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2016 Supreme(Bom) 1774
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NARESH H. PATIL & PRAKASH D. NAIK, JJ.
Vishal @ Shivaji Mahadeo Kamble – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 523 of 2008
Decided On : 16-12-2016
For the Appellants : Mr. Prashant Gurav and Mr. Yogesh Sankpal.
For the Respondent: Mr. J.P. Yagnik.
Headnote:Evidence Act, 1872 - Section 3-Circumstantial evidence.-Circumstances pointing towards guilt of must form complete chain of circumstantial evidence.
It is pertinent to note that the trial Judge has misdirected himself in drawing the said inferences. Firstly, there are many circumstances which are on record for which investigating machinery could not get clue and remained unsolved. The accused was charged for committing offence of rape and murder. He was also charged for misappropriation of property possessed by the deceased. The charge framed by the trial Court states that the accused caused certain evidence to disappear by throwing the bloodstained clothes outside the window. It was further stated that the accused committed rape, murder and misappropriated the property of victim. The prosecution has not established charge of rape for which the accused is acquitted.
The Medical Officer has opined that rape is ruled out. There was no recovery of any property of the deceased and the charge under Section 404 has failed and the accused has been acquitted. Thus, the motive for commission of crime for which the accused was charged has not been established. As analyzed hereinabove, the prosecution has not been able to bring cogent evidence to establish presence of accused at the scene of offence.
There is no evidence that the accused was found in close proximity with the place of incident or last seen together with the victim. It is well-settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from weakness of the defence. Where various links in a chain are in themselves complete, then a false plea or false defence may be caved in to aid only to lend assurance to the Court. Before using the additional link, it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not a law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supported by a false plea.
Indian Penal Code, 1860 - Sections 201 and 302-Evidence Act, 1872, Sections 3, 8 and 114-Conviction for murder.-In absence of any evidence regarding presence of accused on spot of incident at relevant time and motive to commit murder, conviction of accused cannot be sustained.
On scanning the evidence, it is apparent that the evidence relied upon by the prosecution is not full-proof. The evidence on record does not establish the case beyond all reasonable doubts against the appellant/accused. Considering the oral evidence adduced by the prosecution as well as the defence evidence and the cross- examination of the witnesses, the benefit of doubt will have to be given to the accused.
It is the settled law when it comes to circumstantial evidence that the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one supposed to be proved. There must be a chain of evidence far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show within all human probability the act must have been done by the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
PRAKASH D. NAIK, J.
1. The appellant (hereinafter referred to as accused for the sake of convenience) has preferred this appeal challenging the Judgment and Order dated 22.06.2007 passed by the Adhoc Additional Sessions Judge1, Baramati, District Pune, in Sessions Case No. 66 of 2004.
2. The accused was tried for the offences punishable under Sections 302, 201, 376, 445, 457 and 404 of the Indian Penal Code ('IPC').
3. The brief facts of the prosecution case are as follows:
(a) Deceased Manisha Ramchandra Karnale was the resident of Sangli. She had completed her graduation in BE (Electronics and Telecommunication). In the year 2003, she accepted the job in a company named Aanama Energies Pvt. Ltd. Pune. She was required to visit sites as part of her job. The employer of Manisha had taken job to install machinery of Parekh Food, Kurkumbh. Hence she was directed to join the work at Parekh Food, Kurkumbh, on 16.12.2003. Ajay Dumbre, Vikas Kattimani, Rakesh Jaiswal and Rakesh Supekar were the colleagues of Manisha. They were also directed to visit Parekh Food at Kurkumbh. Accordingly, they had resumed their duty on 15.12.2003. While working at Kurkumbh, Ajay Dumbre and his colleagues were staying at Hotel Neelam Palace at Baramati. He had changed the hotel and booked 3 rooms in Hotel Amardeep at Baramati. Deceased Manisha joined Ajay Dumbre and others on 16.12.2003. In the evening of 16.12.2003, Manisha and her colleagues came to Hotel Amardeep at Baramati. They had booked Room Nos. 206, 207 and 208 in the said hotel. Manisha occupied room no. 207. Rakesh Supekar and Vikas Kattimani occupied Room No. 206. Ajay Dumbre and Rakesh Jaiswal occupied Room No. 208. From 16.12.2003 till 19.12.2003, Manisha and her colleagues used to leave Hotel Amardeep in the morning and used to return in the evening.
(b) On 19.12.2003, deceased Manisha returned to Hotel Amardeep along with her colleagues at about 8.30 p.m. In the same night, Rakesh Supekar and Vikas Kattimani changed their room from Room No. 206 to Room No. 212 as TV and telephone of the said room was out of order.
(c) After arrival in the hotel, Ajay Dumbre ordered dinner for 4 persons in Room No. 208. Thereafter, he consumed liquor. In the same evening, there was a party of Trainee Pilots on the lawn of the hotel. Ramesh Supekar, Ajay Dumbre, Vikas Kattimani and Rakesh Jaiswal were watching the party from the window of Room No. 208 and they were chitchatting. In the same night at about 11.30 p.m., Ajay Dumbre and Rakesh Jaiswal took their dinner. However, Rakesh Supekar did not take the meal. After dinner, the said 4 persons decided to have Paan, but due to late hours, they returned to their rooms and went to bed. Deceased Manisha took her dinner in the room. At about 12.45 in the midnight, Manisha asked the Manager on duty to connect a call to one cell-phone. Accordingly, Manager gave call on the said cell-phone number and Manisha had a conversation on the said number from her room. In the midnight at about 1.45 a.m., one customer came to the hotel. He was allotted Room No. 206 which was vacated by Rakesh Supekar and Vikas Kattimani.
(d) On 20.12.2003 in the morning, Ajay Dumbre and his colleagues got ready and they decided to leave the hotel and return to Pune. Accordingly, Ajay Dumbre came to reception counter and asked Manager Shrinivas Kadam to prepare the bill. Ajay Dumbre made payment on behalf of the company. Ajay Dumbre, however, retained one room. Thereafter Ajay Dumbre asked the Manager to give call to Manisha. Manager gave call to Manisha, but there was no response from her room. Thereafter, Ajay Dumbre and his colleagues went to their respective rooms. On the way, Rakesh Supekar rang the doorbell of Manisha. She did not give response. Thereafter, Ajay Dumbre, through the window of Room No. 208, entered into Room No. 207. He found Manisha in a pool of blood. He raised shouts and opened the main door of the room. Thereafter, Rakesh Supekar entered into the room and saw M
