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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B. P. DHARMADHIKARI, PRAKASH D. NAIK, JJ.
Manoj @ Manya Pandurang Kadam and Ors - Appellants
Versus
State of Maharashtra and Ors - Respondent
Criminal Appeal No.402 of 2012
Decided On : 12-06-2019
Evidence Act – Section 106 – Indian Penal Code, 1860 – Section 302 read with 34 – Code of Criminal Procedure, 1973 – Section 374 – Order of Conviction – Appellants are convicted for the offence under Section 302 read with 34 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-, each, vide judgment and order, passed by Additional Sessions Judge, in Sessions Case – Held, Trial Court has also drawn an adverse inference on the basis of Section 106 of the Evidence Act. – It is pertinent to note that the prosecution has to first establish that the deceased was in the custody of the accused. Spot panchanama indicates that there were articles, such as, iron chair fallen at the place of incident, chit with ball pen, nylon rope. – On entry in the house, clothes of deceased bag kept on table with electrical instruments, phone number chit. – The panchanama further indicates the description of articles seized such as nylon rope, towel, chit written by accused and phone chits, which would mean other articles were not seized. – The incident had occurred in the padavi (Varanda of the house of accused no.1. – There were no injury of assault on the person of the deceased. – The articles, which were referred to in the spot panchanama allegedly belonging to deceased were not produced during the course of the evidence before the Court. – It is not established that the same belonging to the deceased. – Thus, the telephone number, chits, which were allegedly found in the room, was not proved to be in the hand writing of the deceased. – The towel, which was used for tying the hands of the deceased was not identified and produced in the evidence. – It is not established that victim was in custody of accused. – The prosecution has suppressed the best evidence and relying on circumstances which do not prove the case beyond doubt. – Hence, it cannot be said that the prosecution has laid any foundation in the form of evidence to invoke Section 106 of the Evidence Act. – Court is of the considered opinion that the benefit of doubt ought to be given to the appellants. – Hence the conviction of the accused/appellants is required to be set aside. – Criminal Appeal Allowed
PRAKASH D. NAIK, J.
1. Appellants are convicted for the offence under Section 302 read with 34 of Indian Penal Code (“IPC”, for short) and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-, each, vide judgment and order dated 29th February, 2012, passed by Additional Sessions Judge, Mangaon, District–Raigad, in Sessions Case No.42 of 2010.
2. In brief, the prosecution case is as follows:
(a) Complainant Yashwant Vithoba Sawant is the father of deceased Mangesh Sawant. He is resident of Usar Khurd, Taluka–Tala, District–Raigad. Deceased Mangesh was residing at his sisters place in Mumbai and he was working as a wireman. He had shifted to Mumbai two years prior to the alleged incident.
(b) The incident in question took place between the intervening night of 23rd November, 2008 and 24th November, 2008. Body of the deceased was found in hanging position in the padavi of accused no.1.
(c) On 24th November, 2008, at about 6:00 hrs., police patil of Usar Khurd Shri Sharad Ghag took the complainant to the house of appellant no.1/ accused no.1 where they found the body of Mangesh deceased hanging in the Varanda of the house of accused no.1. His both hands were tied on the back by towel having two knots.
(d) Information was given by police patil to the police and police attached to Mangaon police station visited the spot. PSI Mane arrived at the spot. Complainant told to police that his son Mangesh has not committed suicide and that he had been murdered and his body is hanged. Police ignored the complaint and did not take cognizance of complainant's grievance. Police prepared accidental death report being ADR No.66 of 2008 under Section 174 of Code of Criminal Procedure. Spot panchanama and inquest panchanama were recorded and the body was sent to Mangaon Government Hospital for postmortem. Subsequently, body was handed over to the relatives of the deceased for performing last rites.
(e) News of death of Mangesh was published in Newspapers. Police did not register any crime against accused. Complainant forwarded complaint to various authorities. He wrote to Home Minister of the State and forwarded his complaint to him. Police were directed to look into the complaint. Despite the directions to the police, no action was initiated. According to complainant Mangesh and appellant no.1 were doing electrical work at Mangaon. While doing work, they had quarrel. Mangesh had told him that Manoj took him to Mangaon for work but he used to give abuses to him. Appellant no.2 had borrowed loan of Rs.10,000/- from Mangesh. He had not repaid the amount. All the three accused used to take Mangesh with them whenever they go
(f) On 22nd May, 2009, complainant filed a private complaint before the Judicial Magistrate First Class, Mangaon in Regular Case No.45 of 2009. The trial Court vide order dated 22nd May, 2009 called report under Section 156(3) of Cr.P.C. investigation then proceeded. Statement of various persons were recorded. On the report submitted by police, process was issued.
(g) Charge was framed against accused by order dated 24th November, 2010, for the offences punishable under Section 302 read with 34 of IPC. As per charge, on 23rd November, 2008, in the night time, at village Usar Khurd, Khalchi Ali, Tal.-Tala and particularly in the house of accused no.1 Manoj, they have committed murder of Mangesh Sawant and hanged him to show that he has committed suicide and thereby committed an offence punishable under Section 302 read with 34 of IPC.
3. Prosecution examined eight witnesses in support of its case. Statements of accused were recorded under Section 313 of Cr.P.C. The defence of the accused was of total denial. Vide judgment and order dated 29th February, 2012, the appellants were convicted. Hence, the impugned judgment and order of conviction has been challenged by preferring this Appeal under Section 374(2) of Cr.P.C.
4. Prosecution case is based on circumstantial evidence. There is no eye witness to the incident.
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