Indian Penal Code, 1860 – Section 302 – the last seen circumstance is not fully proved – chain of circumstances relied upon is not so complete as to exclude reasonable possibility of accused not being guilty – two co-accused including the one against whom motive was alleged have been acquitted – appellant was close relative of the deceased and even according to P.W.1, he had friendly terms with the deceased – case for interference has been made out – Appeal allowed and set aside the conviction and sentence of the appellant – bail bonds shall stand discharged.
IN THE SUPREME COURT OF INDIA
Adarsh Kumar Goel and L. Nageswara Rao, JJ.
June 17, 2016
Criminal Appeal No.1074 of 2011
Bajirao Gondappa Chaugule – Appellants
State of Maharashtra – Respondents
For the Appellants :- Md. Farman, Advocate; For the Respondents :- Nishant Ramakantrao Katneshwarkar, Arpit Rai, Advocates.
This appeal has been preferred by the appellant, Bajirao Gondappa Chaugule, who stands convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life.
2. The incident in question took place on the night of 29th May, 1991 at Ram-road, a place between Ganpatipule and Ratnagiri Road, District Ratnagiri in Maharashtra. Initially, three persons were named as accused. Apart from the appellant, the other two accused persons are Namdeo Bapu Ladgaonkar and Manohar Gondappa Chaugule. The charge against them was that all the three accused persons, in furtherance of their common intention, committed the murder of Tanaji Hinduaro Ladgaonkar.
3. The case of the prosecution was that Bajirao, the appellant herein, co-accused Namdeo and the deceased were neigbours in village Siye, Taluka Karveer, District Kolhapur. Bharti, the wife of the appellant was from village Padvalwadi and was known to P.W.1 Mangla, the wife of the deceased. Namdeo Bapu Ladgaonkar was the cousin brother of the deceased and was married living in his own house along with his wife Chingu and other family members. Accused No.3, Manohar, was the brother of the appellant, Bajirao Gondappa Chaugule and was owner of an auto-rickshaw.
4. Case of the prosecution further is that on 22nd May, 1991, there was a marriage at Padvalwadi in the family of the wife of the deceased. Mangla and Bharti had gone to attend the said marriage. On 28th May, 1991, the deceased and the appellant went to village Padvalwadi and decided to go to Ganpatipule to have deodarshan along with their wives, Mangla and Bharti in the auto-rickshaw driven by the appellant, Bajirao. On 29th May, 1991, they left at 9.00 a.m. and reached Ganpatipule at 7.00 p.m. and stayed there in Mathura Lodge for the night. In the morning, they went for deodarshan and returned to Hatkhamba at 7.30 p.m. They went to hotel Alankar for meals. There they met Namdeo, who also had meal with them. After the meals, they proceeded to Ganpatipule and stayed in the lodge. In the night, the appellant and the deceased informed their wives that they will go out of the lodge to meet Namdeo at Hatkhamba. Accordingly, Bharti and Mangla went to sleep as they were tired and Bajirao and the deceased went away. At 4.00 a.m. on the next day, i.e. 30th May, 1991, Bajirao returned and told the ladies that the deceased, Tanaji Bajirao Gondappa had been injured and was admitted to hospital. Accordingly, they left the lodge. On the way to Hatkhamba, the auto-rickshaw met with an accident and the inmates were injured and were taken to Ratnavali for treatment. In the hospital, P.W.1 Mangla heard that her husband was killed by somebody.
5. According to P.W.1 Mangla, there was a quarrel between Namdeo and the deceased on account of the allegation that the deceased had outraged the modesty of the wife of Namdeo. She suspected that Namdeo and Bajirao had caused the death of her husband. The dead body of the deceased was found abandoned. On receiving information about dead body, P.I. Gajano Juikar who was on duty in the Ratnagiri Rural Police Station, recorded the F.I.R. and visited the spot. As per his observation, it was a homicidal death. During investigation, he arrested Bajirao and Namdeo on 4th June, 1991, and before that he seized the articles of the accused persons and the auto-rickshaw. The weapon of offence was recovered at the instance of Bajirao. The investigator also recorded recovery of blood stains from the auto-rickshaw.
6. After investigation, all the above accused persons were sent up for trial. The trial Court acquitted the accused No.3, Manohar Gundappa Chougule, the owner of auto-rickshaw and the brother of the appellant with the observation that there was no positive evidence against him. The trial Court also acquitted Namdeo Bapu Ladgaonkar. The trial Court observed that there was no material to substantiate the allegation that there was any enmity between Namdeo and the deceased. The presence of Namdeo at Hatkhamba or his travelling with the accused, Bajirao and the deceased were not proved. To this extent, the version of P.W.1 Mangla was dis-believed. The trial Court, however, accepted the version of the prosecution against the appellant, believing the version of P.W.1 Mangla about the Bajirao being last seen with the deceased in the night of 29th May, 1991. It was inferred that since the appellant was with the deceased in the night of 29th May, 1991, and the dead body was recovered on the next morning, it was the appellant who was responsible for causing the death in the absence of any explanation from him. Apart from the said evidence, there was evidence of recovery of blood stained clothes from the room occupied by the appellant. There was also recovery of weapon.
7. On appeal, the High Court affirmed the view of the trial Court relying upon the aforesaid three circumstances.
8. We have heard Md. Farman, learned counel appearing for the appellant and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel appearing for the State of Maharashtra and perused the record.
9. The main contention raised on behalf of the appellant is that the parameters for accepting the circumstantial evidence as basis for conviction have not been correctly applied by the courts below. Circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts established should be consistent only with the guilt. Chain of circumstances should be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
10. It is submitted that according to the wife of the deceased, P.W.1 Mangla, it was Namdeo and the appellant who planned and killed the deceased. The deceased was with Namdeo and the appellant jointly. This aspect has not been proved as presence of Namdeo was not proved. P.W.3, Moreshwar Trivikiram, does not corroborate the stand that the appellant mentioned about accident having taken place. He also did not mention presence of Namdeo as alleged by P.W.1. Thus, version of P.W.1 has been rejected by courts below qua Namdeo. Thus in the circumstances, dent is caused to the version of ‘last seen’.
11. It was accepted by P.W.1 Mangla that there was no enmity between the appellant and the deceased, who were closely related. The enmity alleged was against Namdeo.
12. We find merit in the submission. We are of the view that the last seen circumstance is not fully proved. The chain of circumstances relied upon is not so complete as to exclude reasonable possibility of accused not being guilty. As already observed, two co-accused including the one against whom motive was alleged have been acquitted. The appellant was close relative of the deceased and even according to P.W.1, he had friendly terms with the deceased. In these circumstances, we are of the view that case for interference has been made out.
13. Accordingly, we allow the appeal and set aside the conviction and sentence of the appellant. His bail bonds shall stand discharged.