It is also well-settled that
in circumstantial evidence, the accused taking a false defence is an
additional circumstance which completes the chain.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.1405 OF 2003
Salim Abdul Razak Baig,
V/s.
State of maharashtra
CORAM : D.D. SINHA & A.R. JOSHI, JJ.
Date of Pronouncing ) : 17.09.2010
the Judgement.
Citation ;2010 ALL M R (CRI)3612
Heard the learned counsel for the appellant and the learned Addl.
Public Prosecutor for the State.
2.
This Criminal Appeal is directed against the judgement and order
dated 18.10.2003 passed by the learned Addl. Sessions Judge, Greater
Mumbai, in Sessions Case No.846 of 1999 whereby the appellant Salim
Abdul Razak Baig was convicted for the offence punishable under section
302 of the Indian Penal Code and was sentenced to suffer R.I. for life and
was directed to pay fine of Rs.5,000/-, in default to suffer R.I. for one
year. The appellant was also convicted for the offence punishable under
section 3 read with section 25(1-B) of the Arms Act and was sentenced to
suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default to suffer
ig
R.I. for three months. The appellant was also convicted for the offence
punishable under section 5 read with 27 of the Arms Act and was
sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in
The other co-accused were
default to suffer R.I. for three months.
acquitted of all the charges and the State has not preferred any appeal
against the order.
3.
The circumstances which have given rise to the prosecution of the
appellant are as follows:-
On 16.12.1998, Byculla police station received a telephonic
message sent by one Ashraf Mansoor Khan on his mobile that a firing had
taken place in hospital lane, D'lima Street, Mazgaon, Mumbai.
In
response to this telephonic message, PSI Sanjay Natkar reached the spot
and noticed that some persons had fired bullets on a person sitting in a
taxi by the side of the taxi driver’s seat. There was nobody in the taxi
besides the victim. The injured was immediately rushed to the hospital
where Doctors declared him dead. The police came to know that the
person who was murdered was Sudhakar Kashinath Lone, a right-hand
man of Mr.Arun Gavli . The police were informed by the wife of the
deceased during the course of initial interrogation that on the date of the
incident i.e. on 16.12.1998 the deceased had left the house along with one
ig
Abubakar Mehboob Khan (co-accused no.2).
During the course of
investigation, police initially nabbed accused no.2 Abubakar Mehboob
Khan and during the course of interrogation with the said accused, the
police came to know that the appellant was also involved in the said
crime. On 24.12.1998 the police arrested the appellant. At the time of
arrest, the appellant was searched. The police recovered a pistol from the
person of the appellant along with live cartridges.
4.
On 16.12.1998 Madan Jain (P.W.6), Niraj Pathak, Director (P.W.
8), the deceased, the appellant, Abubakar Mehboob Khan and Nasim alias
Neha Fakhruddin Saifee Khan were present in the office of the Director
Niraj Pathak at 1.30 p.m. at Andheri. Discussions had taken place for
making a film. It was agreed to meet again and, thereafter, all of them
disbursed. According to the prosecution, Niraj Pathak then gave lift to all
four persons in his car upto Andheri and left them near a taxi stand. From
Andheri, the appellant and other co-accused along with the deceased hired
a taxi and went towards Mazgaon. The deceased was sitting by the side
of the driver whereas others were sitting in the rear seat of the taxi. When
the taxi came near Hospital Lane, the taxi driver was asked to take the
taxi in Hospital Lane, D’lima Street, Mazgaon. The taxi driver stopped
the taxi in the Hospital Lane and at that point of time, the appellant
opened fire, four bullets were fired from his pistol from close range. On
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hearing the sound of firing, the driver of the taxi left the taxi and ran away
from the said spot. When he returned to the taxi, he found Sudhakar Lone
lying in an injured condition and hence, he reported the said matter to the
police, however, in the meanwhile, one of the pedestrians Ashraf Khan
had also contacted the police from his mobile and informed about the
firing.
5.
The police came to the spot of occurrence, shifted the injured to
the hospital and panchas were called. Spot panchanama (exh.36) was
drawn. From the taxi, three empty cartridges were recovered which were
seized. The police arrested the appellant and other three co-accused from
different places, recovered not only empty cartridges from the taxi where
the incident had taken place but also succeeded in recovering the pistol
and the live cartridges. Identification parade was held. Madan Jain (P.W.
6) and Niraj Pathak (P.W.8) identified the appellant to be the person who
had been to his office on 16.12.1998 at noon along with the deceased
Sudhakar Lone. Empty cartridges and pistol as well as live cartridges
After completion of the
were forwarded to the Ballastic Experts.
investigation, charge-sheet was filed against four accused persons.
Charge was framed against all of them, they pleaded not guilty and
claimed to be tried. The trial Court convicted the appellant and acquitted
the other co-accused of all the charges framed against them.
The
ig
appellant, being aggrieved by the judgement and order passed by the trial
Court, filed the present appeal.
The case of the prosecution is based on circumstantial evidence.
6.
It is well-settled law that if a case is based on circumstantial evidence, the
circumstances must be such that they unerringly point to the guilt of the
It is also well-settled that the circumstances from which a
accused.
conclusion of guilt should be drawn should be fully proved and
established and must be consistent with the hypothesis of guilt of the
accused and must rule out the element of innocence. The circumstances
brought on record 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. There is no quarrel with the law
declared by the apex Court in this regard in its decision reported in AIR
1990 S.C. 79 and AIR 1996 SCW 2903 and other decisions cited by the
The learned counsel for the appellant has submitted that the
7.
counsel for the appellant.
prosecution case is based on the following circumstances which the
prosecution has claimed to have been proved:-
Last seen together.
(ii) Recovery of cartridges from the taxi where the dead-body of
(i)
Recovery of a revolver and cartridges allegedly from the
(iii)
ig
the deceased Sudhakar Lone was found.
appellant on 24.12.1998.
8.
The learned counsel for the appellant has submitted that it is the
case of the prosecution that the incident was taken place in the night at
around 9.00 to 9.30 on 16.12.1998. The deceased was found lying injured
in a taxi of Shaikh Mohd. Mumtaz Suleman (P.W.2) and at a later point of
time declared dead by the Doctors. Shaikh Mohd. Mumtaz Suleman
(P.W.2) has turned hostile. The prosecution has relied upon the evidence
of Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is submitted that
Pathak improved his version before the Court where he claimed that after
the appellant and others left his office, he followed them and he also left
the office and gave them a lift upto the taxi stand and left those persons at
Lotus Petrol Pump near Adarsah Nagar. It is contended that the evidence
of Niraj Pathak (P.W.8) regarding leaving the office and accompanying
the persons till the taxi stand near Lotus Petrol Pump is clearly an
omission and contradiction to the effect that this witness never stated so to
the police and, on the contrary, stated that the portion marked `A’ which is
just converse, viz., that he remained in the office and never left the office.
It is contended that all that the prosecution has been able to establish
through this witness is that there was some meeting between Madan Jain
The said meeting was in respect of the making of a
well as one More.
ig
(P.W.6), this witness Pathak, deceased Lone, the appellant and one lady as
film. The said meeting had taken place in the afternoon on 16.12.1998
and, therefore, there was sufficient time-gap between the parting of these
persons from the office of Niraj Pathak (P.W.8) and the murder which
took place in the taxi in the Dockyard area of Mumbai. The counsel for
the appellant has submitted that if the time-gap is large between the point
of time when the accused and the deceased were last seen and if there
exists even a small possibility that any other person could have met the
deceased, then the circumstance of last seen together loses its
significance. In order to substantiate this contention, reliance is placed on
various authorities of the apex Court, some of which are reported in AIR
2005 SCW 905, (2006) 10 SCC 172, (2002) 8 SCC 45 and (2008) Cri.L.J.
3502. It is contended that in the instant case, the circumstance of last
seen together is not established by the prosecution. It is submitted that
Madan Jain (P.W.6) does not even claim that the deceased accompanied
them to the meeting where the appellant was supposed to be present,
though Niraj Pathak (P.W.8) had said so in his evidence. It is, therefore,
contended that there is no corroboration between the evidence of Madan
Jain (P.W.6) and Niraj Pathak (P.W.8) relating to the circumstance of last
The counsel for the appellant further contended that the
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9.
seen together in the afternoon on 16.12.1998.
panchanama dated 16.12.1998 drawn in the taxi in which it is clearly
mentioned that the deceased was found with certain pamphlets and
literature relating to Akhil Bhartiya Sena, which is a political party.
Therefore, it is clear that the deceased had taken some papers relating to
his political party of which he was a leader on that day and obviously had
some meeting with Niraj Pathak (P.W.8). It is submitted that the said
finding of literature of Akhil Bhartiya Sena assumes significance because
the wife of the deceased Suvarna Sudhakar Lone (P.W.1) has clearly
admitted in her cross-examination that her husband was at one time with
Shiv Sena and when he shifted to Akhil Bhartiya Sena, the workers of
Shiv Sena were displeased. Her husband informed her that he was having
danger to his life because of his change of political parties. It is, therefore,
contended that the possibility of this being the cause of murder cannot be
ruled out. The circumstance of last seen together, therefore, in these
circumstances has no significance and has not been established by the
10.
prosecution.
The learned counsel for the appellant further contended that so far
as the recovery of cartridges from the taxi on 16.12.1998 in the night at
around 9.30 is concerned, it is the case of the prosecution that certain
cartridges were recovered from the taxi which were supposed to have
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been used in the commission of the murder.
These cartridges were
alleged to have been seized from the spot. It is submitted that a perusal of
the panchanama (exh.125) shows that cartridges which were found in the
taxi were not seized. They were not even labelled with the signatures of
panchas. The entire panchanama does not mention sealing or labelling of
these cartridges at all. A perusal of this panchanama clearly indicates that
some glass pieces were labelled with panchas’ signatures and there is no
mention about sealing in the body of the panchanama. Sealing is different
from labelling. It was incumbent on the prosecution to seal the property
in order to rule out the possibility of tampering. Affixing labels of
panchas signature on the particular article is only to identify the article
and it is not for the purposes of ruling out tampering of the said article. It
is further contended that from the testimony of panch (P.W.11), it is clear
that there was no sealing or labelling on the spot, the police only seized
the articles. It is submitted that the prosecution has not examined the
second panch deliberately knowing that he would also support the version
this regard which goes to the root of the matter.
11.
of the defence. Therefore, the evidence of the prosecution is lacking in
The learned counsel for the appellant further submitted that the
evidence of the Investigating Officer Jalindar Laxman Khandgale (P.W.
16) shows that the packets were sealed with the panchas’ labels only and
ig
there was no sealing done independently. Similarly, Tukaram Kuduba
Bhalerao (P.W.17) claims that the cartridges were taken charge of not by
sealing them but by labelling them with panchas’ signatures. He does not
say that they were sealed and separately labelled. The counsel for the
appellant has contended that there is no evidence to show that the articles
were actually sealed on the spot. To put the panchas’ label and call it
sealing is not sealing. It is submitted that if the articles were not sealed,
the possibility of tampering was not ruled out and, therefore, the second
circumstance of recovering cartridges from the taxi also loses its
significance. In order to substantiate his contention, reliance is placed on
various decisions which are: (i) 2004 All M.R. (Cri.) 3257; (ii) 1994 Vol.
4 B.C.R. 85; and (iii) (2003) 5 S.C.C. 499. The learned counsel for the
appellant has submitted that the entire prosecution case falls to the ground
on the bare reading of the panchanama which clearly establishes that the
articles found were neither sealed nor labelled and in view of the law
declared by the apex Court, the appellant-accused is entitled to get the
benefit in this regard. It is contended that the prosecution has to stand on
its own legs, not cross-examine the witnesses and the Investigating
Officer, in this regard, does not assume any importance as the prosecution
cannot rely upon the weakness of the defence and must prove the charge
beyond all reasonable doubt.
The counsel for the appellant further
contended that the prosecution was also duty bound to show that the
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articles were in a sealed condition from the time they were seized from
the spot on 16.12.1998 till they were sent to the Chemical Analyser on
31.12.1998. There is no evidence to show that the articles were sealed or
they remained in a sealed condition and/or in whose custody they were
during the period from 16.12.1998 to 31.12.1998 and in the absence of
the same, it is fatal to the prosecution. In order to substantiate this aspect,
reliance is placed on the judgement of this Court reported in 1994 (4)
Bom.C.R. (Cri.) 85 and A.I.R. 1980 S.C. 1314.
12.
As regards the recovery of revolver allegedly on 24.12.1998, it is
contended that the prosecution has relied upon the panchanama (exh.28).
The revolver is alleged to have been recovered from the appellant along
with some cartridges. It is contended that in the said panchanama also, it
is not mentioned that these articles were sealed after their seizure. In the
absence of any evidence of sealing on the spot in respect of the articles,
no reliance can be placed upon the recovery of the revolver and cartridges
even for the purpose of establishing the charge under the Arms Act,
though the defence is disputing the fact that anything was seized from the
appellant. It is contended that if something was allegedly found from the
appellant, then under section 51 of the Cr.P.C., the appellant ought to have
been given a receipt of this. Admittedly, it has not been done. Similarly,
under section 107 of the Cr.P.C., if during the search of premises,
ig
something is found, then a copy of this list has to be given to the person
from whose premises it was so found. This is also not done in the present
case which creates doubt about the alleged recovery.
13.
The counsel for the appellant further contended that it is the case
of the prosecution that the revolver and cartridges were kept by the police
and brought them. This is the substantive evidence of Manohar Baburao
Bhosale (P.W.4) who has not been declared hostile and shows that the
police had brought pistols and five to six cartridges and kept them on the
table. The evidence of Manohar Baburao Bhosale (P.W.4) is corroborated
by the evidence of Ganesh Shankar Tawade (P.W.7) in this regard. The
counsel for the appellant further submitted that there is a clear-cut
discrepancy in what has allegedly been seized on 24.12.1998 and what
was sent to the Chemical Analyser. The following chart will highlight
this aspect:-
B-Experts
Opinion
(page 214)
A Pistol
2. B Magazine
3. C Magazine
4. D Bullet
Shells
Panchanama
97-98-99
31012955
ig
1.
------------------------------------------------------------------------
Sr.No. Exhibits
A
B
24.12.98
------------------------------------------------------------------------
9165
9963 -4766
APEAL1405.03
31012955 -
656 II
5016
4766 – 2955
93
11093
-------------------------------------------------------------------------
14.
The counsel for the appellant further submitted that there is no
evidence to show that between 24.12.1998 and 31.12.1998 where the said
articles were kept and whether they were in a sealed condition and who
took them to the Chemical Analyser. The statement of the carrier was
also not recorded nor the carrier was examined. It is contended that all
these circumstances create grave doubt about the genuineness of the
prosecution case. The chain of circumstances is far from complete. The
prosecution has thus miserably failed to prove the charge against the
appellant beyond reasonable doubt and, therefore, the finding of
conviction is liable to be quashed and set aside and the appellant deserves
15.
to be acquitted.
Mr.Shinde, the learned Addl. Public Prosecutor for the State, has
submitted that in the instant case, the prosecution has examined as many
as 17 witnesses.
However, the taxi driver Shaikh Mohd. Mumtaz
Suleman (P.W.2), Mohd. Rafiq A.H. Kadge (P.W.3), Manohar Baburao
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Bhosale (P.W.4), Aslam Abdul R. Patni (P.W.5) and panch witness Ganesh
Shankar Tawade (P.W.7) have turned hostile. It is contended that the case
of the prosecution is based on circumstantial evidence and the prosecution
has succeeded in proving that the deceased was last seen together with the
accused on the date of the incident, recovery of cartridges from the taxi
where the dead-body of the deceased Sudhakar was found as well as the
recovery of revolver and cartridges from the appellant on 24.12.1998 at
the time of his arrest.
16.
The learned Addl. Public Prosecutor has submitted that in order to
prove the circumstance of the accused last seen together, the prosecution
has examined Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is the case
of the prosecution that on the date of the incident i.e. on 16.12.1998 at
about 1.30 p.m., the appellant, Madan Jain, the deceased Sudhakar and
one lady went to the office of Niraj Pathak (P.W.8) who is a film writer
and Director. All of them were in the office of Niraj Pathak (P.W.8) and
discussed the details about the film which was proposed to be made on
In the late afternoon, the deceased, the
the life of Mr.Arun Gavli.
appellant and the other woman left the office of Niraj Pathak (P.W.8).
They hired a taxi and went towards Dockyard which is near Mazgaon. At
a later point of time, the dead-body of the deceased Lone was found in the
The learned Addl. Public Prosecutor has contended that Madan
17.
ig
said taxi, driven by taxi driver Shaikh Mohd. Mumtaz Suleman (P.W.2).
Jain (P.W.6) and Niraj Pathak (P.W.8) identified the appellant-accused in
the identification parade conducted by P.W.9 Pramod Sawant, S.E.O. on
7.1.1999. The learned Addl. Public Prosecutor, therefore, contended that
the prosecution successfully proved the circumstance of deceased last
seen together with the accused by adducing evidence which is clinching
in nature. The learned Addl. Public Prosecutor for the State has further
submitted that the other important circumstance i.e. seizure of two empty
cartridges from the taxi has been proved by panch witness Mohd. Asif
Abdul Kadir Shaikh (P.W.11). The seizure panchanama is at exh.36. The
seizure was conducted by Tukaram Bhalerao (P.W.17) in the presence of
panch witness Mohd. Asif Abdul Kadir Shaikh (P.W.11). The substantive
evidence of panch witness as well as Tukaram Bhalerao (P.W.17) would
show that the articles i.e. empty cartridges were seized and kept in a
sealed condition. The learned Addl. Public Prosecutor further contended
that the appellant was arrested on 24.12.1998 by Police Inspector J.L.
Khandagle. One revolver and live cartridges were seized from the person
of the appellant. The relevant panchanama is at exh.28. It is submitted
that the articles which were seized under exh.28 were kept in a sealed
condition. The learned Addl. Public Prosecutor further submitted that all
these articles were forwarded to the Ballistic Expert and the Chemical
ig
Analyser in order to obtain their report in this regard. It is contended that
the recovery of pistol and live cartridges from the person of the accused
and the empty cartridges seized from the taxi were matched with each
other. As per the opinion of the Ballistic Expert, it was established that
empty cartridges were fired from the very same pistol which was seized
from the person of the appellant. Panch witness Ganesh Shankar Tawade
(P.W.7) proved the seizure panchanama (exh.28).
18.
The learned Addl. Public Prosecutor has further submitted that
the postmortem examination on the dead-body of the deceased Lone was
conducted on 17.12.1998 and external injuries 1, 3, 5 and 7 were caused
by bullets. All the injuries mentioned in column no.17 were antemortem
and the probable cause of death was haemorrhage and shock due to fire-
arm injury. The Addl. Public Prosecutor, therefore, contended that the
circumstantial evidence adduced by the prosecution proves all the
circumstances which are adequate to complete the chain and to prove the
offence charged against the appellant beyond all reasonable doubt. The
learned Addl. Public Prosecutor further contended that the prosecution
examined P.W.16 Jalindar Laxman Khandgale, the Investigating Officer,
who has recorded the statements of the witnesses and has proved the
recovery panchanama (exh.28). The articles were sealed by him in the
presence of panchas. It is pertinent to note that the defence has not cross-
ig
examined this witness on the point of sealing of articles, though much hue
Appeal by the
and cry was made in this regard while arguing this
counsel for the defence.
It is contended that the prosecution has
examined Tukaram Bhalerao (P.W.17), who has conducted the seizure
panchanama (exh.36). No question has been asked by the defence in his
cross-examination as to whether the articles seized under the seizure
panchanama (exh.36) were sealed. It is submitted that the prosecution has
proved its case beyond reasonable doubt and mere recovery report was
not handed over to the accused will not adversely affect the prosecution
case, recovery of pistol and live cartridges from the person of the accused,
recovery of empty cartridges seized from the taxi were matched with the
live cartridges, the Ballistic Expert’s and Chemical Analyser’s reports
corroborate the prosecution case and, therefore, the appeal suffers from
lack of merit and liable to be dismissed. In order to substantiate his
contention, reliance is placed on the decision of this Court in Nitin
Laxman Pansare v. State of Maharashtra (2009 All M.R. (Cri.) 2858)
(evidentiary value of hostile witness) and Rajesh A. Behere v. State of
19.
Maharashtra (2009 All M.R. (Cri.) 1612).
We have given our anxious thoughts to the various contentions
canvassed by the respective counsel, carefully scrutinised the prosecution
evidence and also considered the decisions cited by the respective counsel
ig
for the parties. The case of the prosecution is based on circumstantial
evidence. The circumstances from which the conclusion of guilt is to be
drawn must be fully established and proved circumstances must be
consistent only with the hypothesis of guilt of the accused and should
rule out the element of innocence.
There is no quarrel with this
proposition and, therefore, it is not necessary to discuss the decisions of
the apex Court on this subject cited by the learned counsel for the
appellant.
20.
In the instant case, the counsel for the appellant vehemently
argued that the articles seized from the spot vide exh.36 i.e. empty
cartridges were not sealed at all. They were not even labelled with the
signature of panchas. It is further argued that though it has come in the
evidence of the Investigating Officer J.L. Khandgale (P.W.16), the packets
were sealed with pancha’s label, that does not mean that the articles were
independently sealed. It is contended that since the articles were not
sealed, the possibility of tampering was not ruled out by the prosecution
and, therefore, such circumstance cannot be relied upon in view of the
law laid down by this Court and the apex Court in this regard.
21.
The issue regarding sealing of the article is concerned, this aspect
needs to be understood in the right perspective in the back-drop of the
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settled legal position. In the instant case, exh.28 is the seizure
panchanama in respect of the pistol and live cartridges seized from the
person of the appellant-accused. Though panch witness Ganesh Tawade
(P.W.7) turned hostile, the contents of the said panchanama have been
proved by the Investigating Officer J.L. Khandgale (P.W.16). P.W.16 in
his examination-in-chief has stated that he arrested the appellant on
24.12.1998, conducted personal search, one pistol kept in the holster
which was loaded with six live cartridges was found in his possession. In
the right side packet, one magazine was found. Four live cartridges were
inside the said magazine. The Investigating Officer specifically stated in
his examination-in-chief that pistol, magazine and cartridges were packed
and sealed with panchas’ signatures on the labels.
The said seizure
panchanama is at exh.28. It is pertinent to note that the Investigating
Officer (P.W.16) in his examination-in-chief though has specifically stated
about sealing of the article seized under panchanama (exh.28) from the
there is no cross-examination whatsoever
person of the appellant,
conducted by the defence on this aspect. The defence has not asked any
question to this witness whether the sealing of article is different from
putting labels with panchs’ signatures on the packets. The cross-
examination of this witness is completely silent on these aspects. It is
important to note that the contents of (exh.28) are proved by substantive
evidence of the Investigating Officer (P.W.16) and the fact of sealing of
ig
articles with signatures of panchas on the labels mentioned by this witness
in his ocular testimony before the Court which has gone unchallenged.
Hence, whether the defence now can make a capital of the said fact which
the defence failed to challenge by cross-examining the witness on this
issue, needs consideration.
It is well-settled that the prosecution has to stand on its own legs
22.
and is required to prove the charge against the accused by adducing
cogent and convincing evidence. However, whenever the defence has
declined to avail the opportunity to put his essential and material case in
the cross-examination, it must follow that he believed that the testimony
given could not be disputed at all.
It is wrong to think that cross-
examination of the witness is merely a technical rule of evidence. It is the
rule of essential justice. Therefore, an omission or neglect to challenge
the evidence in chief on a material or essential point by cross-
examination, would lead to the inference that the evidence is accepted,
subject of course to its being assailed as inherently incredible or palpably
untrue. It is well-settled that whenever a statement of fact made by a
witness in his examination-in-chief is not challenged in cross-
examination, it has to be concluded that the fact in question is not
disputed.
In other words, if there is no cross-examination of a
prosecution witness in respect of certain facts, it will show that said fact
ig
is not challenged. Similarly, if there is a particular fact stated by the
witness in the statement made in the examination-in-chief which is
questionable or which requires explanation and the defence counsel failed
to ask questions in the cross-examination of such witness on those
particular aspects, it shall demonstrate that evidence in chief was not
disputed, unless of course there are inherent improbabilities. The legal
position which emerges is that once the right to cross-examine a witness
is foregone, it is not open to a party to make any grievance about it. It is a
rule of essential justice that whenever the defence has declined to avail
himself of opportunity to put his case in cross-examination, it must follow
that the evidence tendered on that issue is not disputed.
23.
In the instant case, the Investigating Officer Khandgale (P.W.16)
who has specifically stated in his examination-in-chief that the pistol,
magazine and cartridges seized under panchanama (exh.28) were packed
and sealed with the signature of panchas on the labels. Omission or
neglect on the part of the defence to challenge the said evidence in the
cross-examination would show that the said evidence is not disputed and
there is nothing on record to hold that the said evidence is either
inherently incredible or palpably untrue. It is pertinent to note that the
defence for the first time before this Court made a hue and cry about the
fact of sealing of the articles on the ground that the sealing and labelling
ig
with panchas’ signatures are independent actions and even if the articles
are labelled with panchas’ signatures, it would not amount to sealing of
that article in order to rule out the possibility of tampering. If the fact of
sealing/labelling the articles was questionable or required an explanation
from the witness or the Investigating Officer, failure on the part of the
defence in the present case to cross-examine the witness on this aspect
would show that the evidence in chief was not disputed by the defence
and it will not be open for the defence to canvass the grievance, in this
regard, at a later point of time in the appeal, since it was never challenged
before the trial Court. There is no quarrel about the proposition that if the
articles are not sealed and are not kept in a sealed condition till they are
sent to the Chemical Analyser for analysis, the possibility of tampering
cannot be ruled out and such circumstance should not be relied upon.
There is no quarrel with the said proposition.
However, in the present
case, in view of the evidence of the Investigating Officer, the same is not
attracted and, therefore, we do not intend to refer to the decisions cited by
the counsel for the appellant in this regard, since there is no quarrel about
the law declared on this subject in those decisions by the apex Court/High
Courts.
24.
Similarly, so far as the seizure panchanama (exh.36) is concerned,
the prosecution has examined panch witness Mohd. Asif Shaikh (P.W.11)
ig
to prove the contents thereof. The proceedings of seizure panchanama
were conducted by (P.W.17) Tukaram Bhalerao,P.I. P.W.11 in his
examination-in-chief has stated that in his presence, two empty cartridges
were found in the taxi and other papers were seized by the police. His
signature was obtained on the panchanama. Police Inspector Bhalerao
(P.W.17) in his examination-in-chief has stated that all the articles were
taken in charge and were sealed with pancha’s signatures and labelled. It
is pertinent to note that there is absolutely no cross-examination by the
defence on the aspect of sealing of articles seized under panchanama
(exh.36). The cross-examination is completely silent in this regard. In
the context of the settled legal position, there is no reason for us to
disbelieve the substantive evidence of Mohd. Asif Shaikh (P.W.11) and
(P.W.17) Bhalerao, P.I. in respect of the seizure, sealing and labelling of
the articles seized under seizure memo (exh.36). Similarly, the evidence
of the Investigating Officer Khandgale (P.W.16) for the same reason
cannot be disbelieved in respect of the seizure, sealing and labelling of
articles with the signatures of panchas which were seized under seizure
25.
panchanama (exh.28).
It is no doubt true that panch Ganesh Tawade (P.W.7) was
declared hostile by the prosecution. However, the evidence of seizure
panchanama (exh.28) can be believed on the basis of the evidence of the
ig
Investigating Officer Khandgale (P.W.16), who has proved Exh.28, unless
the evidence of the said police officer is shown to be otherwise unreliable.
In the instant case, there is nothing on record to show that the evidence of
Investigating Officer Khandgale (P.W.16) is either untrustworthy or
unreliable. It is, therefore, evident that the prosecution has succeeded in
establishing the circumstances in respect of the recovery of empty
cartridges from the taxi as well as recovery of revolver and live cartridges
from the person of the appellant on 24.12.1998.
26.
So far as the circumstance of the deceased last seen together is
concerned, the prosecution has heavily relied on the evidence of Madan
Jain (P.W.6) and Niraj Pathak (P.W.8). We will first consider the evidence
of Niraj Pathak (P.W.8). Niraj Pathak in his examination-in-chief has
specifically submitted that on 16.12.1998 the appellant Salim, deceased
Sudhakar Lone, Madan Jain (P.W.6) and one other female came to his
office at about 1.30 p.m. There was a discussion about the making of a
film for a while in the office of Pathak. P.W.8 further stated in his
testimony that after the discussion about payment, all of them decided to
meet again after one week in the office of P.W.8. This witness was also
called to identify the appellant in the identification parade conducted by
(P.W.9) Pramod Sawant, S.E.O., on 7.1.1999 and he identified the
appellant in the identification parade. The tenor of the cross-examination
ig
conducted by the defence would show that the defence has not seriously
disputed the fact of meeting which took in the office of Pathak at 1.30
p.m. on 16.12.1998 wherein the appellant, the deceased, Madan Jain and
P.W.8 has admitted in his cross-
one other female were present.
examination that the persons who had come to visit him were not known
to him except Jain. He further admitted that those persons had come to
see him in connection with the making of a movie, meeting was held in
his cabin and the persons who had accompanied the appellant did not take
part in the discussion. He dropped the appellant, deceased Lone and the
other female at the Lotus Petrol Pump from where they took a taxi and
went away. There is an omission brought out in this regard by the
defence in his police statement about leaving these persons near the taxi
stand. The said omission, in our view, is not a material omission and does
not affect the veracity of the substantive evidence of this witness on the
point of the deceased last seen with the appellant in his office on the date
of the incident. The prosecution has examined P.W.8 in order to establish
that on the date of the incident i.e. on 16.12.1998 at about 1.30 p.m., the
deceased was in the company of the accused for the whole afternoon.
There is no material omission and contradiction in respect of the material
particulars of the prosecution case disclosed by P.W.8 in his substantive
evidence. Madan Jain (P.W.6) is another witness who has corroborated
the fact of meeting being held in the office of P.W.8 on 16.12.1998 at
It is no doubt true that this witness has not specifically
present.
ig
about 1.30 p.m. and in the same meeting the appellant and others were
mentioned in his evidence the presence of the deceased in the said
meeting. However, the evidence of P.W.8 in respect of the presence of the
appellant, the deceased, Madan Jain and one female in the meeting which
was held on the date of the incident i.e. on 16.12.1998 at 1.30 p.m. in his
office was not seriously disputed by the defence and, therefore, the said
omission not being material, does not render the evidence adduced by the
prosecution on the point of last seen, unreliable or untrustworthy.
27.
It is pertinent to note that Madan Jain (P.W.6) and Niraj Pathak
(P.W.8) identified the appellant-accused in the identification parade. The
another circumstance which is incriminating and connects the appellant
with the crime in question is the Ballistic and Chemical Analyser’s reports
(exh.67 and 68). It has been established by the prosecution that the empty
cartridges seized from the spot of the incident i.e. the taxi were fired from
the same pistol which was recovered from the appellant Salim. The
prosecution has also established that live cartridges seized in the present
case also matched with the empty cartridges which were recovered from
the spot of the occurrence.
In the instant case, the learned counsel for the appellant pointed
28.
ig
out some discrepancy with respect to the number of the pistol. However,
these discrepancies were not in respect of the basic number of the pistol
and, therefore, do not adversely affect the credibility of the prosecution
evidence. The trial Court considered the opinion given by the Ballistic
Expert based on the queries made by the Investigating Officer and found
that the Expert’s report coupled with the fact that empty cartridges
recovered from the scene of offence proved the charge under section 3
read with section 25(1-B) and section 5 read with section 27 of the Arms
Act. These findings, in our view, are sustainable in law. Considering the
totality of the evidence of the prosecution, the circumstances which are
established by the prosecution to complete the chain are as follows:-
(i) On 16.12.1998 the deceased Lone, appellant Salim, co-accused nos.
2 and 3 met Niraj Pathak (P.W.8) in his office and discussed about
making of a film on the life of Mr.Arun Gavli. The meeting took
place at about 1.30 p.m.
(ii)The evidence of Madan Jain (P.W.6) and Niraj Pathak (P.W.8)
corroborates the fact that the deceased, the present appellant as well
as the co-accused and Madan Jain (P.W.6) participated in the
meeting which was held on 16.12.1998 in the office of Niraj Pathak
(P.W.8).
(iii)After the meeting, deceased Lone left the office along with the
appellant and others.
ig
(iv)The incident had taken place on the same day in the taxi of P.W.2
Shaikh Mohd. Mumtaz Suleman . Sudhakar Lone received bullet
injuries in the same taxi.
(v) From the spot of the incident (taxi), the police recovered three
empty cartridges.
(vi)Identification parade was held in which Madan Jain (P.W.6) and
Niraj Pathak (P.W.8) identified the accused to be the person who
was present with the deceased Lone at the time of meeting which
was held in the office of P.W.8.
(vii)The evidence of the Special Executive Magistrate Mr.Sawant who
conducted the identification parade corroborates the evidence of
P.W.6 and P.W.8 insofar as it relates to the identification of the
accused.
(viii)On 24.12.1998 the appellant was arrested by the police. One
pistol and live cartridges were recovered from the person of the
appellant.
(ix)The report of Ballistic Expert demonstrates that the empty
cartridges which were found in the taxi were fired from the pistol
which was seized from the person of the appellant Salim.
(x) The empty cartridges were matched with the live cartridges which
were recovered from the person of the appellant.
(xi)The post-mortem report shows that the injuries received by the
Hence, the medical evidence
ig
deceased were bullet wounds.
corroborates the material particulars of the prosecution case.
The above referred circumstances established by the prosecution rule out
the hypothesis of innocence of the appellant and result in proving the
charge framed against the appellant beyond all reasonable doubt.
29.
We want to express that it is not a rule of law that whenever panch
witness to the recovery turns hostile or does not support the case of the
prosecution, the Court will have no option but to reject the evidence of
recovery of article in toto. It is well-settled that the evidence of the
Investigating Officer who has recovered the articles, if convincing, the
evidence as to recovery need not be rejected on the sole ground that the
panch witness failed to support the prosecution case in this regard. It is,
therefore, evident that in the instant case, the evidence of the Investigating
Officer who has effected the recovery of articles such as cartridges, pistol
and sealing of articles being convincing, the question of rejecting the said
evidence merely on the ground that the evidence of panch witness in
respect of seizure of such articles did not support the prosecution does not
arise. It is well-settled that last seen theory comes into play when the
time gap between the point of time when the accused and the deceased
were last seen alive and the deceased is found dead is so small that the
ig
possibility of any person other than the accused being the author of the
crime becomes impossible. However, while appreciating the evidence
adduced by the prosecution on the point of last seen, it is necessary to
consider it in view of the other positive evidence adduced by the
prosecution to complete the sequence of events which must positively
establish the guilt of the accused. In the instant case, the circumstance of
the deceased last seen with the accused, coupled with the other
circumstances established by the prosecution, in our view, prove the
charge of murder as well as the charge under the Arms Act. In the instant
case, the deceased was last seen with the appellant in the late afternoon on
the date of the incident and the dead-body of the deceased was found on
the same day at about 9.30 p.m. in the taxi. It is pertinent to note that the
defence of the appellant is that of total denial and there is nothing on
record to show that the appellant and the deceased parted company after
the deceased was last seen with the appellant. It is also well-settled that
in circumstantial evidence, the accused taking a false defence is an
additional circumstance which completes the chain. In the instant case,
the deceased and the accused were present in the meeting which was held
in the office of P.W.8 in the afternoon on 16.12.1998. The accused and
the deceased after the meeting, left the office of P.W.8 together and the
dead-body of the deceased was found at about 9.30 p.m. on the same day.
Similarly, there is no explanation given by the accused whether the
ig
deceased parted his company after they left the office of P.W.8 together.
It is, in these circumstances, that the evidence adduced by the prosecution
on the aspect of the accused last seen with the appellant assumes
importance and coupled with the other circumstances established by the
prosecution, the findings of conviction recorded by the trial Court for the
offence charged, in our view, are sustainable in law.
30.
Lastly, the contention canvassed by the learned counsel for the
appellant that the procedure stipulated under sections 51 and 100(7) of the
Cr.P.C. was not followed by the Investigating Officer creates doubts about
the genuineness of the prosecution case as well as the evidence adduced
by the prosecution, in our view, does not improve the case of the appellant
nor affects the genuineness as well as the credibility of the evidence
adduced by the prosecution. The substantive evidence adduced by the
prosecution is cogent, trustworthy and consistent with the material
particulars of the prosecution case, in that event, non-observance of the
procedure contemplated under sections 51 and 100(7) of the Cr.P.C., by
itself would not render such evidence untrustworthy or unreliable. In the
instant case, non-observance of the procedure under the said sections by
the prosecution does not affect the prosecution evidence nor creates any
For the reasons stated hereinabove, the Criminal Appeal suffers
doubts in respect of the same.
from lack of merits and the same is dismissed.
(A.R. JOSHI, J.)
(D.D. SINHA, J.)
Print Page
in circumstantial evidence, the accused taking a false defence is an
additional circumstance which completes the chain.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.1405 OF 2003
Salim Abdul Razak Baig,
V/s.
State of maharashtra
CORAM : D.D. SINHA & A.R. JOSHI, JJ.
Date of Pronouncing ) : 17.09.2010
the Judgement.
Citation ;2010 ALL M R (CRI)3612
Heard the learned counsel for the appellant and the learned Addl.
Public Prosecutor for the State.
2.
This Criminal Appeal is directed against the judgement and order
dated 18.10.2003 passed by the learned Addl. Sessions Judge, Greater
Mumbai, in Sessions Case No.846 of 1999 whereby the appellant Salim
Abdul Razak Baig was convicted for the offence punishable under section
302 of the Indian Penal Code and was sentenced to suffer R.I. for life and
was directed to pay fine of Rs.5,000/-, in default to suffer R.I. for one
year. The appellant was also convicted for the offence punishable under
section 3 read with section 25(1-B) of the Arms Act and was sentenced to
suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default to suffer
ig
R.I. for three months. The appellant was also convicted for the offence
punishable under section 5 read with 27 of the Arms Act and was
sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in
The other co-accused were
default to suffer R.I. for three months.
acquitted of all the charges and the State has not preferred any appeal
against the order.
3.
The circumstances which have given rise to the prosecution of the
appellant are as follows:-
On 16.12.1998, Byculla police station received a telephonic
message sent by one Ashraf Mansoor Khan on his mobile that a firing had
taken place in hospital lane, D'lima Street, Mazgaon, Mumbai.
In
response to this telephonic message, PSI Sanjay Natkar reached the spot
and noticed that some persons had fired bullets on a person sitting in a
taxi by the side of the taxi driver’s seat. There was nobody in the taxi
besides the victim. The injured was immediately rushed to the hospital
where Doctors declared him dead. The police came to know that the
person who was murdered was Sudhakar Kashinath Lone, a right-hand
man of Mr.Arun Gavli . The police were informed by the wife of the
deceased during the course of initial interrogation that on the date of the
incident i.e. on 16.12.1998 the deceased had left the house along with one
ig
Abubakar Mehboob Khan (co-accused no.2).
During the course of
investigation, police initially nabbed accused no.2 Abubakar Mehboob
Khan and during the course of interrogation with the said accused, the
police came to know that the appellant was also involved in the said
crime. On 24.12.1998 the police arrested the appellant. At the time of
arrest, the appellant was searched. The police recovered a pistol from the
person of the appellant along with live cartridges.
4.
On 16.12.1998 Madan Jain (P.W.6), Niraj Pathak, Director (P.W.
8), the deceased, the appellant, Abubakar Mehboob Khan and Nasim alias
Neha Fakhruddin Saifee Khan were present in the office of the Director
Niraj Pathak at 1.30 p.m. at Andheri. Discussions had taken place for
making a film. It was agreed to meet again and, thereafter, all of them
disbursed. According to the prosecution, Niraj Pathak then gave lift to all
four persons in his car upto Andheri and left them near a taxi stand. From
Andheri, the appellant and other co-accused along with the deceased hired
a taxi and went towards Mazgaon. The deceased was sitting by the side
of the driver whereas others were sitting in the rear seat of the taxi. When
the taxi came near Hospital Lane, the taxi driver was asked to take the
taxi in Hospital Lane, D’lima Street, Mazgaon. The taxi driver stopped
the taxi in the Hospital Lane and at that point of time, the appellant
opened fire, four bullets were fired from his pistol from close range. On
ig
hearing the sound of firing, the driver of the taxi left the taxi and ran away
from the said spot. When he returned to the taxi, he found Sudhakar Lone
lying in an injured condition and hence, he reported the said matter to the
police, however, in the meanwhile, one of the pedestrians Ashraf Khan
had also contacted the police from his mobile and informed about the
firing.
5.
The police came to the spot of occurrence, shifted the injured to
the hospital and panchas were called. Spot panchanama (exh.36) was
drawn. From the taxi, three empty cartridges were recovered which were
seized. The police arrested the appellant and other three co-accused from
different places, recovered not only empty cartridges from the taxi where
the incident had taken place but also succeeded in recovering the pistol
and the live cartridges. Identification parade was held. Madan Jain (P.W.
6) and Niraj Pathak (P.W.8) identified the appellant to be the person who
had been to his office on 16.12.1998 at noon along with the deceased
Sudhakar Lone. Empty cartridges and pistol as well as live cartridges
After completion of the
were forwarded to the Ballastic Experts.
investigation, charge-sheet was filed against four accused persons.
Charge was framed against all of them, they pleaded not guilty and
claimed to be tried. The trial Court convicted the appellant and acquitted
the other co-accused of all the charges framed against them.
The
ig
appellant, being aggrieved by the judgement and order passed by the trial
Court, filed the present appeal.
The case of the prosecution is based on circumstantial evidence.
6.
It is well-settled law that if a case is based on circumstantial evidence, the
circumstances must be such that they unerringly point to the guilt of the
It is also well-settled that the circumstances from which a
accused.
conclusion of guilt should be drawn should be fully proved and
established and must be consistent with the hypothesis of guilt of the
accused and must rule out the element of innocence. The circumstances
brought on record 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. There is no quarrel with the law
declared by the apex Court in this regard in its decision reported in AIR
1990 S.C. 79 and AIR 1996 SCW 2903 and other decisions cited by the
The learned counsel for the appellant has submitted that the
7.
counsel for the appellant.
prosecution case is based on the following circumstances which the
prosecution has claimed to have been proved:-
Last seen together.
(ii) Recovery of cartridges from the taxi where the dead-body of
(i)
Recovery of a revolver and cartridges allegedly from the
(iii)
ig
the deceased Sudhakar Lone was found.
appellant on 24.12.1998.
8.
The learned counsel for the appellant has submitted that it is the
case of the prosecution that the incident was taken place in the night at
around 9.00 to 9.30 on 16.12.1998. The deceased was found lying injured
in a taxi of Shaikh Mohd. Mumtaz Suleman (P.W.2) and at a later point of
time declared dead by the Doctors. Shaikh Mohd. Mumtaz Suleman
(P.W.2) has turned hostile. The prosecution has relied upon the evidence
of Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is submitted that
Pathak improved his version before the Court where he claimed that after
the appellant and others left his office, he followed them and he also left
the office and gave them a lift upto the taxi stand and left those persons at
Lotus Petrol Pump near Adarsah Nagar. It is contended that the evidence
of Niraj Pathak (P.W.8) regarding leaving the office and accompanying
the persons till the taxi stand near Lotus Petrol Pump is clearly an
omission and contradiction to the effect that this witness never stated so to
the police and, on the contrary, stated that the portion marked `A’ which is
just converse, viz., that he remained in the office and never left the office.
It is contended that all that the prosecution has been able to establish
through this witness is that there was some meeting between Madan Jain
The said meeting was in respect of the making of a
well as one More.
ig
(P.W.6), this witness Pathak, deceased Lone, the appellant and one lady as
film. The said meeting had taken place in the afternoon on 16.12.1998
and, therefore, there was sufficient time-gap between the parting of these
persons from the office of Niraj Pathak (P.W.8) and the murder which
took place in the taxi in the Dockyard area of Mumbai. The counsel for
the appellant has submitted that if the time-gap is large between the point
of time when the accused and the deceased were last seen and if there
exists even a small possibility that any other person could have met the
deceased, then the circumstance of last seen together loses its
significance. In order to substantiate this contention, reliance is placed on
various authorities of the apex Court, some of which are reported in AIR
2005 SCW 905, (2006) 10 SCC 172, (2002) 8 SCC 45 and (2008) Cri.L.J.
3502. It is contended that in the instant case, the circumstance of last
seen together is not established by the prosecution. It is submitted that
Madan Jain (P.W.6) does not even claim that the deceased accompanied
them to the meeting where the appellant was supposed to be present,
though Niraj Pathak (P.W.8) had said so in his evidence. It is, therefore,
contended that there is no corroboration between the evidence of Madan
Jain (P.W.6) and Niraj Pathak (P.W.8) relating to the circumstance of last
The counsel for the appellant further contended that the
ig
9.
seen together in the afternoon on 16.12.1998.
panchanama dated 16.12.1998 drawn in the taxi in which it is clearly
mentioned that the deceased was found with certain pamphlets and
literature relating to Akhil Bhartiya Sena, which is a political party.
Therefore, it is clear that the deceased had taken some papers relating to
his political party of which he was a leader on that day and obviously had
some meeting with Niraj Pathak (P.W.8). It is submitted that the said
finding of literature of Akhil Bhartiya Sena assumes significance because
the wife of the deceased Suvarna Sudhakar Lone (P.W.1) has clearly
admitted in her cross-examination that her husband was at one time with
Shiv Sena and when he shifted to Akhil Bhartiya Sena, the workers of
Shiv Sena were displeased. Her husband informed her that he was having
danger to his life because of his change of political parties. It is, therefore,
contended that the possibility of this being the cause of murder cannot be
ruled out. The circumstance of last seen together, therefore, in these
circumstances has no significance and has not been established by the
10.
prosecution.
The learned counsel for the appellant further contended that so far
as the recovery of cartridges from the taxi on 16.12.1998 in the night at
around 9.30 is concerned, it is the case of the prosecution that certain
cartridges were recovered from the taxi which were supposed to have
ig
been used in the commission of the murder.
These cartridges were
alleged to have been seized from the spot. It is submitted that a perusal of
the panchanama (exh.125) shows that cartridges which were found in the
taxi were not seized. They were not even labelled with the signatures of
panchas. The entire panchanama does not mention sealing or labelling of
these cartridges at all. A perusal of this panchanama clearly indicates that
some glass pieces were labelled with panchas’ signatures and there is no
mention about sealing in the body of the panchanama. Sealing is different
from labelling. It was incumbent on the prosecution to seal the property
in order to rule out the possibility of tampering. Affixing labels of
panchas signature on the particular article is only to identify the article
and it is not for the purposes of ruling out tampering of the said article. It
is further contended that from the testimony of panch (P.W.11), it is clear
that there was no sealing or labelling on the spot, the police only seized
the articles. It is submitted that the prosecution has not examined the
second panch deliberately knowing that he would also support the version
this regard which goes to the root of the matter.
11.
of the defence. Therefore, the evidence of the prosecution is lacking in
The learned counsel for the appellant further submitted that the
evidence of the Investigating Officer Jalindar Laxman Khandgale (P.W.
16) shows that the packets were sealed with the panchas’ labels only and
ig
there was no sealing done independently. Similarly, Tukaram Kuduba
Bhalerao (P.W.17) claims that the cartridges were taken charge of not by
sealing them but by labelling them with panchas’ signatures. He does not
say that they were sealed and separately labelled. The counsel for the
appellant has contended that there is no evidence to show that the articles
were actually sealed on the spot. To put the panchas’ label and call it
sealing is not sealing. It is submitted that if the articles were not sealed,
the possibility of tampering was not ruled out and, therefore, the second
circumstance of recovering cartridges from the taxi also loses its
significance. In order to substantiate his contention, reliance is placed on
various decisions which are: (i) 2004 All M.R. (Cri.) 3257; (ii) 1994 Vol.
4 B.C.R. 85; and (iii) (2003) 5 S.C.C. 499. The learned counsel for the
appellant has submitted that the entire prosecution case falls to the ground
on the bare reading of the panchanama which clearly establishes that the
articles found were neither sealed nor labelled and in view of the law
declared by the apex Court, the appellant-accused is entitled to get the
benefit in this regard. It is contended that the prosecution has to stand on
its own legs, not cross-examine the witnesses and the Investigating
Officer, in this regard, does not assume any importance as the prosecution
cannot rely upon the weakness of the defence and must prove the charge
beyond all reasonable doubt.
The counsel for the appellant further
contended that the prosecution was also duty bound to show that the
ig
articles were in a sealed condition from the time they were seized from
the spot on 16.12.1998 till they were sent to the Chemical Analyser on
31.12.1998. There is no evidence to show that the articles were sealed or
they remained in a sealed condition and/or in whose custody they were
during the period from 16.12.1998 to 31.12.1998 and in the absence of
the same, it is fatal to the prosecution. In order to substantiate this aspect,
reliance is placed on the judgement of this Court reported in 1994 (4)
Bom.C.R. (Cri.) 85 and A.I.R. 1980 S.C. 1314.
12.
As regards the recovery of revolver allegedly on 24.12.1998, it is
contended that the prosecution has relied upon the panchanama (exh.28).
The revolver is alleged to have been recovered from the appellant along
with some cartridges. It is contended that in the said panchanama also, it
is not mentioned that these articles were sealed after their seizure. In the
absence of any evidence of sealing on the spot in respect of the articles,
no reliance can be placed upon the recovery of the revolver and cartridges
even for the purpose of establishing the charge under the Arms Act,
though the defence is disputing the fact that anything was seized from the
appellant. It is contended that if something was allegedly found from the
appellant, then under section 51 of the Cr.P.C., the appellant ought to have
been given a receipt of this. Admittedly, it has not been done. Similarly,
under section 107 of the Cr.P.C., if during the search of premises,
ig
something is found, then a copy of this list has to be given to the person
from whose premises it was so found. This is also not done in the present
case which creates doubt about the alleged recovery.
13.
The counsel for the appellant further contended that it is the case
of the prosecution that the revolver and cartridges were kept by the police
and brought them. This is the substantive evidence of Manohar Baburao
Bhosale (P.W.4) who has not been declared hostile and shows that the
police had brought pistols and five to six cartridges and kept them on the
table. The evidence of Manohar Baburao Bhosale (P.W.4) is corroborated
by the evidence of Ganesh Shankar Tawade (P.W.7) in this regard. The
counsel for the appellant further submitted that there is a clear-cut
discrepancy in what has allegedly been seized on 24.12.1998 and what
was sent to the Chemical Analyser. The following chart will highlight
this aspect:-
B-Experts
Opinion
(page 214)
A Pistol
2. B Magazine
3. C Magazine
4. D Bullet
Shells
Panchanama
97-98-99
31012955
ig
1.
------------------------------------------------------------------------
Sr.No. Exhibits
A
B
24.12.98
------------------------------------------------------------------------
9165
9963 -4766
APEAL1405.03
31012955 -
656 II
5016
4766 – 2955
93
11093
-------------------------------------------------------------------------
14.
The counsel for the appellant further submitted that there is no
evidence to show that between 24.12.1998 and 31.12.1998 where the said
articles were kept and whether they were in a sealed condition and who
took them to the Chemical Analyser. The statement of the carrier was
also not recorded nor the carrier was examined. It is contended that all
these circumstances create grave doubt about the genuineness of the
prosecution case. The chain of circumstances is far from complete. The
prosecution has thus miserably failed to prove the charge against the
appellant beyond reasonable doubt and, therefore, the finding of
conviction is liable to be quashed and set aside and the appellant deserves
15.
to be acquitted.
Mr.Shinde, the learned Addl. Public Prosecutor for the State, has
submitted that in the instant case, the prosecution has examined as many
as 17 witnesses.
However, the taxi driver Shaikh Mohd. Mumtaz
Suleman (P.W.2), Mohd. Rafiq A.H. Kadge (P.W.3), Manohar Baburao
ig
Bhosale (P.W.4), Aslam Abdul R. Patni (P.W.5) and panch witness Ganesh
Shankar Tawade (P.W.7) have turned hostile. It is contended that the case
of the prosecution is based on circumstantial evidence and the prosecution
has succeeded in proving that the deceased was last seen together with the
accused on the date of the incident, recovery of cartridges from the taxi
where the dead-body of the deceased Sudhakar was found as well as the
recovery of revolver and cartridges from the appellant on 24.12.1998 at
the time of his arrest.
16.
The learned Addl. Public Prosecutor has submitted that in order to
prove the circumstance of the accused last seen together, the prosecution
has examined Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is the case
of the prosecution that on the date of the incident i.e. on 16.12.1998 at
about 1.30 p.m., the appellant, Madan Jain, the deceased Sudhakar and
one lady went to the office of Niraj Pathak (P.W.8) who is a film writer
and Director. All of them were in the office of Niraj Pathak (P.W.8) and
discussed the details about the film which was proposed to be made on
In the late afternoon, the deceased, the
the life of Mr.Arun Gavli.
appellant and the other woman left the office of Niraj Pathak (P.W.8).
They hired a taxi and went towards Dockyard which is near Mazgaon. At
a later point of time, the dead-body of the deceased Lone was found in the
The learned Addl. Public Prosecutor has contended that Madan
17.
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said taxi, driven by taxi driver Shaikh Mohd. Mumtaz Suleman (P.W.2).
Jain (P.W.6) and Niraj Pathak (P.W.8) identified the appellant-accused in
the identification parade conducted by P.W.9 Pramod Sawant, S.E.O. on
7.1.1999. The learned Addl. Public Prosecutor, therefore, contended that
the prosecution successfully proved the circumstance of deceased last
seen together with the accused by adducing evidence which is clinching
in nature. The learned Addl. Public Prosecutor for the State has further
submitted that the other important circumstance i.e. seizure of two empty
cartridges from the taxi has been proved by panch witness Mohd. Asif
Abdul Kadir Shaikh (P.W.11). The seizure panchanama is at exh.36. The
seizure was conducted by Tukaram Bhalerao (P.W.17) in the presence of
panch witness Mohd. Asif Abdul Kadir Shaikh (P.W.11). The substantive
evidence of panch witness as well as Tukaram Bhalerao (P.W.17) would
show that the articles i.e. empty cartridges were seized and kept in a
sealed condition. The learned Addl. Public Prosecutor further contended
that the appellant was arrested on 24.12.1998 by Police Inspector J.L.
Khandagle. One revolver and live cartridges were seized from the person
of the appellant. The relevant panchanama is at exh.28. It is submitted
that the articles which were seized under exh.28 were kept in a sealed
condition. The learned Addl. Public Prosecutor further submitted that all
these articles were forwarded to the Ballistic Expert and the Chemical
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Analyser in order to obtain their report in this regard. It is contended that
the recovery of pistol and live cartridges from the person of the accused
and the empty cartridges seized from the taxi were matched with each
other. As per the opinion of the Ballistic Expert, it was established that
empty cartridges were fired from the very same pistol which was seized
from the person of the appellant. Panch witness Ganesh Shankar Tawade
(P.W.7) proved the seizure panchanama (exh.28).
18.
The learned Addl. Public Prosecutor has further submitted that
the postmortem examination on the dead-body of the deceased Lone was
conducted on 17.12.1998 and external injuries 1, 3, 5 and 7 were caused
by bullets. All the injuries mentioned in column no.17 were antemortem
and the probable cause of death was haemorrhage and shock due to fire-
arm injury. The Addl. Public Prosecutor, therefore, contended that the
circumstantial evidence adduced by the prosecution proves all the
circumstances which are adequate to complete the chain and to prove the
offence charged against the appellant beyond all reasonable doubt. The
learned Addl. Public Prosecutor further contended that the prosecution
examined P.W.16 Jalindar Laxman Khandgale, the Investigating Officer,
who has recorded the statements of the witnesses and has proved the
recovery panchanama (exh.28). The articles were sealed by him in the
presence of panchas. It is pertinent to note that the defence has not cross-
ig
examined this witness on the point of sealing of articles, though much hue
Appeal by the
and cry was made in this regard while arguing this
counsel for the defence.
It is contended that the prosecution has
examined Tukaram Bhalerao (P.W.17), who has conducted the seizure
panchanama (exh.36). No question has been asked by the defence in his
cross-examination as to whether the articles seized under the seizure
panchanama (exh.36) were sealed. It is submitted that the prosecution has
proved its case beyond reasonable doubt and mere recovery report was
not handed over to the accused will not adversely affect the prosecution
case, recovery of pistol and live cartridges from the person of the accused,
recovery of empty cartridges seized from the taxi were matched with the
live cartridges, the Ballistic Expert’s and Chemical Analyser’s reports
corroborate the prosecution case and, therefore, the appeal suffers from
lack of merit and liable to be dismissed. In order to substantiate his
contention, reliance is placed on the decision of this Court in Nitin
Laxman Pansare v. State of Maharashtra (2009 All M.R. (Cri.) 2858)
(evidentiary value of hostile witness) and Rajesh A. Behere v. State of
19.
Maharashtra (2009 All M.R. (Cri.) 1612).
We have given our anxious thoughts to the various contentions
canvassed by the respective counsel, carefully scrutinised the prosecution
evidence and also considered the decisions cited by the respective counsel
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for the parties. The case of the prosecution is based on circumstantial
evidence. The circumstances from which the conclusion of guilt is to be
drawn must be fully established and proved circumstances must be
consistent only with the hypothesis of guilt of the accused and should
rule out the element of innocence.
There is no quarrel with this
proposition and, therefore, it is not necessary to discuss the decisions of
the apex Court on this subject cited by the learned counsel for the
appellant.
20.
In the instant case, the counsel for the appellant vehemently
argued that the articles seized from the spot vide exh.36 i.e. empty
cartridges were not sealed at all. They were not even labelled with the
signature of panchas. It is further argued that though it has come in the
evidence of the Investigating Officer J.L. Khandgale (P.W.16), the packets
were sealed with pancha’s label, that does not mean that the articles were
independently sealed. It is contended that since the articles were not
sealed, the possibility of tampering was not ruled out by the prosecution
and, therefore, such circumstance cannot be relied upon in view of the
law laid down by this Court and the apex Court in this regard.
21.
The issue regarding sealing of the article is concerned, this aspect
needs to be understood in the right perspective in the back-drop of the
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settled legal position. In the instant case, exh.28 is the seizure
panchanama in respect of the pistol and live cartridges seized from the
person of the appellant-accused. Though panch witness Ganesh Tawade
(P.W.7) turned hostile, the contents of the said panchanama have been
proved by the Investigating Officer J.L. Khandgale (P.W.16). P.W.16 in
his examination-in-chief has stated that he arrested the appellant on
24.12.1998, conducted personal search, one pistol kept in the holster
which was loaded with six live cartridges was found in his possession. In
the right side packet, one magazine was found. Four live cartridges were
inside the said magazine. The Investigating Officer specifically stated in
his examination-in-chief that pistol, magazine and cartridges were packed
and sealed with panchas’ signatures on the labels.
The said seizure
panchanama is at exh.28. It is pertinent to note that the Investigating
Officer (P.W.16) in his examination-in-chief though has specifically stated
about sealing of the article seized under panchanama (exh.28) from the
there is no cross-examination whatsoever
person of the appellant,
conducted by the defence on this aspect. The defence has not asked any
question to this witness whether the sealing of article is different from
putting labels with panchs’ signatures on the packets. The cross-
examination of this witness is completely silent on these aspects. It is
important to note that the contents of (exh.28) are proved by substantive
evidence of the Investigating Officer (P.W.16) and the fact of sealing of
ig
articles with signatures of panchas on the labels mentioned by this witness
in his ocular testimony before the Court which has gone unchallenged.
Hence, whether the defence now can make a capital of the said fact which
the defence failed to challenge by cross-examining the witness on this
issue, needs consideration.
It is well-settled that the prosecution has to stand on its own legs
22.
and is required to prove the charge against the accused by adducing
cogent and convincing evidence. However, whenever the defence has
declined to avail the opportunity to put his essential and material case in
the cross-examination, it must follow that he believed that the testimony
given could not be disputed at all.
It is wrong to think that cross-
examination of the witness is merely a technical rule of evidence. It is the
rule of essential justice. Therefore, an omission or neglect to challenge
the evidence in chief on a material or essential point by cross-
examination, would lead to the inference that the evidence is accepted,
subject of course to its being assailed as inherently incredible or palpably
untrue. It is well-settled that whenever a statement of fact made by a
witness in his examination-in-chief is not challenged in cross-
examination, it has to be concluded that the fact in question is not
disputed.
In other words, if there is no cross-examination of a
prosecution witness in respect of certain facts, it will show that said fact
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is not challenged. Similarly, if there is a particular fact stated by the
witness in the statement made in the examination-in-chief which is
questionable or which requires explanation and the defence counsel failed
to ask questions in the cross-examination of such witness on those
particular aspects, it shall demonstrate that evidence in chief was not
disputed, unless of course there are inherent improbabilities. The legal
position which emerges is that once the right to cross-examine a witness
is foregone, it is not open to a party to make any grievance about it. It is a
rule of essential justice that whenever the defence has declined to avail
himself of opportunity to put his case in cross-examination, it must follow
that the evidence tendered on that issue is not disputed.
23.
In the instant case, the Investigating Officer Khandgale (P.W.16)
who has specifically stated in his examination-in-chief that the pistol,
magazine and cartridges seized under panchanama (exh.28) were packed
and sealed with the signature of panchas on the labels. Omission or
neglect on the part of the defence to challenge the said evidence in the
cross-examination would show that the said evidence is not disputed and
there is nothing on record to hold that the said evidence is either
inherently incredible or palpably untrue. It is pertinent to note that the
defence for the first time before this Court made a hue and cry about the
fact of sealing of the articles on the ground that the sealing and labelling
ig
with panchas’ signatures are independent actions and even if the articles
are labelled with panchas’ signatures, it would not amount to sealing of
that article in order to rule out the possibility of tampering. If the fact of
sealing/labelling the articles was questionable or required an explanation
from the witness or the Investigating Officer, failure on the part of the
defence in the present case to cross-examine the witness on this aspect
would show that the evidence in chief was not disputed by the defence
and it will not be open for the defence to canvass the grievance, in this
regard, at a later point of time in the appeal, since it was never challenged
before the trial Court. There is no quarrel about the proposition that if the
articles are not sealed and are not kept in a sealed condition till they are
sent to the Chemical Analyser for analysis, the possibility of tampering
cannot be ruled out and such circumstance should not be relied upon.
There is no quarrel with the said proposition.
However, in the present
case, in view of the evidence of the Investigating Officer, the same is not
attracted and, therefore, we do not intend to refer to the decisions cited by
the counsel for the appellant in this regard, since there is no quarrel about
the law declared on this subject in those decisions by the apex Court/High
Courts.
24.
Similarly, so far as the seizure panchanama (exh.36) is concerned,
the prosecution has examined panch witness Mohd. Asif Shaikh (P.W.11)
ig
to prove the contents thereof. The proceedings of seizure panchanama
were conducted by (P.W.17) Tukaram Bhalerao,P.I. P.W.11 in his
examination-in-chief has stated that in his presence, two empty cartridges
were found in the taxi and other papers were seized by the police. His
signature was obtained on the panchanama. Police Inspector Bhalerao
(P.W.17) in his examination-in-chief has stated that all the articles were
taken in charge and were sealed with pancha’s signatures and labelled. It
is pertinent to note that there is absolutely no cross-examination by the
defence on the aspect of sealing of articles seized under panchanama
(exh.36). The cross-examination is completely silent in this regard. In
the context of the settled legal position, there is no reason for us to
disbelieve the substantive evidence of Mohd. Asif Shaikh (P.W.11) and
(P.W.17) Bhalerao, P.I. in respect of the seizure, sealing and labelling of
the articles seized under seizure memo (exh.36). Similarly, the evidence
of the Investigating Officer Khandgale (P.W.16) for the same reason
cannot be disbelieved in respect of the seizure, sealing and labelling of
articles with the signatures of panchas which were seized under seizure
25.
panchanama (exh.28).
It is no doubt true that panch Ganesh Tawade (P.W.7) was
declared hostile by the prosecution. However, the evidence of seizure
panchanama (exh.28) can be believed on the basis of the evidence of the
ig
Investigating Officer Khandgale (P.W.16), who has proved Exh.28, unless
the evidence of the said police officer is shown to be otherwise unreliable.
In the instant case, there is nothing on record to show that the evidence of
Investigating Officer Khandgale (P.W.16) is either untrustworthy or
unreliable. It is, therefore, evident that the prosecution has succeeded in
establishing the circumstances in respect of the recovery of empty
cartridges from the taxi as well as recovery of revolver and live cartridges
from the person of the appellant on 24.12.1998.
26.
So far as the circumstance of the deceased last seen together is
concerned, the prosecution has heavily relied on the evidence of Madan
Jain (P.W.6) and Niraj Pathak (P.W.8). We will first consider the evidence
of Niraj Pathak (P.W.8). Niraj Pathak in his examination-in-chief has
specifically submitted that on 16.12.1998 the appellant Salim, deceased
Sudhakar Lone, Madan Jain (P.W.6) and one other female came to his
office at about 1.30 p.m. There was a discussion about the making of a
film for a while in the office of Pathak. P.W.8 further stated in his
testimony that after the discussion about payment, all of them decided to
meet again after one week in the office of P.W.8. This witness was also
called to identify the appellant in the identification parade conducted by
(P.W.9) Pramod Sawant, S.E.O., on 7.1.1999 and he identified the
appellant in the identification parade. The tenor of the cross-examination
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conducted by the defence would show that the defence has not seriously
disputed the fact of meeting which took in the office of Pathak at 1.30
p.m. on 16.12.1998 wherein the appellant, the deceased, Madan Jain and
P.W.8 has admitted in his cross-
one other female were present.
examination that the persons who had come to visit him were not known
to him except Jain. He further admitted that those persons had come to
see him in connection with the making of a movie, meeting was held in
his cabin and the persons who had accompanied the appellant did not take
part in the discussion. He dropped the appellant, deceased Lone and the
other female at the Lotus Petrol Pump from where they took a taxi and
went away. There is an omission brought out in this regard by the
defence in his police statement about leaving these persons near the taxi
stand. The said omission, in our view, is not a material omission and does
not affect the veracity of the substantive evidence of this witness on the
point of the deceased last seen with the appellant in his office on the date
of the incident. The prosecution has examined P.W.8 in order to establish
that on the date of the incident i.e. on 16.12.1998 at about 1.30 p.m., the
deceased was in the company of the accused for the whole afternoon.
There is no material omission and contradiction in respect of the material
particulars of the prosecution case disclosed by P.W.8 in his substantive
evidence. Madan Jain (P.W.6) is another witness who has corroborated
the fact of meeting being held in the office of P.W.8 on 16.12.1998 at
It is no doubt true that this witness has not specifically
present.
ig
about 1.30 p.m. and in the same meeting the appellant and others were
mentioned in his evidence the presence of the deceased in the said
meeting. However, the evidence of P.W.8 in respect of the presence of the
appellant, the deceased, Madan Jain and one female in the meeting which
was held on the date of the incident i.e. on 16.12.1998 at 1.30 p.m. in his
office was not seriously disputed by the defence and, therefore, the said
omission not being material, does not render the evidence adduced by the
prosecution on the point of last seen, unreliable or untrustworthy.
27.
It is pertinent to note that Madan Jain (P.W.6) and Niraj Pathak
(P.W.8) identified the appellant-accused in the identification parade. The
another circumstance which is incriminating and connects the appellant
with the crime in question is the Ballistic and Chemical Analyser’s reports
(exh.67 and 68). It has been established by the prosecution that the empty
cartridges seized from the spot of the incident i.e. the taxi were fired from
the same pistol which was recovered from the appellant Salim. The
prosecution has also established that live cartridges seized in the present
case also matched with the empty cartridges which were recovered from
the spot of the occurrence.
In the instant case, the learned counsel for the appellant pointed
28.
ig
out some discrepancy with respect to the number of the pistol. However,
these discrepancies were not in respect of the basic number of the pistol
and, therefore, do not adversely affect the credibility of the prosecution
evidence. The trial Court considered the opinion given by the Ballistic
Expert based on the queries made by the Investigating Officer and found
that the Expert’s report coupled with the fact that empty cartridges
recovered from the scene of offence proved the charge under section 3
read with section 25(1-B) and section 5 read with section 27 of the Arms
Act. These findings, in our view, are sustainable in law. Considering the
totality of the evidence of the prosecution, the circumstances which are
established by the prosecution to complete the chain are as follows:-
(i) On 16.12.1998 the deceased Lone, appellant Salim, co-accused nos.
2 and 3 met Niraj Pathak (P.W.8) in his office and discussed about
making of a film on the life of Mr.Arun Gavli. The meeting took
place at about 1.30 p.m.
(ii)The evidence of Madan Jain (P.W.6) and Niraj Pathak (P.W.8)
corroborates the fact that the deceased, the present appellant as well
as the co-accused and Madan Jain (P.W.6) participated in the
meeting which was held on 16.12.1998 in the office of Niraj Pathak
(P.W.8).
(iii)After the meeting, deceased Lone left the office along with the
appellant and others.
ig
(iv)The incident had taken place on the same day in the taxi of P.W.2
Shaikh Mohd. Mumtaz Suleman . Sudhakar Lone received bullet
injuries in the same taxi.
(v) From the spot of the incident (taxi), the police recovered three
empty cartridges.
(vi)Identification parade was held in which Madan Jain (P.W.6) and
Niraj Pathak (P.W.8) identified the accused to be the person who
was present with the deceased Lone at the time of meeting which
was held in the office of P.W.8.
(vii)The evidence of the Special Executive Magistrate Mr.Sawant who
conducted the identification parade corroborates the evidence of
P.W.6 and P.W.8 insofar as it relates to the identification of the
accused.
(viii)On 24.12.1998 the appellant was arrested by the police. One
pistol and live cartridges were recovered from the person of the
appellant.
(ix)The report of Ballistic Expert demonstrates that the empty
cartridges which were found in the taxi were fired from the pistol
which was seized from the person of the appellant Salim.
(x) The empty cartridges were matched with the live cartridges which
were recovered from the person of the appellant.
(xi)The post-mortem report shows that the injuries received by the
Hence, the medical evidence
ig
deceased were bullet wounds.
corroborates the material particulars of the prosecution case.
The above referred circumstances established by the prosecution rule out
the hypothesis of innocence of the appellant and result in proving the
charge framed against the appellant beyond all reasonable doubt.
29.
We want to express that it is not a rule of law that whenever panch
witness to the recovery turns hostile or does not support the case of the
prosecution, the Court will have no option but to reject the evidence of
recovery of article in toto. It is well-settled that the evidence of the
Investigating Officer who has recovered the articles, if convincing, the
evidence as to recovery need not be rejected on the sole ground that the
panch witness failed to support the prosecution case in this regard. It is,
therefore, evident that in the instant case, the evidence of the Investigating
Officer who has effected the recovery of articles such as cartridges, pistol
and sealing of articles being convincing, the question of rejecting the said
evidence merely on the ground that the evidence of panch witness in
respect of seizure of such articles did not support the prosecution does not
arise. It is well-settled that last seen theory comes into play when the
time gap between the point of time when the accused and the deceased
were last seen alive and the deceased is found dead is so small that the
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possibility of any person other than the accused being the author of the
crime becomes impossible. However, while appreciating the evidence
adduced by the prosecution on the point of last seen, it is necessary to
consider it in view of the other positive evidence adduced by the
prosecution to complete the sequence of events which must positively
establish the guilt of the accused. In the instant case, the circumstance of
the deceased last seen with the accused, coupled with the other
circumstances established by the prosecution, in our view, prove the
charge of murder as well as the charge under the Arms Act. In the instant
case, the deceased was last seen with the appellant in the late afternoon on
the date of the incident and the dead-body of the deceased was found on
the same day at about 9.30 p.m. in the taxi. It is pertinent to note that the
defence of the appellant is that of total denial and there is nothing on
record to show that the appellant and the deceased parted company after
the deceased was last seen with the appellant. It is also well-settled that
in circumstantial evidence, the accused taking a false defence is an
additional circumstance which completes the chain. In the instant case,
the deceased and the accused were present in the meeting which was held
in the office of P.W.8 in the afternoon on 16.12.1998. The accused and
the deceased after the meeting, left the office of P.W.8 together and the
dead-body of the deceased was found at about 9.30 p.m. on the same day.
Similarly, there is no explanation given by the accused whether the
ig
deceased parted his company after they left the office of P.W.8 together.
It is, in these circumstances, that the evidence adduced by the prosecution
on the aspect of the accused last seen with the appellant assumes
importance and coupled with the other circumstances established by the
prosecution, the findings of conviction recorded by the trial Court for the
offence charged, in our view, are sustainable in law.
30.
Lastly, the contention canvassed by the learned counsel for the
appellant that the procedure stipulated under sections 51 and 100(7) of the
Cr.P.C. was not followed by the Investigating Officer creates doubts about
the genuineness of the prosecution case as well as the evidence adduced
by the prosecution, in our view, does not improve the case of the appellant
nor affects the genuineness as well as the credibility of the evidence
adduced by the prosecution. The substantive evidence adduced by the
prosecution is cogent, trustworthy and consistent with the material
particulars of the prosecution case, in that event, non-observance of the
procedure contemplated under sections 51 and 100(7) of the Cr.P.C., by
itself would not render such evidence untrustworthy or unreliable. In the
instant case, non-observance of the procedure under the said sections by
the prosecution does not affect the prosecution evidence nor creates any
For the reasons stated hereinabove, the Criminal Appeal suffers
doubts in respect of the same.
from lack of merits and the same is dismissed.
(A.R. JOSHI, J.)
(D.D. SINHA, J.)
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