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2007 Supreme(Bom) 1525
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
D.D. SINHA AND B.P. DHARMADHIKARI, JJ.
Mr. Kishorilal s/o Fulchand Baraskar — APPELLANT
Versus
State of Maharashtra — RESPONDENT
CRIMINAL APPEAL No. 660 OF 2002
Decided on : 22nd October, 2007
Mr. D.N. Kukdey, Advocate (Appointed) for Appellant.
Mr. T.A. Mirza, Additional Public Prosecutor for Respondent.
Headnote:Evidence Act, 1872 - Sections 3, 8, 9 and 27-Circumstantial evidence-Conviction was held on the basis of circumstantial evidence.-Appeal preferred against conviction fact that deceased was last seen with accused was not proved. Seizure of ornaments is shown at police station and not at shop of jweller. Thumb impression was doubtful. It was held that complete chain of events having not been proved in this case, appeal is liable to be allowed.
Penal Code, 1860 - Section 300-Evidence Act, 1872, Section 27-Murder-Proof of-Evidence-Weapon of offence, ’sickle’, recovered at instance of accused alleged-Allegation not proved-Blood group of deceased and accused could not be ascertained-Prosecution failed to bring home guilt of accused for offence of murder-Conviction not sustainable-Quashed and set aside-Accused acquitted.-In the case before us, only handing over of cotton bag to police is independently established by evidence of PW 6 Kisan Kale and is also supported by evidence of PW 17 PSI Pandurang Mahure. But prosecution could not prove presence of sickle in it. PW 5 Sukhdeo and PW 6 Kisan examined by prosecution have not stated that cotton bag was containing any sickle. In view of our observations above about absence of evidence on record but the mode and manner in which dead body came to be first identified, circumstances in which appellant came to be arrested and his presence in police station even before PW 1 father reached, creates serious doubts about seizure of necklace from jeweller etc. Court is not ready to accept uncorroborated evidence of investigating officer about seizure of blood stained sickle or stick. Investigation itself appears to be faulty. Moreover blood group of deceased and accused could not be ascertained. If appellant could conceal bamboo stick as alleged by prosecution, it is beyond comprehension that he would carry blood stained sickle along with him for days. We therefore, in facts before us hold that the prosecution has not succeeded in proving the discovery and seizure of bamboo stick and sickle allegedly used as weapons by the accused. The requirement is of establishing each and every piece of incriminating circumstances by reliable and clinching evidence and circumstances so proved must form such chain of events as would permit no conclusion other than the guilt of accused. Mere suspicion, however strong, cannot be permitted to take the place of proof. In view of entire discussion above, it is clear that none of the circumstances relied upon by the prosecution to demonstrate the complete chain has been proved on record conclusively. In present situation, it was duty of prosecution to independently establish each such circumstances beyond reasonable doubt by leading cogent and convincing evidence. However, the prosecution failed to adduce cogent and trustworthy evidence in order to complete the requisite chain and therefore, failed to bring home the guilt of the accused for the offence of murder.
Penal Code, 1860 - Section 302-Appeal against conviction.-Conviction was held on the basis of circumstantial evidence. Appeal preferred against conviction fact that deceased was last seen with accused was not proved. Seizure of ornaments is shown at police station and notice shop of jweller. Thumb impression was doubtful. It was held that complete chain of events having not been proved in this case.
Per B.P. DHARMADHIKARI, J.
1. The appellant has challenged the judgment dated 19.01.2002 delivered by the Additional Sessions Judge, Achalpur in Sessions Trial No.25/2001, holding him guilty of offence punishable under section 302 of Indian Penal Code and sentencing him to suffer life imprisonment. He has also been ordered to pay fine of Rs. 1000/-and in default to undergo further rigorous imprisonment for six months. The deceased -Munni @ Smt. Jasmai, was the maternal sister of the appellant.
2. Prosecution case in brief is as under :
Deceased Munni was married to Sukha Belsare i.e. P.W.No.4 about four years prior to the date of incident and she was living at village Pandhari with her husband. Her dead body was recovered by police from a field at Achalpur on 10.1.2001. About 4-5 days before 10.1.2001, accused – appellant went to the house of the deceased and represented that her mother was serious and admitted in hospital at Paratwada and on that pretext he took her to Paratwada. Her husband was not available in the village at that time. The deceased did not return back to her home at Pandhari thereafter. Two days after the deceased had left the house with the accused, her husband Sukha came back to village and his neighbour Smt. Shamlibai (P.W.No.7), informed him that his wife had gone to visit her ailing mother. Sukha waited for two days for his wife, but as she did not come, he went to the house of his father-in-law at village Kundi. He found his mother-in-law very much present in the house & in good health. He made inquiries about his wife and both of them expressed ignorance and stated that she did not come to their house. Hence P.W.No.4 Sukha started searching for his wife, and after some days he got information that she was murdered and he went to Achalpur Police Station. The police showed him photograph of one woman which he identified to be of his wife. He also identified Silver Necklace (Hasli), shown by the police to him as that of his wife.
3. P.W. 2 -Zamir Shah, lodged report with the police station Achalpur after noticing a dead body of woman lying in his field survey no.147 at Kheltapmadi or Tapmadi Shiwar, at about 12 O'clock in the noon on 10.1.2001. Police registered A.D.No.2/2001, and enquiry was entrusted to P.S.I. Mr. Mahure (P.W. 17), who went to the spot and then in presence of panch witness prepared spot panchanama and inquest panchanama. He seized the quilt with which the face of the dead body was covered, ordinary soil, soil smeared with blood and then forwarded the dead body for postmortem to Medical Officer of Cottage Hospital at Achalpur. He found that the deceased was murdered and accordingly he submitted his enquiry report to P.S.O. On the basis of which Police Inspector Mr. Gawande (P.W.No.15), registered Crime No. 4/2001 for offence punishable under section 302 of Indian Penal Code and he took the investigation with him.
4. On 17.1.2001, P.W.-15 Mr. Gawande, P.I. at Achalpur police station recorded statement of Patiram Jawarkar i.e. father of the deceased -P.W. 1, her mother and also one Sitaram and an Auto rickshaw driver by name Ishwar Jada (P.W. 3). On the same date at about 11.30 p.m. accused was arrested in the crime. While in custody on 18.1.2001, the accused disclosed that he sold silver necklace (hasli) of deceased Munni, and accordingly after preparing memorandum, police seized the said necklace from one Vijay Kumar Bhansali of Bhansali Jwellers (P.W. 13). The police also seized from Vijay Kumar pledge register and purchase register maintained by said Bhansali Jwellers containing entries of pledge and purchase of said necklace. Accused also made statement that sickle used in the crime, his shirt, full pant were left by him at the house of his uncle Kisan (P.W.-16) at village Gourkheda. Accordingly after completing the procedural formalities and documentation, the accused discovered/produced a cotton bag containing sickle, full pant and shirt and one dupatta which was seize
