Evidence Of Last Seen Together By Itself Not Conclusive That Death Was At Hands Of Accused: Bombay High Court

Justice S.G. Dige and Justice Sadhna S. Jadhav observed that there was enough evidence to show that the accused, Ganesh, had abandoned the deceased, Sanjay, after the incident and the fact that they were together by itself won't contribute to the allegation that the death was at the hands of the accused.

The Court was hearing an appeal against a judgement where the accused, appellant herein, was convicted for the offence punishable under section 302 of IPC and sentenced to suffer rigorous imprisonment for life by the Additional Sessions Judge, Latur.

The Court recorded that there is no recovery of weapon nor it is the case of the prosecution that the accused had used any weapon to cause the head injury on the deceased. All the injuries were in the nature of laceration.

Counsel for the appellant submitted that the death was first reported as an accidental death and filing of the FIR against him is an afterthought and that therefore, there is inordinate delay in lodging the FIR for which the informant – Manohar has not offered any plausible explanation.

It was further submitted that there was no motive on the part of the accused to commit murder of the deceased.

The Additional Public prosecutor submitted that the prosecution has proved its case beyond reasonable doubt. That, there is cogent evidence in respect of last seen together and that the accused has taken the defence of total denial in his statement under section 313 of Cr. P.C. He said that PW7 had even confronted the accused to which he had not reacted and that speaks volumes for itself. Hence, the judgment of the trial Court calls for no interference.

After hearing both the counsels at length the court recorded the following facts:

That, the prosecution has been able to establish through P.W. 7 that on 10/12/2013 the accused had been to the house of the deceased at about 11.30 to 12.00 noon and thereafter, the deceased was not seen by anyone or heard of. They had left on the motorcycle of the accused.

That, the motorcycle on which the accused and the deceased had left was seized at the instance of the accused from front of his house.

The seizure panchanama shows that the dome of the headlight was totally damaged. The indicators on the front and the rear side were damaged. The said motorcycle is registered in the name of the accused.

P.W. 7 has also established that on 10/12/2013 deceased Sanjay had not returned home. On 11/12/2013 the accused had visited the house of P.W. 7 at about 8.00 am and inquired about the deceased. Upon being confronted by P.W.7 that he is answerable to the whereabouts of Sanjay, he had not reacted and simply left the house of P.W.7.

The Court after considering the admitted facts, observed that it is clear that the accused and the deceased were last seen in the company of each other by P.W. 7. The broken headlights and the broken mirror would show that the accused and the deceased must have met with an accident on the said highway as the broken parts of the motorcycle were found on the spot.

"The question for determination would be as to whether the prosecution has proved that the deceased Sanjay had met with a homicidal death. The injuries noticed in column No.17 are in the form of lacerations and contusions. There is no fracture on palpation. It would not prove that there was an assault on the head. Laceration and abrasions could be caused due to accident also.

However, the Court concurred that instead of abandoning the deceased, it was incumbent upon accused to have disclosed the factum of their accident and injuries to the family members of the deceased. It was of the view that the death had occurred since the deceased was not given medical aid instantly.

In this regard it took note of the substantive evidence that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. But in the very next breath, it noted that the said injuries are possible if a person is forcefully dashed against a wall.

"The act could also be accidental. The spot panchanama at Exh.33 would show that the incident had occurred on a flyover which has a concrete wall and is about 6 feet in length...There are signs of skidding of the motorcycle on the grass. There are signs which show that a vehicle had dashed against the wall. All this would be indicative of the fact that in all probabilities, it was an accidental death." Court said

The Court said that the conduct of the accused person also needs to be appreciated. It could be a fear of being implicated that he had restrained himself from disclosing about the accident with which they had met. In order to cover up the whole episode, he had visited the house of the deceased on the next day and made a farce of inquiring about the whereabouts of Sanjay.

In view of the above discussion the court found no merit in the submissions made by the prosecution and set aside te conviction under Section 302 IPC. However, the Court found that the accused had caused disappearance of evidence and hence, held that Section 201 IPC would be attracted.

Case Title: Ganesh V/s. The State of Maharashtra

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