This evidence of both these witnesses is unequivocal to the
effect that they had not seen properly the female passenger who has alighted
from the rickshaw with the appellant and therefore, they were not in
position to identify her photograph or even to give her description. In such
situation, the first circumstance of, “appellant and the deceased last seen
together” cannot be said to be proved at all. The very crux of the
circumstance of, “last seen” is the accused and the deceased being seen
together. If in the instant case, witnesses are not able to identify the female
passenger who was with the appellant, then question of proving “last seen”
circumstance does not arise.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.160 OF 2009
Vijay Vitthal Jadhav ]
V/s.
The State of Maharashtra ]
CORAM : SMT. V. K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKARJOSHI, J.
DATE : 1ST FEBRUARY 2016.
Citation; 2016 ALLMR(CRI) 1188
1. Appellant, who stands convicted by the judgment and order
dated 30th August, 2007 in Sessions Case No.48 of 2006, by Additional
Sessions Judge, Greater Mumbai, for the offences punishable under
Sections 302 and 201 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.1,000/ in default to
suffer imprisonment for 60 days on the first count and rigorous
imprisonment for three years and to pay fine of Rs.1,000/ in default to
suffer imprisonment for 60 days on the second count, by this appeal
challenges his conviction and sentence.
2. Brief facts of the appeal can be stated as follows :
Deceased Suman @ Kalpana was the wife of P.W.4 Gautam
Gaikwad. Their marriage had taken place in the year 1993 and out of
wedlock, they had two children. The appellant was their neighbour. P.W.4
Gautam, had suspicion about illicit relations between appellant and his wife
Suman. His children used to inform him that in his absence, the appellant
was visiting his wife. P.W.4 Gautam, on several occasions tried to persuade
his wife not to have such relations with the appellant, but it was of no use.
Once even he caught the appellant and his wife together in the toilet. Then
he has also requested the appellant not to have any such relations with his
wife.
3. In this backdrop, on 13.10.2005 deceased Suman left the house
and did not return. Subsequently, her dead body was found lying in between
Marol pipeline and Morarji Nagar, Saki Naka on 15.10.2015 with injuries
thereon. On suspicion, P.W.4 Gautam lodged complaint against the
appellant. On his complaint C.R.No.416 of 2005 came to be registered
against the appellant.
4. During the course of investigation P.W.1 PI Deshmukh
recorded the statements of witnesses, sent the muddmeal articles to
Chemical Analyzer, collected postmortem report and C.A. Report. Further
to completion of investigation, he filed chargesheet in the court against the
appellant.
5. In due course, the case was committed to the Sessions Court.
On committal of the case, trial Court framed charge against the appellant
vide Exh.8. Appellant pleaded not guilty and claimed trial. In support of its
case, prosecution examined in all 11 witnesses and on appreciation of their
evidence, trial Court was pleased to hold guilt of the appellant to be proved
beyond reasonable doubt and convicted and sentenced him, as aforesaid.
6. This judgment of the trial Court is challenged in the appeal by
learned counsel for the appellant; whereas supported by learned APP. In
our considered opinion, before adverting to the rival submissions advanced
by them it would be useful to refer to the evidence on record.
7. The prosecution case admittedly stands on circumstantial
evidence. As per undisputed facts on record, deceased Suman has left the
house on 13.10.2005 and her dead body with injuries thereon was found on
15.10.2005 in between Marol Pipeline and Morarji Nagar. P.W.7 Dr.
Bramhne, has conducted postmortem on her dead body and found the cause
of her death as asphyxia due to strangulation with multiple injuries.Thus, it
was an unnatural death.
8. To prove involvement of the appellant, in her homicidal death,
the prosecution has relied on following incriminating circumstances :
i) Appellant and deceased were last seen together on day of
incident.
ii) Recovery of two handkerchiefs at the instance of
appellant.
Iii) Recovery of blood stained clothes of appellant.
9. To prove first circumstance of “last seen together”,
prosecution has relied upon the evidence of P.W.2 Ganpat Narkar and
P.W.3 Milind Pingale. Both of them were working as security guards at the
relevant time at Marol Gate No.1 from 8.00 a.m. to 4.00 p.m in the first
shift. According to their evidence, on that day at about 1.00 p.m., while they
on duty, one rickshaw came there with a male and a female passenger
therein. They did not allow rickshaw to proceed ahead as private traffic was
prohibited. Hence the male and female passengers alighted from the
rickshaw. According to their evidence the male passenger had heated
discussion with the rickshaw driver about the payment of fare and hence
they remembered the male passenger, whom they have identified as
appellant in the case when the photograph of the appellant was shown to
them by the police. They have also identified the appellant in test
identification parade conducted by P.W.5 Special Executive Magistrate
Yadav. Further they have also identified the appellant in the court as the
same male passenger who had alighted from the rickshaw alongwith the
female passenger.
10. However, both these witnesses have categorically deposed in
the Court that as their attention was focused on the male passenger, they
had not seen properly the female passenger and hence they cannot and
would not be able to identify the female passenger or even the rickshaw
driver. They have further deposed that they did not identify the photograph
of the female passenger when it was shown to them by the police. P.W.3
Milind has further deposed that he cannot even give description of the
female passenger.
11. This evidence of both these witnesses is unequivocal to the
effect that they had not seen properly the female passenger who has alighted
from the rickshaw with the appellant and therefore, they were not in
position to identify her photograph or even to give her description. In such
situation, the first circumstance of, “appellant and the deceased last seen
together” cannot be said to be proved at all. The very crux of the
circumstance of, “last seen” is the accused and the deceased being seen
together. If in the instant case, witnesses are not able to identify the female
passenger who was with the appellant, then question of proving “last seen”
circumstance does not arise.
12. The second circumstance relied by prosecution is, “recovery
of handkerchief” which was allegedly used in the commission of offence, at
the instance of appellant. To prove this circumstance, the prosecution has
relied upon the evidence of P.W.7 panch Kailas Bansode and P.W.11 PI
Deshmukh. According to their evidence, during custodial interrogation, the
appellant gave disclosure statement that he was ready to point out the spot
where he has committed the offence. His statement was reduced to
memorandum panchnama Exh.23. Thereafter appellant took them to the
spot near pipeline, on the way proceeding to Vinchore village. Then the
appellant, from below the pipeline, produced one dirty handkerchief. He
also produced one lady's handkerchief. Both the handkerchiefs were seized
under panchnama. As per evidence of P.W.1 API Deshmukh they were sent
to the Chemical Analyzer.
13. As per prosecution case, the appellant has throttled the
deceased with the help of his handkerchief. However, C.A. report Exh.35
reflect that neither the blood stains nor any semen stains were found on any
of these two handkerchiefs. The alleged hair strand found on handkerchief
was sent to Chemical Analyzer to prove that it was of the deceased, but the
finding of C.A. Report that the said hair strand tallied with the hair stand of
the deceased is not put up to appellant in his statement recorded under
Section 313 of Code of Criminal Procedure. Therefore, the recovery of
these handkerchiefs at the instance of appellant may not be of any help to
the prosecution to connect the appellant with the offence in question.
14. The last circumstance relied upon by prosecution is, “recovery
of blood stained clothes of the appellant”. To prove this recovery,
prosecution has relied on the evidence of P.W.9 panch Kasi Nadar and
P.W.11 PI Deshmukh. According to their evidence on 20.10.2015, during
police custody accused gave disclosure statement which led to the recovery
of his clothes from his house. On the said clothes, one human hair was
found and the clothes and human hair found thereon were sent to Chemical
Analyzer. As per C.A. Report, some blood stains were found on the shirt of
the appellant and as per the case of prosecution, the said blood stains were
of “B” group. The blood group of deceased was also “B” and hence
according to prosecution, it was a clinching piece of evidence. However,
said human hair found on the shirt of the appellant was not sent to Chemical
Analyzer, to ascertain whether it belongs to the deceased and as to the
recovery of blood stained clothes, it was made from the house which was in
possession of appellant's brother, who was present there. Moreover, this
circumstance, which was the only incriminating circumstance against the
appellant, is not put up to him in his statement recorded under Section 313
of the Code of Criminal Procedure. Therefore, it cannot be used against
him. Even, otherwise also, this sole circumstance cannot be sufficient to
prove the guilt of appellant beyond reasonable doubt.
15. The law relating to a case based on circumstantial evidence is
crystallized long back and it has been held time and again that in order to
base conviction of the accused on circumstantial evidence, those
circumstances alleged against accused are in the first place required to be
proved by cogent, convincing and reliable evidence on record. Secondly,
those proved circumstances should form the chain so complete that no other
inference but that of the guilt of the accused can be drawn from the proved
circumstances. In the instant case, except for proving a single incriminating
circumstance, which is also not put up to the appellant, prosecution has not
succeeded in proving any other incriminating circumstance. Thus, the
prosecution has not established the circumstances alleged against the
appellant by cogent, convincing and reliable evidence and they do not form
a complete chain to prove guilt of appellant.
16. In the circumstances, the conviction of the appellant, for the
offences alleged against him cannot be sustained. The appeal is therefore,
allowed. The conviction and sentence of the appellant, for the offences
under Section 302 and 201 of IPC is quashed and set aside. The appellant is
acquitted of both the offences. The appellant be released forthwith if not
required in any other offence.
17. Copy of this judgment be sent to the appellantaccused in jail
in which he is lodged at present.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKARJOSHI, J.]
Print Page
effect that they had not seen properly the female passenger who has alighted
from the rickshaw with the appellant and therefore, they were not in
position to identify her photograph or even to give her description. In such
situation, the first circumstance of, “appellant and the deceased last seen
together” cannot be said to be proved at all. The very crux of the
circumstance of, “last seen” is the accused and the deceased being seen
together. If in the instant case, witnesses are not able to identify the female
passenger who was with the appellant, then question of proving “last seen”
circumstance does not arise.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.160 OF 2009
Vijay Vitthal Jadhav ]
V/s.
The State of Maharashtra ]
CORAM : SMT. V. K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKARJOSHI, J.
DATE : 1ST FEBRUARY 2016.
Citation; 2016 ALLMR(CRI) 1188
1. Appellant, who stands convicted by the judgment and order
dated 30th August, 2007 in Sessions Case No.48 of 2006, by Additional
Sessions Judge, Greater Mumbai, for the offences punishable under
Sections 302 and 201 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.1,000/ in default to
suffer imprisonment for 60 days on the first count and rigorous
imprisonment for three years and to pay fine of Rs.1,000/ in default to
suffer imprisonment for 60 days on the second count, by this appeal
challenges his conviction and sentence.
2. Brief facts of the appeal can be stated as follows :
Deceased Suman @ Kalpana was the wife of P.W.4 Gautam
Gaikwad. Their marriage had taken place in the year 1993 and out of
wedlock, they had two children. The appellant was their neighbour. P.W.4
Gautam, had suspicion about illicit relations between appellant and his wife
Suman. His children used to inform him that in his absence, the appellant
was visiting his wife. P.W.4 Gautam, on several occasions tried to persuade
his wife not to have such relations with the appellant, but it was of no use.
Once even he caught the appellant and his wife together in the toilet. Then
he has also requested the appellant not to have any such relations with his
wife.
3. In this backdrop, on 13.10.2005 deceased Suman left the house
and did not return. Subsequently, her dead body was found lying in between
Marol pipeline and Morarji Nagar, Saki Naka on 15.10.2015 with injuries
thereon. On suspicion, P.W.4 Gautam lodged complaint against the
appellant. On his complaint C.R.No.416 of 2005 came to be registered
against the appellant.
4. During the course of investigation P.W.1 PI Deshmukh
recorded the statements of witnesses, sent the muddmeal articles to
Chemical Analyzer, collected postmortem report and C.A. Report. Further
to completion of investigation, he filed chargesheet in the court against the
appellant.
5. In due course, the case was committed to the Sessions Court.
On committal of the case, trial Court framed charge against the appellant
vide Exh.8. Appellant pleaded not guilty and claimed trial. In support of its
case, prosecution examined in all 11 witnesses and on appreciation of their
evidence, trial Court was pleased to hold guilt of the appellant to be proved
beyond reasonable doubt and convicted and sentenced him, as aforesaid.
6. This judgment of the trial Court is challenged in the appeal by
learned counsel for the appellant; whereas supported by learned APP. In
our considered opinion, before adverting to the rival submissions advanced
by them it would be useful to refer to the evidence on record.
7. The prosecution case admittedly stands on circumstantial
evidence. As per undisputed facts on record, deceased Suman has left the
house on 13.10.2005 and her dead body with injuries thereon was found on
15.10.2005 in between Marol Pipeline and Morarji Nagar. P.W.7 Dr.
Bramhne, has conducted postmortem on her dead body and found the cause
of her death as asphyxia due to strangulation with multiple injuries.Thus, it
was an unnatural death.
8. To prove involvement of the appellant, in her homicidal death,
the prosecution has relied on following incriminating circumstances :
i) Appellant and deceased were last seen together on day of
incident.
ii) Recovery of two handkerchiefs at the instance of
appellant.
Iii) Recovery of blood stained clothes of appellant.
9. To prove first circumstance of “last seen together”,
prosecution has relied upon the evidence of P.W.2 Ganpat Narkar and
P.W.3 Milind Pingale. Both of them were working as security guards at the
relevant time at Marol Gate No.1 from 8.00 a.m. to 4.00 p.m in the first
shift. According to their evidence, on that day at about 1.00 p.m., while they
on duty, one rickshaw came there with a male and a female passenger
therein. They did not allow rickshaw to proceed ahead as private traffic was
prohibited. Hence the male and female passengers alighted from the
rickshaw. According to their evidence the male passenger had heated
discussion with the rickshaw driver about the payment of fare and hence
they remembered the male passenger, whom they have identified as
appellant in the case when the photograph of the appellant was shown to
them by the police. They have also identified the appellant in test
identification parade conducted by P.W.5 Special Executive Magistrate
Yadav. Further they have also identified the appellant in the court as the
same male passenger who had alighted from the rickshaw alongwith the
female passenger.
10. However, both these witnesses have categorically deposed in
the Court that as their attention was focused on the male passenger, they
had not seen properly the female passenger and hence they cannot and
would not be able to identify the female passenger or even the rickshaw
driver. They have further deposed that they did not identify the photograph
of the female passenger when it was shown to them by the police. P.W.3
Milind has further deposed that he cannot even give description of the
female passenger.
11. This evidence of both these witnesses is unequivocal to the
effect that they had not seen properly the female passenger who has alighted
from the rickshaw with the appellant and therefore, they were not in
position to identify her photograph or even to give her description. In such
situation, the first circumstance of, “appellant and the deceased last seen
together” cannot be said to be proved at all. The very crux of the
circumstance of, “last seen” is the accused and the deceased being seen
together. If in the instant case, witnesses are not able to identify the female
passenger who was with the appellant, then question of proving “last seen”
circumstance does not arise.
12. The second circumstance relied by prosecution is, “recovery
of handkerchief” which was allegedly used in the commission of offence, at
the instance of appellant. To prove this circumstance, the prosecution has
relied upon the evidence of P.W.7 panch Kailas Bansode and P.W.11 PI
Deshmukh. According to their evidence, during custodial interrogation, the
appellant gave disclosure statement that he was ready to point out the spot
where he has committed the offence. His statement was reduced to
memorandum panchnama Exh.23. Thereafter appellant took them to the
spot near pipeline, on the way proceeding to Vinchore village. Then the
appellant, from below the pipeline, produced one dirty handkerchief. He
also produced one lady's handkerchief. Both the handkerchiefs were seized
under panchnama. As per evidence of P.W.1 API Deshmukh they were sent
to the Chemical Analyzer.
13. As per prosecution case, the appellant has throttled the
deceased with the help of his handkerchief. However, C.A. report Exh.35
reflect that neither the blood stains nor any semen stains were found on any
of these two handkerchiefs. The alleged hair strand found on handkerchief
was sent to Chemical Analyzer to prove that it was of the deceased, but the
finding of C.A. Report that the said hair strand tallied with the hair stand of
the deceased is not put up to appellant in his statement recorded under
Section 313 of Code of Criminal Procedure. Therefore, the recovery of
these handkerchiefs at the instance of appellant may not be of any help to
the prosecution to connect the appellant with the offence in question.
14. The last circumstance relied upon by prosecution is, “recovery
of blood stained clothes of the appellant”. To prove this recovery,
prosecution has relied on the evidence of P.W.9 panch Kasi Nadar and
P.W.11 PI Deshmukh. According to their evidence on 20.10.2015, during
police custody accused gave disclosure statement which led to the recovery
of his clothes from his house. On the said clothes, one human hair was
found and the clothes and human hair found thereon were sent to Chemical
Analyzer. As per C.A. Report, some blood stains were found on the shirt of
the appellant and as per the case of prosecution, the said blood stains were
of “B” group. The blood group of deceased was also “B” and hence
according to prosecution, it was a clinching piece of evidence. However,
said human hair found on the shirt of the appellant was not sent to Chemical
Analyzer, to ascertain whether it belongs to the deceased and as to the
recovery of blood stained clothes, it was made from the house which was in
possession of appellant's brother, who was present there. Moreover, this
circumstance, which was the only incriminating circumstance against the
appellant, is not put up to him in his statement recorded under Section 313
of the Code of Criminal Procedure. Therefore, it cannot be used against
him. Even, otherwise also, this sole circumstance cannot be sufficient to
prove the guilt of appellant beyond reasonable doubt.
15. The law relating to a case based on circumstantial evidence is
crystallized long back and it has been held time and again that in order to
base conviction of the accused on circumstantial evidence, those
circumstances alleged against accused are in the first place required to be
proved by cogent, convincing and reliable evidence on record. Secondly,
those proved circumstances should form the chain so complete that no other
inference but that of the guilt of the accused can be drawn from the proved
circumstances. In the instant case, except for proving a single incriminating
circumstance, which is also not put up to the appellant, prosecution has not
succeeded in proving any other incriminating circumstance. Thus, the
prosecution has not established the circumstances alleged against the
appellant by cogent, convincing and reliable evidence and they do not form
a complete chain to prove guilt of appellant.
16. In the circumstances, the conviction of the appellant, for the
offences alleged against him cannot be sustained. The appeal is therefore,
allowed. The conviction and sentence of the appellant, for the offences
under Section 302 and 201 of IPC is quashed and set aside. The appellant is
acquitted of both the offences. The appellant be released forthwith if not
required in any other offence.
17. Copy of this judgment be sent to the appellantaccused in jail
in which he is lodged at present.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKARJOSHI, J.]
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