Important PointIf circumstantial evidence is conclusive in nature, a conviction may be recorded though direct evidence witness had turned hostile.

Headnote:Indian Penal Code, 1860—Section 302—Appellant convicted on circumstantial evidence when direct witnesses of assault had turned hostile—Appeal—Appellant came to house of deceased at about 10.30 p.m. and took him away on his motor cycle since he was called by accused A1—PW 15 wife and PW 13 son of deceased were witnesses of fact of deceased last seen in company of appellant—In presence of police later past mid night appellant pointed out the place the garden behind house of A1 where dead body of deceased was found lying—Conviction could be based on circumstantial evidence even where there was no direct evidence or that witnesses of assault had turned hostile—Apart from being last seen with deceased, appellant had pointed out the place where dead body of deceased was lying—Evidence was conclusive that appellant and deceased travelled from house of deceased to the point where deceased was assaulted and killed—Conviction called for no interference.
       Held : So far as the appellant herein is concerned, it has been found as a fact that he had gone to the house of the deceased at about 10 PM on 29.12.1998 and he had persuaded him to accompany him to the house of A-1. The deceased was last seen by his wife and son at about 10.30 P.M. on that day when he accompanied the appellant on his own motorcycle to meet A-1. This circumstance is an incriminating circumstance and when considered with the other circumstances appearing against the appellant conclusively proves his guilt. Apart from being last seen with the deceased, there is evidence to the effect that he pointed out the place where the body of the deceased was lying which was in the garden behind the house of A-1. The motorcycle of the deceased was also recovered from the same spot. The evidence is thus conclusive that the appellant and the deceased travelled from the house of the deceased to the point where he was assaulted and killed. The objective findings also prove that the appellant had brought the deceased towards the house of A-1 and that in fact he had told the deceased that he was required by A-1. (Para 11)
       In a case based on circumstantial evidence, there may be no direct evidence to prove the manner of assault or the actual participation of an accused in the assault on the deceased resulting in his death, but if the circumstantial evidence is conclusive in nature, a conviction on the basis of such circumstantial evidence may be recorded. It must be shown that the circumstances established on record are incriminating in nature, and the chain of circumstances established by the prosecution is so complete as not to be consistent with any other hypothesis except the guilt of the accused. (Para 12)
       Learned Counsel for the appellant also submitted before us that the evidence of PWs 15 & 13 to the effect that the appellant was last seen in the company of the appellant became irrelevant in view of the fact that the prosecution had led direct evidence to prove the assault on the deceased. In our view, the submission does not help the appellant. In this case, the circumstance that the deceased was last seen by PWs 15 & 13 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt. (Para 13)

Judgment

B.P. Singh, J.—The appellant herein has appealed against the judgment and order dated July 13, 2004 of the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Appeal No. 227 of 2000, convicting him of the offence punishable under section 302 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for one year. The High Court, while recording the order of conviction against the appellant herein, acquitted four other accused on a finding that the evidence as against them did not prove their complicity in the offence beyond reasonable doubt.

2. The facts of the case are that on 28.12.1998 accused Arun Marathe, hereinafter referred to as A-1, had gone to see off his daughter at the Parbhani railway station since she was to go on a school trip organized by her school. The appellant herein, namely, Deepak Chandrakant Patil, hereinafter referred to as A-2, was also present at the railway station. The son of the deceased was also a member of the group which was going on a school trip to different places. It appears that A-1 took objection to the fact that no school teacher was accompanying the students. He insisted that school trip should be cancelled as no teacher was asked to accompany the students. It appears that the deceased took exception to the conduct of A-1 and an altercation followed. In that process, A-1 threatened the deceased with serious consequences. Nothing else happened on that day. On the following day i.e. on 29.12.1998, the wife of the deceased namely Surekha Sawargaonkar P.W. 15 received a telephone call at about 4 P.M. and the caller identified himself as Deepak Patil, A-2 appellant herein. It is the case of the prosecution that the appellant went to the school to find out the address of the deceased and thereafter made a call at about 4 P.M. There is some controversy as to whether P.W.8 went to the school on 28.12.1998 or 29.12.1998. That, however, is not very material because there is direct evidence to prove that on 29.12.1998 the appellant went to the house of the deceased at 10.00 P.M. and asked him to accompany him since he was called by A-1 who wanted to talk to him. This was objected to by the wife of the deceased P.W. 15 saying that if A-1 wanted to talk to the deceased he should come to his residence. However, the deceased was persuaded to accompany A-2 to the house of A-1 and they both left for the house of A-1 on the motorcycle of the deceased. The case of the prosecution is that an auto rickshaw with three persons sitting in it followed them. These three occupants of the auto rickshaw were later identified as accused nos. 3 to 5 (A-3 to A-5).

3. When the deceased did not return home till 11 P.M., the wife of the deceased PW 15 along with her son PW 13 and one other person Narayan Gore PW 6 went to the house of A-1 to inquire about the deceased. At about 12 midnight when they reached the house of A-1 they met a person who feigned ignorance about the whereabouts of the deceased. In the mean time, A-1 came out and when questioned, A-1 gave an evasive reply about the whereabouts of the deceased. PW 15, the wife of the deceased, told A-1 that he would have to suffer serious consequences if he did not disclose the whereabouts of the deceased, to which A-1 commented that what more harm was left to be done. After waiting till about 2.30 A.M., when the deceased did not return, PW 15 went to the Police Station and gave an oral report to the effect that the deceased had gone with A-2, the appellant herein, and had not returned. After the oral report was lodged, two Constables of the Police Station went in search of the deceased. At about 3 A.M., they reached the house of A-1 and saw that he was talking to the appellant and one other person, apart from the wife of accused no.1. One of the Constables PW 12 as also PWs 15 & 13 inquired A1 as to where the deceased was. The appellant who was present there stated th

Click Here to Read the rest of this document