Vishnu Sahai, J.
1. Through this appeal, the appellant challenges the judgment and order dated 17-8-1995 passed by Additional Sessions Judge, Jalna in Sessions Case No. 92/93 whereby he has been convicted and sentenced in the manner stated hereinafter :
(i) Under Section 302, IPC to suffer imprisonment for life and to pay a fine of Rs. 1,000/- i.e. to suffer 2 years R.I.; and
(ii) Under Section 201, IPC to suffer 4 years R.I. and to pay a fine of Rs. 500/- i.e. to undergo one year R.I.
The substantive sentences of the appellant were ordered to run concurrently.
It is pertinent to mention that along with the appellant, his two brothers namely; Dnyandeo Mule and Sakharam Mule and his wife Mirabai are also tried for the said offences but they have been acquitted through the impugned judgment and the State of Maharashtra has not assailed their acquittal by preferring a appeal under Section 378(1) of the Code of Criminal Procedure.
2. Shortly stated, the prosecution case runs as under :
The deceased Narayan was son of Yashodabai w/o. Sheshrao Mule, P.W. 2 and the husband of Gangasagar Narayan Mule, P.W. 7. The marriage between the deceased and Gangasagar Mule took place about 15 days prior to the incident. At the time of the incident, the deceased Narayan along with Yashodabai Mule and Gangaram Mule was living in village Bachegaon, district Jalna. The appellant and the acquitted accused were living also in the said village.
Since there were illicit relations between the deceased Narayan and acquitted accused Mirabai. Appellant Sopan-husband of Mirabai nursed ill-will against the deceased.
In this background, it is stated that on the night of 26-2-1992 at about 7 p.m., the appellant Sopan came to the house of Yashodabai. Thereafter, he and the deceased Narayan had food. Thereafter, the appellant told Yashodabai and her husband Sheshrao who died prior to the recording of the evidence that he and Narayan would sleep in the field of Narayan. Since Narayan had been recently married Yashodabai resisted but on the insistence of the appellant relented.
2-A. The evidence of Nivrutti Thombre, P.W. 3 shows that at about 10 p.m. on the said date he, Narayan and the appellant Sopan slept in the field of Narayan. He slept at a distance of about 50 ft. from where Narayan and Sopan were sleeping. At about 2 to 2-30 p.m. on the night of 26/27-2-1992 Nivrutti woke up hearing cries of deceased Narayan 'save me, Nivrutti Mama'. He rushed on the spot and saw an axe in the hands of appellant Sopan. He also saw acquitted accused Dnyandeo and Sakharam running away. When he shouted, the appellant threatened that he would kill him.
2-B. The evidence of Narayan Natha Mule, P.W. 8, shows that about six months prior to recovery of dead body, in the night of Mahashivratri at about 1 to 1-30 a.m. he saw the appellant bringing fodder in a bullock cart in the village.
2-C. The evidence of Rambhau Ranmale, P.W. 6, shows that on the next date of the incident (27-2-1992) at about 4 a.m. when he was going to answer call of nature, he saw the appellant coming from the land of deceased Narayan. He was carrying an axe in his hand. When he asked him, why he was coming at such a early time from the field, he replied that Narayan had gone out of the village as he was displeased with his parents and he was going to inform his parents.
2-D. The evidence of Gangasagar Mule, P.W. 7, shows that on the next day (27-2-1992) in the morning, the appellant came to the house where she was living along with her mother-in-law Yashodabai and enquired about the whereabouts of Narayan. At that time, he was weeping.
2-E. The evidence of Yashodabai Sheshrao Mule, P.W. 2, shows that when Narayan did not return next morning, her husband Sheshrao went to see him in the field but did not find him there. Thereafter, she made inquiries with the appellant who told her that Narayan had gone to Alandi.
2-F. The evidence shows that when Narayan did not return, his father Sheshrao started searching him at different places, including his relations but could not find Narayan. Ultimately, on 9-4-1992, Sheshrao gave a report to Gandi police station mentioning therein that Narayan was missing. In the report, he voiced suspicion that the appellant was behind the disappearance of Narayan.
3. The evidence shows that missing report given by Sheshrao was sent to ASI Sk. Janimiya, P.W. 1, who was working at Tirthpuri Outpost. In the course of inquiry, ASI Janimiya visited village Bachegaon and recorded statements of the parents of Narayan and his neighbours. From inquiry made by him, it transpired that on the night of 26-2-1992 appellant Sopan had been to the house of Narayan and along with Narayan had slept in the field of Narayan and since then Narayan was missing. It also transpired during the inquiry that there were illicit relations between Narayan and Mirabai, the wife of appellant Sopan.
On account of evidence furnished during inquiry, on 27-4-1992 he lodged a complaint in Gondi police station for an offence under Sections 364 and 365 of the Indian Penal Code. On the basis of said complaint C.R. No. I 83/92 was registered.
The papers pertaining to C.R. were received by PSI Krishna Bankar, P.W. 13, for investigation. On 28-4-1992 he recorded statements of 11 witnesses including Yashodabai, Narayan Mule and others. In the month of May 1992 he was transferred to another police station and the papers were handed over to PSI Vyawahare.
On 13-7-1992, the Superintendent of Police, Jalna gave papers of the C.R. to Circle Police Inspector of Ambad, Prabhakar Joshi, P.W. 12. On 17-7-1992, Prabhakar Joshi visited Bachegaon, Khapardev Hivra, Tirthpuri and searched for Narayan. On 18-7-1992, he also visited Bachegaon and recorded statement of Gangasagar Mule, P.W. 7 and also interrogated Nivrutti, the appellant and acquitted accused Dnyandeo and Sakharam.
On 7-8-1992, appellant was arrested by Gondi police station in C.R. No. 167/92 under Section 452 read with 34 of the Indian Penal Code. During the course of his interrogation by Prabhakar Joshi, he admitted that he had committed murder of Narayan and expressed willingness to show the place where he had buried the dead body of Narayan. Thereafter, Prabhakar Joshi called Tahsildar Kashinath Ture, P.W. 11 and two public panchas, out of whom, one Raju Pathak, has been examined as P.W. 4. In the presence of Kashinath Ture and public panchas the appellant expressed his willingness to produce the dead body and the said willingness was recorded in a panchanama Exhibit 52. Thereafter, the appellant along with Kashinath Ture, P.W. 11, Prabhakar Joshi, P.W. 12, public panch Raju Pathak, P.W. 4, another public panch Ram Bhosale (not examined) and some police personnel proceeded to his house in a jeep. On entering the house, he took them to the room covered by tin sheets and thereafter with a spade, he started digging and after digging for 31/2 ft. took out a body covered in chaddar. Pant and shirt was found on the dead body. Sheshrao, father of the deceased, was called and he identified the dead body to be of his son Narayan. The said recovery was made under a Panchanama Exhibit 53.
Thereafter, the appellant led them to the place of the incident. He showed the same to them. Prabhakar Joshi prepared the spot panchanama.
On 1-1-1993, the investigation was handed over to Jijaba Dhondiba Gat, P.W. 14, who sent bones of the deceased Narayan to the Department of Anatomy in Government Hospital, Aurangabad for examination. On 26-3-1993, after completing the investigation, Jijaba Gat filed charge sheet against appellant and acquitted accused persons.
We may mention that we have refrained from adverting to some other details pertaining to investigation because they relate to acquitted accused persons and in our judgment a reference to them is not necessary for the decision of this appeal.
4. Going backwards, the autopsy on the corpse of the deceased Narayan was conducted on 7-8-1992 by Dr. Kishori Prasad Ramprasad Shrivastav, P.W. 5. His evidence shows that only the skeleton of the dead body remained and he examined bones and sought the opinion of Anatomist.
As mentioned earlier, Jijaba Gat had sent bones of the deceased to Anatomy Department of Government Hospital at Aurangabad where they were examined by Dr. Aruna Kharkar, P.W. 9, who opined that they were the bones of a male who was aged about 25 years and whose height was 152 cms.
5. The case was committed to the Court of Sessions in the usual manner where the appellant and the acquitted accused were charged on counts mentioned in paragraph 1, to which charges they pleaded not guilty and claimed to be tried.
During trial, prosecution has examined 14 witnesses. We may straightway mention that there is no eye-witness of the incident and the case hinges on circumstantial evidence. Circumstances adduced by the prosecution against the appellant were as under :
(a) Last seen;
(b) On the night of the incident at about 1-30 a.m. Narayan Mule saw the appellant brining fodder in a bullock in the village;
(c) On 27-2-1992 at about 4 a.m. Rambhau Ranmale, P.W. 6, saw the appellant, with an axe in his hand coming from the field of deceased Narayan;
(d) Motive; and
(e) Recovery of the corpse of the deceased on the pointing out of the appellant.
6. We propose individually dealing with each of the circumstances.
We begin with circumstance (a) last seen. In respect of this circumstance, we have the evidence of Yashodabai, P.W. 2, and Gangasagar, P.W. 7, (mother and wife of the deceased Narayan respectively) and Nivrutti Thombre, P.W. 3. The evidence of Yashodabai and Gangasagar shows that on 26-2-1992 at about 7 p.m. the appellant came to their house. He and the deceased Narayan had dinner and thereafter, he said he and Narayan would sleep in the field and thereafter he left with Narayan to the latter's field where they slept. In the said field, Nivrutti Thombre also slept at a distance of 50 ft. from them. At. about 2 to 2-30 a.m. Nivrutti heard cries of the deceased 'Save me. Nivrutti Mama' and hearing them, Nivrutti rushed to the place where Narayan and appellant were sleeping. He saw an axe in the hands of appellant and saw acquitted accused Dnyandeo and Sakharam running away.
We make no bones in observing that after going through the evidence of Yashodabai and Gangasagar, we have no reservation in holding that the appellant came to their place on 26-2-1992 at about 7 p.m., had dinner with Narayan; and thereafter the two of them slept at Narayan's field.
However, we make no bones in observing that the evidence of Nivrutti Thombre, referred to above, has rightly not been relied upon by the learned trial Judge because, in his opinion, conduct of Nivrutti Thombre in maintaining an ominous silence for full five months and in not disclosing the incident to anyone referred his evidence unworthy of acceptance.
For the said reasons, in our view first part of the circumstance of last seen is proved.
However, we make no bones in observing that the circumstance of last seen has precious little value because in the instant case, the prosecution has not been able to fix as to when the murder of the deceased Narayan took place. The recovery of the corpse of Narayan on the pointing out of the appellant was effected on 7-8-1992 i.e. nearly six, months after last seen. It is pertinent to mention that in the instant case, no question has been put to the autopsy surgeon regarding the time which lapsed since the death of the deceased. In such a situation, in our judgment, the circumstance of last seen would be hardly of any help to the prosecution.
6-A. We wish to emphasise that the circumstance of last seen becomes incriminating when there is close proximity between it and the time of the death of the deceased. We make no bones in observing that the closer the proximity between the circumstance of last seen and the death of the deceased the more incriminating would this circumstance become. As a logical imperative, it would follow that where close proximity between last seen and the death of the deceased is not established, as in the instant case, this circumstance has hardly any value.
We have no reservations in observing that if prosecution wants to draw the maximum mileage from the circumstance of last seen, it must put to the autopsy surgeon the time which has elapsed since death. And when it does not do so, as in the instant case, this circumstance is hardly of any benefit to it.
7. We now come to circumstance (b) namely;
(b) On the night of the incident at about 1-30 a.m. Narayan Mule saw the appellant bringing fodder in a bullock cart in the village.
In our view, even if the evidence of Narayan Mule is accepted, this circumstance would not incriminate the appellant because there is no nexus between it and the murder of the deceased.
8. We now come to circumstance (c) namely;
(c) On 27-2-1992 at about 4 a.m. Rambhau Ranmale, P.W. 6, saw the appellant, with an axe in his hand coming from the field of deceased Narayan;
In our view this circumstance would have certainly carried weight had the autopsy surgeon found injuries attributable to an axe on the corpse of the deceased but. as we have seen earlier in this case only the skeleton of the dead body of the deceased was recovered. In our view, this circumstance, may connect the appellant with the crime to some degree but is neither strong nor weighty.
9. We now come to circumstance (d) namely; motive, In respect of it we have the evidence of Yashodabai, P.W, 2, mother of the deceased. Her evidence shows that deceased Narayan was having illicit relations with Mirabai the wife of appellant Sopan, who has been acquitted in the instant case. According to the prosecution, because of this fact, the appellant committed murder of the deceased. In our view, this circumstance also does not appeal to reason. In her cross-examination Yashodabai, P.W. 2, has admitted that since about 3 years prior to the incident, there were illicit relations between Narayan and the wife of Sopan. The evidence in the instant case is that inspite of it, appellant Sopan and Narayan were friends. It is in this background, Mrs. Jadhav, learned Counsel for the appellant, urged that appellant Sopan had consented to illicit relations between his wife and the deceased and hence this illicit relationship cannot be described as a motive. We find merit in her submission. In our view this circumstance has not been established.
10. We now come to circumstance (e) namely; recovery of the corpse of the deceased on the pointing out of the appellant. We make no bones in observing that in our judgment, the said circumstance has been squarely established. In respect of this circumstance, we have the evidence of Circle Police Inspector Prabhakar Joshi, P.W. 12 (Investigating Officer), Tahsildar Kashinath Ture, P.W. 11 and public panch Raju Pathak, P.W. 4. We have earlier mentioned that in their presence appellant Sopan expressed his willingness to recover the dead body which he had concealed in his house. We have also seen that said willingness was recorded under a panchanama and thereafter, in presence of these witnesses Sopan appellant dug the floor of a room of his house to a depth of 31/2 ft. and took out a dead body wrapped in a Chaddar. We have also seen that said dead body was recovered under a panchanama and was identified by Narayan's father as 'Narayan's.
We have gone through the evidence of aforesaid witnesses and make no bones in observing that although they were cross examined by the prosecution but nothing could be extracted therefrom which could discredit the said recovery.
It is pertinent to mention that Kashinath Ture was a Tahsildar and being a public servant and having no personal interest in the matter, would not have given false evidence in respect of this circumstance.
In our view this circumstance has been established.
11. The above discussion would show that the circumstances referred to above do not conclusively lead to the inference that it was the appellant who committed the murder of the deceased. At the highest the said evidence may show that the prosecution case against the appellant may be true but as Gajendragadkar, J. as he then was, in para 11 of the oft-quoted case of Sarwan Singh Rattan Singh v. State of Punjab : 1957CriLJ1014 observed :
It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.'
(Emphasis supplied)
In our view, the said distance has not been travelled by the prosecution in the instant case.
12. For the said reasons in our view the conviction of the appellant for the offence under Section 302 of the Indian Penal Code cannot be sustained.
13. However, since the dead body of the deceased was recovered on the pointing out of the appellant from his own house and we find no infirmity in the evidence pertaining to its recovery, in our view, an offence under Section 201 of the Indian Penal Code is squarely established against the appellant. We find that, in the instant case, for the said offence the trial Court had sentenced the appellant to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/-in default to undergo rigorous imprisonment, for one year. We also find that the appellant has already served far more than the said sentence because the record shows that he is in jail from 7-8-1992.
14. In the result, this appeal is partly allowed, we acquit the appellant for the offence under Section 302 of the Indian Penal Code and set aside his conviction and sentence thereunder. We direct that in case he has paid the fine for the said offence, it shall stand refunded to him.
Although we uphold the conviction of the appellant for the offence under Section 201 of the Indian Penal Code as also the sentence of rigorous imprisonment of four years and fine of Rs. 500/- in default one year rigorous imprisonment, imposed on him thereunder but since the appellant is in jail from 7-8-1992 we direct that he be released forthwith unless wanted in any other case.