PRAFUL SUDHAKAR PRAB Vs. STATE OF MAHARASHTRA - Murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 261 of 2008, Judgment Date: Jun 29, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.261 OF 2008
PRAFUL SUDHAKAR PARAB ... APPELLANT
VERSUS
STATE OF MAHARASHTRA ... RESPONDNET
J U D G M E N T
ASHOK BHUSHAN, J.
The appellant has filed this appeal against the judgment of the
High Court of Judicature at Bombay dated 14.2.2006 in Criminal Appeal
No.703 of 2001 by which the High Court by dismissing the appeal of the
appellant has affirmed the conviction and sentence order passed by the
Additional Sessions Judge for Greater Bombay dated 31.07.2001 in Sessions
Case No. 459 of 1997 recorded against the accused awarding him life
sentence and fine of Rs. 5000/- .
2. Prosecution case in brief is that both, the victim Prabhudas
Narayan Raut and accused Praful Sudhakar Parab were working in the police
Department of the State of Maharashtra. The victim was working as Senior
Clerk in Police Training School Marol whereas the accused was working as
Pay Sheet Clerk attached to LA-IV, Police Training Centre, Marol. On
7.12.1996, the victim after finishing his office work at 6:30 p.m. reached
at his residence by 7:30 p.m. The accused came at the residence of victim
at about 8:00 p.m. and informed the victim that he has been called in the
office by his superior Mr. Patil and victim should accompany him to the
office. The victim after making a phone call to PTS Marol stated that he
has not been called in the office and he shall not accompany the accused.
When the accused came to the residence of victim, the wife of the victim
Kalpana Raut and his son Anis were also present. Victim also told his wife
that he will inquire on Monday as to who had given such a false message. At
about 9 p.m., the victim and Kalpana went to nearby telephone booth and
while Kalpana was having conversations with his brother, accused after
enquiring about the whereabouts of the couple from child Anis again came to
them at the telephone booth. Accused persuaded Prabhudas to accompany him
to the office. After telephonic call was over, Kalpana along with victim
and accused returned to the house of victim. The victim took up the bag
brought from office with all its contents and left the house along with
accused after 9:00 p.m. After above departure from house on 7.12.1996
after 9 p.m. Prabhudas never returned. On next day morning Kalpana, the
wife inquired from telephone operator PTS, Marol about her husband. She was
informed that nobody had gone to the office of Police Training School,
Marol on the preceding night. Kalpana along with a relative visited the
Police Training School, Marol and made enquiries. Police Constables Sanap
and Khamkar, who were colleagues of the deceased suggested Kalpana that she
would find out the person with whom her husband had gone last night.
Kalpana approached Sawant who was maternal uncle of the victim. Sawant took
the Kalpana to his sister i.e. mother of accused, accused was not present
there. Kalpana was handed over photograph of accused by his mother from
which photograph Kalpana identified the accused as the person with whom her
husband went last night. Subsequently on the same day, Sawant family
informed that accused is available at their residence. Kalpana went to
Sawant family and inquired the accused regarding whereabouts of her
husband. Accused gave evasive reply. Accused flatly refused that he had
gone to house of Raut on previous night. The accused was taken to the
Police Station Meghwadi by Kalpana Raut and her relatives. Kalpana met
Police Sub Inspector Shinde who recorded the statement of Kalpana Raut and
a complaint of missing person Prabhudas Raut was registered. The accused
was asked to stay back at the Police Station. Shinde inquired from the
accused about the whereabouts of victim, accused was reluctant to answer.
On further inquiry by Shinde and Inspector Sonar, accused informed that he
took Prabhudas Raut with two other friends Dalvi and Waingankar at Panvel
in one hotel. Police team took the accused to Panvel who pointed out a
Suman Motel. On inquiry from the hotel staff it was revealed that Prabhudas
and other two did not visit the hotel or stayed there. The prosecution case
further is that on further interrogation of accused in the morning of
9.12.1996, the accused confessed the murder of Prabhudas Raut and expressed
his willingness to show the place he had committed murder and show the dead
body. The police party was led by the accused to the place of occurrence
where the dead body was seen in the search light pushed inside a big water
pipe. Police party decided to carry on Panchanama in sun light after
putting two constables to guard the place. The first information report was
registered and thereafter again at 8:00 a.m. Police party along with the
accused went on the scene in the presence of two Panch, a Panchanama was
prepared Exh.-24, certain articles including one big stone left near the
body of the deceased , three button of shirts of blue colour and a rexine
bag were recovered. The body bore the mark of injury. Face of the deceased
was totally battered and injuries were on his head.
3. Accused further expressed his willingness to show the clothes
which he was wearing at the time of occurrence. Accused led the police
party to the house of his parents from where the clothes worn by the
accused were recovered. Panchnama Exh.-35 was prepared in the presence of
a witness. Subsequently, accused further led the police party to PTS, Marol
where the bunch of keys he alleged to have taken out from the pocket of the
deceased were kept. The police party along with Panch went to the PTS,
Marol where in the Guardroom under the Stand for keeping the rifles, a bag
containing the bunch of keys was found and memo Exh.-30 and Panchanama Exh.-
30A were prepared.
4. Accused was put on trial. Prosecution examined 21 witnesses and
has filed various documentary evidence. The statement of accused under
Section 313 Cr.P.C. was recorded. Defence did not examine any witness in
support of defence case. Learned Sessions Judge convicted the accused
relying on the circumstantial evidence after holding that there is no eye
witness of the scene nor confessional statements of the accused can be
treated to be a confession. Sessions Judge, however, believed the evidence
of PW-8 Kalpana Raut and PW-11 Anish Raut son of victim that it was accused
who was last seen with the victim and with whom victim went out on
7.12.1996 after 9 p.m. The chain of events clearly pointed out that it was
accused who committed murder. With regard to offence under Section 364, it
was held by the Sessions Judge that the said charge does not survive. On
appeal against the judgment of the Sessions Judge, the High Court affirmed
the conviction and dismissed the appeal. The High Court however, relied on
the statement of PW-8 in holding that it was accused who was last seen with
the victim. However, High Court decided not to base its finding on the
child witness i.e. PW-11. The evidence of Kalpana was elaborately noted and
sequence of events and chain of events found support from other evidence on
record including the evidence of PW-15 Shanta Ram Sawant and the
independent witnesses as well as the statement of Inspector Sonar and Sub
Inspector Shinde. The High Court after considering all the evidence on
record dismissed the appeal affirming the conviction of the accused.
5. This appeal has been filed by the appellant (hereinafter
referred to as 'accused') through amicus curiae. Learned amicus curiae
appearing for the accused has raised following submissions in support of
the appeal:
(i) There are no eye witnesses of the events. Circumstantial links are
not proved beyond doubt.
(ii) PW-8 Kalpana Raut deposed that her husband took dinner and after
dinner left out with the accused on 7.12.1996. The food was required to be
found in the stomach which is negated by the medical report.
(iii) Prosecution story was that accused went to the deceased twice to call
deceased that Patil Sahib was calling him. However, Patil Sahib was not
examined by the prosecution.
(iv) Police investigation did not blame the accused that he was having any
grudge, rivalry or bad relationship with the deceased. No motive could be
proved for the murder hence, the conviction is bad.
(v) Recovery of keys was to support that the accused was planning for
theft at police treasury where cash was kept but in whole prosecution
evidence, it is not brought on record as how much cash was there.
6. Learned counsel appearing for the State has supported the
judgment. It is contended that the findings and conclusion arrived at by
the courts below were based on cogent evidence and circumstantial evidence
brought by the prosecution was sufficient to convict the accused. There is
no merit in the appeal.
7. We have considered the submissions of the learned counsel for
the parties and have gone through the record.
8. The present is a case where no eye witness is produced. The
statements made before police by the accused in the morning of 9.12.1996
wherein the accused is stated to have confessed murder cannot be said to be
a valid confession as has rightly been held by the learned Sessions Judge.
The prosecution has based its case on circumstantial evidence. Whether
conviction based on circumstantial evidence can be upheld and whether there
was sufficient evidence to support the conviction are the questions to be
answered in this appeal. This Court on several occasions has considered the
law regarding basing of conviction by the Court on a circumstantial
evidence. It is useful to refer to the judgement of the apex Court in
Gambhir Vs. State of Maharashtra, 1982 (2) SCC 351, wherein the apex Court
laid down that circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established. Referring to the above
judgment of Gambhir Vs. State of Maharashtra (supra), principles were again
reiterated by the Supreme Court in K.V. Chacko Vs. State of Kerala, 2001
(9) SCC 277, wherein following was laid down in paragraph 5:
“5. The law regarding basing a conviction by the courts on
circumstantial evidence is well settled.
When a case rests upon the circumstantial evidence, such evidence must
satisfy three tests: (1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly established (2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused; (3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the accused and
none else. The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than that
of the guilt of the accused. The circumstantial evidence should not only be
consistent with the guilt of the accused but should be inconsistent with
his innocence.”
9. Again in Trimukh Maroti Kirkan vs State Of Maharashtra, 2006
(10) SCC 681, following was laid down in paragraph 12:
“12. In the case in hand there is no eye-witness of the occurrence and the
case of the prosecution rests on circumstantial evidence. The normal
principle in a case based on circumstantial evidence is that the
circumstances from which an inference of guilt is sought to be drawn must
be cogently and firmly established; that those circumstances should be of a
definite tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain so complete
that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and they should be
incapable of explanation on any hypothesis other than that of the guilt of
the accused and inconsistent with his innocence.”
10. In State of U.P. Vs. Satish, 2005 (3) SCC 114, this Court
reiterated that there is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested on the touch stone of law
relating to circumstantial evidence. Following was laid down in paragraphs
14,15 and 16:
“14. There is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested by the touchstone of law
relating to circumstantial evidence laid down by this Court as far back in
1952.
15. In Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343 it
was observed thus;
"It is well to remember that in case where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should be in the first instance be fully established, and
all the facts so established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.
16. A reference may be made to a later decision in Sharad Birdhichand Sarda
v. State of Maharashtra, AIR (1994) SC 1622. Therein, while dealing with
circumstantial evidence, it has been held that the onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna
in the prosecution cannot be cured by a false defence or plea. The
conditions precedent in the words of this Court, before conviction could be
based on circumstantial evidence must be fully established. They are:
(1) The circumstances from which the conclusion of guilt is to be drawn
should be fully established. The circumstances concerned must or should and
not may be established;
(2) The facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be explainable
on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be
proved; and (5) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the-
innocence of the accused and must show that in all human probability the
act must have been done by the accused.”
11. The circumstantial evidence in the present case has to be examined in
the light of the law as laid down above.
12. The present is a case where the evidence of last seen together on
7.12.1996 has been relied by the Courts below. The deceased attended his
office and left at 6:30 p.m. along with another constable PW-2 Dilip
Atmaram Waingankar, who was also on duty on 7.12.1996, who stated that he
along with victim has left the office at 6:30 p.m. and he left the victim
at 7:30 p.m. at Jogeshwari. PW-8 Kalpana Raut the wife of deceased has
stated in her statements that the accused came at 8:00 p.m. on 7.12.1996
and asked the victim to accompany him to office since he was being called
by Patil Sahib. The victim made a phone call to PTS, Marol and was
informed by telephone operator who has also appeared in the evidence that
there was no message for him. PW-8 Kalpana Raut has clearly stated that she
along with her husband went to telephone booth near her house to call her
brother and when she was talking to her brother, accused again came and had
talk with victim. Thereafter both victim and accused came at the house. The
victim took up his bag which he brought from the office and left for office
along with accused at about 9:15 p.m. on the same day. The child witness PW-
11 Anish was also relied by the learned Sessions Judge, who had made the
same statement about leaving the home by victim along with the accused. The
High Court decided not to rely on child witness looking to his age at the
time of incident.
13. What is the relevance of last seen theory has come for consideration
time and again before this Court. In State of U.P. Vs. Satish (supra),
there was positive evidence that the deceased and accused were seen
together by the witnesses. Following was laid down by this Court in
paragraph 22:
“The last seen theory comes into play where the time-gap between the point
of time when the accused and the deceased were seen last alive and when the
deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible. It would
be difficult in some cases to positively establish that the deceased was
last seen with the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that the deceased and
the accused were seen together by witnesses PWs. 3 and 5, in addition to
the evidence of PW-2.”
14. In Deepak Chandrakant Patil v. State of Maharashtra, 2006 (10) SCC
151, the statements of the wife and son of the deceased to the effect that
deceased was last seen in the company of appellant was sought to challenge
on the ground that there was no direct evidence led by the prosecution to
prove assault on the deceased. Rejecting the said submission, it was held
by this Court that circumstance of last seen together if considered with
other evidence on record has found the guilt proved. Following was laid
down in paragraph 14:
“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.”
15. Both the Courts below have considered the statements of PW-8 Kalpana
Raut, the wife of victim, referred to the cross examination made by the
learned counsel for the accused and has rightly found that it was accused
who was last seen together with the victim on 7.12.1996 and it was the
accused, who came to the house of the victim and took the victim along with
him on the pretext that victim is being called at the office by his
superior. Last seen theory is a circumstance, which can be relied but it is
well settled that only on the basis of last seen together conviction cannot
be recorded. Further, if there is long time gap between last seen together
and the date of incident, the evidence of last seen together losses much of
its importance. But present is a case where there is no long time gap. The
victim went along with the accused on 7.12.1996 after 9 p.m. and next day
morning the wife carried rigorous search, met the accused and took him to
the police station. From the morning of 8.12.1996 the search was conducted
by the wife making statements that it was accused who came to the house of
the victim and took away the victim on the pretext that he was being called
by his superior in the office. On 8.12.1996, evening PW-8 Kalapana Raut
along with the help of her relatives could take the accused to the police
station and accused remained at the police station and investigation was
carried out by the police authorities. In the early morning of 9.12.1996,
the accused is stated to have confessed his guilt and thereafter dead body
and other articles were recovered from the spot. Thus, there is no time gap
between accused being last seen together and discovery of dead body. The
prosecution case is that murder took place on 9.12.1996 itself. Thus, the
present is a case of absolutely no time gap hence, evidence of last seen
together becomes very relevant and important and has rightly been relied by
the Courts below. There are other evidence on record which complete the
chain of events. From the scene of occurrence, recovery of three shirt's
button; recovery of bag containing the treasury books and other articles
which had been taken by the victim at the time of departing for the office
at 9 p.m. Recovery of three buttons which were proved to be button of the
shirts of the accused which he was wearing at the time of occurrence.
Recovery of stone which was used by the accused for smashing the head of
the victims and the post mortem report has found the wound as incised like
wound which proves the manner of causing death as was stated by the
accused. The recovery of clothes worn by the accused from the parents house
indicated that his shirt did not have three buttons which were found at the
scene of occurrence completes the chain of events. Further keys of the
office of PTS, Marol which the victim took along with him while departing
along with the accused on 7.12.1996 were recovered at the instance of the
accused from the guardroom of PTS Marol. The keys which were with the
accused were found in the custody of accused clearly completes the chain of
events. There is evidence on record to indicate that accused on 8.12.1996
went to PTS, Marol and wanted the Pay Office of PTS Marol to be opened on
the pretext that he has left his keys on previous day. The office was not
allowed to be opened and the witnesses who had seen him on 8.12.1996
morning have deposed before the Court. The High Court has elaborately
considered the Exh. P-24, the Panchanama which was prepared on the spot.
The High Court has rightly observed that Panchanama is a composite
document, which contains certain details pertaining to narration by the
accused, and it also contains details which can be termed as panchanama of
scene of occurrence, and it also contains the details of the dead body,
which can be termed as inquest. Exh. P-24 has been witnessed by the
independent witnesses Arvind Veerkar PW-9 was independent witness of scene
of occurrence and recovery of dead body and other articles, who was
thoroughly cross examined by the defence. The conduct of the accused which
has come before the Court by evidence, recovery of clothes which was worn
by him at the time of occurrence and recovery of keys which were with the
deceased when he left the house completes the chain of events and
unerringly points out that it was the accused who committed the crime.
16. One of the submissions which has been raised by the learned amicus
curiae is that the prosecution failed to prove any motive. It is contended
that the evidence which was led including the recovery of bunch of keys
from guardroom was with a view to point out that he wanted to commit theft
of the cash laying in the office but no evidence was led by the prosecution
to prove that how much cash were there in the pay office. Motive for
committing a crime is something which is hidden in the mind of accused and
it has been held by this Court that it is an impossible task for the
prosecution to prove what precisely have impelled the murderer to kill a
particular person. This Court in Ravinder Kumar and another vs State Of
Punjab, 2001 (7) SCC 690, has laid down following in paragraph 18:
“18........It is generally an impossible task for the prosecution to prove
what precisely would have impelled the murderers to kill a particular
person. All that prosecution in many cases could point to is the possible
mental element which could have been the cause for the murder. In this
connection we deem it useful to refer to the observations of this Court in
State of Himachal Pradesh vs. Jeet Singh {1999 (4) SCC 370}:
"No doubt it is a sound principle to remember that every criminal act was
done with a motive but its corollary is not that no criminal offence would
have been committed if the prosecution has failed to prove the precise
motive of the accused to commit it. When the prosecution succeeded in
showing the possibility of some ire for the accused towards the victim, the
inability to further put on record the manner in which such ire would have
swelled up in the mind of the offender to such a degree as to impel him to
commit the offence cannot be construed as a fatal weakness of the
prosecution. It is almost an impossibility for the prosecution to unravel
the full dimension of the mental disposition of an offender towards the
person whom he offended."
17. Further in Paramjeet Singh Vs. State of Uttarakhand, 2010 (10) SCC
439, this Court held that if motive is proved that would supply a link in
the chain of circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. Following was stated in paragraph
54:
“So far as the issue of motive is concerned, the case is squarely covered
by the judgment of this court in Suresh Chandra Bahri (supra). Therefore,
it does not require any further elaborate discussion. More so, if motive is
proved that would supply a link in the chain of circumstantial evidence but
the absence thereof cannot be a ground to reject the prosecution case.
(Vide: State of Gujarat v. Anirudhsing [supra])”
18. The High Court while considering the motive has made following
observations at page 46:
“Although prosecution is not very certain about the motive, upon taking
into consideration the evidence of PW-4 and PW-6, a faint probability is
created, regarding intentions of the accused to lay hands on the cash which
could have been in possession of the victim, as against the initial story
that the accused was enraged against the victim, because the victim used to
tease him on the point of his marriage with a bar girl Helen Fernandes.
Motive is a mental state, which is always locked in the inner compartment
of the brain of the accused and inability of the prosecution to establish
the motive need not necessarily cause entire failure of prosecution.”
We fully endorse the above view taken by the High Court and do
not find any substance in the above ground.
19. The amicus curiae submits that the Patil Sahib was not examined as
witness. The prosecution case was that accused told the victim that he has
been called by Patil Sahib in the office. When the evidence has come on the
record including the evidence of PW-1 Pradeep Mohit, who was the Telephone
Operator in the PTS, Marol in the night of 7.12.1996 that there was no
message for victim, non production of Patil by prosecution is of no
consequence.
20. The next submission of amicus curiae is that the PW-8 Kalpana Raut
has stated in her statement that on 7.12.1996 victim left the house after
9:00 p.m. after taking dinner but no food was found in the stomach and the
medical report bellies that case. The High Court has dealt with the above
submissions and made following observations at page 33:
“Evidence of Kalpana, duly supported by PW-15 Shantaram is strong enough to
draw conclusion that Kalpana was certainly aware of her husband having
departed with nephew of PW-15 Shantaram, irrespective of the fact whether
she had seen that nephew or not and also irrespective of the fact, whether
the victim departed without dinner. The portion from post mortem notes,
indicating the victim to be empty stomach, therefore, is not weighty enough
to demolish Kalpana's deposition, which claims knowledge of departure of
victim with the accused. We are, therefore, inclined to hold tht Kalpana's
evidence that the deceased had departed with the accused, is acceptable and
the prosecution has established this circumstance with reliable evidence.”
21 . We endorse the above findings of the High Court. The present is not
a case of solitary evidence of last seen together but sufficient evidence
was led to complete the chain of events and link the accused to the crime.
The High Court after elaborately considering all the evidence on record has
rightly dismissed the appeal filed by the accused. We do not find any merit
in this appeal. The appeal is dismissed.
………………………………….J.
( ABHAY MANOHAR SAPRE )
………………………………….J.
( ASHOK BHUSHAN )
NEW DELHI,
JUNE 29, 2016.
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