Judgment apeal491.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 491 OF 2015.
Vivek s/o Gulabrao Palatkar,
Aged about 32 years,
Occupation - Agriculturist,
Resident of Navargaon, Tah. Mouda,
District Nagpur.
(Presently Central Prison at
Nagpur) ....APPELLANT.
VERSUS
State of Maharashtra,
through Police Station Aroli,
Tah. Mouda, District Nagpur. ....RESPONDENT
.
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Mr. C.R. Thakur, Advocate for the Appellant.
Mr. S.D. Shirpurkar, learned A.P.P. for Respondent.
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CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : APRIL 17, 2017.
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Judgment apeal491.15 2 ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) Appellant - Vivek challenges the judgment and order dated 30.11.2015 delivered by the Additional Sessions Judge-4, Nagpur in Sessions Trial No. 459/2014 holding him guilty of offences punishable under Sections 302, 201, 203 and 498-A of Indian Penal Code, and sentencing him to suffer life imprisonment and other punishments for these offences. The victim in the matter is his wife - Savita. Prosecution claims that on 23.05.2014 at 9 a.m. he committed her murder at Mouza Navargaon, Tahsil Mouda, District Nagpur and thereafter set on fire that body to destroy evidence and then gave false information to her mother, that Savita left the house by leaving children. It is also claimed that he subjected Savita to cruelty and thereby committed an offence under Section 498-A of Indian Penal Code.
2. We have heard Shri C.R. Thakur, learned counsel for the appellant-accused and Shri S.D. Shirpurkar, learned A.P.P. for respondent - State.
3. Shri Thakur, learned counsel for appellant has submitted that ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 3 there is no eye witness and merely on the basis of suspicion, the appellant has been roped-in in the matter. The trial Court has not formulated circumstances or its chain to enable anybody to gather that circumstantial evidence available on record is sufficient to hold the appellant guilty. According to him, circumstances do not constitute a chain and do not in any way indicate appellant as the only suspect. The circumstances looked into are not established by adducing any cogent and convincing evidence. Same are therefore, not inconsistent with hypothesis of innocence of present appellant.
4. According to Shri Thakur, learned counsel, motive has not been established and finding that charge under Section 498-A of Indian Penal Code stands proved is perverse. Similarly, State has not produced any panchnama of the spot where murder, allegedly took place and hence, connection of present appellant with that spot or murder has not been established. The recovery of so called murder weapon (leg of a cot) is not established and the memorandum of disclosure or consequential recovery panchnama itself cast doubt upon the correctness of assertion of prosecution in this respect. The alleged seizure of Nevar (cotton belt used for weaving the cot) is also not proved and neither that Nevar nor the alleged cot is connected with the present appellant. Spot panchanama available on record ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 4 is of the place where skeleton was found and there is no connection of appellant with that place. Recovery of ornaments from the skeleton is again not immediately done, and therefore, not a single circumstance is validly proved. There is no proper identification of those ornaments which are very common. He has taken us through the relevant material on record to urge that the appellant is entitled to be acquitted in the matter.
5. Shri Shirpurkar, learned A.P.P. appearing on behalf of State submits that apart from motive, there are various circumstances which emerge from the material on record. Though the trial Court has not expressly prepared any chain thereof, bare reading of the judgment shows such circumstances which constitute a chain and point out appellant only as the person involved in the crime. To facilitate consideration, he has submitted following circumstances as forming a chain :
(1) Appellant had motive behind eliminating his wife, as he was doubting her character and was also subjecting her to cruelty.
(2) On 15.05.2014, the appellant brought his wife Savita and two children to his house from her parents house.
(3) On 25.05.2015, he informed P.W.11 - Kamlakar that his
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Judgment apeal491.15
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wife left the house, leaving him and two children. He
came to the house of Kamlakar with children, stays there overnight and claims that he went back to his village. (4) On 30.05.2005, in an agricultural field situated in the vicinity of his house, a burnt skeleton is found. Its identification is established through D.N.A. Test. Dorla, judwe and chal worn on skeleton are identified by the mother of the deceased as belonging to the deceased i.e. wife of the appellant.
(5) After arrest, the appellant gives a statement under Section 27 of the Indian Evidence Act and at his instance, a wooden log, forming one of the legs of a cot used as murder weapon and blood stained clothes are recovered. Human blood is found on it.
(6) At the time of this recovery at his instance, on the spot a cot with nevar is seen. On nevar blood stains were found. Even on beam of cot, blood stains were seen (7) The stains on nevar, blood stains from wooden beam of cot and from soil below were found of human blood by the Chemical Analyzer.
(8) The accused was absconding after 25.05.2014 till his
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arrest.
(9) As wife was lastly with him and in his custody, burden was
upon him and he even did not bother to lodge any missing report.
6. Consideration can very well begin with the report at Exh.15 lodged by P.W.2- Geetabai Hariram Kawle, mother of Savita. She has deposed that on 24.05.2014, her son Santosh received a phone call from Kamlakar Patankar (P.W.11), who is husband of sister of the appellant. He informed that Savita left house at 10 a.m. leaving children with the accused. She goes to police station, Aroli and lodges report at Exh.15 on 25.05.2014. She has informed that her daughter has gone missing; gave her description and does not express any doubt. She states that she visited her daughters house, but could not found her there. She has also not pointed out any ill- treatment by the appellant.
7. P.W.11 - Kamlakar has deposed that in January, 2014 Savita had gone to her parents with children and she resided there for 5-6 months. He was not aware when Savita returned to her husbands house. On 24.05.2014, the appellant informed him about Savita leaving the house without children, hence, he visited appellants house and then appellant told ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 7 him to look after the children as there was no body to take their care. He then states that he received a phone call from Police Station, Aroli about a complaint lodged against the appellant. He was declared hostile. During cross examination by A.P.P., he has stated that he called parents of Savita at 9 p.m. and informed about Savita leaving the house. He also deposes that he returned to Nagpur with Vivek and two children. Vivek stayed with him whole night and then left for village Navargaon. His phone was thereafter switched off. This material therefore, shows that after 24.05.2014, Savita was not seen by anybody. Appellant was available in the village and a missing report was also lodged in which no doubt was cast upon the appellant.
8. Appellant has been arrested on 11.06.2014 and as per version of prosecution, he made a disclosure under Section 27 of the Evidence Act. The disclosure is witnessed by one Liladhar and Nilesh. He has stated that the wooden log (leg of cot) used by him as a weapon and clothes were hidden by him and agreed to take the same out. He states that clothes on his person and that wooden log was kept concealed by him near his house. Exh.29 is this memorandum on disclosure. Exh.30 is the subsequent recovery Panchnama. It records that the appellant led the witness and police to a east facing house, went behind it and from eastern corner of verandah, ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 8 removed some material. Below it, was a wooden log in 4 pieces and with blood stains. While describing it, it is shown as one intact leg and there is no separate description of these 4 pieces. Exh.30 then records that he also points out the space where he put body of Savita on fire and then led the police party to Nala behind the house where near roots of Karanji tree blood stained clothes were concealed. He took out an old blue, black and while shirt with blood stains and a faint Pink old petticoat also stained with blood. These two clothes were also seized by the police.
9. Leeladhar (P.W.8) has also witnessed one more seizure memo. It is at Exh.31. Place of seizure memo therein is "spot of occurrence". Plain soil, blood stained soil, nevar (cotton belt) of wooden cot on spot and blood scratched and removed from wooden beam of that caught on spot were seized and sealed. However "spot of occurrence" is not described any where. P.W.8- Leeladhar also does not speak about this spot. He does not state anything about this process or steps and only points out the articles seized and seizure memo at Exh.31. Prosecution therefore, has not brought on record the place or spot from where this seizure of nevar or soil or blood from wooden beam was effected. Whether it was inside the east facing house or from house of the appellant or elsewhere in the village or in court yard of the house, is not clear. According to the disclosure statement made ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 9 by the appellant, clothes and weapon were concealed near his house and not inside the house. Exact spot of hiding does not figure in Exh.29. Perusal of Exh.30 reveals seizure from verandah and a nala behind the house. Both these spots are not specifically disclosed by him in Exh.29. Though in recovery panchanama, wooden log has been mentioned as "broken into 4 pieces", its description at seizure is as one intact log/leg. It has not been seized from inside the house. The clothes are seized from Nala and it is mentioned that they were concealed near bottom of Karanji Tree. Whether they were buried or then pushed into some hole in tree, is not apparent. The appellant has in Section 27 disclosure statement mentioned clothes on his person. How ladies garments [petticoat] came out from that place is not explained. Nobody has identified that petticoat as belonging to either the deceased or the appellant. Even the shirt seized, has not been shown to be belonging to the appellant by any independent evidence.
10. P.W.7 - Nanda is resident of the same village. She has deposed that the appellant was residing in a field out of the village by constructing house. A.P.P. was permitted to cross examine her. She states that on 14.06.2014, police brought the appellant to Navargaon. She has in this cross, accepted the suggestion that the appellant Vivek took out blood stained wooden leg of cot from "Varani"/roof. Thus, this suggestion given ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 10 by the prosecution itself reveal that it was not taken out as recorded in the panchnama Exh.30 from Verandah, from its eastern corner. It also militates with the story that it was broken into four pieces as recorded in the panchnama. When she was subjected to cross examination by the accused, she has accepted the suggestion that on 24.05.2014, Savita left the house. She has volunteered that the appellant was absconding.
11. P.W.8 - Leeladhar who has witnessed the seizure supports retrieval of wooden leg broken into 4 pieces, blood stained shirt and petticoat. He mentions that wooden leg was taken out from back side of his house from a corner. He then mentioned that blood stained shirt and petticoat was also taken out. He does not mention spot of nala or karanji tree in it. Little later, he speaks of seizure of simple soil, blood mixed soil, blood stained nevar and blood from wooden leg of cot vide Exh.31. He does not speak of recovery of blood from beam of any cot. He also does not point out the spot where said cot or nevar was lying or from where soil was lifted.
12. It is important to note that there is no panchanama of said spot where cot with nevar was lying and from where simple soil and blood mixed soil was lifted. Nevar allegedly was found blood stained and wooden beam of cot was also blood stained. The recovery from spot at Exh.31 is effected ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 11 only to bring on record the fact that murder was committed at that place. However, why spot panchnama to bring on record exact location or placement thereof has not been drawn, is not apparent. In view of this discussion, it is clear that the spot of murder has not been established by the prosecution. Similarly, the recovery under Section 27 from appellant / accused so as to enable us to draw any adverse inference against him has also not been brought on record by producing any cogent and convincing evidence. On the contrary, the deposition of P.W.7 - Nanda militates with the story of prosecution.
13. The ornaments are seized by police on 31.05.2014 i.e. on next day after the skeleton was found. Inquest panchanama Exh.34, is drawn on 30.05.2014 and that time, no ornaments are mentioned. Inquest ends by recording that the skeleton was sent to forensic laboratory Ramtek. This inquest started at 11.10 a.m. on 30.05.2014 and was over by 12.10 in noon.
14. P.W.9 Arun Gurnule was the A.P.I. working with Police Station, Aroli. He states that on 31.05.2014, he visited the spot, filtered body ash with the help of funner before two panchas. One Dorle (mangalsutra), two Jodwe (foot toe rings), two Tops (earings) and one Paipatti (chal) was seized by him. He prepared seizure memo at Exh.42. These ornaments are ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 12 identified as of deceased Savita by her mother P.W.2. Property was shown to her at Mouda Tahsil Office, where memorandum of identification parade was prepared. Exh.16 memorandum of identification parade shows that only 4 pieces of ornaments were placed for identification. Thus, there were no other similar ornaments and what ever was pointed out to P.W.2 has been identified by her vide Exh. 16 and Exh.17. There is no evidence on record to show that spot was guarded after removal of skeleton from it on 30.05.2014 till 31.05.2014.
15. P.W.13 - Naresh who has witnessed the seizure memo Exh.42 has turned hostile. However, in present facts, merely because identity of skeleton is established and it is found to be of Savita, material on record does not enable us to connect appellant with the death of Savita.
16. Ill-treatment of Savita by the appellant is also not conclusively established. P.W. 1 Shalikram is uncle of deceased Savita. He points out that marriage has taken place in the year 2010. He also states that accused was suspecting character of Savita and beating her. Hence, she came to her mother in January, 2014. Her father Hariram had expired in the year 2006. On 15.05.2014, accused came to fetch Savita and took her to his village Navargaon along with the children. P.W.11 - Kamlakar on 24.05.2014 ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 13 informed on telephone that Savita had left the house. Hence, on 25.05.2014, Geetabai, mother of Savita lodged missing complaint at Police Station, Aroli. In cross examination, he accepted that no complaint was filed earlier about ill-treatment and beating by accused. He has filed oral report on 11.06.2014 on the basis of which FIR for offence punishable under Sections 302, 201 and 203 of Indian Penal Code came to be recorded.
17. P.W.2 - Geeta (mother) also deposes in chief that on 15.01.2014 when Savita came to her place with children, they inquired why she had come. She told them that due to beating, she came back. She also states that Savita disclosed that had Savita not come back, they would have been required to attend her funeral. On 15.05.2014, appellant Vivek came and they sent Savita with him after giving understanding. Then she speaks of phone call from Santosh dated 24.05.2014 and lodging of a missing report. We have already discussed about it above.
18. In cross examination, Geeta states that no police complaint was lodged about ill-treatment and beating of Savita. Even in missing report at Exh. 15 on 25.05.2014, there is no complaint in this respect.
19. P.W.3 Santosh is brother of Savita. He states that accused was ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 14 taking doubt on character of Savita and beating her and hence, she used to come to them. She lastly came on 15.01.2014 and gave appellant doubting her character and assault by him as reasons for coming back. He also states that on 15.05.2014, accused came and they sent Savita with him. In cross examination, he accepted that Savita visited them prior to 15.01.2014 also and she used to come alone. No complaint was lodged about accused suspecting her character or beating her. He has denied that on 15.01.2014, she did not come back because accused had taken doubt on her character or beaten her.
20. P.W. 4 - Anil is neighbour of Geetabai and his evidence is on the same lines. Evidence of P.W. 5- Nirmalabai, who is residing in village of Geetabai and wife of P.W.1, is again on same lines. She had accompanied Geetabai for lodging missing report Exh. 15 on 25.05.2014.
21. Thus, fact that appellant Vivek was suspecting Savita's character or used to beat her has come on record for the first time when police complaint was lodged by P.W.1 vide Exh.10. If there was ill-treatment due to her character and beating, why such an important fact was not mentioned while lodging missing report at Exh.15 on 25.05.2014, is not clear. Relatives of Savita have come to Nawargaon and after she could not be traced out, ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 15 lodged report at police station. These facts along with deposition of P.W.7 Nanda that Savita left house on 24.05.2014 militate with the story of prosecution.
22. In view of this discussion, we find that even motive for eliminating Savita has not been established beyond reasonable doubt.
23. Though effort has been made to show that after coming to place of Kamlakar (P.W.11), appellant had absconded and was not available at Navargaon, there is no such evidence available on record. It is a settled law that 'abscondence' needs to be proved as any other fact by leading appropriate evidence. That has not been done in the present matter.
24. Thus, circumstances constituting chain and relied upon by the trial Court or then pressed into service by the learned A.P.P. are not substantiated at all. There has to be cogent and convincing evidence in relation to each such circumstance. The circumstances must link with each other to form a chain. When link is broken, such circumstance or circumstances in isolation cannot result in implicating the accused. Here the circumstances essential to constitute a chain are not brought on record convincingly. Hence, evidence of human blood on clothes allegedly recovered under Section 27, on leg of ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:26 ::: Judgment apeal491.15 16 cot, on nevar or cot or "spot of occurence" and DNA test, cannot be used to hold the appellant guilty as the same do not form a chain at all. Moreover, material from which the "blood" is collected, is also not connected with the appellant/ accused. Hence, we proceed to pass the following order.
ORDER
(1) Criminal Appeal is allowed.
(2) The appellant is acquitted of the offence punishable under
Sections 302, 201, 203 and 498-A of the Indian Penal Code. (3) The judgment dated 30.11.2015 delivered by the Additional Sessions Judge-4, Nagpur in Sessions Trial No. 459 of 2014 is quashed and set aside.
(4) The appellants be set free immediately, if his custody is not required by the State in any other matter.
(5) Muddemal property be dealt with as directed by the Trial Court after the appeal period is over.
JUDGE JUDGE
Rgd.
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