidence that, after 2-1/2 months after recording her statement by Police, one police constable came to her house before one day before conducting the Identification Parade. She has admitted in her cross examination that, she had not seen dead body. She has stated that, village Ambalwadi is 1 Kms from her vasti. She has further stated that, Ambajogai road is 3 to 3-1/2 Kms. She has further stated in her evidence that, 50% people of village Ambalwadi are doing business of selling milk. She has also admitted in her evidence that, some forest guards are appointed to look after the forest land. It has also come in her evidence that, before going to Tahsil office her statement was recorded as per her narration. Therefore, if the evidence of PW-8 - Rukhminbai is considered in its entirety, it raises serious doubt as to whether really she had seen the accused coming out of rickshaw, and four out of five persons pushing and pooling 5th person, who was fatty. She has not stated that, they were carrying any weapons. The delay in recording her statement creates serious doubt about truthfulness of her statement. The identification parade is conducted after three months from the date of incident and about 2-1/2 months from recording of her statement, which creates serious doubt about the genuineness of identification of accused made by PW-8 in test identification parade. During the intervening period i.e. from recording her statement by police and the date on which the identification parade was conducted possibility of opportunity to see the accused persons or suspects being shown to her cannot be ruled out. Therefore, such belated identification parade that too with contradictory version of PW-8 and PW-9 about identification of accused in first round of identification parade raises serious doubt about the genuineness of such identification parade.
PW-9 in his deposition stated that, he cannot identify the accused sitting in the Court hall. It is not clear as to whether, the police persons were present in the Tahsil office at the time of conducting identification parade. It further appears from his evidence that, while conducting identification parade, in first round along with two accused other six persons were standing in row. While conducting the second round of identification parade in all 10 persons including accused were shown as standing in row. The PW-9 admitted in his evidence that, he had not read the guidelines issued by the High Court as to how to conduct the identification parade. There are certain guidelines prescribed for conducting identification parade. At this juncture, it would be apt to reproduce hereinbelow the guidelines laid down i.e. Para 16(2)(a) to (p) from Chapter I of Criminal Manual issued by the High Court of Judicature at Bombay, for the Guidance of the Criminal Courts and Officers Subordinate to it in respect of conduct of test identification parade, which read thus :-
"16(2)(a) The object of an identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested.
(b) It should be fair and seem to be fair and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification through the witnesses' attention being directed specifically to the suspected persons instead of equally to all the persons to be paraded.
(c) The Officer concerned with the case against the suspect, if present, must not take part in conducting the parade.
(d) The parade should be arranged by an officer who is not a police officer.
(e) After the commencement of the identification parade, every thing in respect of it should take place in the presence and hearing of the suspect, including any instruction to the witnesses attending it as to the procedure that is to be adopted.
(f) All unauthorised persons should be strictly excluded from the place of identification parade.
(g) The witnesses should be prevented from seeing the suspect before he is paraded with other persons, and witnesses who have previously seen a photograph or description of the suspect should not be led in identifying the suspect by reason of their recollection of the photograph or description, as for instance by being shown the photograph or description, before the parade.
(h) The suspect should be placed among persons (if practicable eight or more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life. Two suspects of roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different person on each parade.
(i) All members of a group of suspects more than two should not be paraded together. There should be more parades than one, each including not more than two. Two suspects of obviously dissimilar appearance should not be included in the same parade. Identification numbers should be concealed.
(j) The suspect should be allowed to select his own position in the line and should be expressly asked if he has any objection to the persons present with him or the arrangements made. He should be informed that if he so desires, he should have his Advocate (or a friend) present at the identification parade.
(k) The witnesses should be introduced one by one and, on leaving, should not be allowed to communicate with witnesses waiting to see the persons paraded; and the suspect should be informed that he is free to change his position after each witness has left.
(l) The witness should be asked whether the person he has come to identify is on the parade. He should be told that if he cannot make a positive identification, it is open for him to say so.
(m) Generally, a witness should be asked to touch any person whom he purports to identify, but if the witness is nervous at the prospect of having to do that (in case where the witness is a woman or a child who has been victim of a sexual or violent assault or other frightening experience) and if prefers not to touch the person, identification by pointing out should be permitted.
(n) If a witness indicates someone, but is unable to identify him positively, this fact should be carefully noted by the officer conducting the parade and every other circumstances, (such as whether the suspect or any other person is identified or not), connected with it should be noted.
(o) If any request is made by a witness, for example to see the suspect with his hat on or his hat off or to see he person walk or to hear the person speak and there being no objection to the person paraded as asked for, the incident should be recorded.
(p) Where a parade has to be held in prison, a prison officer should be present throughout in-charge of the discipline of the prisoners who would take part. Otherwise, the police officer unconnected with the case, ought to be responsible for the parade. It must be ensured that the parade is conducted in the same way as a parade outside prison."
There is procedure prescribed in para 16 of abvomentioned Manual for conducting the identification parades. Clause (iv) and (v) of the said procedure read thus :-
"(iv) The parade should then be arranged in a room or a place which is such that the identifying witnesses, as well as the persons connected with the Police, should not be able to look into it.
(v) If there is only one accused person to be identified, there should be atleast half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single identification parade. Normally, the Police themselves will have called up the persons to be put in the parade; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance, and approximately of the same age, as the person to be identified. It is desirable that innocent persons to be mixed should be different for each such parade."
31. As already observed hereinbefore, PW-9 in his deposition stated that, he was not aware as to the Guidelines issued for holding the identification parades. Upon perusal of the clause (iv), while conducting the parade, the parade should be arranged in a room or a place which is such that the identifying witnesses, as well as the persons connected with the Police, should not be able to look into it. In clause (v), it is stated that, if there is only one accused person to be identified, there should be atleast half a dozen dummy persons should be placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single identification parade. Normally, the police themselves will have called up the persons to be put in the parade; but the Executive Magistrate/Honourary Magistrate should see that they are persons of more or less same physical appearance, and approximately of the same age, as the person to be identified. It is desirable that dummy persons to be mixed should be different for such parade.
32. Upon perusal of the evidence of PW-9 and also panchanama of identification parade, it appears that, two accused were placed in row in first round, wherein other six persons were standing in row. It means though two accused persons were placed for identification parade, only six other persons were placed in row. Infact as per the procedure 10 to 12 persons ought to have been placed in row for the parade. It is also not clear from the evidence of PW-9 and panchanama prepared of identification parade that, whether two accused were of similar appearances so as to place them in one parade. It is only in case of similar appearance of two suspects, they can be paraded with at least 10 to 12 other persons. Therefore, it appears that, PW 9 was totally unaware of procedure as to how to carry out the identification parade, as well as the guidelines issued to carryout identification parades, then PW-9 proceeded to conduct identification parade on 23.10.2007. Therefore, such belated identification parade after about three months from the date of incident, and conducted in breach of the procedure, deserves no consideration.
33. PW-8 is the only witness on which the prosecution has placed reliance to contend that, the deceased was last seen in the company of the accused. In the light of discussion hereinabove, the statement of PW-8 about the deceased was last seen in the company of the accused is itself doubtful, and therefore, it needed corroboration. The identification parade is taken as corroboration to the evidence of PW-8 by the trial Court. However, in the light of discussion hereinabove, the evidence of PW-8 of last seen together itself is doubtful. Therefore, delayed identification parade of accused that too without adhering to the Guidelines and procedure laid down for conducting such identification parade deserves to be discarded.
34. PW-10 Vivekanand Sarvade is panch to the identification parade. He could not remember the name of the accused, who was standing at serial No.5 in the first row of identification parade. He could not remember and tell the name of the other accused identified in his evidence. He has stated that, the identification parade was over at 4 p.m. PW8 in her evidence stated that, she went in the office of Tahsildar for identification parade at 3 p.m. It also creates doubt as to whether the identification parade was carried out within one hour from 3 p.m. to 4 p.m. It has also come in the evidence of PW-10 that, three persons who were standing in row in first round were again included in the second round.
35. The prosecution examined Pradeep Manikrao Nandedkar, who was Investigating Officer as PW-11 and his evidence is at Exhibit - 94. In his evidence he has stated that, he was on duty as Incharge API with Parali Rural Police Station since 01.08.2007. He was on duty on 02.08.2007 and 03.08.2007. He was intimated by the Police Shivaji Garje that, the dead body of one person is lying at Ambalwadi Ghat. He reached Ambalwadi ghat Dari at 7.30 a.m. in the morning along with staff. He has further stated details about the dead body. Then he called doctor. Doctor performed the postmortem. He has also stated that, diaries were removed from the pocket of the deceased, wherein his name was found. So far pocket diaries are concerned, he has identified the same before the Court. Therefore, so far his evidence of identification of dead body by the brother of the deceased and also on the basis of diaries by the prosecution witnesses, can be believed. However, he has not explained in his evidence delay caused in recording the statement of Shri. Namdeo Garje and Rukhminbai Garje. He has stated that, two accused persons Ramkishan Haribhau Burgunde and Sayed Javed Sayed Shalim were arrested on 11th August, 2007. Thereafter for two days, he was on leave and investigation was kept with PSI Sirsat. It appears that, the said PSI Sirsath is not examined by the prosecution. PW-11 arrested another accused persons Shaikh Nashir Sk. Faium and Sk. Vajid Sk. Babu on 15th August, 2007. He seized auto rickshaw from Sk. Vajid Sk. Babu at about 8 to 8.30 a.m. on 15th August, 2007. He prepared the seizure memo of said auto in presence of two panchas. He has also mentioned auto rickshaw number. He has also stated that, accused Syed Javed gave memorandum that, he will take out weapons used in commission of offence. Then, he called two panch witness Anil and Kishor Gavali at police station.
He further stated that, in presence of two panch witnesses, the said accused given memorandum that, he is ready to show the place where sword and clothes of accused Ramkishan were concealed. The accused further stated that, he is ready to show place and produce his clothes. Thereafter along with two panchas and accused, Investigating Officer proceeded in Jeep and reached to Raviwarpeth, Ambejogai. Syed Javed asked to stop the jeep near Nala, and he tried to find out sword, but could not found sword. It means there is no recovery of sword at the instance of the said accused. Thereafter, they proceeded on a way shown by the accused in a Jeep to a place located near Sakud near Ambur river. The accused told them to stop jeep when they reached place near the bank of river. They got down from jeep. The accused taken them to place 50 ft. away from the bank of river. He has taken out ash of clothes from gap of stones. Then this witness seized the ash of clothes in presence of two panch witnesses and prepared the panchanama. He identified the said panchanama, signature on the said panchanama. He further stated that, accused Syed Javed has given another memorandum on 16th August, 2007 in presence of two panchas Anil Shinde and Kishor Dalvi. The said accused told that, the foot wear i.e. chappal of deceased concealed in Ambalwadi Ghat and shown willingness to take out those chappal. Thereafter, they went to Ambalwadi Ghat in jeep as shown by the accused. The accused asked them to stop jeep near Ambalwadi road at a distance of 250 ft. away from main road. The pair of chappal was taken out by the accused from the buses. Same pair of chappal was seized in presence of panch witnesses. The said panchanama is at Exhibit 49. However, the prosecution could not prove that the chappal was recovered at the instance of accused was as that of deceased.
36. PW-11 in his evidence, has also further given details about the letter given to the Tahsildar, Special Executive Magistrate for identification parade on 1st September, 2007 and further details about actual conducting of identification parade by the Special Executive magistrate. In his evidence, he has not stated anything about, whether ash was sent to the experts to find out whether the said ash is of burnt clothes of the accused. There is no evidence brought on record to the effect that, pair of chappal, which was seized at the instance of accused Syed Javed, was identified by any family members of the deceased.
In his cross examination, he admitted that, it is true that, A.D. was registered after inquest panchanama and spot panchanama and crime was registered on 06.08.2007. He has admitted that, there is no seal to Article 1, 2 3 i.e. three diaries. He has also admitted that, he has not collected information about handwriting in three diaries. He has also admitted in his cross-examination that, in Exhibit-95 Wireless message, there is overwriting of figure of date. He has also admitted that, he did not make inquiry of missing report of Ram Masal dated 27th July, 2007. He did not obtain missing report from Ambajogai police station. He has also admitted that, A.D. was registered after inquest panchanama and spot panchanama. He has also admitted that, there is no mention about identification of dead body and his clothes in A.D. Report Exhibit-40. He stated that, he received postmortem report on 6th August, 2007. However, he has not noted the date to that effect. He has specifically admitted in his cross examination that, deceased Ram Masal was having mobile and he was using it. He had not collected call details of phone calls made by deceased Masal from his cell phone as well as phone calls received on the cell phone. He has admitted in cross examination that, he has not shown articles found at the spot of offence of deceased to Ramabai and his brothers Balu and Anant. He has also admitted that, he has not seized mobile phones of accused persons and deceased. Although he has seen one broken mobile handset on spot, he did not seize it. He has also admitted in his cross examination that, he has recorded the statement of witness Bhagwat according to his say. He recorded the statement of witness Hanumant Bachate according to his say.
He further admitted in his cross examination that, it is true that, Hanumant told in his statement that, Ram is missing from 12 p.m. He further stated that, Hanumant has not stated in his statement that Bhagwat made complaint that his brother was missing from 12 noon. He admitted that, there is big Dhaba by name Visawa on Ambalwadi to Parli road. He made inquiry with people of Dhaba. He stated that, it is revealed that, deceased Ram Masal and accused was under influence of liquor, however, he had not made inquiry with them as to where they have consumed liquor. Though he has stated that, there was meeting between the deceased and accused persons but he stated that, he did not know where it took place. He did not make inquiry where the meeting was held. He made inquiry from the accused from where the liquor was brought but they have not given information in that respect. He did not collect information about the lady, to whom the prosecution claimed that, the deceased had illicit relations. He did not record statement of photographer nor collected negative of photographs Exhibit -104.
37. In the light of discussion hereinabove, if the evidence of prosecution witnesses is considered in its entirety, the same does not inspire confidence so as to base the conviction on the basis of the circumstantial evidence. In dealing with the circumstantial evidence, the Supreme Court in the case of Hanumant V/s State of Madhya Pradesh reported in AIR 1952 S.C. 343 held that, in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the 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 they should be such as to exclude every hypothesis except one proposed to be proved. The Supreme Court has consistently held that the following conditions must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence;-
i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,
ii) 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,
iii) the circumstances should be of a conclusive nature and tendency,
iv) they should exclude every possible hypothesis except the one to be proved, and
v) 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 that in all human probability the act must have been done by the accused.
In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in 1984 (1) LJSOFT (SC) 124 = (1984) 4 SCC 166, the Apex Court has held that, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
It is also to be born in mind that the case in hand is a case of circumstantial evidence and if two views are possible on the evidence of record, one pointing to the guilt of the accused and other his innocence, the accused is entitled to have the benefit of one which is favourable to him.
38. In the light of the judgments of the Supreme Court referred hereinabove, and the facts of the present case, as discussed, in our view, the prosecution has not established the strong motive for commission of offence by the appellants accused. PW-11 i.e. Investigating Officer in his evidence before the Court admitted that, he has not conducted investigation and made inquiry about the phone calls received on mobile of the deceased Ram on the date of incident or his conversation from his mobile to other persons. In the present case, the prosecution claimed that, the accused persons called the deceased on his mobile at about 12 noon and on their call, the accused left the Chousalkar colony. While leaving at about 12 noon from construction site i.e. place of Kulkarni located in Chousalkar colony, he told the labourers and other colleague that, he will come back within 15 minutes and they should take material to the site of one Mr. Gambhire. However, he did not return thereafter. Infact, the investigation about the calls received and sent from the mobile of deceased having number 9850571643 was most crucial and turning point of the prosecution case. Whereabouts of deceased Ram from 12 noon till it was claimed by the prosecution through PW-8 that, she saw unknown five persons coming by auto rickshaw near bridge situated on road going from Parli-Beed road to village Ambalwadi, and further out of five persons came out from auto rickshaw, four persons were pushing and pulling fifth person, who was fatty, are not brought on record by the prosecution.
Even evidence of PW-8 does not inspire confidence that, the deceased was last seen in the company of the accused. In the first place, she referred them unknown, secondly though she claimed that, she saw them on 25th July, 2007, however, she did not say in her evidence that, they were carrying weapons in their hands. Her statement was recorded by the Police after inordinate delay of 15 days i.e. on 10th August, 2007 though the date of incident is 25th July, 2007. Though PW-8 came to know from her husband i.e. PW-3 on 3rd August, 2007 that, one dead body is found near by valley and forest land and PW-8 and she recollect incident of 25th July, 2007, she did not report the same to the police till her statement was recorded by the Police on 10th August, 2007. It creates serious doubt about truthfulness of the statement of the PW-8. PW-8 in her evidence though mentioned the auto rickshaw number, in her cross examination she admitted that, she does not know English language and she can only read figures and not letters. Nevertheless while mentioning auto rickshaw number in her evidence, she did mention MH-23. The identification parade, in which PW-8 claimed that, she identified four accused persons, deserves to be rejected for more than one reasons. Such delayed conducting of identification parade by PW-9 who in his cross-examination clandestinely admitted that, he does not know about the guidelines issued by the Supreme Court and also instructions laying down procedure for conducting such identification parade cannot be relied to base the conviction. The possibility of showing accused persons in intervening period from the date on which the statement of PW-8 was recorded and till the identification parade was conducted cannot be ruled out.
The identification parade conducted by PW-9 was not as per guidelines issued and procedure for conducting the identification parade in as much as though two accused were placed in row in the first round, only six other persons were asked to stand in row though as per guidelines/procedure, 10 to 12 other persons are required to be included in row for identification purposes of two suspects. It is also not brought on record by the prosecution that, the appearances of two accused were similar so as to have their identification parade at same time. As already observed, the Investigating officer in no uncertain words has admitted that, he has not carried out investigation/inquiry about phone calls received or send from the mobile of the deceased. He also admitted that, though he saw broken mobile handset on the spot, he did not thought it fit to seize the same.
39. Recovery at the instance of the accused Syed Javed of ash and also chappal of pair has not been convincingly proved in as much as there is no evidence on record about identification of the pair of chappal, was that of deceased Ram. The prosecution claimed that, there is recovery of ash at the instance of accused Syed Javed from the bank of river, also appears to be doubtful in as much as the said recovery after 20 days from the date of incident, that too during rainy season, and from the spot itself which was near the river, can be believed. Apart from it, the said ash was not sent to Chemical analyzer so as to ascertain whether the same is of burnt clothes. The Supreme Court in the case of Amitsingh Bhikamsing Thakur vs. State of Maharashtra reported in AIR 2007 SC 676 in para 29, has summed up various requirements of Section 27 of Evidence Act, which are reproduced as follows;
i) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provisions has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
ii) The fact must have been discovered.
iii) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
iv) The persons giving the information must be accused for any offence.
v) He must be in the custody of a police Officer.
vi) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
vii) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
40. In the light of discussion hereinabove, we find that, the entire evidence and other documents placed on record clearly indicate that, the circumstantial evidence brought on record by the prosecution is too short to sustain the conviction of the appellants. It is also relevant to mention that if two views are possible on the evidence of record, one pointing to the guilt of the accused and other their innocence, the accused is entitled to have the benefit of one which is favourable to them.
41. Therefore, taking over all view of the matter, it clearly reveals that there is no chain of circumstance so as to sustain the conviction of the appellants. The Hon'ble Supreme Court in the case of Toran Singh Vs. State of M.P. reported in AIR 2002 SC 2807 held that the case of the prosecution should rest on its own strength and not on the basis of absence of explanation or plausible defence by the accused. In the case of State of Punjab V/s Bhajan Singh and others reported in AIR 1975 SC 258, the Supreme Court held that, Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. Another weakness of the prosecution case is that as many as four persons have been involved in this case. The Apex Court has observed that, even if it may be assumed that the dead bodies which were recovered from the place in front of the house of the accused were those of Harbans Singh and Bachan Singh deceased and that their death was homicidal, it is difficult to say whether the dastardly crime was the act of one or two culprits or of a larger number of them. In any case it is difficult to fix their identity. The Supreme Court, in case of Kali Ram V/s. State of Himachal Pradesh, reported in AIR 1973 SC 2773 observed as under :
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
42. Thus, upon appreciation of the evidence of the prosecution, the submission of learned counsel appearing on behalf of the appellants and the learned Additional Public Prosecutor, we are of the considered opinion that, the prosecution has failed to prove the offence against the appellants beyond reasonable doubt. The appellants therefore, in our opinion are entitled to be given the benefit of doubt.
43. Accordingly Criminal Appeal No.11 of 2014 is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case.