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2017 DIGILAW 1828 (BOM)

Bhaurao v. State of Maharashtra

2017-09-06

MANISH PITALE, R.K.DESHPANDE

body2017
JUDGMENT : Manish Pitale, J. 1. By this appeal, the appellant-sole accused has challenged the judgment and order dated 11.09.2015 passed by the Sessions Court, Yavatmal, in Sessions Case No. 19 of 2014, whereby the appellant has been held guilty under Section 302 of the Indian Penal Code (IPC) for the murder of his wife and daughter and he has been sentenced to suffer imprisonment for life. There is also direction to pay fine of Rs. 1,000/- and in default to undergo further simple imprisonment for one month. 2. There is no eyewitness to the incident in the present case and admittedly it is the case of the conviction based on circumstantial evidence. The prosecution case is that on 28.09.2013, the wife and daughter of the appellant were found dead in the morning by PW3 Parubai, a neighbor and upon her raising an alarm, the matter was reported to the Police and father of the deceased-wife of the appellant i.e. PW1 Deorao Karande submitted an oral report on the basis of which first information report (FIR) was registered on the same day. 3. The wife and one and half month old daughter of the appellant were found with their throats slit open with profuse bleeding. A knife was also found near the dead bodies. According to PW3 Parubai, the appellant also came to the spot where the bodies were lying and that his clothes were stained with blood. According to PW1 Deorao, the appellant had caused the death of his wife and minor daughter and on that basis, an FIR was registered and investigation was undertaken. 4. Upon investigation, it was found that the appellant was living with his wife and daughter in a camp near the forest where there were tents in which various persons were living, including the appellant and his family and that all of them were taking care of sheep, which were kept in the space surrounded by tents. The spot panchanama, seizure panchanamas and the post mortem reports were prepared on the day of the incident i.e. 28.09.2013 and the appellant was arrested at 8.10 p.m. on the same day. The prosecution examined 12 witnesses in order to prove its case. The defence of the appellant was of total denial. 5. The spot panchanama, seizure panchanamas and the post mortem reports were prepared on the day of the incident i.e. 28.09.2013 and the appellant was arrested at 8.10 p.m. on the same day. The prosecution examined 12 witnesses in order to prove its case. The defence of the appellant was of total denial. 5. By the judgment and order under challenge, the Sessions Court has found that although the present case is purely of circumstantial evidence, the prosecution has been able to establish that the appellant alone was responsible for the death of his wife and minor daughter. The Sessions Court has placed emphasis on the fact that both the deceased were in his custody and they were living with him in the same tent and that the appellant had failed to give any explanation regarding the serious injuries suffered by the deceased. Apart from this, the Sessions Court has held the presence of blood stains on the clothes of the appellant as an incriminating circumstance pointing towards his guilt, particularly because the blood group of such blood stains was found to be group “A” while the blood group of the accused was found to be blood group “B”. According to the Sessions Court, these factors proved the guilt of the appellant beyond reasonable doubt. 6. Mr. S.D. Chande, the learned counsel appearing for the appellant, submitted that the prosecution had failed to bring on record chain of circumstances which proved the guilt of the appellant beyond reasonable doubt and that mere presence of dead bodies outside the tent of the appellant was not a sufficient circumstance to hold against the appellant. It was further contended that the seizure of the clothes of the appellant was also doubtful and that the prosecution had failed in its duty to conclusively prove each link of chain of circumstances to prove the guilt of the appellant. 7. On the other hand, Mr. N.R. Rode, the learned Additional Public Prosecutor appearing for the respondent-State, submitted that the judgment and order of the Sessions Court was in tune with the law relating to cases of circumstantial evidence and that no fault could be found with the conviction and sentence imposed upon the appellant. 7. On the other hand, Mr. N.R. Rode, the learned Additional Public Prosecutor appearing for the respondent-State, submitted that the judgment and order of the Sessions Court was in tune with the law relating to cases of circumstantial evidence and that no fault could be found with the conviction and sentence imposed upon the appellant. The learned APP for the respondent-State emphasized on the failure of the appellant to cogently explain the circumstances in which the deceased had suffered the serious injuries, even when both the deceased had been in the custody of the appellant. 8. Before embarking on the analysis of the evidence on record and testing the correctness of the judgment and order of the Sessions Court, it would be appropriate to examine the approach which is to be adopted while appreciating such evidence, as laid down in various judgments of the Hon’ble Supreme Court. 9. In the case of Shard Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , it has been held in paragraph 153 as follows:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , where the following observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (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. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (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. 10. The Hon’ble Supreme Court has held in the case Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 that suspicion, however, grave, cannot take place of proof and that the Court must dispassionately scrutinize the evidence on record, so as to ensure that its findings regarding guilt of a person are not based on conjectures or suspicion. In the said judgment, in paragraph 13, it has been held as follows:- “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ‘may be’ proved, and something that ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be’ true and ‘must be’ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar vs. State of M.P. AIR 1952 SC 343 ; State vs. Mahender Singh Dahiya, AIR 2011 SC 1017 and Ramesh Harijan vs. State of U.P. (2012) 5 SCC 777 .” 11. In the present case, as the failure to explain the circumstances in which the deceased suffered serious injuries has been emphasized by the Sessions Court because the deceased were in the custody of the appellant, it is also necessary to consider the law as laid down in that context. In the case of Ravirala Laxmaiah vs. State of Andhra Pradesh, (2013) 9 SCC 283 , it has been held when a person is found dead who has been in the custody of the accused, it is necessary for the accused to give a cogent explanation for the circumstances in which the deceased suffered injuries. It has been further held that if such explanation is found to be false, then it is an additional link in the chain of circumstances pointing towards the guilt of the accused. 12. Taking into account the above principles of law, the evidence on record in the present case needs to be analysed to examine as to whether the prosecution has been able to prove its case beyond reasonable doubt and whether the Sessions Court was justified in convicting and sentencing the appellant under Section 302 of the IPC. 13. The incident in question occurred on 28.09.2013. There is no eyewitness to the incident. The first person to see the dead bodies of the wife and minor daughter of the appellant was PW3 Parubai, a neighbor, who claims to have seen the dead bodies outside the tent where the appellant and the deceased were living. This witness states that she saw the dead bodies and informed Gangaram, Haribhau and Nagorao about the same and further that Gangaram informed PW2 Nathu and the Police. It is relevant that Gangaram, Haribhau and Nagorao have not been examined by the prosecution. This witness states that she saw the dead bodies and informed Gangaram, Haribhau and Nagorao about the same and further that Gangaram informed PW2 Nathu and the Police. It is relevant that Gangaram, Haribhau and Nagorao have not been examined by the prosecution. PW3 Parubai has further stated that she saw a knife lying near the dead bodies and that when she shouted upon seeing the dead bodies, the appellant also came there along with others and that his clothes were stained with blood. 14. The prosecution examined Deorao as PW1, who was the father of the deceased-wife of the appellant, who claimed to have reached the spot of the incident and it was his oral report, which formed the basis of registration of FIR against the appellant. An analysis of the evidence of PW1 Deorao shows that his daughter i.e. deceased Salibai was the second wife of the appellant and that she had recently given birth to the deceased daughter of the appellant. The said witness has stated in his evidence that after the daughter was born, he had himself taken his daughter Salibai to the appellant and that he had stayed one night with them and further that everything was okay between the appellant and his wife (deceased Salibai). It is crucial that in the cross-examination, the said PW1 Deorao admitted that the Police had already prepared panchanamas and seized articles from the spot when he reached the spot of the incident. It is further admitted by this witness that the Police had obtained his thumb impression on papers, some of them being blank while on the others there was something written. He also admitted that he was an illiterate person. 15. The prosecution examined Nathu (PW2) who stated that he was a relative of the appellant and that he had engaged the appellant for protecting sheep and that he received a phone call from Gangaram, due to which he reached the spot of the incident. This witness stated that the Police prepared the spot panchanama and the seizure panchanamas in his presence. In fact, the spot panchanama (Exh.17), seizure panchanama (Exh.18) whereby the knife, shawl, dupatta and chappals were seized from the spot of the incident and the inquest panchanamas of the dead bodies (Exhs. 19 and 20) were prepared in his presence. The said PW2 Nathu is also the witness for the said Exhs. In fact, the spot panchanama (Exh.17), seizure panchanama (Exh.18) whereby the knife, shawl, dupatta and chappals were seized from the spot of the incident and the inquest panchanamas of the dead bodies (Exhs. 19 and 20) were prepared in his presence. The said PW2 Nathu is also the witness for the said Exhs. 17, 18, 19 and 20. But, in his cross-examination the said PW2 Nathu has stated that he had signed all the aforesaid exhibits in the Police Station. He has also stated in the cross-examination that when he went to the spot of the incident, the dead bodies were present inside the tent. The evidence of the said PW2, therefore, damages the prosecution case, as it renders the spot panchanama and the seizure panchanama highly suspicious. His statement that bodies were lying inside the tent contradicts the evidence of other witnesses who have stated that the bodies were lying in front of the tent. 16. The prosecution witnesses PW3 Parubai and PW4 Durga are both neighbours, who have stated that they saw the dead bodies in front of the tent and further that the appellant arrived along with others when PW3 Parubai shouted upon seeing the dead bodies in front of the tent. PW4 Durga has stated in her evidence that there was no dispute between the appellant and his deceased wife Salibai. 17. The other prosecution witnesses are PW5 (Dr. Madhukar Madavi) who stated that the knife in question was capable of causing the injuries suffered by the deceased and further that age of the injuries on both the deceased was about 12 hours earlier. PW7 Santosh is a panch witness for seizure of clothes of the accused i.e. seizure panchanama Exh.37. But, the said witness has turned hostile. Although he has been cross-examined, the prosecution has not been able to extract anything from this hostile witness. PW8 Naresh is the panch witness for seizure panchanama Exh.39 whereby the clothes of the deceased were seized. This witness, although not declared hostile, in cross-examination on behalf of the appellant-accused, stated that he only signed the seizure panchanama Exh.39 on the say of the Police and that he did not know from where clothes in question were brought and that he did not know to whom those clothes belong. This witness, although not declared hostile, in cross-examination on behalf of the appellant-accused, stated that he only signed the seizure panchanama Exh.39 on the say of the Police and that he did not know from where clothes in question were brought and that he did not know to whom those clothes belong. In this context, the statement of PW-10 Ganesh (Head Constable) also assumes significance because he claims to be the person who collected the packets of clothes of the deceased from the Doctor (PW-5) who had conducted the post mortem. But, PW-5 i.e. the Doctor does not state anywhere that he had indeed handed over the blood stained clothes of the deceased to PW-10 Ganesh, thereby rendering the seizure of the clothes of the deceased also doubtful. The investigating officer is examined as PW-12 by the prosecution. 18. The analysis of the evidence of the prosecution witnesses and perusal of the spot panchanama, seizure panchanamas and the post mortem reports show that vital links in the chain of incriminating circumstances claimed by the prosecution, are found missing. The one major circumstance relied upon by the prosecution i.e. the custody of the deceased with the appellant is also based on tenuous evidence and there is no witness who has stated as to when and where was the appellant last seen together with the deceased wife and daughter. All that the prosecution witnesses have stated is that the appellant used to live in the camp along with his wife and daughter, along with others. 19. In such circumstances, evidence regarding seizure of blood stained clothes of the appellant and the deceased assumes great significance. In the present case, the panch witness regarding seizure of clothes of the appellant has turned hostile and only the statement of the investigating officer remains as evidence regarding seizure of such clothes. Even with regard to the seizure of clothes of the deceased, a perusal of the evidence of PWs 5, 8 and 10 shows that there is no convincing evidence that the clothes said to be those of the deceased and sent for chemical analysis, were indeed the clothes worn by the deceased at the time of the incident. Even with regard to the seizure of clothes of the deceased, a perusal of the evidence of PWs 5, 8 and 10 shows that there is no convincing evidence that the clothes said to be those of the deceased and sent for chemical analysis, were indeed the clothes worn by the deceased at the time of the incident. The seizure of shawl, dupatta and knife from the spot of the incident and the entire spot panchanama are rendered doubtful because the witness who proved the same i.e. PW2 Nathu admitted in his cross-examination that he had signed the spot panchanama and the seizure panchanama in the Police Station. 20. Apart from this, another circumstance that assumes importance is the sending of blood sample of the deceased for chemical analysis. A perusal of the requisition Exh.45 would show that the blood sample of the deceased was also sent for analysis. It is further evident from Exh.51 i.e. communication dated 21.11.2013 sent to the Deputy Director of the Regional Laboratory that the blood sample of the deceased was initially returned as it was not accompanied by form No.2 and that thereafter it was again sent for analysis with the said form. But, a perusal of the Chemical Analyser’s report Exh.67 shows that the blood sample of the deceased was not analysed and there was no report submitted with regard to the same. 21. The reports of the Chemical Analyser at Exhs. 67 and 68 show that blood group “A” was found on the dupatta and shawl recovered from the spot of the incident and further that blood group “A” was also found on the seized clothes said to be belonging to the appellant. The blood group on the knife was found to be inconclusive, though it was human blood. It was further found that blood group of the appellant was group “B”. 22. The factual position as it emerges from the above discussion is that the seizure of the clothes of the appellant-accused as also that of the deceased, is extremely doubtful. The shawl, dupatta and knife were recovered from the spot but not at the instance of the appellant. The spot panchanama and the seizure panchanamas are rendered seriously doubtful because either the panch witness has turned hostile or the panch witnesses have admitted that they signed the seizure panchanamas in the Police Station. The shawl, dupatta and knife were recovered from the spot but not at the instance of the appellant. The spot panchanama and the seizure panchanamas are rendered seriously doubtful because either the panch witness has turned hostile or the panch witnesses have admitted that they signed the seizure panchanamas in the Police Station. Applying the principle laid down by the Hon’ble Supreme Court in the case of Mousam Singha Roy vs. State of W.B. (2003) 12 SCC 377 , it is evident that only the evidence of the investigating officer is not sufficient in the absence of corroboration by the panch witnesses because the very purpose of requiring a panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place in a particular manner as alleged by the prosecution. On the said touchstone, the seizures and recoveries in the present case are rendered doubtful. 23. The Chemical Analysis reports, although show that the blood group of the appellant is blood group “B” and the blood alleged to have been found on his clothes and that of the deceased was blood group “A” but the crucial link to point towards the guilt of the appellant was the blood group of the deceased. As stated above, in the instant case, although the blood sample of the deceased was collected, no chemical analysis report of the same was prepared or brought on record. Therefore, unless it was on record that the blood group of the deceased was blood group “A” it was not proper on the part of the Sessions Court to have jumped to the conclusion that this was a clinching piece of evidence against the appellant. The said aspect of the chemical analysis and blood groups, of course, pales into insignificance, when the very seizure of the clothes of the appellant as well as the deceased is rendered doubtful and unbelievable. 24. It is also relevant that certain statements made by the prosecution witnesses accrue to the benefit of the appellant. Such statements are PW2 Nathu admitting that he signed spot panchananma (Exh.17), seizure panchanama (Exh.18) and inquest panchanamas (Exhs. 19 and 20) in the Police Station. PW1 Deorao admitted that his thumb impressions were taken by the Police on blank paper in the Police Station. Such statements are PW2 Nathu admitting that he signed spot panchananma (Exh.17), seizure panchanama (Exh.18) and inquest panchanamas (Exhs. 19 and 20) in the Police Station. PW1 Deorao admitted that his thumb impressions were taken by the Police on blank paper in the Police Station. PW4 Durga stated that there was no dispute between the appellant and his deceased wife Salibai. Such statements create serious doubt about the prosecution theory that the appellant had reason to commit the murder of the deceased as he doubted the character of deceased Salibai. Such statements also create doubt as regards the authenticity of the seizure panchanama and the spot panchanama. The statements of these witnesses on record, therefore, militate against the prosecution case and the appellant is certainly entitled to benefit of the same. 25. In view of our findings as aforesaid with regard to the seizure of the blood stained clothes of the appellant as well as the deceased and the crucial missing link regarding blood group of the deceased, the incriminating circumstance of seizure of blood stained clothes of the appellant as emphasized by the Sessions Court completely loses its force. Thus, the only incriminating circumstance remaining is the finding of the Sessions Court that the deceased were in the custody of the appellant and that his failure to give a proper explanation regarding the injuries suffered by the deceased, proved his guilt. 26. The evidence with regard to the custody of the deceased being with the appellant in the instant case is of a very general nature and there is no evidence on record that the appellant was last seen together with the deceased. Even if the tenuous evidence on record regarding custody of the deceased being with the appellant is accepted, all that such a circumstance amounts to is only an additional link to other circumstantial evidence which points towards the guilt of the appellant. In the present case the prosecution has failed to prove any such link of circumstances to connect the appellant to the incident in question. In the present case the prosecution has failed to prove any such link of circumstances to connect the appellant to the incident in question. Applying the law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) and Sujit Biswas (supra), it is clear that suspicion, however grave cannot take place of proof and that each link of the chain of circumstances claimed by the prosecution has to be proved beyond reasonable doubt and that such chain of circumstances has to point towards only one hypothesis and i.e. of the guilt of the appellant-accused. 27. Another significant aspect of the present case pertains to the evidence and queries put to the accused under Section 313 of the Cr.P.C. A perusal of the questions put to the appellant under Section 313 of the Cr.P.C. show that the evidence perceived to be incriminating by the Court were not put to the appellant. They were put to the appellant in a casual manner. This is evident from one of the questions i.e. question no.49 wherein it was put to the appellant as to what he had to say about one full pant and one shirt seized from him which were before the Court as Articles 5 and 6. This cannot be an incriminating circumstance. The incriminating circumstance was that the clothes of the appellant were stained with blood and this was not put to him. Further a perusal of the Chemical Analyser’s report (Exh.67) shows that Articles 5 and 6 were actually shawl and pair of chappals and not pant and shirt. It has been time and again laid down by the Hon’ble Supreme Court about the significance of questions put to the accused under Section 313 of the Cr.P.C. It has been held that the accused must be questioned separately about each material circumstance which is intended to be used against him and that the whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning is expected to be fair and it must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. The law in this regard has been considered and reiterated by the Hon’ble Supreme Court in the case of Sukhjit Singh vs. State of Punjab, (2014) 10 SCC 270 . 28. The questioning is expected to be fair and it must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. The law in this regard has been considered and reiterated by the Hon’ble Supreme Court in the case of Sukhjit Singh vs. State of Punjab, (2014) 10 SCC 270 . 28. Applying the aforesaid strict adherence to the requirement as laid down under Section 313 of the Cr.P.C. it becomes evident that in the instant case, there was insufficient compliance and the benefit of the same must necessarily accrue to the appellant. Thus, on this score also the judgment of the Sessions Court is found wanting. 29. In the instant case, apart from the circumstance of custody of the deceased allegedly being with the appellant, no other link in the chain of circumstances has been cogently proved by the prosecution to prove its case against the appellant. The missing links in the prosecution case are as follows: (i) No evidence of the appellant and deceased last seen together. (ii) Vague and general statements of witnesses that appellant lived with his wife and daughter in the camp. No specific evidence that they were together in the same tent on the night in question. (iii) PW1 Deorao admits that this thumb impressions were taken on blank papers in the Police Station. (iv) PW2 Nathu admits that he signed Exh.17 (spot panchanama), Exh.18 seizure panchanama) and Exhs. 19 and 20 (inquest panchanamas) in the Police Station, thus rendering the same extremely doubtful. (v) Blood sample of deceased sent for chemical analysis but report regarding blood group not received from laboratory. (vi) Admission of prosecution witnesses that there was no dispute between the appellant and his wife. 30. In fact, the Sessions Court has reached findings against the appellant only in paragraph 42 of its judgment. The chain of circumstances and each link thereof has not been analysed in the proper perspective when the instant case is admittedly a case of circumstantial evidence. Even in paragraph 42, the finding of the Sessions Court that the appellant must have been monetarily in trouble because the marriage with the deceased Salibai was a second marriage and that his first wife was seeking maintenance from him, is a finding based purely on conjecture. Even in paragraph 42, the finding of the Sessions Court that the appellant must have been monetarily in trouble because the marriage with the deceased Salibai was a second marriage and that his first wife was seeking maintenance from him, is a finding based purely on conjecture. The finding as regards the chemical analysis report and the blood groups is also reached without taking into consideration the fact that the very seizure of the clothes was rendered doubtful and that the blood group of the deceased was never analysed and brought on record. The Sessions Court also reached the finding that the appellant had reason to kill his wife and daughter because he suspected her character, when there was no evidence on record to that effect and, in fact, the prosecution witnesses stated that there was no dispute between the appellant and his deceased-wife. Thus, only on the basis of the appellant allegedly having the custody of the deceased, the Sessions court has found the appellant guilty. 31. A perusal of the judgment of the Sessions Court shows that the analysis of evidence has not been made in the proper perspective and that the approach expected in a case of circumstantial evidence has not been adopted. We also find that the investigation at various stages has been slipshod and basic steps like ascertaining finger prints on the knife recovered from the spot and obtaining chemical analysis report of the blood sample of the deceased, have not been undertaken. 32. We feel that mere suspicion cannot take the place of proof, particularly in a case of circumstantial evidence like the instant case. We find that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and further that the Sessions Court erred in holding the appellant guilty of offence under Section 302 of the IPC. 33. Accordingly, we allow this appeal and set aside the judgment and order of the Sessions Court dated 11.09.2015 and we acquit the appellant of the charges levelled against him. The appellant be released from custody forthwith, if not required in any other case. The amount of fine, if any paid, be refunded to the appellant.