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Being seen last together does not necessarily mean that it was the accused who committed the crime: Bombay High Court

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This appeal is directed against the judgment dated 24.02.2014, which convicted the accused under Sections 302, 201 read with 34 Indian Penal Code. 



The informant Sanjay Ware resided at his agricultural land along with his wife Vaishali (deceased), two sons, and one daughter. The appellant Accused no.1 Sachin Chavan worked in his field for one and a half years prior to the incident. Vaishali had given Sachin a sim card to keep in contact regarding agricultural work. According to the prosecution, due to frequent visits to the house of the informant by the appellant and also due to the use of a sim-card for contact purposes, the appellant-accused no.1 Sachin had developed intimacy with Vaishali. It was said that Sachin had developed an evil eye on her. About two months prior to the incident, Sachin had attempted to outrage the modesty of Vaishali, and she had beaten him with the help of her slippers. Since then, Sanjay and Vaishali both asked the Accused no.1 not to come to their house. However, he tried to remain in contact with Vaishali.  On 08.01.2013, Vaishali had gone to the weekly market at Karanji at 9.00 a.m, but she never returned. Sanjay and his brother-in-law tried to search Vaishali but could not trace her for about two days. On 11.01.2013, Sanjay lodged a missing report at Pathardi Police Station. Sanjay noticed that there was a call from the cell number of his wife, Vaishali. It was found that the call was from accused no.1 Sachin Chavan. On 16.01.2013, the Pathardi Police caught hold of accused no.1 Sachin at Nepti Naka. During the course of an investigation, it was transpired that both the appellants accused took deceased Vaishali with them under the pretext of going to the temple situated in the Vruddheshwar valley. After that, they committed the murder of the deceased Vaishali by smashing her head with the help of a stone. During the investigation, Sachin pointed out the spot of the incident where the dead body was lying. Sanjay identified the dead body as that of his wife, Vaishali. The medical officer has conducted the post-mortem examination and opined that the deceased died due to a head injury. 



Learned counsel for the appellant accused submitted that the prosecution case rests entirely on circumstantial evidence, and there is no direct evidence in this case. It was stated that Sanjay lodged the missing report after a considerable gap. In the said missing report, Sanjay neither made any allegations against Sachin nor expressed any suspicion against him. It was submitted that there was no memorandum panchanama drawn by the police for the alleged statement made by accused Sachin before showing the spot of an incident where the dead body was lying. Learned counsel pointed out that the prosecution’s case entirely rests upon the sole circumstance that deceased Vaishali was last seen alive in the company of Sachin in the weekly market of village Karanji. The prosecution examined Mithu Gite (PW 5), who stated that on 08.01.2013, at about 11 a.m. to 11.30 a.m., he had seen Vaishali on the motorcycle of accused no.1 Sachin Chavan. In response to this, Learned Counsel submits that this evidence is contrary to the motive as alleged by the prosecution. If at all deceased Vaishali had extended beating to Sachin because of his misbehavior, it was very unlikely on the part of deceased Vaishali to sit on the motorcycle of accused no.1 Sachin in the weekly market. It was submitted that the dead body was in decomposed condition with disfigurement of the face. Thus, a personal identification of the body could not have been ascertained. Even though one Mangal sutra was recovered, there is no evidence that it belonged to Vaishali. Lastly, it was submitted that if at all Sachin and his brother murdered Vaishali, there was no reason for Sachin to make phone calls on the cell phone of deceased Vaishali. 



Learned Counsel submits that the prosecution has proved the homicidal death beyond doubt, and Sanjay duly identified the dead body based on her earrings, Mangal sutra, scarf, and slippers. It was submitted that there is a strong motive for Accused no.1 Sachin to commit the murder of deceased Vaishali. Vaishali had beaten Sachin, and because of this, he held a grudge against her. Lastly, she was seen alive in the company of Sachin from about 11 a.m. to 11.30 a.m. in the weekly market. 



The Court observed that there was no proper identification of the dead body in this case. After going through the contents, it was noticed that there was no mention of the bangles, slippers, or sari in the spot panchanama. If at all Vaishali reacted harshly due to the misbehavior of accused Sachin two months ago, she would not sit on his motorcycle at the crowded weekly market. In the case of Mohibur Rahman and another v. State of Assam, reported in (2002) 6 SCC 715, it was held that the circumstance of last seen together does not necessarily mean that it was the accused who committed the crime. Considering the proximity of place and time between the two events, the accused should explain the circumstance, or he should own the liability for the homicide. In the present case, there is no such proximity of time and place. The dead body of Vaishali was recovered on 16.01.2013 from Vrudhheshwar valley, which is at a distance of 40 km from Pathardi. There is also no other evidence indicating the exact time of death of Vaishali. Sanjay admitted in his cross-examination that on 08.01.2013, his wife, deceased Vaishali, first went to her maternal house before going to the weekly market. The Court found it unlikely on Sachin’s part to make phone calls on the cell phone of Vaishali by using the sim cards given to him by her. Even if the frequency of calls between the sim-card/cell phone in possession of accused no.1 Sachin and deceased Vaishali’s cell phone is considered, there were intimate relations between them. However, the same is contrary to the motive as put forth by the prosecution to prove the involvement of accused no.1 Sachin in the commission of murder of Vaishali. According to The Investing Officer, during an investigation, it was revealed that Accused no.1 smashed the head of the deceased by means of stone. He demanded sexual relations from Vaishali, and so she assaulted Sachin. Due to this, he murdered her out of revenge. The Court, however, did not find any evidence to draw this conclusion. 



As the prosecution failed to prove the case beyond reasonable doubt against both the accused persons,  they are acquitted of all charges.

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