Geeta Keshav Shankar @ vs The State Of Maharashtra
2009 Latest Caselaw 169 Bom

                                    1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                CRIMINAL APPELLATE JURISDICTION 




                                                                              
                 CRIMINAL APPEAL NO. 968 OF 2006




                                                      
    1.   Geeta Keshav Shankar @             )
         Geeta Mukesh Kharwa,                     )




                                                     
    2.   Gauri Manga Kharwa @ Wagheri )..   Appellants
                                 (Org. Accused Nos. 1 and 2)




                                           
               Versus

    The State of Maharashtra,
                            
    through Dr. D.B. Marg Police Station.
                                            )
                                            )..   Respondent 
                --
                           
                             ALONG WITH 
                    CRIMINAL APPEAL NO. 443 OF 2007
           
        



    Shri Santosh Kanti Kharwa,              )
    age __ years, Occ.                      )
    Ashirwad Committee Chawl,               )





    Gundwadi Gaothan, Judani Mandir,        )
    Andheri (East), Mumbai - 400 069.       )..   Appellant
                                            (Org. Accused No.3)





               Versus

    The State of Maharashtra,               )
    (At the instance of Dr. D.B. Marg       )
    Police Station vide C.R. No.32/2002)    )..   Respondent
                                            (Org. Complainant)
               --




                                                      ::: Downloaded on - 09/06/2013 14:20:40 :::
                                              2


    Shri Arfan Sait for the Appellants.




                                                                                         
    Ms. M.M. Deshmukh, Additional Public Prosecutor for State.




                                                                
              --

                                 CORAM  : SWATANTER KUMAR, C.J. & 
                                          DR. D.Y. CHANDRACHUD, J. 

JUDGMENT RESERVED ON :

3RD FEBRUARY, 2009.

JUDGMENT PRONOUNCED ON : 12TH FEBRUARY, 2009.

JUDMGNET : ( PER SWATANTER KUMAR, C.J. )

Additional Sessions Judge, Greater Mumbai, by his

judgment dated 25/26/27th October, 2004 has convicted three

accused viz. (i) Geeta Keshav Shankar @ Geeta Mukesh Kharwa,

(ii) Gauri Manga Kharwa @ Wagheri, and (iii) Santosh Kanti

Kharwa for an offence punishable under Section 302 read with

Section 34 of the Indian Penal Code and sentenced them to suffer

imprisonment for life and to pay fine of Rs.1,000/- each and in

default to undergo simple imprisonment for a period of six months.

2. Aggrieved from the finding of guilt and sentence

awarded to the respective accused, Geeta Mukesh Kharwa,

Accused No.1 and Gauri Manga Kharwa, Accused No.2 have filed

Criminal Appeal No.968 of 2006, while accused No.3 Santosh

Kanti Kharwa, has filed Criminal Appeal No.443 of 2006 before this

Court, inter alia, claiming acquittal, but primarily on the following

grounds:-

(a) There is undesirable and unexplained

delay of one month in registering the

FIR;

(b) The judgment of the Trial Court is not

based upon cogent, proper and

admissible evidence. The Trial Court

has opted to supply gaps in the

prosecution case by surmises and

conjectures. Accused Santosh was

neither named in the FIR nor in the

Application Exhibit-19 made by PW 4

on 30th January, 2002 and none of the

prosecution witnesses have connected

him with the occurrence of crime, thus

he has been falsely implicated;

( c) There are serious material

contradictions in the statements of PW

3 Pallavi and PW 4, Nirmala. The

statements of the child witness (PW 3)

is a version given by a tutored witness

keeping in view the fact that the

statement itself was recorded after

lapse of a long period. Statement of

the child witness (PW 3) thus cannot be

the foundation for recording of finding

of guilt against any of the accused;

(d) Neither other evidence led by the

prosecution nor the Post-mortem

Report Exhibit-29 records, much less

proves, that there was any injury on the

body of the deceased which resulted in

his death. On the contrary, the cause

of death stated in the Post-mortem

Report does not even support the case

of the prosecution;

(e)

Recovery of rope vide Exhibit-26 has

not been proved in accordance with law

and is a result of police influence upon

the Accused as he was arrested on 15th

February, 2002 while the recovery was

effected on 22nd February, 2002. Thus,

the rope (Article 1) has just been

planted upon the accused and in any

case the statements recorded vide

Exhibit - 26 are not admissible in

evidence and of course that the

Accused have been falsely implicated

as they have no intention or motive to

kill the deceased, as alleged.

(f) Material evidence which has been

relied upon by the Trial Court while

convicting the accused is not put to the

accused in a statement under Section

313 of the Code of Criminal Procedure

thus causing serious prejudice to the

rights of the accused.

3. Now we may refer to the story of the prosecution which

is the premise for guilt and conviction of the appellants. Gauri,

Accused No.2 was married to Mohan Chiku Kharwa. Their relations

were strained as Mohan had suspected character of Gauri and

divorced her. Gauri had developed intimacy with Santosh Kharwa,

Accused No.3. Santosh had love affair with sister of Gauri by

name Ratan and married to her, therefore, Gauri had again tried to

establish relations to cohabit with Mohan but Mohan was not

accepting her. Geeta, accused No.1, is stated to be the wife of

Mukesh Kharwa, who was brother of the deceased Mohan Kharwa.

Mukesh is also stated to have given divorce to Geeta and

therefore, Geeta had enmical terms and grudge with family of

Mohan. On 14th January, 2002 Geeta, Gauri and Santosh had

gone to Girgaon Chowpati along with Dinesh Suma Wagheri,

Ruksana Sona Wagheri and others. Deceased Mohan also

attended Chowpati. Nirmala Chiku Kharwa (PW-4), mother of the

deceased also attended Girgaon Chowpati along with her grand

daughters. Mohan was flying kite. Gauri started teasing and

jesting Mohan. Gauri took a pinch on the thigh of Mohan and took

up a quarrel. Mohan is stated to have told to his mother Nirmala

that he is going to pass urine and he will come back. He went

there but he did not return. Attempt has been made on behalf of

the prosecution to show that Mohan, Nirmala, Geeta and Gauri had

consumed liquor at the Chowpati and then Mohan left for passing

urine. Mohan was followed by Geeta, Gauri and Santosh.

Santosh gave push to Mohan. Mohan fell down. Santosh then put

a rope around the neck of Mohan and then Geeta pressed mouth

and Gauri caught hold of legs of Mohan. They pressed neck of

Mohan in the sea water and drowned him till death. They dragged

body of Mohan in the deep sea and threw it in the sea water.

Nirmala, mother of Mohan, went for a search of her son till late

night at Girgaon Chowpati along with others. Mother of Mohan

visited Gaondevi Police Station next day and lodged a missing

complaint of her son which was recorded and registered by the

police vide S.D. E. No.2 of 2002 on 16th January, 2002, Exhibit

-12A. On 30th January, 2002 mother of Mohan (PW 4) visited

Gaondevi Police Station and reported her complaint in writing by

filing an application Exhibit-19 that her son Mohan died due to

drowning and his dead body was found at the sea shore within the

jurisdiction of Cuffe Parade Police Station. In the application

Exhibit-19, she also stated that she suspected Geeta (Accused

No.1), Gauri (Accused No.2), Dinesh Wagheri and Ruksana

Wagheri, for having killed her son Mohan. On the basis of the

application Exhibit-19, it appears that no First Information Report

(FIR) was registered but after few days and supposedly on the

basis of interrogation made, FIR was registered being FIR

No.00/02 on 15th February, 2009 for an offence under Section 302

read with Section 34 of the Indian Penal Code that Geeta, Gauri

and Santosh caused death of Mohan while he was under the

influence of liquor by throttling and drowning him in the sea water.

This led to the arrest of the accused Santosh.

4. On 16th February, 2002, a panchanama of dead body

was drawn which is at Exhibit-27. As there were high tides on the

night of 15th February, 2002, panchanama of the place of incident

Exhibit-33 was prepared on 16th February, 2002. During the period

when Santosh remained in police custody till 22nd February, 2002,

he is claimed to have made a voluntary statement Exhibit-26,

leading to recovery of a nylon rope (Article-1). Thereafter, the

statement of the child witness (PW 3) Pallavi Kharwa (Exhibit-31)

was recorded, who is the eye witness to the incident as per

prosecution case. After the body was found on 16th January, 2002,

the same was subjected to post mortem, report of which is at

Exhibit-29. To support this case, the prosecution examined in all

nine witnesses including the complainant, API Patil (PW 1), the

alleged eye witness Pallavi Kharwa (PW 3), Nirmala Chiku Kharwa

(PW 4), mother of the deceased Mohan, Shri Rakesh Singh (PW 8)

Special Executive Officer who recorded statement of Pallavi (PW

3), and P.I. Dhanwade (PW 9) the Investigating Officer. The

statements of the accused under Section 313 of the Code of

Criminal Procedure were recorded by the Court, after putting the

questions and material evidence to the Accused. Upon conclusion

of the trial, the accused were found guilty of the offence charged

and were sentenced accordingly.

5. To sum up the case of the prosecution, the suspects,

the deceased and his family members had gone to Girgaon

Chowpati in the afternoon of 14th January, 2002, where Mohan is

supposed to have consumed liquor with accused and others.

Even his coming to Chowpati was objected to by his mother

Nirmala, PW 4. Later on, he went to urinate and informed his

mother that he will come back. The role attributed to the respective

accused is that Geeta, Gauri and Santosh followed deceased

Mohan and pushed him. The deceased fell down. Accused

Santosh put a rope around the neck of the deceased and Geeta

pressed mouth and Gauri caught hold of legs of the deceased and

they pressed neck of the deceased in the sea water and drowned

him till death, whereafter his body was drowned into the deep sea

water.

6. The learned Trial Court, while recording reasons for

conviction of the accused, noticed that the accused admitted the

panchanama Exhibit-27 dated 16th January, 2002, post-mortem

report Exhibit-29 and the death certificate Exhibit - 28, in terms of

Section 294 of the Code of Criminal Procedure. The cause of

death shown in the certificate was Asphyxia due to drowning. The

Court further heavily relied upon the statements of PW 4 Nirmala,

mother of deceased Mohan and PW 3 Pallavi, niece of the

deceased, who was 9 or 10 years old girl at the time of the

incident. Her statement was recorded by the Special Executive

Officer on 20th February, 2002. According to Pallavi, PW 3, she

saw her uncle Mohan, the deceased, going for passing urine. He

was followed by Geeta, Gauri and Santosh. Accused Santosh

gave push to her uncle who fell in the sea water and Gauri pushed

mouth of deceased Mohan in the water, and Geeta held legs of

the deceased, which ultimately caused death of Mohan. The child

witness thought that all the three accused were enjoying, joking

and jesting. After the incident she started playing and forgot to tell

about it to her grandmother. While referring to the evidence, the

learned Trial Court made the following observations which have

considerable bearing on the case of the prosecution.

"25. .......... I am of the opinion that the witness P.W. No.4 have signed on the

reverse of her complaint and there is mention of annexure in the application itself. I am of

the opinion that the non signing of the annexures do not go to the root of case. Non placing of the documents before the Superiors is at the most can be termed as

procedural lapse or irregularity and cannot be held as fatal to the prosecution case.

26. XX XX XX XX

27. .......... P.W. No.4 Nirmala further deposed that Mohan came there and threatened Geeta to leave the said place immediately and that Geeta assaulted Mohan by her hands on his thigh and took a pinch and that Mohan got wild and

questioned her as to why she was teasing him all the time. ......................

28. .......... The evidence is complete

cogent which is incompatible with any other hypothesis except that of the guilt of the accused. The circumstances brought on record have conclusive tendency. I have

discussed few circumstances in forgoing paragraph and I am of the opinion that the conduct of Geeta and Gauri on the fateful night of the incident has been established

beyond reasonable doubt ..............................................................

..............

29. The next circumstances which is reflecting from testimony of P.W. No.4 is that P.W. No.4 Nirmala and others started searching Mohan, they searched him for

about one hour and then saw Geeta. She came towards them laughing. P.W. No.4

categorically stated that Geeta was laughing loudly. She questioned her as to why she was laughing to which Geeta answered that she was laughing because they were

searching Mohan and that they could not locate Mohan. This circumstance points figure at the conduct of Geeta. .................... P.W. No.4 deposed in her ocular testimony

that she requested Geeta to help her to search Mohan and that Geeta took them towards some building opposite chowpaty. ...................................................... ....................

30. I must observe that the testimony of P.W. No.3 Pallavi sufficiently corroborated by

P.W. No.4 Nirmala in establishing guilt of the accused. P.W. No.4 deposed that she had

searched Mohan up to 1.00 pm. She again came to chowpaty and waited up to 12.30.

However they could not see Mohan......"

xxxxx xxxxx xxxxx

35. ..... P.W. No.4 lent external corroboration to the testimony of P.W. No.3

Pallavi Kharwa. I must record that I found child witness Pallavi as competent. ......"

36. ..... In the instant case child witness

Pallavi had disclosed the incidents to his grandmother P.W. No.4 Nirmala, after a month and the prosecution has brought on record that accused No.1 Geeta threatened

child to kill her if she tells the incidents to anybody else. From these set of facts the

authority will not be applicable to the instant case."

7. Thus, it is evident that treating PWs 3 and 4 as the eye

witnesses coupled with the circumstance that PW 4 had searched

for her deceased son while Geeta had come towards them

laughing was the conclusive circumstances and there was

complete cogent evidence which is compatible with only hypothesis

that of the guilt of the accused, the learned Trial Court had

proceeded to convict the accused.

8. It is a settled principle of law that the prosecution

should establish its case beyond reasonable doubt and should

prove the chain of events which undoubtedly leads towards only

one conclusion that is the guilt of the accused. While the Court has

to appreciate the evidence led by the prosecution and defence, if

any, the circumstances alleged by the prosecution should be fully

established. The presumption that accused is not guilty unless

proved and the burden of proof to establish guilt of accused is on

the prosecution, are principles of law which have remained

unchanged in the criminal jurisprudence since times immemorable.

9. In the case of Hanumant Govind Nargundkar & Anr. v.

State of Madhya Pradesh, (AIR 1952 SC 343 ), the Supreme Court

stated that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to

be drawn should in the first instance be fully established, and all

the facts so established should be consistent only with the

hypothesis of the guilt of the accused. This principle has remained

undisturbed and even in a very recent judgment in the case of

State of Goa v. Sanjay Thakran & Anr., (2007)3 SCC 755, the

Supreme Court reiterated this principle and held as under:-

"13. The prosecution case is based on the circumstantial evidence and it is a well-settled

proposition of law that when the case rests upon circumstantial evidence, such evidence

must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, 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; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt

of the accused and such evidence should not only be consistent with the

guilt of the accused but should be inconsistent with his innocence.

(See State of U.P. V Satish, (2005) 3 SCC 114, Padala Veera Reddy v State of A.P., 1989 Supp (2) SCC 706, Sharad Birdhichand

Sarda v State of Maharashtra, (1984) 4 SCC 116, Gambhir v State of Maharashtra, (1982) 2 SCC 351 (para 9) and Hanumant Govind Nargundkar v State of M.P., AIR 1952 SC

343)".

10. Principles governing administration of criminal justice

are stated by the Supreme Court in Harijana Thirupala & Ors. v.

Public Prosecutor, High Court of A.P., Hyderabad, (2002)6 SCC 470),

observing that :

"11. In our administration of criminal

justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the

offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit

of such doubt should go in favour of the accused. At the same time, the court must

not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable

on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence.

In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case

or innocence of the accused has to be kept in mind in coming to the conclusion as to the

guilt or otherwise of the accused. In reaching a conclusion about the guilt of the

accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.

It must be added that ultimately and finally the decision in evidence case depends upon

the facts of each case."

11. The Court has to examine and keep in mind that the

accused "must be" and not merely "may be" guilty of an offence.

The mental distance between `may be' and `must be' is long and

divides vague conjectures from sure conclusions. ( Shivaji

Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC

2622).

12. These are some stated principles which have stood the

test of time without variations and are applicable to the facts and

circumstances of given case. It is necessary for the prosecution to

prove the chain of events which leads to guilt of the accused. This

chain of events must be proved by direct and substantive evidence

and some times may also permitted to be proved by the

circumstantial evidence but in that event the circumstances forming

part of chain must be established fully and must be compatible to

the story of the prosecution.

13. The first and foremost event in a criminal trial is

registration of the FIR. In the present case, the prosecution story

began with the incident of 14th January, 2002 when the accused,

the deceased and other witnesses are stated to have visited

Girgaon Chowpaty. There are contradictory versions as to at which

point of time and how Mohan, the deceased, met the accused

persons? Did they come together or came separately? who saw

them following the deceased and then committing the crime in

question? All these versions need proper consideration. But

whatever be the versions, the conduct of both the eye witnesses

and for that matter persons accompanying them are very

unnatural. It is the case of prosecution that the witness PW 3 and

PW 4 Nirmala went to Girgaon Chowpaty at 1.00 p.m. and

returned therefrom late in the night. Obviously, they spent

considerable time at Girgaon Chowpaty. Once Mohan was found

missing, in the backdrop of the statement of PWs 3 and 4, it is not

only improbable but is opposed to any normal human conduct that

they did not get in touch with the police and intimate to them about

missing or drowning of Mohan. Be that as it may, they claim to

have come back home late in the night and even in the morning of

15th January, 2002, neither PW 4 who is eldest member in the

family and with whom PW 3 is residing for years together nor PW 3

Pallavi indicate the story to the police and even on 16th January,

2002 when PW 4 Nirmala lodged a missing report vide Exhibit 12-A

which was recorded by PW 1 Maruti Patil details were not stated.

This missing report obviously must have been lodged by PW 4

after proper thinking and examining the events that admittedly

happened in her presence at Girgaon Chowpaty. The lodging of a

missing report thus was a result of proper thinking and is not a

report which was instantaneously lodged in a hurry. After lodging

the missing report, there is no explanation on record as to what

was done by PWs 3 and 4 or their relations in that behalf. It

appears that they were contended with the report of missing

despite the conduct of accused Geeta, Gauri and Santosh. The

matter remains unpursued and unaltered even after the body of the

deceased was recovered from the sea near Nariman Point on 16th

January, 2002. Though the body was recovered on 16th January,

2002, vide Panchanama Exhibit-27, PW 4 Nirmala claims that she

came to know about the recovery of the body of her son on 18th

January, 2002, when the body of the deceased was handed over to

her after the post mortem. Despite this, nothing happened till 30th

January, 2002 when PW 4 files an application Exhibit-19 which is

again received by the same witness PW 1 Maruti Patil who had

recorded the missing report. In that application she names six

persons including accused Geeta and Gauri but does not mention

the name of accused Santosh. No role was attributed in that

application to Santosh, though other four suspects viz. Dinesh

Suma Wagheri, Ruksana Sona Wagheri were specifically named in

the report. It does not stand to reason why she does not name

Santosh in this report when admittedly she had seen him at the

place of occurrence.

14. The matter is investigated and looked into, still no FIR

is registered. It is only on 15th February, 2002 when the FIR is

registered and the accused are arrested. Strangely, the

Investigating Officer himself registered an FIR Exhibit 15

mentioning suspicion indicated in the application Exhibit-19 by

referring to a story of killing of Mohan but again with some

variance. It was required from the prosecution to explain why

there was such an inordinate delay in registering the FIR when

according to the prosecution, the incident occurred in the presence

of two eye witnesses i.e. PWs 3 and 4. The FIR is primarily

registered after the so called interrogation of suspects/accused but

the FIR still does not refer to statement of PW 3 Pallavi. None of

the family members came forward to lodge a report except a

missing report dated 16th January, 2002, and the application

Exhibit-19 even after the death under suspicion circumstances.

There is no reasonable cause which even stand true to the

probabilities of normal human conduct to justify such inordinate

delay in lodging of the FIR i.e. From 14th January, 2002 to 15th

February, 2002.

15. Normally the delay in lodging the FIR by itself may not

be sufficient to bring the case of the prosecution under suspicion.

Mere delay in institution of an FIR may not prove fatal to the case

of the prosecution if there is some kind of reasonable explanation

in registration of FIR after such an inordinate delay. But there no

such explanation coming on record to justify delay in lodging FIR.

16. In the case of Apren Joseph alias Current Kunjukunju &

Ors. v. The State of Kerala, AIR 1973 SC 1, the Supreme Court

stated the principle that it is always better that the FIR is recorded

before there is time and opportunity to embellish or before the

informant' s memory fades. Undue or unreasonable delay in

lodging the FIR therefore inevitably gives rise to suspicion which

puts the court on guard to look for the possible motive and the

explanation for the delay and consider its effect on the

trustworthiness or otherwise of the prosecution version. Effect of

delay in lodging the FIR would always depend on the facts and

circumstance of a given case.

17. Following the established principles and approval, the

Supreme Court in Ganesh Bhavan Patel & Anr. v. State of

Maharashtra, AIR 1979 SC 135, while examining the question of

delay in lodging the FIR and delay in recording statements of the

parties and its effect on the prosecution case set aside the

conviction and acquitted the accused observing with emphasis that

the delay may assume such a character as to affect the

prosecution case if there are concomitant circumstances to

suggest the investigator was deliberately marking time with a view

to decide about the shape to be given to a case and eye witnesses

to be introduced, the Court held as under:

"18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or

sequence in which the investigating officer recorded the statements of witnesses.

Normally, in a case where the commission of the crime is alleged to have been seen by

witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the

natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. on the

30th, of Constable Shinde at 4 a.m. and thereafter of Welji, Kanjibhai (P.W. 7)

Santukbai (P.W. 6), Pramila, and Kuvarbai, between 8 a.m. and 1 p.m.

xxxxx xxxxx xxxxx

27. The most important of these

circumstances is the conduct of S.I. Patil in not recording that "first information" allegedly

given by Shinde and Ravji on that occasion. S.I. Patil admitted that he did not record the information given to him by Shinde and Ravji about the occurrence, on that occasion. The

information, which he then received, was about the commission of a cognizable offence. It was, therefore, the duty of S.I. Patil (who was incharge of the Police Station)

to record it in accordance with the provisions of S. 154 of Cr. P.C.; but he did not do so.

The explanation given by him was that it was the practice of this Police Station not to record such information until a message was received from the Hospital with regard to the condition of the injured person. This explanation of Patil' s failure to do what was

his statutory duty, was mere moonshine and was rightly repelled by the learned trial Judge.

xxxxx xxxxx xxxxx

29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the `F.I.R' and further

delay in recording the statement of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."

18. The Supreme Court in State of M.P. v. Kriparam,

(2003) 12 SCC 675 took the view that inordinate and unexplained

delay in lodging the FIR is fatal to the case of the prosecution

particularly when the facts and circumstances of the case

demonstrate such an inference.

19. In State of Rajasthan v. Bhanwar Sing, (2004)13 SCC

147, the Supreme Court observed that delay in lodging FIR

corrodes the credibility of the prosecution. It was held :

"6. We find that the High Court has carefully analysed the factual position.

Though, individually some of the circumstances may not have affected veracity of the prosecution version, the

combined effect of the infirmities noticed by the High Court is sufficient to show that the

prosecution case has not been established. The presence of PWs 3, 4 and 8 at the

alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW 5, the widow that she sent for these persons to go and find the body of

her husband. It is quite unnatural that Pws 3, 4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after

witnessing the assault on the deceased.

Additionally, the unexplained delay of more

than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution

version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes

credibility of the prosecution version. Finally, the medical evidence was at total variance

with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular

version that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against

acquittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed."

20. In Dilawar Sing v. State of Delhi, (2007)12 SCC 641

setting aside conviction under Section 397 of Indian Penal Code by

holding delay in FIR as one of the grounds, the Supreme Court

observed:-

21. We may also notice here that in the present case there

are three informations given to the police authorities which are

diametrically opposite to the earlier informations and interestingly

all these informations have been given after occurrence which is

alleged to have been witnessed particularly by Pws 3 and 4. The

information of missing of the deceased was given two days after

the date of occurrence i.e. on 16th January, 2002. The application

raising suspicious about death, Exhibit-19 is given on 30th January,

2002 while the Investigating Officer wrote and recorded the FIR on

his own on 15th February, 2002. It is some what contrary to the

normal and expected norms of human behaviour. It appears that

from time to time different persons were involved in the

investigation who are alleged to have committed the crime. What

were the circumstances for lodging a missing report, what was

necessity for lodging the application on 30th January, 2002 naming

six persons as suspects and what was the necessity again to file

fresh FIR on 15th February, 2002 involving the accused particularly

the accused No.3 is an aspect which has not been explained by

both the Investigating Officers i.e. Maruti Patil (PW 1) and

Dhanawade (PW-9).

22.

The Supreme Court in the case of T.T. Antony v. State

of Kerala & Ors., AIR 2001 SC 2637 held that in terms of Sections

154 and 162 of the Code of Criminal Procedure, there can be no

second FIR in respect of the same incident or occurrence or of the

same cognizable offence. If the application Exhibit-19 is put to its

weightage it was expected of the Investigating Officer to have

straightway registered an FIR as by that time the dead body had

already been recovered. The PW 4 had given her version naming

suspects including Geeta and Gauri to have killed her son. But

the Investigating Officer waited for another 15 days before even

registering the case. In view of this discussion and particularly the

attendant circumstances which ultimately lead to registration of an

FIR on 15th February, 2002, we are of the considered view that

there has been inordinate and unexplained delay in lodging the FIR

and the earlier two informations given on 16th January, 2002 and

30th January, 2002 vide Exhibit 12 and Exhibit-19 do cause further

suspicion that the Investigating Officer has not conducted

investigation of the case in a proper manner and perspective.

Delay in registering the FIR thus is one of the important aspects of

the present case which certainly would weigh with the Court while

examining the case of the prosecution in establishing the guilt of

the accused.

23. The next aspect of the case of the prosecution which

needs to be examined by this Court is relatable to different

versions and contradictions between the statements of the

prosecution witnesses. PW 3, the child witness has to be given

some margin but her conduct is hardly that of a normal child.

Pallavi (PW 3) is the only witness produced by the prosecution to

show as the eye witness to the occurrence and as a witness to the

crime. According to Pallavi (PW-3), Geeta, Gauri and Santosh

were present at Girgaon Chowpaty and the children were flying

kites. The accused took her uncle Mohan, the deceased, towards

western side. Her mother Geeta, Gauri and Santosh were putting

rope around the neck of her uncle, deceased Mohan. PW 3 Pallavi

further states that she thought they were enjoying and she again

started playing with the children and she forgot to tell about the

incident to her grandmother and then she stated that she saw her

uncle proceeding for passing urine. Her uncle was followed by

Gauri, Geeta and Santosh and then Santosh gave push to her

uncle and he fell in the sea water. Then her aunt Gauri pushed

mouth of the deceased in the water, Geeta held legs of her uncle

Mohan. She thought that they were playing, joking and jesting.

They all started searching Mohan uncle as he was not traced and

Geeta was laughing at them. Geeta was not permitting them to

search Mohan. Geeta was taking them to another place and

threatened PW 3 if she tells this fact to anybody she would kill her

and further stated that her uncle had gone and would never come

back. PW 3 therefore did not disclose this fact to anybody and

then they boarded a taxi and returned home.

24. PW 4, mother of the deceased Mohan, states that she

had scolded her son as to why he came to chowpaty as she had

advised him to the contrary. When they were taking their food,

Geeta came there and told PW 4 that she was searching them

since long time and why they arrived late there. PW 4 stated that

Mohan came there and threatened Geeta to leave the place

immediately. Geeta assaulted Mohan with hand on his thigh and

took a pinch. Mohan got wild and questioned her as to why she

was teasing him all the time. Then PW 4 Nirmala questioned Geeta

as to why she was misbehaving. Mohan went away to fly kite.

Geeta also went away. She had seen Gauri then. As she could not

see Mohan, she started searching Mohan and when she met

Geeta, she was laughing loudly at PW 4. After searching Mohan

till 11.00 p.m. they took light food and waited upto 12.30 a.m.

They hired a taxi and then went home and searching for deceased

Mohan was of no help.

25. Another version that has been recorded in the FIR by

the Investigating Officer (PW 1) Maruti Patil is without any

reference to the statement of Pallavi (PW3). The FIR which is

practically the foundation of the case is filed by the Investigating

Officer (PW1) Maruti Patil, material part of the FIR reads:

"On interrogating them Geeta Keshav Shankar and Gauri Manga Wagheri told that

on 14/2/02 in the evening at 20.30 hrs behind Birla Krida Kendra, Chawpati,

Mumbai , with the help of person named Santosh Kanti Kharwa, they have killed Mohan Chiku Kharwa while he was under influence of liquor, firstly by strangulating him

with rope and then by drowning him in the sea water."

Thus according to the FIR, which is stated to be registered on the

basis of interrogation of Geeta and Gauri, Mohan was drunk ( was

under the influence of liquor ) and he was killed by strangulation

using rope. Then his body was put into the sea water by Gauri,

Geeta and Santosh together. In other words, there is not only

variation in the statement of these three witnesses but it is a case

of complete contradiction. If statement of Pallavi (PW 3) is to be

believed then there were two different instances, one of

strangulation of Mohan by the three persons when she thought

they were playing and enjoying and the other when the deceased

walked to the western side when his mouth was pushed and put

into the sea water, while one of the accused held his legs. If

Mohan was already strangulated to death and had died then there

cannot be a possibility of his walking to the sea and then being

pushed and if he had not been killed by strangulation as claimed by

the Investigating Officer then there was no occasion for the

deceased to be with the accused as he must have sensed obvious

danger to his life and especially when it occurred at a place which

was crowded being Girgaon Chowpaty, the sea shore. According

to PW 3 herself, there were people who were swimming in the sea

even at 11.00 in the night. PW 3 Pallavi is totally silent on the

point whether deceased was under the influence of liquor and with

whom he consumed liquor.

26. According to PW 4, there was enmity of Geeta and

Gauri with their family and there was a fight of a kind between

Gauri and Mohan as she had pinch him on his thigh. Mohan told

her to go away and then he went to fly kite. If this statement of

PW 4 is to be believed then version of the Investigating Officer as

well as PW 3 Pallavi can hardly be trusted. The only common

feature in all these evidence is that Geeta and Gauri were laughing

loudly. It again does not appear to be a plausible and probable

human conduct of the persons who had killed somebody and when

they knew that PW 3 had seen them killing Mohan, the deceased.

In her cross examination, PW 3 has stated another version that

Mohan went for passing urine and they could not see the persons

who were swimming and could not see Mohan, Geeta and Gauri

when they were taking food at a far distance.

27. In light of this documentary and oral evidence, let us

examine the case of the prosecution in its entirety. There is no

witness produced by the prosecution though there were admittedly

large number of persons swimming in the sea at all times when the

accused as well as deceased and their family members are stated

to be present on the place of occurrence i.e. Girgaon Chowpaty. It

is also somewhat difficult to believe that the ladies who are in

enmical terms towards family of deceased and who had been

divorced by the deceased because of bad character, would go

around with the deceased drinking or flying kite and for that matter

would go near the water when it is stated by PW 4 that the

deceased did not know how to swim.

28. Another very vital but important aspect of the case of

the prosecution which suffers from basic infirmities is exact point of

time when PW 3 Pallavi told her grandmother about the

occurrence. She ought to have told about the incident to her

grandmother (PW4) especially when she was living with her

grandmother since many years and must have been attached to

her grandmother. Despite the fact that it related to death of her

uncle, neither on 14th January, 2002, nor on 16th January, 2002, or

on 30th January, 2002 and finally even on 15th February, 2002 when

a formal FIR is registered, she tell the incident to her grandmother

or any other relative. What might have happened between 15th

February, 2002 to 20th February, 2002 that persuaded her to make

her statement before Special Executive Magistrate is an aspect

which completely casts shadow of doubt on the case of the

prosecution. The long period between 16th January, 2002 to 20th

February, 2002 is a sufficient period during which there was

opportunity of tutoring. It is abnormal behaviour of the child that

she would play at the sea-shore, and enjoy with children free of

any fear, restrictions or threat even after watching incident of

strangulation and drowning and to sit there till 11.00 hours in the

night despite the fact that her uncle, deceased Mohan did not

return and still she did not tell anything to anybody about the

incident. There cannot be any threat to her from Geeta when

Geeta was not around her. PW 3 Pallavi at the time of her

examination in Court was 11 or 12 years old and thus was not a

child of tender age. She has answered the court' s questions

properly and thus her examination in chief as well as cross

examination has to be viewed by the Court as that of a normal

witness. In her entire statement in the examination in chief she has

not uttered a single word as to why she did not tell her

grandmother about the incident even on 16th January, 2002 and for

that matter on 30th January, 2002 or on 15th February, 2002. The

Court cannot overlook the seriousness of crime but it was required

of the prosecution to prove chain of events in a proper manner with

cogent and definite evidence providing link from the date of

occurrence. satisfying all ingredients proving the guilt of the

accused before the Court of Law.

29. We are also aware of the fact that the statement of the

child witness has to be examined by the Court with greater caution.

Every contradiction and variation in the statement of the child

witness may not be disadvantageous to the case of the

prosecution. Reliability of statement of a child witness is not easily

doubted by the Court. In the case of Rameshwar S/o Kalyan Singh

v. The State of Rajasthan, [AIR (39)1952 SC 54], the Supreme Court

stated the principle that even the omissions for instance of not

administering the oath by itself may not be destructive of the

credibility of the witness. It is a factor which may affect the

credibility but not competency of the witness to make the

statement. The statement of the child witness also needs

corroboration as corroboration is essential before there could be a

conviction but that the necessity of corroboration, is a matter of

prudence, except where the circumstances make it safe to

dispense with it, must be present to the mind of the Judge.

30. Similarly in the case of Nirmal Kumar v. State of Uttar

Pradesh, 1993 Supp. (1) SCC 510, the Court reiterated the principle

that the evidence of a child witness should be examined cautiously

and it is always more prudent to find some corroboration unless the

circumstances of the case compel it otherwise. Even in the case

of Suryanarayana v. State of Karnataka, JT 2001(1) SC 230, where

a child witness of four year old girl was the witness to the

occurrence and her name appeared in the FIR as well as other

circumstances corroborated her statement, the Court has held that

there was no reason to doubt the veracity of her statement.

31. In the case of Panchhi & Ors. v. State of U.P., (1998)7

SCC 177, the Court held as under:-

"11. Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place

reliance on the evidence of PW 1, he being a child witness. According to the learned

counsel, the evidence of a child witness is generally unworthy of credence. But we do

not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be

rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible

to be swayed by what others tell him and thus a child witness is an easy prey to

tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide

Prakash v. State of M.P., (1992)4 SCC 225, Baby Kandayanathil v. State of Kerala, 1993

Supp(3) SCC 667, Raja Ram Yadav v. State of Bihar, (1996)9 SCC 287 and Dattu Ramrao Sakhare v. State of Maharashtra, (1997)5 SCC 341."

32. The Supreme Court in the case of Bhagwan Singh &

Ors. v. State of M.P., (2003)3 SCC 21 held as under:-

"19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable

to form a proper opinion about the nature of the incident because of immaturity of

understanding, is not considered by the court to be a witness whose sole testimony can be

relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always

the court looks for adequate corroboration from other evidence to his testimony."

33. We have already discussed in some details the

statement of PW 3 which is circumvented by suspicion and

incorrectness. Her statement is hardly corroborated. Even the

report of the investigating officer that refers to strangulation and

drowning simultaneously while according PW 3 Pallavi, first there

was strangulation then Mohan went for urination towards sea and

there was incident of pushing him in sea water while she was

playing. Contradictions in the statement of PW 3 and the entire

case of the prosecution are material one. There is no iota of

evidence to show and justify the child's conduct right from the

evening of 14th January, 2002 to 20th February, 2002. No where in

any of the documents i.e. Daily diary entry of 16th January, 2002,

Application Exhibit 19 made by PW 4 on 30th January, 2002, FIR

registered on 15th February, 2002 the name of PW 3 Pallavi is

mentioned to be the eye witness. This abnormal conduct of the

child and PW 4 put together compels this Court not to entirely rely

upon the statement of the child witness. The possibility of her

being tutored cannot be ruled out but in fact such tutoring is

evidenced by the fact that on that very day of incident she prefers

to pay around rather than informing her relatives about the

commission of crime that she had allegedly seen with her own

eyes. If they were having food at the relevant point of time and

they could not see as stated by PW 3 herself as to what was

happening at a distance where the people were swimming and

where Geeta, Gauri and Mohan have stated to have gone, PW 3

Pallavi could not be the eye witness to the occurrence and her sole

statement could not be the basis for holding the accused guilty of

killing deceased Mohan.

Has the prosecution been able to prove the chain of events resulting in the death of the deceased Mohan and effect of recovery and the post-mortem report on the case of prosecution.

34. PW 1 Maruti Patil is the police officer who had made

daily diary entry as well as has received the application Exhibit-19

on 30th January, 2002. According to him, PW 4 had lodged the

missing report which is at Exhibit-12. Then on 30th January, 2002,

PW 4 had informed him that her son Mohan died due to drowning

and his dead body was found by the Cuff Parade Police Station

and her complaint was recorded by that Police Station on 16th

January, 2002. The complaint dated 16th January, 2002 recorded

by Cuff Parade police station is neither produced nor proved by the

prosecution. The only report of 16th January, 2002 is the missing

report of Mohan lodged by PW 4 in the Gamdevi Police Station.

He also refers to names of the six suspects which were recorded in

the complaint marked Exhibit-19 dated 30th January, 2002. Maruti

Patil (PW1), the Police Officer then called the accused named in

the application marked Exhibit-19 for investigation. After 7th

February, 2002 and on 15th February, 2002 he called the accused

mentioned in the application, interrogated them and then

complicity of Geeta and Gauri and Santosh was noticed and

thereafter he recorded the FIR under Section 302, read with

Section 34 of Indian Penal Code, Exhibit-15. It is the version of

this officer that on 18th January, 2002 the dead body of Mohan was

handed over to PW 4. Though the investigation is stated to be

under the control of PW 1 till 15th February, 2002 he did not make

any mention about the recovery of the dead body and post mortem

report prepared on 17th February, 2002 (Exhibit-29) and he hardly

makes any effort to investigate the matter. He allegedly calls the

accused persons and the whole story is prepared before

registration of the FIR which is recorded by him vide Exhibit-15 on

15th February, 2002.

35. PW 9 claims to be the Investigating Officer, (P.I. of D.B.

Marg Police Station) and according to him papers were brought to

him after registration of FIR Exhibit-15. He also interrogated the

accused. Vide discovery panchanama Exhibit-26 at the instance

of accused no.3 Santosh, a nylon rope was recovered. The rope

was purchased from one Santosh Yadav. According to PW9, he

received post mortem report during the investigation then he filed

charge sheet in the Court.

36. As is evident from the above narrated facts and

discussion of evidence, the entire case of the prosecution hinges

upon the statements of PW 3 and PW 4, post mortem report

Exhibit-29 and Exhibit-26 the recovery, Panchanama. As far as

PWs 3 and 4 are concerned, we have already discussed in great

detail the abnormal conduct of these witnesses and the

contradictions in their evidence. Both the Investigating Officers

have conducted the investigation in a most casual and to say the

least, irresponsible manner. No investigation is done on the basis

of missing report lodged on 16th January, 2002. Even till the

application dated 30th January, 2002 was filed no steps were taken

and it is only on 7th February, 2002 that PW 1 calls the accused

and prepares a story which is to be recorded in the FIR. Still at

that juncture name of PW 3 or her being an eye witness to the

incident does not appear on any of the police records investigation

file. Thereafter, till 15th February, 2002, nothing is done though the

facts alleged have been revealed earlier.

37. As far as post mortem report Exhibit-29 is concerned, it

has to be noted that initially even the original post mortem report

was not produced before the Court along with the police file. It is

somewhat strange that the medical officer who conducted the post

mortem was also not called before the Court as a witness much

less nobody with the record of the hospital was produced who

could one way or the other prove the contents of the post mortem

report. The post mortem report has been exhibited as Exhibit-29

probably on the basis that the counsel who was provided to the

accused by legal aid, firstly recorded following note, which is

undated "I am not admitting any of the documents at this stage".

Even counsel appearing for accused No.2 and 3 also wrote

"(documents) not admitted at this stage". This has so been

recorded on Exhibit-6. However, on 16th August, 2004 the same

counsel have written "inquest panchanama dated 16th January,

2002 and cause of death dated 16th January, 2002 post mortem

notes are admitted." This obviously mean that counsel for

accused made that statement in furtherance to the Court's query

as contemplated under Section 294 of the Code of Criminal

Procedure Code and at least it has so been noticed in the

judgment of the trial Court. What exactly needs to be examined is

whether the contents of those documents have been proved in

accordance with law without examining the doctor who conducted

post mortem or any of the witnesses acquainted with the relevant

facts to be proved. We are not going into the merits or otherwise

of the procedure adopted by the trial Court while proving post-

mortem report. In view of the subsequent notings by advocates

representing accused, the Court will have to proceed on the basis

that the panchanama was admitted and so was the case of the

post mortem notes. In other words, the post mortem report itself

was not proved by any witness. The post mortem report which is

alleged to have been prepared on 17th January, 2002 by RMO of

the G.T. Hospital states that the body was brought to the hospital

on 16th January, 2002 at 8.15 p.m. while the body was alleged to

have been recovered vide Panchanama Exhibit-27. The photo

copy of the post mortem report was exhibited as Exhibit-29. It

shows the name as "unknown". Thereafter, it has been recorded

as Mohan Chiku Kharwa. There were no injuries on the body of

the deceased and the body was highly decomposed. The stomach

of the deceased is reported to contain fluid about 500 ml. and

probable cause of death is recorded as under:-

"Probable cause of death is Asphyxia may be due to drowning."

38. The post mortem report thus hardly supports the case

of the prosecution in proving that death was homicidal. Allegation

that first the deceased was strangulated by a nylon rope (Art.1)

and thereafter the three accused had pushed him into water,

caught hold his legs and pushed his head into the sea water, is not

supported by any medical evidence. Non examination of doctor

has caused serious prejudice to the case of prosecution. Merely

because admission was given by counsel appearing for the

accused at later stage does not absolve the prosecution of proving

its case beyond reasonable doubt.

39. The post mortem notes, in view of the consent and

admission recorded by the learned Counsel could be read in

evidence but still the Court would have to examine its evidentiary

value and impact on the case of the prosecution. In the case of

Laxman v. State of Karnataka, 1997(1) Crimes 388 (Kant-DB),

where the doctor who conducted the post-mortem report was not

available, another doctor who was acquainted with the handwriting

and signature of the author of the post-mortem report was

examined. But the court took the view that the provisions of

Section 294 could not be applied to the facts of the case. Even if

a post-mortem report has been exhibited the report itself cannot be

used as substantive piece of evidence until and unless the doctor

concerned has been examined in Court. This view was taken by

the Allahabad High Court in Jagdeo Singh v. State, 1979 CrLJ 236.

The Punjab and Haryana High Court even took the view that where

the medical officer is not examined and the post-mortem report is

exhibited on `no objection' of the Counsel for the accused, that

could not give post-mortem report the evidentiary value of a proved

document regarding the cause of death, because the information

regarding sufficiency or otherwise of the injury to cause death has

to be deposed by the medical officer. ( Pal Singh v. State of Punjab,

1995 CrLJ 3596.)

40. The Allahabad High Court had also taken a view that

even if genuineness of the contents of the post mortem report has

not been disputed and is read as substantive evidence, it may still

be necessary to examine the doctor concerned to clarify his

opinion in the reports or to obtain his opinion on medical questions

( Sadiq v. State of U.P. 1981 CrLJ 379). ( As referred in Basus

Code of Criminal Procedure).

41. In Vijender V. State of Delhi, (1997)6 SCC 171, the

Supreme Court was concerned with the case where the post

mortem report indicating homicidal death was produced by the

Clerk of hospital. The Supreme Court held as under :-

"18. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. The only witness examined by the prosecution in this regard was Satish Kumar (PW 21), a record

clerk of the District Hospital, Ghaziabad. His testimony reads as follows :

"I have brought the post-mortem

report of an unknown male sent by PS Loni, Ghaziabad on 28.6.1992. Post-mortem was conducted on 28.6.1992 by Dr U.C. Gupta. The date

of sending is not known to me and is not given on record. Dr U.C. Gupta was transferred from District Hospital earlier. He has been now transferred

back. I identify his signature and handwriting from the post-mortem

report. The copy of P/M report is Ext.

21/A (objected to). I have seen Dr

U.C. Gupta writing and signing.

Cross-examination :

Original copy is not on record. The original copy is sent to SSP,

Ghaziabad. Second copy is sent to PS and third copy is maintained in the record."

19. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite

of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr U.C. Gupta, who held the post-mortem examination. It is of course true that in an exceptional case where any of

the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report

can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the

same through some other competent witness but this section had no manner of application here for the evidence of PW 21 clearly reveals that on the day he was deposing Dr Gupta

was in that hospital. The order reason for which the trial Judge ought not to have allowed the prosecution to prove the post- mortem report is that it was not the original

report but only a carbon copy thereof, and that too not certified. Under Section 64 of the

Evidence Act document must be proved by primary evidence, that is to say, by producing

the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post-mortem report did not come within the purview of any of the clauses of

Section 65 it was not admissible on this score also."

42. In light of these above principles, we are of the view

that the prosecution has not been able to establish by expert

evidence the the story of strangulation and then taking the

deceased to sea water beyond all reasonable doubt. The post

mortem report does not reflect any injury on neck of the deceased.

As a normal consequence of strangulation with a rope would leave

some kind of injury internal or external to the neck muscle it would

have been available and noticed even if the body was

decomposed. We have already noticed that the story of

prosecution is that the neck of the deceased was strangulated by

tying rope around the neck of the deceased and therefore it is

unexplainable as to how he would walk to the water with three

accused as for the drowning of a person into water one would have

to walk to some distance into the sea and in a place where large

number of people were swimming and walking on the beach i.e.

Girgaon Chowpaty, people could have noticed dragging of body of

deceased upto deep sea.

43. Coming to the recovery of nylon rope from accused

No.3-Santosh, he was taken into custody on 15th February, 2002

and after one week in the police custody, the rope (Article 1) was

recovered by discovery panchanama Exhibit-26. This

circumstances does not fit into the case of the prosecution at all

inasmuch as it was prior to 15th February, 2002 the date on which

the FIR was registered that PW 1 had called Accused Gauri, Geeta

and Santosh and infact it is upon the information and facts given by

them that the FIR is stated to have been registered. Even accused

Santosh, on 15th February, 2002, was also arrested and he also

stated to have comfortably told the Investigating Officer about the

commission of crime. If the prosecution case proceeds on this

hypothesis then it can hardly be believed that for eight days

accused No.3 Santosh will not tell story about hiding the rope in his

house and getting it recovered. Undue and unexplained delay in

recovery of the rope when the accused was in custody of the police

does raise doubt about genuineness of the recovery of rope.

Furthermore, PW 5 Santosh Yadav from whom the rope is alleged

to have been purchased by Gauri was produced as the witness but

he turned hostile and did not support the case of the prosecution.

44. The principle in relation to discovery is, recovery of an

object cannot be equated with discovery of a fact. The Privy

Council explained this concept as early as in AIR 1947 Privy

Council 67 (Pulukuri Kottaya & Ors. v. Emperor ) where it held as

under:-

"10. Section 27, which is not artistically worded, provides an exception to the

prohibition imposed by the preceding section, and enables certain statements

made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information

received from a person accused of any offence in the custody of a Police office must be deposed to, and thereupon so much of the information as relates distinctly to the

fact thereby discovered may be proved. The section seems to be based on the view that

if a fact is actually discovered in consequence of information given, some

guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence;

but clearly the extent of the information

admissible must depend on the exact nature of the fact discovered to which such

information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object,

such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in

such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder,

or that the ornaments produced were stolen in a decoity would all be admissible. If this

be the effect of section 27, little substance would remain in the ban imposed by the two

preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under

police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information

relating to an object subsequently produced, it seems reasonable to suppose that the

persuasive powers of the police will prove equal to the occasion, and that in practice

the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s.

27, should not be held to nullify the

substance of the section. In their Lordships' view it is fallacious to treat the "fact

discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused

as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my

house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the

statement the words be added "with which I stabbed A" these words are inadmissible

since they do not relate to the discovery of the knife in the house of the informant."

45. This principle was consistently approved by the

Supreme Court and was reiterated with the approval in the case of

Pandurang Kalu Patil & Anr. v. State of Maharashtra, (2002)2 SCC

490. The Supreme Court, while stating that the decision of the

privy council was binding on the High Court unless there is

judgment of the Supreme Court to the contrary called the above

principle as "locus classicus" and held as under:-

"4. The legal proposition adumbrated in Pulukuri Kottaya has been considered and tested by this Court, time and again, and on all such occasions this Court has only

reiterated the said principle with approval (vide Jaffar Hussain Dastagir v. State of Maharashtra, (1969)2 SCC872, K. Chinnaswamy Reddy v. State of A.P., (AIR

1962 SC 1788: (1963)1 Cri LJ 8), Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 : 1983 SCC (Cri) 447, Ranbir Yadav v. State of Bihar, (1995)4 SCC 392 : 1995 SCC (Cri) 728, Shamshul Kanwar v.

State of U.P., (1995)4 SCC 430 : 1995 SCC (Cri) 753, and State of Rajasthan v. Bhup Singh, (1997)10 SCC 675 : 1997 SCC (Cri)

1032 SCC para 15 and in the last-cited decision this Court, while again reaffirming

the ratio in Pulukuri Kottaya has said thus: (SCC p. 680)

"The ratio therein (Kottaya 1) has become locus classicus and even the lapse of half a century after its pronouncement has

not eroded its forensic worth."

5. Even the recent decision in State of Maharashtra v. Damu, (2000)6 SCC 269 :

2000 SCC (Cri) 1088 this Court followed Pulukuri Kottaya with approval. The fallacy

committed by the Division Bench as per the impugned judgment is possibly on account of

truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it was enacted as a proviso to the two

preceding sections (see Sections 25 and 26) which imposed a complete ban on the

admissibility of any confession made by an accused either to the police or to anyone while the accused is in police custody. The object of making a provision in Section 27

was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-

confessional. Nonetheless, the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer ) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is

only one such cause. Recovery, or even production of object by itself need not

necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulukuri

Kottaya that (AIR p.70, para 10) "it is fallacious to treat the `fact discovered' within the section as equivalent to the object produced". The following sentence of the

learned Law Lord in the said decision, though terse, is eloquent in conveying the message highlighting the pith of the ratio: (AIR p. 70, para 10)

"Information supplied by a person in

custody that `I will produce a knife concealed in the roof of my house' does not lead to the

discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the

knife is proved to have been used in the commission of the offence, the fact

discovered is very relevant."

xxxx xxxx xxxx xxxx

7. It is unfortunate that learned Judges of the Division Bench of the Bombay High Court, in the impugned judgment, have chosen to set a locus classicus at nought

without reference to any of the catena of judicial pronouncements rendered by High Courts as well as the Apex Court pertaining to the ratio in that decision. Nonetheless, the guidelines laid down by the Division Bench of the impugned judgment did not call for any interference as they related to the manner of recording the evidence in the trial court.

However, we feel that Guideline F (mentioned in the impugned judgment )

seems to be unnecessary and would only cause additional workload for the trial courts."

46. In a more recent judgment in the case of Amitsingh

Bhikamsingh Thakur v. State of Maharashtra, (2007)2 SCC 310, the

Supreme Court defined and explained the scope of Section 27 of

the Evidence Act and held as under:-

"16. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya v. King Emperor [(1946-47) 74 1A 65 : AIR 1947 PC 67 : 48 Cri LJ 533] in

the following words, which have become locus classicus: (1A p.77)

Xxxx xxxx xxxx xxxx

19. The various requirements of the section

can be summed up as follows:

(1) The fact of which evidence is sought to be given must relevant to the issue. It must

be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received

from the accused and not by the accused's own act.

(4) The person giving the information must

be accused of any offence.

(5) He must be in the custody of a police officer.

(6) he discovery of a fact in consequence

of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The

rest is inadmissible.

20. As observed in Pulukuri Kotayya case it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the

chain of proof and the other links must be forged in manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P., AIR

1962 SC 1788 : (1963)1 Cri LJ 8."

47. The accused was in police custody when he gave

information and to admit this information as evidence basic

ingredients of Section 27 of the Evidence Act have to be satisfied

especially to establish the chain of events put up by the

prosecution before the Court to bring home the guilt of the

accused. Furthermore, such discovery should appear to be

probable in view of the circumstances in which information is

tendered.

48. For a recovery to be truly within the scope and

limitation of Section 27 of the Evidence Act, information should

distinctly relate to the facts discovered. A statement even by way

of confession made in a police custody which distinctly relate to the

fact discovered is admissible in evidence against the accused.

The Supreme Court in the case of Bodh Raj alias Bodha & Ors. v.

State of Jammu and Kashmir, AIR 2002 SC 3164 held as under:-

"The words "so much of such information as relates to distinctly to the fact thereby

discovered" are very important and whole force of Section 27 concentrates on them. Clearly the extent of the information must depend on the exact nature of fact discovered to which such information is required to relate. The ban as imposed by the preceding section was presumably inspired by the fear of legislature that a

person under police custody might be induced to confess by exercise of undue

pressure. If all that is required to lift the ban be the inclusion in the confession of

information relating to an object subsequently produced. It seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and

that in practice the ban will lose its effect. The object of the provision i.e. S.27 was to provide for the admission of evidence which but for the existence of the section could not

in consequences of the preceding sections, be admitted in evidence. Under S.27, as it

stands, in order to render the evidence leading to discovery of any fact admissible,

the information must come from any accused in custody of the police."

49. This doctrine of recovery is founded on the principle

that if any fact is discovered after a search made on the strength of

any information obtained from the prisoner such fact is a guarantee

that information supplied by the prisoner is true and is based upon

the doctrine of confirmation by subsequent events. While

discussing extent of admissibility of such statement, the Supreme

Court in Aloke Nath Dutta & Ors. v. State of West Bengal, (2007)12

SCC 230, observed as under: -

"53. It is, however, disturbing to note that a confession has not been brought on record in

a manner contemplated by law. Law does not envisage taking on record the entire

confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of

confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles of Biswanath; the purported confession proceeded to state

even the mode and manner in which Biswanath was allegedly killed. It should not

have been done. It may influence the mind of the court."

50. In the present case Discovery Panchanama Exhibit-26

contain both admissible and inadmissible part. The confession of

the accused in police custody that the three accused had drowned

deceased Mohan is inadmissible and in fact this part has not been

expressly excluded by the learned Trial Court while marking it as

exhibit and the entire prosecution case admittedly draws strength

from this part of Exhibit-26 which, in our view, was inadmissible.

This could only be read to the extent of recovery of rope Article-1

and knowledge of accused about the rope.

51. Another patent lacunae in the case of the prosecution

is that if the accused were so willing to confess the crime why their

statements in terms of Section 164 of the Code of Criminal

Procedure, were not recorded and what was a justification for the

investigating officer to record confession in the manner indicated in

Exhibit-26 as well as in the FIR Exhibit-15. It appears to have

been done to overcome the procedure of law. Furthermore, the

rope which, according to the prosecution, was used for

strangulating the deceased was never sent to forensic expert for

DNA test or for any other chemical analysis so as to prove the

story of the prosecution that the said rope was actually used for

strangulating the deceased.

52. The Supreme Court in the case of State of Rajasthan v.

Wakteng, AIR 2007 SC 2020, upheld the order of acquittal by the

High Court where a sword allegedly recovered in pursuance of

statement of accused was not sent for examination to Forensic

Science Laboratory.

53. From the above analysis, it is clear that the prosecution

has not been able to establish the recovery and cause of death in

accordance with law much less beyond reasonable doubt.

Confessional statement in Exhibit 26 can hardly be used for filling

up the lacunae in the case of the prosecution.

General discussion and consideration of the point raised by the accused in relation to non compliance of Section 313 of the

Code and its effect.

54.

Besides material contradictions aforenoticed,

inadmissibility of recovery panchanama Exhibit-26 and lack of

evidentiary value of the post mortem Exhibit-29, as its contents are

not proved in accordance with law are the important factors leading

to failure of prosecution case. There are other attendant

circumstances which are indicative of the fact that the prosecution

has not been able to establish guilt of the accused beyond

reasonable doubt. The abnormal conduct of PWs 3 and 4, the

most material witnesses, seen in the light of callous investigation

conducted by both PWs 1 and 9 has the cumulative effect of tilting

the balance in favour of the accused rather than the prosecution.

PW 4 has never approved of Mohan coming to Chowpati and in

fact had also taken exception to the manner in which Gauri had

behaved with Mohan by taking pinch on his thigh. In this

background it is difficult to believe that PW 4 would after hours of

search and not finding Mohan even on seeing Gauri and Geeta

laughing would not have lodged any report with the police

authorities raising suspicion against accused. According to her,

the deceased had gone to urinate and as per her statement she

had not seen anybody accompanying Mohan, the deceased. The

version by PW 3 is marred by variations and contradictions. Her

conduct is also quite abnormal. She keeps playing but tells nobody

that she had seen three accused strangulating and pushing the

deceased into the sea water, despite the fact that she also

remained on Chowpati till late night and left together in a taxi with

PW 4 Nirmala. Introduction of PW 3 for the first time on 20th

February, 2002 even after registration of FIR on 15th February,

2002 nearly a month after the occurrence, thus causes concern as

besides being interested witness she even appears to be a tutored

witness. The prosecution has entirely failed to state the

circumstances much less plausible reasons for delay in registration

of FIR. The introduction of PW 3 at such a late stage and PW 4

giving different versions involving different people at different

stages are some other circumstances overshadowing prosecution

case. Her report names various suspects and then FIR Exhibit 15

ultimately involves accused Santosh.

55. PW 2 Abdul Salim has given a totally different version

trying to attribute motive to accused Geeta. According to him, on

7th January, 2002 Geeta had come to Mohan's room and asked

him to accompany him but he refused, she tried to hold his collar

when Mohan gave jerk to her hand causing injury to her lip and she

threatened to take revenge. This aspect of the prosecution case is

not even remotely suggested either by PW 4 and 3 or for that

matter PW 1.

56. There are too many missing links and loopholes in the

case of the prosecution as put forth before the Court. Another very

important aspect of the case is that while recording the statement

of all the accused though separately under Section 313 of the

Code, material evidence and statements of the witnesses which

could directly point out to the factum of guilt of the accused are not

put to them. The evidence relatable to post-mortem Exhibit-29 as

well as the factum of injury due to strangulation and consequential

death by drowning of the deceased was not put to any of the

accused specifically. It is never suggested to either of the accused

that their specific acts caused death of Mohan.

57.

It is a settled principle of law that material piece of

evidence should be put to the accused while recording his

statement under Section 313 of the Code. This duty is cast upon

the Court and the Court has to give an opportunity to the accused

and draw his attention to the inculpatory material and whenever

there is non compliance of the provisions and particularly where

material piece of evidence is not put it has adverse effect on the

case of the prosecution. This was so held by the Supreme Court in

the case of Shivaji Sahebrao Bobade (supra) as under:-

"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of

a criminal trial and failures in this area may gravely imperial the validity of the trial itself, if

consequential miscarriage of justice has flowed. However, where such an omission

has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material

not being put to the accused, the court must ordinarily eschew such material from consideration."

58. A Division Bench of Punjab and Haryana High Court in

the case of Sucha Singh, son of Chanan Singh, son of Fulla Singh

v. State of Punjab ( in Criminal Appeal No.472-DB of 2001 ), while

dealing with the case of circumstantial evidence, held as under:-

"It is true that in the extended principles of criminal jurisprudence as approved by the Hon' ble Apex Court, a conviction can result even in case of circumstantial evidence. A

case of circumstantial evidence must necessarily provide a complete link between the various factors controlling conviction of an accused. In other words, motive,

intention, circumstances indicating a complete link in the participation of the accused in commission of the crime, the weapon or such other attending circumstances which would on the face of it indicate involvement of the accused in the commission of crime. Such circumstantial evidence must be corroborated as a whole

by the other evidence adduced by the prosecution. If the basic ingredients in that

behalf are satisfied then an obligation is placed on an accused to render an

explanation to the crime committed and not merely to deny the case of the prosecution in his statement under Section 313 Cr.P. C. In the case of Vasa Chandrasekhar Rao (supra)

as well as in Jagjit Singh's case (supra), the Hon' ble Apex Court has enunciated the principle that where the prosecution wants to prove the guilt of the accused by

circumstantial evidence, it is necessary to establish that the circumstances from which

a conclusion is drawn, should be fully proved; the circumstances should be

conclusive in nature; all the facts so established, should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and the circumstances should

exclude the possibility of guilt of any person other than the accused. In order to justify an

establishment of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative

effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence against the accused beyond any reasonable doubt.

Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt.

The above dictum of the Hon' ble Apex Court clearly indicates that prosecution is

essentially to prove the commission of crime beyond reasonable doubt. The prosecution is

not entitled to give a go by to this principle even in case of circumstantial evidence."

59. The Supreme Court in Sharad Birdhichand Sarda v.

State of Maharashtra, 1984 CrLJ 1738 observed as under:-

"142. Apart from the aforesaid

comments there is one vital defect in some of the circumstances mentioned above and

relied upon by the High Court, viz. , circumstances Nos.4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement

under Section 313 of the Criminal Procedure Code they must be completely excluded

from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate

Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section

342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot

be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976)1

SCC 438: (AIR 1976 SC 557) this Court held thus:

"The fact that the appellant was said to be absconding not having been put to him under Section 342, Criminal Procedure

Code, could not be used against him."

                         xxxx          xxxx          xxxx




                                                 
                  xxxx


                                 
                               It   is   not   necessary   for   us   to

multiply authorities on this point as this

question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under

Section 313 of the Criminal Procedure Code have to be completely excluded from

consideration.

60. The mere fact that the counsel of the accused had

admitted some part of the post mortem report would not entitle the

prosecution to discharge its onus to prove the case in accordance

with law. In the case of Sharad Birdhichand Sarda (supra), the

Supreme Court clearly stated in paragraph 150 as under:-

"150. It is well settled that the prosecution must stand or fall on its own legs

and it cannot derive any strength from the weakness of the defence. This is trite law

and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a

false defence may be called into and only to lend assurance to the Court. In other words, 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 the law that where there is any

infirmity or lacuna in the prosecution case, the same could be cured or supplied by a

false defence or a plea which is not accepted by a Court."

61. Even in the case of Vijender (supra), similar view was

taken and the Supreme Court even went further to hold that the

reliance of the trial court on the result of investigation to base its

findings is again patently wrong. If the observations of the Trial

Judge in this regard is taken to its logical conclusion, it would mean

that a finding of guilt can be recorded against an accused without a

trial, relying solely upon the police report submitted under Section

173 Cr.P. C., which is the outcome of an investigation, would result

in completely destroying the scheme of the Code. The Court is

required to weigh its conclusion solely on the evidence adduced

during the course of trial and can hardly rely upon the investigation

or results stated in the police file.

62. The standard of proof in criminal case has to be

beyond reasonable doubt. This expression is of higher standard,

of course, there cannot be absolute standard stating degree of

proof. This could depend upon the facts of a given case. Doubts

would be called reasonable if they are free from zest for abstract

speculation. To constitute reasonable doubt, it must be free from

an over emotional response. Doubts must be actual and

substantial doubts as to the guilt of the accused person arising

from the evidence.

63. In the present case, taking into consideration the

inadmissible evidence, the contradictions and the trial not being in

conformity with law do raise doubts which are not only reasonable

but are actual and substantial.

64. Logical analysis of the above discussion leads us to

one and the only one conclusion that the prosecution has failed to

prove the charge of Section 302 read with Section 34 of the Indian

Penal Code against all the accused, beyond reasonable doubt.

The story of the prosecution suffers from doubt and improbabilities.

Besides the prosecution having failed to bring the guilt of the

accused at home, it is a case where undue delay caused at every

stage by the investigating agency and the callous attitude of the

investigating authority has provided advantage to the accused in

law. Link evidence is missing and different versions of the

prosecution witnesses including the eye witness has created visible

loop-holes in the case of the prosecution. This is probably a

glaring case where investigating officer has registered the FIR after

outlining the story that the prosecution intents to put in the charge

sheet under Section 173 of the Code of Criminal Procedure and

deciding names of the persons who are to be termed as Accused.

65. For the reasons afore stated, we accept the appeals of

the appellants and while setting aside the finding of guilt and

conviction recorded by the Trial Court in its judgment, we acquit all

the accused and direct them to be set at liberty forthwith.

CHIEF JUSTICE

DR. D.Y. CHANDRACHUD, J