Bombay High Court
The State Of Maharashtra vs Yuvraj Kashinath Sable & Others on 17 December, 2014
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CONFIRMATION CASE NO. 1 OF 2013
The State of Maharashtra ..PETITIONER
VERSUS
Yuvraj s/o. Kashinath Sable,
Age 30 years, Occu. At present Nil,
R/o. Prajapat nagar, Jalgaon,
Taluka & District Jalgaon
..RESPONDENT
....
APP for petitioner : Mr. G.K. Naik Thigale
Advocate for Assist to P.P.: Mrs.Surekha Mahajan & Mr.S.P.Rathod
Advocates for the Respondent: Mr.R.S.Deshmukh &
S.M.Ganachari
.....
WITH
CRIMINAL APPEAL NO. 21 OF 2014
Maheshkumar Rameshchandra Varma,
Aged : 52 years, Occ : Business,
R/o. Varma Bhavan, Swami Vivekanand Nagar,
Jalgaon. ..APPELLANT
VERSUS
The State of Maharashtra
(Copy served on the Public Prosecutor,
High Court, Bench at Aurangabad). .. RESPONDENT
.....
Advocates for the appellant : Mr. Vijay Sharma & R.N.Chavan
APP for respondent : Mr. G.K. Naik Thigale
Advocate for Assist to P.P.: Mrs.Surekha Mahajan & Mr.S.P.Rathod
....
::: Downloaded on - 17/12/2014 23:47:52 :::
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2
WITH
CRIMINAL APPEAL NO. 29 OF 2014
1] Yuvraj s/o. Kashinath Sable,
Age 30 years, Occu. At present Nil,
R/o. Prajapat nagar, Jalgaon,
Taluka & District Jalgaon
[At present the appellant is in
Yervada Central Prison, Pune,
Taluka and District Pune]
2] Pankaj s/o. Maruti Sandanshiv,
Age 22 Years, Occu. At present Nil,
R/o. Pasturda, Taluka Sangrampur,
District Buldana.
[At present the appellant is in
Dhule District Prison, Dhule,
Taluka and District Dhule] .. APPELLANTS
VERSUS
The State of Maharashtra
through the Police Station Officer,
Jilla Peth Police Station, Jalgaon,
Taluka and District Jalgaon .. RESPONDENTS
.....
Advocates for the appellants : Mr. R.S.Deshmukh &
Mr.S.M.Ganachari
APP for respondent : Mr. G.K. Naik Thigale
Advocate for Assist to P.P.: Mrs.Surekha Mahajan & Mr.S.P.Rathod
....
CORAM: S.S. SHINDE & V.L. ACHLIYA, JJ.
Date of Reserving the Judgment: 20th September, 2014.
Date of Pronouncing the Judgment: 17th December, 2014.
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JUDGMENT : (Per S.S.SHINDE, J)
In Sessions Case No. 100 of 2012 the learned Additional
Sessions Judge, Jalgaon has awarded death sentence to the accused
no.1 therein, the proceedings in the said case, have been therefore
forwarded to this Court for confirmation under section 366 of the
Criminal Procedure Code. The accused no.1- Yuvraj Kashinath
Sabale and accused no.2- Pankaj Maruti Sandanshiv have also
preferred an appeal, which was admitted by this Court and same is
registered as Criminal Appeal No. 29 of 2014. So also accused no.3 -
Maheshkumar Rameshchandra Varma has also preferred an appeal,
which was admitted by this Court and same is registered as Criminal
Appeal No. 21 of 2014. As all the matters are arising out of one
judgment, the arguments in these matters are simultaneously heard
and we find it expedient to decide all these cases by common
judgment. However, since the very conviction has been challenged by
the convicts, the only proper course would be to first decide the
Criminal Appeals so filed by the accused, for the reason that, only if
the order of conviction is maintained by this Court, the further
question will arise whether or not the death sentence awarded by the
trial Court is sustainable and is to be confirmed or otherwise.
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2. Heard the learned Additional Public Prosecutor for the
State and the learned counsel appearing for the accused in Criminal
Appeal No. 29 of 2014 and Criminal Appeal No. 21 of 2014.
3. The factual matrix of the prosecution case in brief as
stated before the Trial Court is as under :-
(i)
Dr. Vijaya Chaudhari (hereinafter referred to as
"deceased") was working as a Medical Officer in Civil Hospital,
Jalgaon. Her husband Dr. Arvind Chaudhari (P.W.3), after retirement
from Government service has joined Godavari Hospital, Jalgaon.
They were residing together at Muktainagar, Jalgaon.
(ii) On 12.03.2012, Dr. Vijaya Chaudhari (The deceased)
was on D.M.O. duty from 8 a.m. of 12.03.2012 till 8 a.m. of
13.03.2012. Dr. Arvind Chaudhari (P.W.3) dropped his wife at Civil
Hospital, Jalgaon, in his car at about 8.30 a.m. and she worked in
Civil Hospital till 1.00 p.m and came to her house for lunch. After
having lunch with her husband, Dr. Vijaya Chaudhari told her
husband that, she had to attend one function at 5 p.m in hotel Royal
Palace, and she would go to function directly from hospital. Dr.Vijaya
Chaudhari, on that day was wearing necklace, four gold bangles,
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two in each hand besides the routine ornaments. Dr. Arvind
Chaudhari (P.W.3) dropped his wife at Civil Hospital in his car at
about 2 p.m. and went away to attend his own work. He returned
back to his house at about 7 p.m. He did not find his wife in the house
and, therefore, he tried to contact her on mobile No. 9822756324 at
about 8 p.m., but mobile was switched off. As duty hours of deceased
were to finish at 8.30 a.m. on 13.03.2012, Dr. Arvind Chaudhari
(P.W. 3) thought that his wife might be busy in hospital work.
Therefore, he took meal and went to bed.
(iii) On 13.03.2012, Dr. Arvind Chaudhari (P.W.3) was
waiting for his wife in his house till 9 a.m, but as she did not return to
the house, he went to Civil Hospital, Jalgaon and made enquiry with
R.M.O. Dr. Nitin Bharambe, who after making enquiry with hospital
staff informed that Dr. Vijaya Chaudhari had conducted one post-
mortem at about 3 p.m. on 12.03.2012 and since then her whereabouts
were not known. Pawan Jadhav (P.W. 9), who was working as
sweeper in Civil Hospital and also assisting medical officers on post-
morterm duty gave information that, Dr. Vijay Chaudhari had
performed post-mortem of one female dead body at about 3 p.m.
Dr. Arvind Chaudhari (P.W.3) thereafter proceeded to hotel Royal
Palace in search of his wife as his wife was to attend one function
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there on 12.03.2014. He came to know that, his wife had not attended
function at Royal Palace Hotel.
(iv) It is further case of prosecution that, Dr. Arvind
Chaudhari (P.W.3) was taking search of his wife by making phone
calls to his friends and relatives but he could not trace her. He
promptly went to police station and filed missing report, which was
recorded as Missing Report No. 20/2012 at about 10.05 a.m.
(v) It is further case of the prosecution that, accused No.1
Yuvraj was frequently visiting Civil Hospital. He was having two
ambulances. He used to bring unidentified and unclaimed dead bodies
to Civil Hospital for post-mortem, and after completion of post-
mortem by medical officer in Civil Hospital, he was carrying dead
bodies to crematory for disposal, and Municipal Corporation, Jalgaon
was paying him Rs. 300/- for disposal of one dead body. Accused
No.2 Pankaj is brother-in-law of accused No.1 Yuvraj. Approver
Gulab (P.W.1) was also having one ambulance bearing No. MH-19-
J-2387.
(vi) Dayaram Parshuram Sonawane (P.W.6) was appointed
by Municipal Corporation, Jalgaon as sweeper in crematory at Neri
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Naka, and his job was to record names of deceased, who were
cremated in crematory, in Municipal Register and supply the firewood
to relatives of deceased for cremation. His son Kailas Sonawane
(P.W.7) used to assist him in this work. His duty hours were round the
clock and, therefore, both Dayaram (P.W.6) and Kailas (P.W.7) along
with their family members were residing in the premises of crematory
at Neri Naka (Vaikunthadham). As accused No.1 Yuvraj was
frequently bringing dead bodies of unidentified persons after post-
mortem to crematory. He was well acquainted and known to Dayaram
(P.W.6) and Kailas (P.W.7).
(vii) It is further the case of the prosecution that, on
14.03.2012 Dayaram Parshuram Sonawane (P.W.6) submitted
application before Health Officer, Municipal Corporation, Jalgaon
stating therein that, accused No.1 along with two more persons had
come to crematory at about 4.30 p.m. on 12.03.2012 along with one
dead body, at that time Manoj Bhaskarrao Patil (P.W.4), who was
present there had made inquiry with accused no.1 about dead body,
and accused No.1 disclosed him that dead body was of his grand
mother. It is further case of the prosecution that, accused No.1 has
cremated that dead body without giving details though he endorsed
his signature on death register. He assured Dayaram Sonawane
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(P.W.6) that, he will give necessary information within 5 minutes,
however, he went away without giving said information. In spite of
attempts made by Dayaram Sonwane (P.W.6) to contact him, the
accused No.1 did not provide information till 14.03.2012. He also did
not take away the ash of dead body and same was lying on platform
No.11.
(viii)
A.S.I. Devidas Ahire (P.W.21) who was investigating
missing complaint received tip off that, accused No.1, 2 and Gulab
Bhagwani, the approver had cremated one dead body in crematory at
Neri Naka. He immediately went to crematory and made enquiry
with Dayaram Sonawane (P.W.6), and inspected death register
maintained at crematory. He noticed that there was entry of death of
one Sakharam Sabale at page No.027483, and some alteration was
made in the column of gender of deceased. He made enquiry with
Dayaram Sonawane. Dayaram told him that, accused No.1 had given
information that, dead body was of his grand father. Police made
enquiry with Mangalabai (P.W.2), the close relative of accused no.1
who gave information that accused No.1 had no relative by name
Sakharam Sabale. This information provided important clue to
Investigating Officer pointing needle of suspicion towards accused.
Investigation then started in that direction. Therefore, Police staff
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was deployed to trace the accused No.1. Accused no.1 and 2 were
traced at village Paturda district Budhana in the house of father in law
of accused No.1. They were brought to Jalgaon and arrested in Crime
No. 53/2012 on 16.03.2012.
(ix) On the basis of interrogation of accused, A.S.I. Devidas
Ahire (P.W.21) lodged complaint vide Exh.142. On the basis of that
complaint, PSI Vishwas Shitre (P.W.20) attached to Zilla Peth Police
Station registered crime against accused vide C.R. No. 53/2012 for
offences punishable under Section 302, 307, 397, 120B, 201 r.w. 34
of IPC. The investigation was handed over to P.I. Gaware (P.W.23).
In personnel search of accused no.1 one receipt bearing No. 027483 in
respect of cremation of Sakharam Sabale & one mobile handset
bearing No. 9372573532 recovered, which was seized in presence of
panchas vide seizure panchanama Exhibit - 154.
(x) It is further case of the prosecution that, while in police
custody. The accused No.1 Yuvraj offered to show spot where the
dead body of Dr.Vijaya Chaudhari was cremated. His memorandum
statement was recorded in presence of panchas vide Exh.99 and in
pursuance of his statement, Investigating Officer along with accused
No.1, other police staff and panchas proceeded to crematory at Neri
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Naka. The accused no.1 led policy party to platform No.11 of
crematory at Neri Naka and disclosed the same as place where he
disposed off the dead body of deceased. The said spot was inspected
by policy in presence of panchas. Some human bones, ash, three clips
of ladies purse, ladies wrist watch and coins, silver Jodave, anklet in
buried condition were found on that plat form. These articles were
seized vide recovery panchanama Exh.100. Further the Accused No.1
offered to show the spot where Dr.Vijaya Chaudhari was killed. His
disclosure statement was recorded in presence of panchas vide
panchanama Exh. 100. In pursuance of the disclosure statement, he
led police party and panchas to post-mortem room located in Civil
Hospital, Jalgaon. The accused No.1 showed spot. The place shown
by accused was inspected in presence of panch witnesses. Some blood
stains were seen on the wall. So also one hair was found stuck up in
the blood on the wall along with two more hairs. Two pieces of brick
having blood stains were also seen in the postmortem room. Those
articles were seized and sealed in presence of panchas vide recovery
panchanama Ex. 102. Investigating Officer P.I. Gaware went to Neri
Naka crematory and three registers which were seized in presence of
panchas vide panchanama Ex. 165.
4. In the course of further investigation, Investigating
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Officer P.I. Gaware (P.W. 23) visited house of deceased on the same
day and collected two hairs of deceased Vijaya Chaudhari which were
stuck in the comb, and same were seized under panchanama Ex. 56 in
presence of panchas.
5. On 16.03.2012, police staff produced accused Gulab
Bhagwani (who later on became approver). Clothes of accused no.1
and 2 were seized under panchanama (Ex. 155). On the same day i.e.
on 16/03/2012, Investigating Officer P.I. Gaware (P.W.23) issued two
letters to Medical Officer, Civil Hospital, Jalgaon for medical
examination of three accused (Ex. 167 and 168). Medical Officer Dr.
Suraj Wani (P.W. 17) examined the accused and noticed injuries on
the wrist of accused no.1. He accordingly issued medical certificate
Ex. 129. P.I. Gaware produced Pawan Jadhav (P.W.9) and Ashok
Pawar (P.W. 6) before Judicial Magistrate, First Class, Jalgaon for
recording their statement under section 164 of Cr.P.C. The learned
Magistrate recorded their statements.
6. On 19.03.2012, police produced accused No.3 Mahesh
before Investigating Officer, who arrested him vide arrest
panchanama Ex. 171. While in police custody, accused No.3 -
Mahesh gave voluntary statement to produce the gold ornaments of
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deceased. He led police party and panchas to his house. From his
house, he produced three gold bangles, four gold beads, one gold
Pendant and gold Ear-rings (Karnafule) total 32.250 gms. Recovery
panchanama was accordingly drawn by Investigating Officer in
presence of panchas vide Ex. 104. During further course of
investigation, the Investigating Officer issued letter to Medical
College, Dhule for examination of bones and ash seized from plot
form No.11 vide letter dtd. 22.03.2012, which is at Ex. 172. He
recorded statements of some of the witnesses. The seized articles were
sent to C.A. Nashik in sealed condition along with forwarding letter
Ex. 126.
7. It was transpired during investigation that paternal uncle
of accused No.1 namely Bhikari Ganesh Sabale died 20 years ago and
his maternal grand father namely Shravan Tayade, died in the year
1986. Investigating Officer collected their death certificates, which
are at Exh. 175 and 180 respectively.
8. On 17/05/2012, Investigating officer issued letter (Ex.
136) to Tahsildar, Jalgaon to arrange identification parade of seized
jewellery. The Identification parade was organized by Tahsildar
Deore (P.W.18) in which husband and son of deceased identified gold
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articles as that of deceased Dr. Vijaya Chaudhari. On 25/05/2012,
letters were issued to Nodal Officer of Idea and Vodaphone company
to furnish call detail reports in respect of cell phone of accused No.1
Yuvraj (Ex. 182). Nodal Officer Ravi Pardeshi (P.W.11) supplied
necessary information vide Ex. 108 on 31/05/2012.
9. On 07/06/2012, nephew of accused Premlata (accused
No.5) namely Nikhil Varma (P.W. 13) produced one gold bangle
weighing 9 gms. before Investigating Officer, which was seized in
presence of panchas vide panchanama Ex. 124.
10. After completion of investigation, Investigating Officer
filed charge-sheet against accused Nos. 1, 2, approver Gulab and
accused No.4 Mahesh. Charge-sheet against accused No.5 was
submitted later on.
11. As offence under Section 302, 397 and 201 of I.P.C. are
exclusively triable by Court of Session, learned Judicial Magistrate,
First Class, committed the case to the Court of Sessions under section
209 of Cr.P.C.
12. It is further case of the prosecution that, during trial, one
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of the accused namely Gulab (P.W.1) sent a letter from Jail on
21/06/2012 (Ex. 52) mentioning therein that, he was repenting of his
sinful act and desirous to disclose entire incident. He requested
Investigating Officer to produce him in the Court. He was accordingly
produced before the Court on 05/07/2012. The Court has granted
pardon to accused Gulab Bhagwani on condition of his making a full
and true disclosure of whole of circumstances within his knowledge
relating to offence and every other person concerned, whether as
Principal or abettor in commission thereof.
13. Charge is framed against accused Yuvraj and Pankaj for
offence under section 120B, 302 r/w 120B, 397 r/w 120B, 201 r.w.
120B of I.P.C. and under section 411 r/w. Section 34 of IPC against
accused Mahesh Varma and his wife Premlata Warma. All accused
pleaded not guilty and claimed to be tried.
14. The Additional Sessions Judge at Jalgaon on conclusion
of trial held accused No.1 guilty of committing offence under Section
302 r/w 120B of I.P. Code and sentenced him to suffer death penalty.
He is further held guilty of committing offence punishable under
Section 120B of I.P. Code and sentenced to suffer death penalty.
Accused Yuvraj is further held guilty of offence punishable under
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Section 201 r/w section 120B of I.P. Code and sentenced to suffer
rigorous imprisonment for seven years. Accused Yuvraj is also held
guilty of offence punishable under Section 397 r/w section 120B of
I.P. Code and he is sentenced to suffer rigorous imprisonment for 10
years. Accused no.2 - Pankaj Maroti Sandanshiv is held guilty of
offence punishable under section 302 r/w section 120B of I.P. Code
and sentenced to suffer rigorous imprisonment for life. He is further
held guilty of offence punishable under section 120B of I.P. Code and
sentenced to suffer rigorous imprisonment for life. He is also held
guilty of offence punishable under Section 201 r/w section 120B of
I.P. Code and sentenced to suffer rigorous imprisonment for seven
years. He is also held guilty of the offence punishable under section
397 r/w 120B of I.P. Code and sentenced to suffer rigorous
imprisonment for ten years. The sentence of accused no.2 is directed
to run concurrently. Accused no.3 - Maheshkumar Rameshchandra
Varma is held guilty of offence punishable under section 411 of I.P.
Code and sentenced to suffer rigorous imprisonment for two years.
15. The trial Court referred the case to this Court for
confirmation of death sentence of accused Yuvraj under Section 366
of Criminal Procedure Code.
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16. It appears that, the learned Additional Sessions Judge
has mainly relied upon the testimony of Approver Gulab (P.W.1) to
convict the appellants-accused. The Additional Sessions Judge found
the evidence of Approver-Gulab as fully reliable, trustworthy and
acceptable. The Additional Sessions Judge held that, the evidence of
Approver-Gulab is corroborated by independent witnesses. So also
based the conviction on circumstantial evidence. It is observed by the
Additional Sessions Judge that, each and every incriminating
circumstances has been established by reliable and clinching evidence
by the prosecution. The Additional Sessions Judge held that, even if
the evidence of Approver-Gulab is kept aside and prosecution case is
considered on the basis of circumstantial evidence, the prosecution
has proved its case independently on the basis of circumstantial
evidence.
17. Since this is an appeal against conviction, we would
like to reappreciate the entire evidence placed on record, so as to
reach to the proper conclusion as to whether the reasons and findings
recorded by trial Court are based upon proper appreciation of
evidence on record and whether it calls for any interference in
exercise of appellate jurisdiction. We have given careful consideration
to the rival contentions of the learned counsel for the parties. With
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their assistance we have perused the entire material placed on record.
18. It appears that, in order to prove guilt against accused-
appellants, the prosecution has relied on the following
circumstances :-
(i) Accused No.1 was frequently visiting Civil Hospital,
Jalgaon and he was familiar with the atmosphere of
Civil Hospital, and he was helping Medical Officer
while doing post-mortem and he was carrying dead
bodies of unidentified & unclaimed person to Civil
Hospital, and thereafter to cemetery.
(ii) on 12/03/2012 he was present in Civil Hospital,
Jalgaon and he was helping Dr.Vijaya Chaudhari in
conducting post-mortem.
(iii) He has made phone call to deceased Dr. Vijaya
Chaudhari and soon after, she had come.
(iv) There was practically no reason for accused No.1 to
call Dr.Vijaya Chaudhari, as no unidentified dead
body was brought for post-mortem.
(v) Dr.Vijaya Chaudhari was last seen with Accused
No.1, 2 and approver Gulab (P.W.No.1).
(vi) After deceased Dr.Vijaya Chaudhari, was last seen
with Accused No.1 and 2, within short span of time
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Accused No.1, 2 & approver were seen at crematory
with one female dead body.
(vii) Dr.Vijaya Chaudhari was missing after the moment
she was last seen with the Accused.
(viii) Procrastination on the part of Accused No.1 to supply
necessary information to municipal employee in
respect of dead body he cremated with the help of
other Accused & approver.
(ix)
Accused No.1 gave wrong & false information twice
to the Municipal Employee about the name of
deceased and name that he had given is proved to
be imaginary.
(x) There was human blood stains on the shirt of
Accused No.1, when he was arrested.
(xi) Signatures of the Accused in Municipal Register
while giving information in crematory and on the
receipt Exhibit No.75 are proved by cogent evidence.
(xii) Knowledge of Accused about the two spots where
deceased was murdered & where she was cremated.
(xiii) Accused No.1 sold gold ornaments to Accused
Mahesh on the same day i.e. on 12/03/2012 after
the incident & the same have been recovered from
the house of Accused Maheseh proved beyond all
reasonable doubt that Accused No.1, 2 and approver
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Gulab (P.W.No.1) have committed brutal murder of
Dr.Vijaya Chaudhari in pursuance of conspiracy.
19. As per the prosecution case, the murder of Dr. Vijaya
Chaudhari had taken place on 12th March, 2012 in between 3.45 p.m.
to 4.15 p.m. in P.M. house situated in Civil Hospital at Jalgaon. It
appears that, PW-3-Arvind Chaudhari husband of the victim lodged a
Missing Report on 13th March, 2012. The said Missing Report is at
Exhibit 53. Lateron, P.W.-3 Arvind Chaudhari lodged report on 13th
March, 2012 with Zilla Peth Police Station, Jalgaon, on the basis of
which Police registered offence and conducted further investigation.
20. Approver-Gulab (P.W.1) was original accused no.3,
who was arrested on 16 th March, 2012 and he was lodged in District
Prison, Jalgaon. As per the prosecution case, on 21 st June, 2012, the
Approver wrote a letter to the Superintendent, Jalgaon District Prison
stating therein that, he is an accused in an offence registered for
commission of murder of Dr. Vijaya Chaudhari. He has full
repentance about commission of offence, and he is ready to tell entire
truth, if produced before the Court. The said letter written by the
Approver-Gulab is at Exhibit - 152. It appears that, he was produced
before the Court. It further appears that, the concerned Investigating
Officer filed application before the Sessions Court, Jalgaon
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accompanied with the copy of the letter (Exhibit - 152) written by
Gulab. The trial Court considered the application of the prosecution
and directed production of Gulab before the court on 5th July, 2012.
Since the case was committed to the Sessions Court, the learned
Additional Sessions Judge granted conditional pardon to accused
Gulab after following procedure prescribed under Section 307 of the
Criminal Procedure Code.
21. It is the contention of the learned counsel appearing for
the appellants/accused that, though the alleged offence had taken
place on 12th March, 2012, the alleged letter written by approver -
Gulab is on 21st June, 2012, is a result of pressure exerted on him by
police machinery. It is submitted that, Gulab himself stated before the
Court that, he is Sindhi and he studied upto 1st standard and also
admitted that, he cannot read and write in Marathi, and therefore,
inference can be drawn that, Exhibit-152 is not written by approver-
Gulab. It is submitted that, if the original letter is perused, there is
overwriting, in as much as, the date 21st is corrected as 29th. It is
submitted that, no reasons have been brought on record by the
prosecution that, why Gulab did not disclose his intention to become
approver before the Court, though he was produced before the Court
on 21st June, 2012 and 4th July, 2012 before learned Sessions Judge
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and couple of time before Magistrate. It is submitted that, the time
gap from the alleged commission of offence and when approver was
produced before the Court, so as to consider his prayer for becoming
approver, requires serious consideration as it raises serious doubts in
the mind that, whether Gulab was really intended to become approver
or same is a result of force/pressure exerted by the Police Officers
upon him to compel to make such application for becoming approver.
It is submitted that, the contents of the letter at Exhibit - 152 if
perused carefully, would make it clear that, the same are not written
by Gulab. It is further submitted that, though Gulab was granted
pardon on the conditions enumerated under section 306 and in
particular, under section 306(4)(a) of the Criminal Procedure Code
but in breach of those conditions, he was released on bail pending trial
by the Additional Sessions Judge. It is submitted that, as soon as
evidence of approver-Gulab was over, he was released on bail.
Subsequently his vehicle was also released pending trial. Therefore,
according to the learned counsel appearing for the original accused
the concession given and favour shown to Gulab during the pendency
of trial more than sufficient to draw inference that, it was not
voluntary act of Gulab to become approver and if at all he agreed to
become approver, it was as a result of allurement and promise made
to him. It is submitted that, the evidence of the approver is required to
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be considered carefully since he is benefited by becoming approver. It
is submitted that, the provisions of section 133 of the Evidence Act
are required to be read with provisions of section 114B of the said
Act. It is submitted that, the evidence of approver needs
corroboration. The Supreme Court has taken consistent view in catena
of judgments that, the approver's evidence needs corroboration as a
rule of caution. It is submitted that, the evidence of approver is
untrustworthy. So also for actual incident as alleged by the
prosecution inside the P.M. house/mortuary, there is no corroboration
to the testimony of approver-Gulab. The learned counsel in support of
his contention that, the approver's evidence is required to be
considered cautiously and also needs corroboration placed reliance on
the Judgments of the Supreme Court in the cases of (1) Baldev Singh
Vs. State of Punjab1, (2) Bhiva Doulu Patil Vs. State of Maharashtra 2,
(3) Mukhtiar Kaur Vs. State of Punjab 3, (4) Balwant Kaur Vs. Union
Territory Chandigarh4, (5) Rampal Pithwas Rahidas Vs. State of
Maharashtra5, (6) Niranjansingh Vs. State of Punjab6, (7) Shera Singh
Vs. State of Punjab7 & (8) Chandan Vs. State of Rajasthan8.
1. 1979 AIR (SC) 1280
2. 1963 AIR (SC) 599
3. 1980 AIR (SC) 1871
4. 1988 AIR (SC) 139
5. 1994 (Supp.2) SCC 73
6. 1996 AIR (SC) 3254
7. 1996 (10) SCC 330
8. 1988 AIR (SC) 599
1.2013conf.case
22. On the other hand, the learned Additional Public
Prosecutor assisted by the learned counsel for the complainant,
invited our attention to the evidence as adduced by prosecution in
support of its case. The learned Additional Public Prosecutor by
referring the reasons and findings recorded by the Additional Sessions
Judge in convicting the appellants contended that, the Additional
Sessions Judge has rightly granted him pardon. It is submitted that,
while considering the prayer for becoming approver under section 307
of Criminal Procedure Code, the Additional Sessions Judge is not
bound to follow the procedure prescribed under section 306 of the
Criminal Procedure Code except sub-section (1) of the said section. In
support of this contention, the learned Additional Public Prosecutor
placed reliance on the decision of Apex Court in the case of A.
Devendran V/s State of T.N.9. He further argued that, the evidence
of approver needs no corroboration if it is otherwise found to be
trustworthy. However, in the present case, there is ample
corroboration to the testimony of approver and the same is rightly
accepted by the Additional Sessions Judge. The counsel appearing for
the complainant adopted the arguments advanced by the learned
Additional Public Prosecutor. The learned Additional Public
Prosecutor placed reliance on judgments in the case of (1) Anuj Kumar
9. (1997) 11 S.C.C. 720
1.2013conf.case
Gupta @ Sethi Gupta V/s.State of Bihar 10, (2) Venkatesha V/s. State of
Karnataka11, (3) Sudevanand V/s. State through CBI 12
, (4) Bangaru
Laxman V/s. State [Through CBI] & another 13, (5) Prithipal Singh etc. V/s.
State of Punjab & anr.14, (6) Mrinal Das & Ors. V/s. State of Tripura 15, (7)
K.Hashim V/s. State of T.N.16, (8) State of T.N. V/s. Suresh & another 17,
(9) A.Deivendran V/s. State of T.N.18 , (10) Ranjeet Singh & another V/s.
State of Rajasthan19, (11) G.S.Bakshi V/s. State [Delhi Administration] 20,
(12) Madan Mohan Lal V/s. State of Punjab21, (13) Lal Bahadur & Ors. V/s.
State [NCT of Delhi]22, (14) State of Punjab V/s. Ramdev Singh23, (15)
Mani Kumar Thapa V/s. State of Sikkim24, (16) Ram Gulam Chaudhary &
others V/s. State of Bihar25, (17) Vijay Kumar Arora V/s. State
[Government of NCT of Delhi]26, (18) Anthony D'souza & others V/s. State
of Karnataka27, (19) Joseph s/o. Kooveli Poulo V/s. State of Kerala 28, (20)
Chandrasekhar Sureshchandra Bhatt & others V/s.State of Mah. 29, (21)
Earabhadrappa alias Krishnappa V/s. State of Karnataka30, (22) Bachan
Singh V/s. Union of India31 and (23) Machhi Singh V/s. State of Punjab32.
10. (2013) 12 SCC 383
11. (2013) 12 SCC 99
12. 2012 AIR (SCW) 953
13. (2012) 1 SCC 500
14. 2012 AIR [SCW] 594
15. 2011 (9) SCC 479
16. (2005) 1 SCC 237
17. 1998 Cri.L.J. 1416
18. AIR 1998 SC 2821
19. (1988) 1 SCC 633
20. AIR 1979 SC 569
21. AIR 1970 SC 1006
22. 2013 (4) SCC 557
23. 2004 (1) SCC 421
24. (2002) 7 SCC 157
25. (2001) 8 SCC 311
26. (2010) 2 SCC 353
27. (2003) 1 SCC 259
28. AIR 2000 SC 1608
29. (2000) 10 SCC 582
30. (1983) 2 SCC 330
31. 1980 (2) SCC 684
32. AIR 1983 SC 957 (1)
1.2013conf.case
23. In view of submission advanced as to overall evidence
and trustworthiness of testimony of approver Gulab it is necessary to
scrutinize his testimony in minute detail. As already observed, as per
the prosecution case, the incident had taken place on 12 th March,
2012. As per the version of approver on 12 th March, 2012 itself, he
left Jalgaon and went to Mumbai with one patient in his Ambulance.
According to him on 12.03.2012 on and about 5 p.m. he received call
for carrying one patient to Mumbai and accordingly, he picked up the
patient from Ramanand Nagar, and drove his ambulance towards
Mumbai who got admitted in Cama Hospital, Mumbai. The relatives
of that patient requested him to stay at Mumbai for 2-3 days. On the
next day, he went to Ratnagiri. He return back to Jalgaon in the
evening of 16.03.2012. The moment he reached Jalgaon, he was
arrested by Police. According to his version, though he had
repentance of act committed by him from the date of commission of
offence, he did not disclose his intention to tell true and correct facts
and circumstances before the Court, till 05.07.2012. Upon careful
consideration of Exhibit - 152 i.e. letter dated 21 st June, 2012, there is
visible overwriting appears to be made in said letter. So far date is
concerned, it appears that, the original date 21 st in (Marathi), is
changed and by overwriting it is made as 29th (in English). It further
appears that, the said letter is shown to be received by the
1.2013conf.case
Superintendent, Jalgaon District Prison in his office on 29 th June,
2012. As per prosecution case, on the basis of the said letter, the
application was filed on behalf of prosecution by the Investigating
Officer under Section 307 of the Criminal Procedure Code. The
contents of the said application being relevant and same are
reproduced hereunder :-
"1] That the Police Inspector of local Crime Branch has filed the charge-
sheet against Accused Yuvraj Kashinath Sable and four others for the
offence punishable under Sections 302, 307, 397, 420, 201 r/w. 34 and
120B of the Indian Penal Code.
2] It is revealed during the course of investigation that Accused Nos.1 to 3
hatched criminal conspiracy before 12th March, 2012 at Jalgaon for
committing the murder of Dr.Vijaya Arvind Chaudhari, who was
working as a Medical Officer at Civil Hospital, Jalgaon, in order to rob
her gold ornaments and in pursuance of the criminal conspiracy,
accused No.1 to 3 committed murder of Dr.Vijaya Chaudhari on
12/03/2012 in between 15.45 to 16.45 hours in the mortuary room of
the Civil Hospital Jalgaon and robbed her gold ornaments and also
disposed off her dead body by setting on fire in the graveyard by
making false entries in the record of Jalgaon graveyard.
3] It is submitted that this case entirely rests on the circumstantial
evidence as there is no direct evidence to the offence of criminal
conspiracy and murder of Dr.Vijaya Chaudhari.
4] That on 4th July 2012, the Superintendent of Jalgaon District Prison
sent the application of the Accused No.2 to the I.O. The Accused No.2
Gulab Bhagwani has written the application from Jalgaon Prison
stating that he is repenting over the crime and he is ready to disclose
the true and correct facts in respect of the commission of offence
1.2013conf.case
committed by him. In order to unearth the offence of criminal
conspiracy and offence of murder, it is necessary to turn Accused No.2
Gulab Bhagwani as an approver, if he is ready and willing to disclose
true and correct facts within his knowledge in relation to the
commission of offence committed by him and others. The I.O. is
herewith submitting the original application of the Accused No.2 along
with the covering letter of the Jail Superintendent of Jalgaon Prison.
5] It is therefore, expedient to call the Accused No.2 Gulab Bhagwani
before this Hon'ble Court and after making necessary enquiries with
him and after perusing investigation papers, if the said Accused is
ready to become an approver on the condition, that he would disclose
full and true all facts within his knowledge relative to the offence
committed by him and others then pardon may be tendered to him in the
interest of justice.
6] Under these circumstances, the investigating officer submits that the
evidence of said accused Gulab Pammandas Bhagwani as an approver
is necessary in the ends of justice as it would help the prosecution to
unfold the entire chain of circumstances right from hatching of the
criminal conspiracy to its execution and the role played by the co-
accused in achieving the object of criminal conspiracy."
24. After considering the abovereferred application, the
Additional Sessions Judge, Jalgaon was pleased to issue production
warrant of the accused Gulab and directed the Investigating officer to
produce him on 5th July, 2012. Accordingly he was produced before
the Court on 05/07/2012.
25. Upon perusal of Exhibit - 53, it appears that, the
statement of accused was recorded on 5 th July, 2012 before the
1.2013conf.case
Additional Sessions Judge, Jalgaon. His statement is recorded in
Hindi. The contents of the said statement reads thus :-
ls'ku dsl ua [email protected]
ljdkj fo:/n ;qojkt lkcGs
vkjksih dk tckc
esjk uke & xqykc iEeunkl Hkkxok.kh
m-o- & 39 o"ksZ
fuokl & fla/kh dkWyuh] IykW-ua-212 ds lkeus tyxkWao
ig eS xqykc iEeunkl Hkkxok.kh [kqn gksdj tckc nsrk gwW dh] eS
ls'ku dsl ua- [email protected] es vkjksih es ls ,d vkjksih gwW vkSj ;g xqugk ge
lc vkjksih;ks us feydj fd;k gS A vkSj bldh eq>s iwjh tkudkjh gS vkSj
dksVZ ds lkeus bl xqukg dh lc gfddr lp crkus dks rS;kj gwW A blfy,
eS bl dsl es [kqn gksdj ekQh dk lk{khnkj cuuk pkgrk gwW A vkSj mlds
fy, tks Hkh dqN 'krsZ eq>s vHkh dksVZus fganh es crkbZ og eq>s eatwj gS A
blfy, dksVZ us fu- 7 ij tks gqdqe fd;k gS mlds eqrkchd eS ekQh dk
lk{khnkj cuus ds fy, rS;kj gwW A
lgh
le{k vkjksihph lgh
lgh xqykc iEeunkl Hkkxok.kh
vfr- ftYgk o l= U;k;k/kh'k]
tGxko
fn- 5/7/2012
26. It is true that, approver-Gulab in his evidence before the
Court stated that, he cannot read and write Marathi. However, upon
conjoint reading of the application filed by the Investigating Officer
1.2013conf.case
under Section 307 of Cr.P.C., order passed by the Court on said
application and contents of Exhibit 53 i.e. statement of Gulab dated 5 th
July, 2012 before the Court, in our view there is no legal infirmity or
lacuna in it. The Additional Sessions Judge, Jalgaon has rightly
considered the said application under Section 307 of Cr.P.C. While
considering the said application, the mandate of provisions of Section
306(1) Cr.P.C. appears to have been followed. Therefore, the
contention of the learned counsel appearing for the original accused
that, the procedure under section 306 sub-section (4)(a) Cr.P.C. has
not been followed while considering the prayer for pardon, deserves
no consideration.
27. It is true that, there is overwriting on letter dated 21 st
June, 2012. It is also correct that, in examination-in-chief approver -
Gulab stated that, he cannot read and write Marathi. It is not in
dispute that, though as per the prosecution, Gulab started repenting
since the date of incident, but he did not disclose the same till 21 st
June, 2012 either before the Investigating Officer or before the Court.
Therefore, the contention of the learned counsel appearing for the
accused requires due consideration as to whether, Gulab agreed to
become approver due to allurement given by the State or otherwise.
1.2013conf.case
28. Upon careful perusal of the contents or para 4 of the
order passed by the Additional Sessions Judge, Jalgaon on 5 th July,
2012 below Exhibit -07 i.e. an application filed by the State under
section 307 of Cr.P.C., one of the condition imposed while granting
pardon was that, approver Gulab shall be detained in prison until
conclusion of the trial. However, it is a matter of record that, he was
released on temporary bail after recording of his evidence before the
Court and same was continued till conclusion of trial by passing
orders time to time. The prosecution has rather given its no objection
to continue the temporary bail granted. It is also matter of record that,
his vehicle i.e. ambulance was also released before conclusion of trial.
Therefore, it may be open for the learned counsel for the accused to
argue that, due to allurement, original accused no.2 - Gulab agreed to
become approver.
29. In our opinion, the procedure followed by the Sessions
Court, Jalgaon while considering the application filed by the
Investigating Officer under Section 307 of Cr.P.C. and passing the
order thereon, is in conformity with the provisions of section 307 of
the Cr.P.C. The Supreme Court in the case of A. Devendran V/s
State of T.N.33 in para 6 held thus :-
33. (1997) 11 SCC 720
1.2013conf.case
"In view of the rival submissions, the first question that arises
for consideration is whether the approver's evidence can at all
be relied upon to bring home the charge against the accused
persons? It is no doubt true that the very object of granting
pardon to an accused is to unfold the truth in grave offence so
that other accused persons involved in the offence could be
brought home with the aid of the evidence of the approver. But
all the same the legislative mandate as well as the safeguards
enshrined in the provisions of the Code for the accused cannot
be given a go-by merely because of gravity of the offence. With
this background in mind it would be necessary to examine the
provisions of the Code for testing the correctness of the rival
submissions. Coming now to the question as to whether the
Chief Judicial Magistrate could have at all granted pardon to
the accused even after the committal of the proceedings to the
Court of Session, the same would depend upon the
interpretation of Sections 306 and 307 of the Code. A combined
reading of the aforesaid two provisions would indicate that
under Section 306 power has been conferred upon the Chief
Judicial Magistrate or a Metropolitan Magistrate as well as the
Magistrate of the First Class to tender pardon to a person on
condition of his making a full and true disclosure of whole of
the circumstances within his knowledge relating to the offence.
The only distinction between the two sets of Magistrates for
exercise of their power lies at the stage when the power can be
exercised. While a Magistrate of the First Class can exercise
the power while enquiring into or trying the offence in
question, the Chief Judicial Magistrate or a Metropolitan
Magistrate can exercise the power at any stage of investigation
or enquiry into or trial of the offence which they themselves
may not be trying. But under Section 307 the power has been
conferred upon the court to which the commitment is made to
grant pardon. In other words once a proceeding is committed
to a Court of Session then only the said Court can exercise
1.2013conf.case
power to tender pardon to an accused. Section 307 of the Code
corresponds to Section 338 of the Criminal Procedure Code,
1878. If the two provisions are examined in juxtaposition it
would be clear that while under Section 338 of the old Code
after commitment is made the Court to which the commitment
was made could himself tender pardon to an accused or could
order the committing Magistrate or the District Magistrate to
tender pardon, but under Section 307 of the Code of 1973 the
Court to whom commitment is made, no longer retains the
power to order the committing Magistrate or the District
Magistrate to tender pardon. In other words under Section 307
of the present Code after commitment of a case the only Court
which can tender pardon is the Court to which the commitment
has been made. It would be appropriate at this stage to extract
Section 338 of the old Code and the corresponding provisions
of Section 307 of the new Code:
"338. Power to direct tender of pardon.--At any time after
commitment, but before judgment is passed, the Court to which
the commitment is made may, with the view of obtaining on the
trial the evidence of any person supposed to have been directly
or indirectly concerned in, or privy to, any such offence, tender
or order the Committing Magistrate or the District Magistrate
to tender a pardon on the same condition to such person."
"307. Power to direct tender of pardon.--At any time after
commitment of a case but before judgment is passed, the Court
to which the commitment is made may, with a view to obtaining
at the trial the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, any such
offence, tender a pardon on the same condition to such
person."
1.2013conf.case
In view of the aforesaid change in the provisions it is difficult
for us to accept the contention of the learned counsel appearing
for the State that even under Section 307 after commitment of a
case a Chief Judicial Magistrate retains the power to grant
pardon. It may not be out of place to notice the
recommendations of the Law Commission in its 41st Report in
paragraph 24.23:
"24.23. Under Section 338, the Court of Session may at
any time after commitment of the case, but before passing
judgment, either tender pardon itself, or may 'order the
committing Magistrate or the District Magistrate' to tender
pardon. Though this power is rarely resorted to by a Court of
Session, it will be useful to retain the section. But in view of the
abolition of the commitment proceedings the Court of Session
need not be authorised to direct 'the committing Magistrate' or
any other Magistrate to tender pardon. The section may be
revised to read as follows:
'338. At any time after commitment of a case but before
judgment is passed, the Court of Session may, with the view to
obtaining at the trial the evidence of any person supposed to
have been directly or indirectly concerned in or privy to, any
such offence, tender a pardon on the same condition to such
person.' "
The aforesaid section has now taken the place of Section 307 in
the new Code. This indicates that in the changed circumstances
the legislature thought it necessary to delete the expression "or
order the committing Magistrate or the District Magistrate to
tender a pardon" from Section 307 of the present Code which
was there in Section 338 of the previous Code. On a plain
reading of the provisions contained in Sections 306 and 307 of
the Code and on examining the changes that have been brought
1.2013conf.case
about by the legislature from the corresponding provisions of
the old Code, the conclusion is irresistible that under the new
Procedure Code of 1973 once a case is committed to the Court
of Session then it is only that Court to which the proceedings
have been committed can tender pardon to a person and the
Chief Judicial Magistrate cannot be said to have concurrent
jurisdiction for tendering pardon"
30. In another authoritative pronouncement on this point in
the case of Narayan Chetanram Chaudhary V/s State of
Maharashtra34, while considering the scope of Sections 306 and 307,
the Supreme Court in paras 25 to 27 held thus :-
"25. In order to appreciate the submissions of the learned
counsel a reference to Sections 306 and 307 CrPC is necessary.
Section 306 provides:
"306. Tender of pardon to accomplice.-- (1) With a view to
obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence to
which this section applies, the Chief Judicial Magistrate or a
Metropolitan Magistrate at any stage of the investigation or
inquiry into, or the trial of, the offence, and the Magistrate of
the First Class inquiring into or trying the offence, at any stage
of the inquiry or trial, may tender a pardon to such person on
condition of his making a full and true disclosure of the whole
of the circumstances within his knowledge relative to the
offence and to every other person concerned, whether as
principal or abettor, in the commission thereof.
(2) This section applies to--
34. (2000) 8 SCC 457
1.2013conf.case
(a) any offence triable exclusively by the Court of Session
or by the Court of a Special Judge appointed under the Criminal
Law Amendment Act, 1952;
(b) any offence punishable with imprisonment which may
extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section
(1) shall record--
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the
person to whom it was made,
and shall, on application made by the accused, furnish him with
a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-
section (1)--
(a) shall be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in
custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under
sub-section (1) and has been examined under sub-section (4),
the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case,--
(a) commit it for trial--
(i) to the Court of Session if the offence is triable
exclusively by that court or if the Magistrate taking cognizance
is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal
Law Amendment Act, 1952, if the offence is triable exclusively
1.2013conf.case
by that court;
(b) in any other case, make over the case to the Chief Judicial
Magistrate who shall try the case himself."
Section 307 provides:
"307. Power to direct tender of pardon.--At any time after
commitment of a case but before judgment is passed, the court
to which the commitment is made may, with a view to
obtaining at the trial the evidence of any person supposed to
have been directly or indirectly concerned in, or privy to, any
such offence, tender a pardon on the same condition to such
person."
A perusal of both the sections clearly indicates that Section 306
is applicable in a case where the order of commitment has not
been passed and Section 307 would be applicable after
commitment of the case but before the judgment is pronounced.
The provisions of sub-section (4)(a) of Section 306 would be
attracted only at a stage when the case is not committed to the
Court of Session. After the commitment, the pardon is to be
granted by the trial court subject to the conditions specified in
sub-section (1) of Section 306, i.e., approver making a full and
true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof. It may be noticed that under the old Code, only the
District Magistrate had the power to tender pardon, at any stage
of the investigation, inquiry or trial even though he himself
might not be holding such inquiry or trial. Pardon could be
granted by the District Magistrate even during the pendency of
the trial in the Sessions Court. By the Criminal Law
Amendment Act, 1952, old Sections 337 to 339 were
1.2013conf.case
substituted by Sections 306 to 308 of the Code of Criminal
Procedure conferring the power to tender pardon only to
Judicial Magistrates and the trial court. Section 307 -- in its
present form -- does not contemplate the recording of the
statement of the approver twice as argued. Accepting the
submissions made on behalf of the appellant would amount to
legislate something in Section 307 which the legislature appears
to have intentionally omitted.
26. In Suresh Chandra Bahri v. State of Bihar this Court
while dealing with the case where the approver was granted
pardon by the committal court observed that every person
accepting the tender of pardon made under sub-section (1) of
Section 306 has to be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any. The examination of the accomplice in
such a situation was held to be mandatory which could not be
dispensed with. Referring to a Full Bench judgment of the
Gujarat High Court in Kalu Khoda v. State this Court observed
that: (SCC p. 103, para 33)
"[I]f the said defect of not examining the approver at
the committal stage by the committing Magistrate is rectified
later, no prejudice can be said to be caused to an accused
person and therefore the trial cannot be said to be vitiated on
that account."
27. There is no legal obligation on the trial court or a right
in favour of the accused to insist for compliance with the
requirement of Section 306(4) CrPC. Section 307 provides a
complete procedure for recording the statement of an
accomplice subject only to compliance with the conditions
specified in sub-section (1) of Section 306. The law mandates
1.2013conf.case
the satisfaction of the court granting pardon, that the accused
would make a full and true disclosure of the circumstances
within his knowledge relative to the offence and to every other
person concerned, whether as principal or abettor, in the
commission thereof. It is not necessary to comply with the
requirement of Section 306(4) when the pardon is tendered by
the trial court. The trial court, in this case has taken all
precautions in complying with the provisions of Section 306(1)
before tendering pardon to the accused Raju, who later
appeared as PW 2. We do not find any violation of law or
illegality in the procedure for tendering the pardon and
recording the statement of PW 2."
31. Therefore, in the light of provisions of section 307 and
the judgment of the Supreme Court in the case of A. Devendra and
Narayan (supra), in our opinion, there is no breach of provisions of
law or illegality in adopting the procedure in tendering pardon and
recording the statement of accused No.2 - Gulab, by the learned
Additional Sessions Judge, Jalgaon.
32. The next question posed for our consideration is as to
whether release of approver Gulab on interim bail before conclusion
of the trial in breach of condition i.e. he shall be detained in prison
until conclusion of the trial, granting pardon would vitiate trial. The
Supreme Court in the case of Suresh Chandra Bahri V/s State of
Bihar35 while considering the scope of section 306(4)(a) Cr.P.C. held
35. 1995 Supp (1) SCC 80
1.2013conf.case
that, non-compliance of the procedure/conditions in said section
would not vitiate the trial. In the facts of that case also the approver
was released on bail after grant of pardon and similar contentions
were raised. In para 34 of the said judgment, the Court has observed
as under :-
"34. As regards the contention that the trial was vitiated by
reason of the approver Ram Sagar being released on bail
contrary to the provisions contained in clause (b) of sub-
section (4) of Section 306 of the Code. It may be pointed out
that Ram Sagar after he was granted pardon by the learned
Magistrate by his order dated 9-1-1985, was not granted bail
either by the committing Magistrate or by the learned
Additional Judicial Commissioner to whose court the case was
committed for trial. The approver Ram Sagar was, however,
granted bail by an order passed by the High Court of Patna,
Ranchi Bench in Criminal Miscellaneous Case No. 4735 of
1986 in pursuance of which he was released on bail on 21-1-
1987 while he was already examined as a witness by the
committing Magistrate on 30-1-1986 and 31-1-1986 and his
statement in sessions trial was also recorded from 6-9-1986 to
19-11-1986. It is no doubt true that clause (b) of Section 306(4)
directs that the approver shall not be set at liberty till the
termination of the trial against the accused persons and the
detention of the approver in custody must end with the trial.
The dominant object of requiring an approver to be detained in
custody until the termination of the trial is not intended to
punish the approver for having come forward to give evidence
in support of the prosecution but to protect him from the
possible indignation, rage and resentment of his associates in a
crime whom he has chosen to expose as well as with a view to
1.2013conf.case
prevent him from the temptation of saving his one time friends
and companions after he is granted pardon and released from
custody. It is for these reasons that clause (b) of Section 306(4)
casts a duty on the court to keep the approver under detention
till the termination of the trial and thus the provisions are
based on statutory principles of public policy and public
interest, violation of which could not be tolerated. But one
thing is clear that the release of an approver on bail may be
illegal which can be set aside by a superior court, but such a
release would not have any affect on the validity of the pardon
once validly granted to an approver. In these circumstances
even though the approver was not granted any bail by the
committal Magistrate or by the trial Judge yet his release by
the High Court would not in any way affect the validity of the
pardon granted to the approver Ram Sagar."
Therefore, in the light of the judgment of the Supreme
Court in the case of Suresh Bahri, it cannot be said that, the trial is
vitiated on account of granting bail to approver - Gulab, and releasing
his vehicle before conclusion of trial.
33. So far contention raised by learned defence counsel as to
release of vehicle i.e. Ambulance to approver Gulab during pendency
of trial, to allure him to become approver, we are not inclined to
accept this contention. The order of grant of interim custody is the
order in routine passed by Courts of law. The order which was passed
inf avour of approver Gulab being one of such order, no much
1.2013conf.case
weightage can be given to submission made in this regard.
34. Now the next question falls for our consideration is
whether the approver's evidence deserves acceptance without
corroboration or same is necessary as a rule of prudence. The relevant
provisions in that respect is section 133 of the Evidence Act of 1872,
which reads thus :-
Accomplice - An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an
accomplice."
Upon plain reading of provisions of section 133, it is
true that, an accomplice is a competent witness against an accused
person; and a conviction based upon his evidence cannot said to be
illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice. However, by catena of decisions of the Supreme
Court and various High Courts, it is settled principle that, the
evidence of the approver requires to be considered carefully and also
it needs corroboration. The Supreme Court in the case of Bhiva
Doulu Patil V/s State of Maharashtra36, while considering Section
133 vis-a-vis S.114, illustration (b) of the Indian Evidence Act in para
7 held thus :-
36. 1963 AIR (SC) 599
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"7. The combined effect of Ss.133 and 114, illustration (b)
may be stated as follows:
According to the former, which is a rule of law, an
accomplice is competent to give evidence and according to the
latter which is a rule of practice it is almost always unsafe to
convict upon his testimony alone. Therefore though the
conviction of an accused on the testimony of an accomplice
cannot be said to be illegal yet the Courts will, as a matter of
practice, not accept the evidence of such a witness without
corroboration in material particulars. The law may be stated
in the words of Lord Reading C.J. In R. v. Baskerville 1916-2
KB 658 as follows:
"There is no doubt that the uncorroborated evidence of
an accomplice is admissible in law (R. v. James Atwood,
(1787) 1 Leach 464). But it has been long a rule of
practice at common law for the judge to warn the jury of
the danger of convicting a prisoner on the
uncorroborated testimony of an accomplice, and in the
discretion of the Judge, to advise them not to convict
upon such evidence, but the judge should point out to the
jury that it is within their legal province to convict upon
such unconfirmed evidence (R. v. Stubbs, (1855) Dears
C 555; in re, Meunier, 1894-2 Q. B. 415)".
35. In another judgment in the case of Ram Narain V/s
State of Rajasthan37, the Supreme Court held thus :-
"19. We now turn to the charge of criminal conspiracy under
Section 120-B, I.P.C. as a separate and distinct offence
37. (1973) 3 SCC 805
1.2013conf.case
independent of the offence under Section 467, I.P.C. No doubt in
almost every case of conspiracy it is generally a matter of
inference, direct independent evidence being seldom, if ever,
forthcoming. But inferences are normally deduced from acts of
parties in pursuance of apparent criminal purpose in common
between them. Of such criminal acts the evidence in the case under
appeal has not been accepted by us. The evidence of the approver
(P.W. 1) who would of course be competent to prove the
substantive charge of conspiracy, which has not been believed by
us with respect to forgery is not easy to accept to the charge of
conspiracy. His version with regard to it is far from convincing.
Though he claims to have prepared 200 pattas and order sheets,
evidence regarding only four was led and that too not trustworthy.
Far the first time he disclosed the story to the police after arrest in
expectation of help from them. On his evidence we corroborated as
it is, the charge of conspiracy as framed cannot be sustained. We
have, therefore, no option but to allow this appeal, quash the
appellant's conviction and acquit him."
36. The view taken by the Supreme Court in the case of
Bhiva Doulu Patil and Ram Narain (supra) has been reiterated and
followed in the cases of (i) K. Hashim V/s State of T.N.38, (ii) M/s
A.P. Steel Re-Rolling Mill Ltd., V/s State of Kerala & ors 39, (iii)
Mrinal Das and others V/s State of Tripura 40, (iv) Suresh
Chandra Bahri V/s State of Bihar 41, (v) State of Maharashtra V/s
Abu Salem Abdul Kayyum Ansari and others42, (vi) Sitaram Sao
38. 2005 SCC (Cri.) 292
39. AIR 2007 SC 797
40. (2011) 9 SCC 479
41. 1995 Supp (1) SCC 80
42. (2010) 10 SCC 179
1.2013conf.case
alias Mungeri V/s State of Jharkhand.43
37. In the light of provisions of Sections 133 and 114B of
the Indian Evidence Act and above referred judgments of the
Supreme Court, the evidence of approver is not different than the
evidence of any other witnesses except his evidence is to be looked
with great suspicion. Consequently, in the event the suspicion which
is attached to the evidence of accomplice is not removed, his evidence
could not be acted upon unless corroborated in material particulars.
38. In the present case, the Additional Sessions Judge
accepted the evidence of approver-Gulab as trustworthy, and relied
upon the circumstantial evidence in corroboration of approver's
evidence. Since the conviction is mainly based on testimony of
approver and circumstantial evidence. It is necessary to reappreciate
the entire evidence including the evidence of approver-Gulab. After
pardon was granted to him, he became the witness for prosecution and
examined as PW-1 vide Exhibit 49. In his evidence before the Court,
he stated that, he studied upto 1 st standard. He is working as driver
since 10 years. He has also stated registration number of the Omni
ambulance owned by him as well as the usual parking place of his
43. (2007) 12 SCC 630
1.2013conf.case
ambulance. He stated that, he know the accused Yuvraj Kashinath
Sable. He identified the said accused, who was present before the
Court. He further stated that, accused no.1 i.e. Yuvraj owns two
ambulances. He has stated numbers of said ambulances and Maruti
Omni. He further stated that, the accused no.1 used to assist all the
formalities after P.M. He also used to carry the unidentified dead
bodies after P.M. to the graveyard for burial and Jalgaon Municipal
Corporation used to pay Rs. 300/- for carrying one dead body to
accused no.1. He further stated that, he know accused no.2 Pankaj. He
identified the said accused in the Court. He stated that, the accused
no.2 drive the vehicle of accused no.1 and he is also brother-in-law of
the accused no.1. He further deposed that, he know Dayaram
Sonawane (PW-6) and Kailas Sonawane (P.W.7). Both are Municipal
employees and attend the crematorium and used to take entry in the
Municipal register about the funeral or burial of the dead bodies. He
stated that, Kailas is the son of Dayaram.
39. He further stated that, victim was doctor by profession
and she used to conduct P.M. in Civil Hospital, Jalgaon and she is not
alive. He stated his mobile handset bearing No. 9890220086 and
mobile handset belonged to accused no.1 Yuvraj is 9372573532. He
further stated that, on 12th March, 2012, he received a call from
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mobile of accused no.1 Yuvraj in between 4.00 to 4.30 p.m. Yuvraj
asked him to come to Jalgaon Civil Hospital for carrying one dead
body. He told Yuvraj that, he is having his two vehicles still why he
want his ambulance. Yuvraj told him that, one of his vehicles was out
of order, and therefore, same was sent to garage and one is out of
station. He further stated that, he went to Civil Hospital Jalgaon along
with his ambulance. When he reached near tea stall infront of Civil
Hospital, he saw Pawan (PW-9), Ashok (PW-5) and Sachin there.
Pawan gave him signal to stop there. He stopped his vehicle there.
Then he told him that, he was to carry one dead body as he was asked
by accused no.1 - Yuvraj. He took his vehicle in reverse direction. He
took his vehicle infront of P.M. room. He parked his vehicle there and
got down from the vehicle. Accused no.1 - Yuvraj came near him and
told that, "Aaj Apneko Ek Game Karna Hai". Yuvraj told him that,
Dr. Vijaya Chaudhari was wearing jewelery weighing about 10 to 12
Tola and they have to snatch the jewelery. Accused Yuvraj further
told him that, he is highly indebted and he has to discharge the loan.
He asked Yuvraj how Dr. Vijaya Chaudhari would give her jewelery
to him. Yuvraj told him that, we will kill Dr. Vijaya Chaudhari in
P.M. room. Yuvraj told him that, after killing Dr. Vijaya Chaudhari,
her dead body would be wrapped in the cloth and the covered dead
body would be put in his ambulance as glasses of ambulance were
1.2013conf.case
covered by dark black film. Accused no.1 told him that, due to dark
black film nothing inside the ambulance would be visible from
outside. After disclosing the plan by the accused no.1 to this witness,
he agreed to help accused no.1.
40. According to P.W.1-Gulab after some time, Dr. Vijaya
Chaudhari came to P.M. room. P.M. House consists of four rooms. It
is called as P.M. house or P.M. room. Dr.Vijaya Chaudhari was
wearing blue coloured Saree. She was having white Purse. She was
wearing gold Necklace and gold Bangles. He further deposed that,
Dr.Vijaya Chaudhari entered into P.M. house. Accused No.1 Yuvraj
followed Dr.Vijaya Chaudhari and he himself and accused No.2
Pankaj followed Yuvraj. Pankaj closed the door of p.m. house from
inside. At that time, beside him accused Nos.1 and 2 and Dr.Vijaya
Chaudhari were only present in p.m. house. Dr.Vijaya Chaudhari
asked Accused No.1 Yuvraj as to where the dead body was. Accused
No.1 Yuvraj replied that, the dead body was lying in the adjoining
room. She entered in the next room. They were at a distance of 5 to 6
ft. from her. There was no dead body in the room. One brick was
lying near the door. Accused No.1 picked up that brick and gave a
blow of the brick on the head of Dr.Vijaya Chaudhari from behind.
Blood was coming out from the injury of Dr.Vijaya Chaudhari.
1.2013conf.case
Dr.Vijaya Chaudhari asked Yuvraj as to what he was doing. At the
same time, Accused No.1 Yuvraj caught hold of the neck of
Dr.Vijaya Chaudhari and he hit the head of Dr.Vijaya Chaudhari on
the wall 2 to 3 times. Dr.Vijaya Chaudhari then fell down. Accused
No.1 Yuvraj sat on the chest of Dr.Vijaya Chaudhari. He was pressing
the throat of Dr.Vijaya Chaudhari. While doing so, he called Accused
No.2 Pankaj. He asked Accused No.2 to hold the hands of Dr.Vijaya
Chaudhari.
Accused No.2 Pankaj then caught both the hands of
Dr.Vijaya Chaudhari. Quickly thereafter he called this witness. He
asked this witness to catch hold of the legs of Dr.Vijaya Chaudhari.
He caught both the legs of Dr.Vijaya Chaudhari. At that time,
Accused No.1 Yuvraj was pressing the throat of Dr.Vijaya Chaudhari.
Dr.Vijaya Chaudhari then died. He further deposed that, accused
No.1 Yuvraj removed the Necklace and two Bangles from the person
of Dr.Vijaya Chaudhari and he put them in his pocket. He took one
cloth from p.m. room and he wrapped the dead body of Dr.Vijaya
Chaudhari with the help of this witness and Accused No.2 Pankaj.
Then they put the dead body of Dr.Vijaya Chaudhari in his
Ambulance. He was sitting on driver seat of ambulance. At that
time, Accused No.1 Yuvraj asked Accused No.2 Pankaj to proceed
further till he closes the door of p.m. room. Then he drove his vehicle
up to the gate of Civil Hospital. Pankaj was sitting in the vehicle near
1.2013conf.case
him. He stopped his Ambulance near the gate and at that point of
time Accused No.1 came there. They saw Pawan, Ashok and Sachin
near the tea stall, situated in front of the Civil Hospital. Accused
No.1 also boarded in the Ambulance and they proceeded towards the
graveyard, situated near Neri Naka. Accused no.1 asked them to go
to the graveyard at Neri Naka. It took 15 minutes to reach at the
graveyard at Neri Naka.
41.
He further deposed that, when they reached the
graveyard, the Municipal employees Dayaram Sonawane and Kailas
Sonawane came to them along with the register. Kailas Sonawane
asked Yuvraj whether the dead body was of male or female. Accused
No.1 told him that it was the dead body of female. Then Kailas asked
the name of the deceased to accused No.1 Yuvraj. Accused No.1
hesitated. He told Kailas that, he was not recollecting the name of the
deceased and the necessary papers about the deceased would be
reached there very soon. He also told him that, the deceased was his
grandmother. Kailas was filling up the form on the information given
by Accused No.1 Yuvraj. At that point of time, one other dead body
was brought to the graveyard. 10 to 15 persons had brought that dead
body. Then Kailas Sonawane and Dayaram Sonawane went there to
enquire about the other dead body. At that time, Accused No.1
1.2013conf.case
Yuvraj put his signature on the register in presence of this witness.
He identified his signature. He identified the said register as the same
and also the original Entry No.02783 bears signature of Accused No.1
Yuvraj, which was made in his presence. He identified the signature
of Accused No.1 at Exhibit No.50.
42. He further deposed that, the dead body of Dr.Vijaya
Chaudhari was completely wrapped by the cloth from the head to toe.
The position of the dead body in packed condition was same till the
dead body was reached at the graveyard. They put the dead body at
the Platform No.11 of the graveyard. Accused No.1 then asked this
witness and accused No.2 Pankaj to bring some more pieces of fuel
wood. Then this witness and accused No.2 Pankaj gave the pieces of
wood to accused No.1 Yuvraj, who was arranging the pyre. There
was kerosene Can lying there. Accused No.1 poured kerosene on the
pyre. There was one other pyre burning. Accused No.1 took one
burning wood from that pyre and set the pyre of Dr.Vijaya Chaudhari
on fire. Then all of them washed their hands and legs. At that time,
Accused No.1 saw some blood stains on the Platform No.11. Then he
took the water bottle and washed these blood stains. Thereafter, they
came out of the graveyard and sat in Omni Ambulance of this witness.
He drove the Ambulance to Pande Chowk. Accused Nos.1 and 2 got
1.2013conf.case
down at Pande Chowk. Accused No.1 Yuvraj gave him Rs.5,000. At
the same time, he was receiving some calls for carrying one patient to
Mumbai. Then he picked up the patient from Ramanand Nagar and
he drove his Ambulance towards Mumbai and admitted the patient in
Cama Hospital, Mumbai. The relatives of patient asked him to stay at
Mumbai for 2 to 3 days. On the next day, he went to Ratnagiri along
with one patient. He brought the patient at Ratnagiri and returned
back to Jalgaon in the evening of 16/03/2012. The moment he
reached to Jalgaon he was caught by Police.
43. It further appears that, on 20th November, 2012 his
examination-in-chief was continued and some leading questions were
put to this witness by Public Prosecutor. The questions and answers,
as appearing in his evidence before the Court, are as under :-
Question: What was the reason for Accused No.1 Yuvraj
asking Pankaj to catch the hands of Dr.Vijaya Chaudhari and
myself to catch the legs of Dr.Vijaya Chaudhari when he was
sitting on the breast of Dr.Vijaya Chaudhari?
"Answer: The reason is that Dr.Vijaya Chaudhari was
struggling and in order to overpower her he asked us as above.
Question: How many gold Bangles Dr.Vijaya Chaudhari
was wearing in that time?
Answer: She had four gold Bangles in her hands. There
were two Bangles in each hand.
Question: How many Bangles Yuvraj took out from the
hands of Dr.Vijaya Chaudhari?
Answer: Four Bangles."
1.2013conf.case
44. The learned counsel appearing for the appellant argued
that, the objection was raised during recording of evidence of PW-1
approver-Gulab about asking him leading questions by the Public
prosecutor. Inspite of such objection, the Sessions Court permitted the
Public Prosecutor to put leading questions in the chief examination,
which caused prejudice to the interest of the accused. It appears that,
such leading questions were asked by the Public Prosecutor so as to
correct the earlier statement of approver - Gulab during recording of
the evidence that, accused no.1 - Yuvraj removed the necklace and
two bangles from the person of deceased and he put them in his
pocket. In fact, it appears from the questions at serial Nos.2 and 3 by
the Public Prosecutor to approver Gulab that, the prosecutor wanted to
bring on record through the statement of approver-Gulab that, at the
relevant time, Dr. Vijaya Chaudhari was wearing four gold bangles in
her hands. Public Prosecutor did ask the approver Gulab that, how
many bangles Yuvraj took out from the hands of Dr. Vijaya
Chaudhari to which PW-1 replied "four Bangles". Said question was
asked so as to correct earlier version of Gulab that, Yuvraj removed
two bangles from the person of the deceased. In this context is useful
to refer the decision of Supreme Court in the case of Varkey Joseph
1.2013conf.case
V/s State of Kerala44 in paras 10 and 11 held as under :-
"10. The most startling aspect we came across from the record is that
the criminal trial was unfair to the appellant and the procedure
adopted in the trial is obviously illegal and unconstitutional. The
Sessions Court in fairness recorded the evidence in the form of
questions put by the prosecutor and defence counsel and answers given
by each witness. As seen the material part of the prosecution case to
connect the appellant with the crime is from the aforestated witnesses.
The Sessions Court permitted even without objection by the defence to
put leading questions in the chief examination itself suggesting all the
answers which the prosecutor intended to get from the witnesses to
connect the appellant with the crime. For instance, see the evidence of
PW 1, "Then I saw Jose (appellant) coming from the north and going
towards south". Did you notice his dress then? Yes. He had worn a
white Dhoti ... Did you notice his Dhoti? Yes. I had seen two or three
drops of blood on his Dhoti. Suddenly I had a doubt". Similarly PW 4
also at that time "Did anyone from Ramanattu House come for tea?
Yes. Jose came. When did Jose came to have tea? I do not remember ...
Did Jose come on the previous day. Yes came about 6 p.m. in the
evening. Did he say anything? He brought a bag and said let it be here
I shall take this bag after some time ... What was the dress of the
accused when he came to the shop? He was wearing white Dhoti and
tied a cloth on his hand. Have you noticed anything particular on the
Dhoti? No". Similar leading questions were put to other witnesses also
to elicit on material part of the prosecution case in the chief
examination itself without treating any of the witnesses hostile. Section
141 of the Indian Evidence Act, 1872 defined leading question to mean
"any question suggesting the answer which the person putting it wishes
or expects to receive, is called a leading question". Section 142
provides leading questions must not, if objected to by the adverse party,
be asked in an examination-in-chief, or in a re-examination, except
44. 1993 Supp (3) S.C.C. 745
1.2013conf.case
with the permission of the court. The court shall permit leading
questions as to matters which are introductory or undisputed, or which
have, in its opinion, been already sufficiently proved. Section 143
envisages that leading questions may be asked in cross-examination.
Section 145 gives power to cross-examine a witness as to previous
statements made by him in writing or reduced into writing, and relevant
to matters in question, without such writing being shown to him, or
being proved; but if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting him.
11.
Leading question is one which indicates to the witnesses the
real or supposed fact which the prosecutor (plaintiff) expects and
desires to have confirmed by the answer. Leading question may be used
to prepare him to give the answers to the questions about to be put to
him for the purpose of identification or to lead him to the main evidence
or fact in dispute. The attention of the witness cannot be directed in
chief examination to the subject of the enquiry/trial. The court may
permit leading question to draw the attention of the witness which
cannot otherwise be called to the matter under enquiry, trial or
investigation. The discretion of the court must only be controlled
towards that end but a question which suggests to the witness the
answer the prosecutor expects must not be allowed unless the witness,
with the permission of the court, is declared hostile and cross-
examination is directed thereafter in that behalf. Therefore, as soon as
the witness has been conducted to the material portion of his
examination, it is generally the duty of the prosecutor to ask the witness
to state the facts or to give his own account of the matter making him
speak as to what he had seen. The prosecutor will not be allowed to
frame his questions in such a manner that the witness by answering
merely "yes" or "no" will give the evidence which the prosecutor
wishes to elicit. The witness must account for what he himself had seen.
Sections 145 and 154 of the Evidence Act are intended to provide for
cases to contradict the previous statement of the witnesses called by the
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prosecution. Sections 143 and 154 provide the right to cross-
examination of the witnesses by the adverse party even by leading
questions to contradict answers given by the witnesses or to test the
veracity or to drag the truth of the statement made by him. Therein the
adverse party is entitled to put leading questions but Section 142 does
not give such power to the prosecutor to put leading questions on the
material part of the evidence which the witness intends to speak against
the accused and the prosecutor shall not be allowed to frame questions
in such a manner to which the witness answer merely "yes" or "no";
but he shall be directed to give evidence which he witnessed. The
question shall not be put to enable the witness to give evidence which
the prosecutor wishes to elicit from the witness nor the prosecutor shall
put into witness's mouth the words which he hoped that the witness will
utter nor in any other way suggest to him the answer which it is desired
that the witness would give. The counsel must leave the witness to tell
unvarnished tale of his own account. Sample leading questions
extracted hereinbefore clearly show the fact that the prosecutor led the
witnesses to what he intended that they should say on the material part
of the prosecution case to prove against the appellant which is illegal
and obviously unfair to the appellant offending his right to fair trial
enshrined under Article 21 of the Constitution. It is not a curable
irregularity."
Therefore, in the light of authoritative pronouncements
of the Supreme Court in the case of Varkey Joseph, the trial Court
should not have permitted the Public Prosecutor to put such leading
questions to the approver - Gulab in his examination-in-chief, which
certainly caused the prejudice to the interest of the accused. So also it
has reflection over the conduct of fair trial by the trial Court.
1.2013conf.case
45. PW-1 further deposed that, he can identify the bangles
and necklace, which were on the person of victim. He was shown four
bangles. He identified the same as same bangles, which were on the
person of deceased Vijaya Chaudhari on the date of incident.
He further deposed that, there were blood stains
appearing in the Ambulance. After washing the place of platform
where blood stains were seen, the accused Yuvraj came to the
Ambulance and cleaned and washed the spot in the Ambulance where
blood stains were appearing. In his evidence, he made reference to his
letter through Jail Authority on 21.06.2012 addressed to Investigating
officer. He was feeling repentance of his evil act. He further stated
that, Exhibit - 52 i.e. letter is in his own handwriting. He further
stated that, he wanted to become approver and he agreed the terms put
up by the Court.
46. It further appears that, this witness was cross examined
by the Advocate of accused no.1. He specifically admitted that, he
cannot speak and write Marathi. Therefore, there is specific admission
in the cross-examination by this witness that, he cannot speak and
write Marathi. He stated in his cross-examination that, he does not
know whether, dead body can be moved from P.M. House after P.M.
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without receiving receipt in that regard. He further stated that, Pawan
(PW-9) and Suklal are appointed by Civil Hospital to assist in
postmortem. He further stated that, there is one more gate/door to
P.M. House. He further voluntarily deposed that, there are three other
doors inside postmortem house. He further stated that, he does not
know whether postmortem of one lady Vispute was conducted in
P.M. House on 12th March 2012. Before coming to Civil hospital on
12th March, 2012, he was present at his house. He reached to the
hospital within 10 minutes. He reached to the hospital at about 4.30
p.m. His statement was recorded by the Police on 16/03/2012 at about
6.00 to 6.15 p.m.
He further stated that, he returned to Jalgaon from
Ratnagiri at about 6.15 p.m. on 16 th March, 2012 and Police arrested
him from his house. He stated before the police that, he returned to
Jalgaon in the morning and he was arrested in the evening. According
to him, he did give information to the police on his own without
enquiry by police. He further stated that, he could not tell any reason
as to why Police had mentioned about making enquiry with him in the
first line of his statement. During his police custody, he did not
express his desire to become approver. He was knowing that, he was
accused for the offence under Section 302 of I.P. Code. He further
1.2013conf.case
stated that, he has not committed any offence much less the murder of
Dr. Vijaya Chaudhari. He further stated that, he is not made approver
on the instance of police. He denied other suggestions given by the
defence that, he did not follow Yuvraj in the P.M. House and did not
catch the legs of Dr. Vijaya Chaudhari at the instance of accused no.1.
Other suggestions are also denied by him. He stated that, he identified
the bangles of victim on the basis of its design.
47. He was cross examined by the Advocate of accused
no.2. He stated that, the letter dated 21 st June, 2012 is in Marathi. He
stated that, he can write poor Marathi. He was further cross examined
by the Advocate of the accused nos. 3 and 4. He admitted that, on
19.11.2012 he stated about only two bangles before the Court.
However, he mean to say that, two bangles in each hand.
48. In view of the order below Exhibit - 145, this witness
was recalled for cross examination by the Advocate for the accused
no.1. He stated that, he has studied in Sindhi school. His mother
tongue is Hindi. On 12.03.2012, he carried patient to Mumbai. He
reached Ratnagiri on 14.03.2012 in the morning. After dropping
patient at Ratnagiri, he returned back to Jalgaon on 15.03.2012 in the
evening. He denied the suggestion that, he went to Vaikunthdham at
1.2013conf.case
Neri Naka, Jalgaon on 14.03.2012 at about 8 p.m. He further stated
that, he was arrested, produced before the Court of Judicial
Magistrate, First Class on the next day. He deposed further that, he
was wearing the same dress when he went to Mumbai and returned
back to Jalgaon via Ratnagiri. When he was produced before the
Court, the same clothes having blood stains were on his person. His
clothes were seized at the same time. He specifically stated that, it did
not happen that, he came to Jalgaon on 16.3.2012 in the morning and
he was arrested on 16.03.2012 in the evening. While replying the
questions i.e. did it happen that on 16.03.2012, you were arrested?, he
stated that, he was arrested but he is not sure about the date. He
received phone call on 12th March, 2012 at about 4.30 p.m. Again it is
deposed that, it might be between 4.00 to 4.30 p.m. He reached to the
hospital within five minutes of receiving phone call. Civil Hospital is
at a distance of half kilometer from his house. He took his vehicle in
the hospital at about 4.00 to 4.30 p.m. He stated that, he does not
recollect the exact timing. He further stated that, Dr. Vijaya
Chaudhari came to the hospital within five minutes, when he reached
there. It did not happen that, he saw Dr. Vijaya Chaudhari going out
of the hospital at about 4.00 to 4.15 p.m. It did not happen that Pawan,
Sachin and Ashok came to Postmortem room at about 4.00 p.m. He
specifically stated that, from the next date of incident he was feeling
1.2013conf.case
repentance. He did not personally requested the Magistrate at the time
of his production about his feeling of repentance. He disclosed before
Jailer about his health and feeling of repentance. He issued a letter on
21.06.2012. Other suggestions given by defence are denied by him.
49. The learned counsel appearing for the accused at the
cost of repetition would submit that, approver - Gulab has studied
upto 1st standard. He cannot speak or write Marathi, and therefore, the
letter dated 21st June, 2012 was not written by him. It is further
submitted that, PW-1 is got up witness. If he was feeling repentance
from 2nd day of incident, he had occasion to tell before the Court when
he was produced before Magistrate for remand from 17.03.2012
onwards and as well as before Sessions Court after committal of case.
Nobody prevented him from disclosing the same before the Court.
According to the learned counsel, the accused-PW-1 was given
assurance by the prosecution that, he will be exonerated from the
case, if he becomes approver and accordingly he was released on bail
and his vehicle was also released before conclusion of the trial in
breach of the conditions imposed while accepting his prayer to
become approver. Though the learned Additional Public Prosecutor at
the cost of repetition submitted that, the act of Gulab to become
approver was voluntary and same is reflected in his letter dated 21 st
1.2013conf.case
June, 2012 at Exhibit - 52 and also his statement before the Court on
5th July, 2012 in Hindi at Exhibit-53. We are not inclined to accept the
same after considering the evidence of PW-1 Gulab before the Court
and the conditions imposed while granting pardon. One thing is clear
that, PW-1 was not conversant with Marathi. He has clearly stated
before the Court that, he cannot speak or write Marathi. It is also
matter of record that, he was released on temporary bail and same was
continued time to time till conclusion of trial and prosecution has not
objected the same. Therefore, there is some substance in the
contention of the learned counsel appearing for the accused that, there
was some influence by the police machinery to get the said statement
extracted from the approver by assuring him certain favour though the
contention of the learned counsel appearing for the accused that, the
trial vitiated on account of breach of conditions of pardon cannot be
accepted in the light of discussion in foregoing para 37.
In order to properly appreciate the evidence of PW-1, it is
necessary to refer the evidence of PW-11 Ravi Khemraj Pardeshi,
who was working as Circle Officer of Vodaphone Cellular Limited at
Pune for Maharashtra and Goa Region, and who was examined as
witness to prove and bring on record phone calls received on the cell
phone of the deceased as well PW.1. On 12.03.2012, in his evidence
1.2013conf.case
before Court, he stated that, mobile number 09372573532 belonged to
their company. As per record of the company, the said mobile number
is allotted to Yuvraj Kashinath Sabale the accused No.1. Same was
prepaid card. He produced the original application form submitted by
the accused Yuvraj to enroll as subscriber of their company, which is
at Exhibit-106. He further deposed that, on 25 th May, 2012, his office
received a letter from D.S.P. Office, Jalgaon seeking call detail report,
customer application form and all the necessary information in respect
of mobile number 09372573532, which is at Exhibit-107. He further
stated that, he personally collected all the information as per the letter
also downloaded call details in respect of said mobile number from
the server. He sent all the information including call details duly
certified as per law to D.S.P. Jalgaon. The call details report is at
Exhibit-108. He further deposed that, "as per Exhibit 108/1" the call
was made on 12th March, 2012 from mobile Nos. 09372573532 to
09822756324 at 15:44:31 and the call duration is 17 second. On the
same day there was a outgoing call from Mobile Nos. 09372573532
to 09890220086 at 16:22:20 and the call duration is 21 second. His
evidence is at all not shattered in the cross-examination.
50. It has come on record that, mobile no.09372573532
belonged to accused no.1 Yuvraj. The prosecution has also brought on
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record through testimony of PW-3 that, cell number 09822756324
was as that of deceased. PW-1 (Gulab) stated in his evidence before
Court that, his cell number as 9890220086. Upon perusal of the
evidence of PW-11 it appears that on 12 th March, 2012 from mobile
no. 0972573532 (belonged to accused no.1 Yuvraj), there was call on
mobile no. 09822756324 (belonged to deceased) at 15:44:31 and the
call duration was 17 second. It means the accused Yuvraj called
deceased from his cell number to her cell number at 15:44:31 hours
on 12th March, 2012 and on the same day, there was outgoing call
from mobile no. 09372573532 to 09890220086 at 16:22:20 and call
duration is 21 second. Thus, it is crystal clear from the evidence of
PW-11 that, there was a call from the cell phone of the accused No.1
to the deceased at 15:44:31 and the call duration is 17 second and
there was also call to PW-1 approver - Gulab from the cell phone of
accused no.1 Yuvraj at 16:22:20 and call duration is 21 second.
51. Upon careful perusal of the findings recorded by the
trial Court, it appears that, the trial Court has completely ignored the
timings stated by the prosecution witnesses. While appreciating the
evidence of prosecution witnesses, the trial Court ought to have duly
considered the timings of phone calls stated by the prosecution
witnesses. As per the evidence of PW-11, the deceased received call
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from accused no.1 on 15:44:31 hours and PW-1 Gulab on 16:22:20
hours on the date of alleged incident. It is the prosecution case that,
call which was made by Yuvraj from his cell phone to deceased was
for calling Dr. Vijaya Chaudhari to P.M. House for postmortem of
unidentified body and accordingly, she i.e. victim went to the P.M.
House. As per the prosecution case, as disclosed by PW-1 in his
evidence, he received call on his cell phone from Yuvraj at 16:22:20
and at that time he was in his house, which is at a distance of one and
half kilometer from the said hospital. After receiving call he reached
to the hospital within 5 to 10 minutes. Therefore, as per the evidence
brought on record by prosecution, Gulab (P.W.1) reached in Hospital
at about 4.30 p.m. PW-1 Gulab has stated that, he got down from the
vehicle, Yuvraj came to him. He told him that, "Aaj Apneko Ek Game
Karna Hai". However, PW-1 did not understand what is mean by
"Aaj Apneko Ek Game Karna Hai" and therefore, he did ask accused
Yuvraj that, how Dr. Vijaya Chaudhari will give jewelery to him.
Then Yuvraj told him that, they would kill her. Accused Yuvraj told
PW-1 that, Dr. Vijaya Chaudhari is wearing jewelery of 10 to 12 Tola
and they have to snatch jewelery. The reason for snatching the said
jewelery as stated by accused - Yuvraj to the PW-1 was that, Yuvraj
was highly indebted and he has to discharge the loan. According to
the prosecution case, the motive behind murder of Dr. Vijaya
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Chaudhari was to snatch 10 to 12 Tola gold on her person. As told by
Yuvraj to PW-1, Yuvraj was highly indebted and he has to repay the
loan, and therefore, he wanted to snatch the jewelery from the person
of Dr. Vijaya Chaudhari. Upon perusal of the entire evidence placed
on record by the prosecution, there is nothing on record to show that,
the prosecution has discharged its burden by adducing any evidence
to show that, the accused Yuvraj was highly indebted. The
prosecution proceeded to prosecute the accused with the aid of
Section 120B of the I.P. Code coupled with other sections.
52. In the present case, it was necessary for the prosecution
to bring on record some evidence showing that accused Yuvraj was
indebted and he hatched criminal conspiracy with PW-1 to snatch
jewelery so as to discharge the loan. It has come on record that,
accused Yuvraj is owner of two vehicles. Therefore, in absence of any
evidence placed on record that, accused No.1 (Yuvraj) was indebted
and he hatched conspiracy with other two accused and in particular
Gulab, to kill the deceased Dr.Vijaya Chaudhari, it will have to be
held that, the prosecution failed to establish motive on the part of
accused for commission of offence.
53. It is also difficult to believe the prosecution case that, as
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soon as PW-1 reached to the Civil Hospital, Yuvraj disclosed his plan
to kill Dr. Chaudhari, and PW-1 Gulab readily agreed to kill her. The
prosecution story itself appears to be highly improbable. Even
according to evidence of PW-1, there was no specific agreement as
such in between him accused arrived at to share the amount, which
would be received, after snatching and selling gold ornaments from
the person of deceased Dr. Vijaya Chaudhari. Therefore, it raises
serious doubt about the truthfulness of prosecution story that, accused
- Yuvraj told PW-1 that, "Aaj Apneko Ek Game Karna Hai" and
thereafter approver Gulab readily agreed to assist him in commission
of murder of Dr. Vijaya Chaudhari that too in day time and crowded
place like District Hospital.
54. As already observed, the prosecution has not firmly
established the strong motive for commission of offence by the
accused. According to the prosecution case, after arrival of PW-1
Gulab in the civil hospital, accused no.1 - Yuvraj disclosed him
plan for commission of offence. Accused no.1 - Yuvraj told PW-1
Gulab that, he is indebted and therefore, in order to pay the loan
amount, they will kill Dr. Vijaya Chaudhari and snatch the gold
ornaments worn by her on the date of incident. Such hatching of
criminal conspiracy within few minutes that too for causing of
murder of lady doctor for 10 to 12 tolas of gold and the approver -
1.2013conf.case
Gulab immediately agreed to that is also something unusual which
makes the prosecution case doubtful. The Supreme Court in the
case of Baliya alias Bal Kishan V/s State of Madhya Pradesh 45
while explaining the ambit and scope of section 120-B of I.P. Code,
the principles to be borne in mind in evaluating such evidence in
para 17 the Court has observed as under:-
"17. The offence of criminal conspiracy has its foundation
in an agreement to commit an offence or to achieve a lawful
object through unlawful means. Such a conspiracy would
rarely be hatched in the open and, therefore, direct evidence
to establish the same may not be always forthcoming. Proof
or otherwise of such conspiracy is a matter of inference and
the court in drawing such an inference must consider
whether the basic facts i.e. circumstances from which the
inference is to be drawn have been proved beyond all
reasonable doubt, and thereafter, whether from such proved
and established circumstances no other conclusion except
that the accused had agreed to commit an offence can be
drawn. Naturally, in evaluating the proved circumstances
for the purposes of drawing any inference adverse to the
accused, the benefit of any doubt that may creep in must go
to the accused."
55. In the light of discussion made in the foregoing
paragraphs and broad principles as evaluation of evidence in the
case of criminal conspiracy laid by Apex Court in the case of Baliya
45. (2012) 9 S.C.C. 696
1.2013conf.case
(supra), it will have to be held that, the circumstances from which
inference of criminal conspiracy has to be drawn, the prosecution
has failed to bring on record sufficient evidence to prove that
conspiracy was hatched by accused to kill the deceased with motive
to take away her jewelery. Admittedly, conspiracy as alleged by the
prosecution hatched between accused no.1 Yuvraj and approver -
Gulab. Other co-accused Pankaj was not in process of hatching the
conspiracy of murder of Dr. Vijaya Chaudhari and removing the
jewelery on her person. Therefore, in the facts of the present case
and in the light of the evidence on record, in absence of anything on
record to show that, accused no.1 - Yuvraj was really indebted and
in order to pay the loan amount, he entered into conspiracy with
approver - Gulab and the fact that approver - Gulab immediately
agreed for commission of murder of Dr. Vijaya Chaudhari and
removal of ornaments on her person even without determining his
share, the entire prosecution case appears to be doubtful and
unbelievable.
56. It has come in the evidence of Investigating Officer that,
they inspected the spot shown by the accused and they found some
human bones, ash, three clips of ladies purse, ladies wrist watch and
coins, silver Jodave, anklet and same articles were seized in presence
of panchas. The prosecution claimed that, from the articles recovered,
three clips of ladies purse and ladies wrist watch was identified by
1.2013conf.case
PW-3 husband of the deceased. However, PW-3 has not stated in his
evidence anything about recovered Silver Jodave and silver anklet.
None of the witness has identified these articles as that of deceased.
In absence of identification of silver Jodave and silver anklet, creates
serious doubt about the claim of the prosecution that, the accused
persons burnt dead body of the deceased on Platform No.11 on 12 th
March, 2012. It was necessary for the prosecution to place on record
satisfactory evidence so as to connect recovery of silver Jodave and
silver anklet as that of the deceased. Even the clips of purse and wrist
watch is identified only by PW-3 the husband of the deceased. No
other evidence is placed on record so as to strengthen the case of the
prosecution that, the said articles belonged to that of the deceased. In
absence of identity of silver Jodave and anklet and seized from ash
and bushes lying on plat form as that of deceased the possibility of
those articles of a women other than deceased, where body was
cremated on plat form No.11 cannot be ruled out.
57. Though it is stated by the Investigating Officer that, ash,
the burnt pieces of bones were recovered from platform No.11 from
Vaikunthdam, Jalgaon and were sent to the C.A. for examination, but
the C.A. report provide no assistance to prosecution in as much as the
said report does not disclose that the bones are as that of deceased.
1.2013conf.case
58. It appears from the evidence of PW-1 that, he arrived at
Civil Hospital at about 4.30 p.m. and thereafter, the accused no.1
disclosed his plan and thereafter Dr. Chaudhari came to the P.M.
House and she was followed by Yuvraj, approver - Gulab and Pankaj,
and thereafter the door of P.M. House was closed from the inside.
After arrival of approver, at least, it would have taken couple of
minutes to hatch the conspiracy and then design it and then go for
commission of offence. Further the evidence of approver discloses
that, Dr. Vijaya Chaudhari was murdered in mortuary adjacent to the
P.M. House. By any stretch of imagination, from hatching criminal
conspiracy till the wrapping dead body of Dr. Vijaya Chaudhari,
would not take less than 15 to 20 minutes. The prosecution has not
brought anything on record to show that, the accused persons had
some criminal background and they were experts in committing such
crimes. Therefore, if arrival of approver Gulab is taken at 4.30 p.m.
in the Civil Hospital, and after hatching the criminal conspiracy to kill
victim, wrapping the body of the victim cleaning the blood stains and
keeping the same in Ambulance, certainly taken considerable time to
complete these act. Upon careful perusal of the evidence of
prosecution witnesses, in particular PW-9, who has deposed that, he
saw vehicle of Gulab going out of Civil Hospital in between 4.15 p.m.
to 4.20 p.m. According to the evidence of PW-5 i.e. Lab Technician
1.2013conf.case
working in the Civil Hospital, he saw Dr. Vijaya Chaudhari going
from Civil Hospital towards P.M. House in between 3.45 p.m. to 4.00
p.m. According to PW-5 he did interact with Dr. Vijaya Chaudhari,
and asked whether she had to attend any function as she was wearing
gold ornaments. At that time, she replied that, after performing
postmortem, she had to attend one function, scheduled at Royal
Palace Hotel in the evening. PW-5 himself has stated in his evidence
that, on that day his duty was at Railway Station. He had come there
as he wanted to collect H.I.V. Kit from Civil Hospital. However,
there are no corresponding entries in the record, which would show
that, on the relevant date, he collected H.I.V. Kit from the hospital to
show his presence in the hospital.
Therefore, the presence of PW-5 in the hospital at the
relevant time itself was doubtful. Even if the evidence of PW-5 is
taken as it is, he stated that, Dr. Vijaya Chaudhari was proceeding
from the Civil Hospital to P.M. House in between 3.45 p.m. to 4.00
p.m. She told him that, she wants to perform postmortem of one
unidentified dead body. Even if the prosecution case is taken as it is,
Yuvraj called Dr. Vijaya Chaudhari from cell phone 09372573532 at
15.44:33, and as per evidence of PW-5 if Dr. Vijaya Chaudhari was
proceeding in between 3.45 p.m. to 4.00 p.m. from Civil Hospital to
1.2013conf.case
P.M. House, for performing postmortem of unidentified dead body.
PW-5 further stated that, after meeting Dr.Vijaya Chaudhari, he along
with Sachin proceeded to tea stall near the gate of Civil Hospital. He
waited therefor about 10-15 minutes and came back in the Civil
Hospital and went to P.M. Room, however, he found that same was
locked.
The prosecution has not brought on record any evidence
to show whereabouts of Dr. Vijaya Chaudhari from 3.45 p.m.
onwards till the arrival of Gulab PW-1, who stated that, Dr. Vijaya
Chaudhari came after five minutes towards P.M. House after his
arrival. Therefore, the entry of Vijaya Chaudhari to the P.M. House,
according to the evidence of Gulab (approver) is after 4.30 p.m. As
already observed, the prosecution has not brought anything on record
to show the presence/whereabouts of Dr. Vijaya Chaudhari from 3.45
p.m. to 4.35 p.m. and till her arrival to the postmorterm House as
stated by PW-1, and therefore, under such circumstances, the
prosecution case appears to be doubtful.
59. It has come in the evidence of PW-5 that, he along with
his friend Sachin went to the Tea Stall. He was expecting call from
Dr. Vijaya Chaudhari that, she may ask him to drop her at Royal
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Palace. According to this witness, he was not specifically told on that
day by Vijaya Chaudhari that, he has to drop her at Royal Palace
Hotel. According to this witness, usually he used to receive call from
her asking him to drop her by his vehicle. According to PW-5 he saw
Ambulance owned by Gulab going out of gate at about 4.15 p.m. to
4.30 p.m. According to him, accused Gulab, accused Yuvraj and
accused Pankaj were sitting on front seat of the vehicle. Since the
glasses are dark, he could not see inside the vehicle. However, fact
remains that, he saw the vehicle going outside the hospital in between
4.15 p.m. to 4.30 p.m. He also stated that, he came to the P.M. House
and he saw that, the said P.M. Room is locked. Therefore, the
presence of PW-5 at the alleged date and time of incident, appears to
be doubtful. This witness has admitted in his cross examination that,
door of the P.M. House was not visible from the spot where he met
Dr.Vijaya Chaudhari or from the tea stall. This witness claimed that,
PW-3 came to the Civil Hospital on 13.03.2012, next day of the
incident, and met him. However, PW-3 in his evidence has not
mentioned about such meeting. It is also pertinent to mention that,
PW-3 stated that, he went to the Civil hospital at 8.00 a.m. on
13.03.2012 and met only PW-9 and one Mr. Bharambe. As already
observed PW-5 stated that, PW-3 met him in civil hospital on
13.03.2012, but PW-3 did not say so. The evidence of PW-5 is
1.2013conf.case
untrustworthy, in as much as, as per his version he came to hospital
on that day at 3.30 p.m., and therefore there was no question of
meeting PW-3, who visited civil hospital at 8.00 a.m. on 13.03.2012.
Statement of this witness is recorded by the Police in the Police
Station on 17.03.2012, after about 5 days from the date of incident.
On 16.03.2012 memorandum statement of the accused No.1 was
recorded, and pursuant to it there is recovery panchnama. In the light
of discussion herein before, evidence of PW-5 does not appear to be
truthful and raises serious doubt about its reliability and truthfulness.
60. PW-9 (Sweeper) Pawan Babu Jadhav, in his evidence
before the Court has stated that, he is working as a Sweeper in P.M.
House since last 15 years. On 12 th March, 2012, he was working in
P.M. House round the clock for 24 hours, since Suklal Karosiya
another Sweeper was on leave on that day. He had called accused
no.1 Yuvraj to assist him in P.M. Room. He himself, Dr. Vijaya
Chaudhari and accused no.1 were present in the P.M. House till 3.00
p.m. on 12th March, 2012. Dr. Vijaya Chaudhari was wearing gold
ornaments. Then he did ask Dr. Vijaya Chaudhari as to whether there
was any function, on which Dr. Vijaya Chaudhari replied that, she
had to attend one function at Hotel Royal Palace in the evening. At
that time, he himself, accused no.1 Yuvraj and Dr. Vijaya Chaudhari
1.2013conf.case
were only present in P.M. Room. After completion of P.M. he went
out. He further stated that, he handed over keys of postmortem room
to accused no.1, and then Dr. Vijaya Chaudhari proceeded towards
Civil Hospital and accused no.1 Yuvraj sat on the bench. The bench
was situated outside the P.M. Room. He further stated that, when he
was standing at the food stall, he saw the vehicle Maruti Van of Gulab
and he asked him as to where he was going and he told him that,
accused no.1 Yuvraj had called him for carrying the dead body of
unidentified person. After half an hour, Ashok Pawar came to him and
asked him whether there was any dead body. This witness told him
that, no dead body was brought. Ashok Pawar told him that, Dr.
Vijaya Chaudhari had gone towards P.M. Room. However, he was
knowing that, no unidentified dead body was brought therefore, he
did not go to P.M. Room. He specifically stated that, after 10 to 15
minutes, he saw the same vehicle going out of the Hospital and
accused Nos. 1, 2 and Gulab were inside the vehicle. According to his
evidence, at about 3.45 p.m. Gulab was proceeding towards the P.M.
Room along with his vehicle. After half an hour one Ashok Pawar
came to him and after that within 10-15 minutes, he saw the same
vehicle going out of the Hospital. It means, he saw the vehicle going
outside the hospital at about 4.15 p.m. to 4.30 p.m. Therefore, if the
evidence of PW-5 and PW-9 is considered, they saw vehicle of Gulab
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going outside the hospital in between 4.15 p.m. to 4.30 p.m. It
appears that, neither PW-5 nor PW-9 saw Dr.Vijaya Chaudhari
entering into P.M. House. When PW-3 i.e. husband of the deceased,
went to the Hospital on the next date of incident, he met PW-9 Pawan.
PW-9 told him that, after P.M. of Sunita Vispute was over at 3.00
p.m. Dr.Vijaya Chaudhari proceeded to take round in the Civil
Hospital. Therefore, evidence of PW-9 Pawan creates serious doubt
in the mind about whether he has really seen accused and deceased
after 3.00 p.m. on the date of alleged incident and it is not safe to rely
upon it. PW-3 in his evidence further stated that, on 13.03.2012, when
he went to the civil hospital at 8.00 a.m. he made inquiry with R.M.O.
Nitin Bharambe about wife (Dr. Vijaya Chaudhari). Nitin Bharambe
made inquiry with other staff members and informed him that, Dr.
Vijaya Chaudhari left the hospital at 3.00 p.m. on 12.03.2012 i.e. date
of alleged incident.
61. In the present case, the evidence of the prosecution
witnesses about timing of arrival of Gulab in the hospital and also
arrival of victim at P.M. House is important in view of the evidence of
PW-11 i.e. Nodal Officer brought on record by the prosecution. The
prosecution cannot escape from discharging its burden explaining the
timing stated by the prosecution witnesses. The prosecution case is
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that, the accused Yuvraj called Dr. Vijaya Chaudhari from his cell
phone at 15:44:33 for performing postmortem of unidentified dead
body and thereafter, Dr. Vijaya Chaudhari proceeded towards P.M.
House. Another call by accused Yuvraj to P.W. 1 Gulab was at
16:22:20 and thereafter, Gulab arrived in the hospital. Prosecution
examined PW-11 and timings are brought on record, and PW-1 Gulab
in his evidence stated that, when he received the phone call at 4.20 to
4.30 p.m. from cellphone of Yuvraj he proceeded to Civil hospital
from his house. Therefore, the entire incident according to the
prosecution case inside the postmortem room/mortuary had taken
place after arrival of Gulab in Civil Hospital. As already observed,
PW-1 Gulab in his evidence deposed that, he arrived at hospital at
4.30 p.m. Thereafter, accused Yuvraj disclosed him his plan. He
agreed for commission of offence. In all probabilities, it might have
taken few minutes to hatch such conspiracy. Thereafter, according to
PW-1 after 5 minutes of his arrival, Dr. Vijaya Chaudhari came to the
P.M. room. According to the evidence of PW-1 Gulab Dr. Vijaya
Chaudhari entered into the P.M. Room followed by Yuvraj and Gulab
and then Pankaj and then door was closed from inside. It is also
pertinent to mention that, accused did not enter in P.M. Room with
any weapon to kill Dr.Vijaya Chaudhari. It is also not the case of the
prosecution that, by using available instruments in the P.M. Room
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accused no.1 killed Dr. Vijaya Chaudhari and other two accused
helped him. Upon perusal of the evidence of PW-1, about narration of
the actual incident happened inside postmortem house/mortuary, it
might have consumed considerable time. According to P.W.1 Gulab,
to carry dead body in his Ambulance from hospital to Vaikunthdham
i.e. Crematory, it took 15 minutes to them. Therefore, by any stretch
of imagination, their entry in Crematorium/Vaikunthdam could not
have been before 5 p.m. It has come in the evidence of PW-6
Dayaram Parshuram Sonawane that, on 12th March, 2012 as usual he
was present at Vaikunthdam. At about 4.30 p.m. accused no.1 Yuvraj,
accused no.2 Pankaj and accomplice Gulab came in one white
Ambulance with one dead body. Then he went near him. PW-7 Kailas
Dayaram Sonawane has also stated in his evidence that, on
12.03.2012 at about 4-30 p.m. accused nos. 1, 2 and Gulab came to
Vaikunthdham along with one dead body kept in one white
Ambulance. It has also come in the evidence of PW-4 Manoj Bhaskar
Patil that, on 12th March, 2012 he had gone to crematory at Neri Naka
to attend the funeral of one Narayan Sapke, at about 4.45 p.m. When
he reached at crematory at Neri Naka, the dead body of Narayan
Sapke was not brought there and he was waiting. At that time, he saw
accused no.1 Yuvraj, accused no.2 Pankaj and approver Gulab in the
crematory along with their vehicle. It is pertinent to note that, PW-1
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(approver) has not stated in his evidence that, they saw PW-4 in the
crematory.
62. It has further come in the evidence of prosecution
witness no.13, Nikhil Bharat Varma that, accused Yuvraj came to the
shop of accused no.4 for selling the gold ornaments in between 5 to
5.30 p.m. If the entire prosecution case is considered in the light of
evidence of PW-11 Ravi Pardeshi, PW-1 approver Gulab, PW-4
Manoj Patil, PW-5 Ashok Pawar, PW-6 Dayaram Sonawane, PW-7
Kailas Sonawane, PW-9 Vikas Patil and PW-13 Nikhil, it is
impossible to believe the prosecution case and also the evidence of
approver Gulab, which is totally inconsistent with the timings stated
by all other prosecution witnesses. As already observed, the trial
Court ought to have considered the evidence of the prosecution
witness in its entirety including the timings of the happenings of the
events as deposed by them. The prosecution itself has brought on
record through PW-11 Nodal Officer of Vodaphone Cellular Limited
that, there was call to deceased by accused no.1 at 15.44.31 and
another call was made to approver Gulab at 16.22.20 and thereafter
Gulab came to the Civil Hospital.
63. In the peculiar facts of this case, the timings about the
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events as deposed by the prosecution witnesses cannot be ignored, as
same are very relevant to believe the prosecution story as well as due
appreciation of evidence on record. As already discussed, if the
evidence of aforementioned prosecution witnesses considered from
the view point of timings told by them of arrival of deceased in the
P.M. House, the arrival of PW-1 approver Gulab in the Hospital and
time of incident and Ambulance going out of the Civil hospital in
which according to PW5 and PW9, the accused Yuvraj, Pankaj were
sitting in the said vehicle, the entire prosecution case appears to be
imaginary. If the prosecution case is considered in the light of
evidence of prosecution witnesses about timings of arrival of Gulab in
the Civil hospital, vehicle going out of the hospital, arrival of vehicle
along with accused in Vaikunthdam and further accused Yuvraj going
to the house of accused no.4 for selling gold ornaments in between
5.00 to 5.30 p.m., the entire case of the prosecution leads to
conclusion that entire story of the prosecution is doubtful and
unbelievable and so also the probability of false story being cooked
can not be ruled out.
64. Keeping in view discussion in forgoing paragraphs, so
far timing is concerned, to sum up in the light of evidence brought on
record by the prosecution, approver - Gulab received call from the
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accused no.1 from his cellphone as per the C.D.R. Record and proved
through PW-11 Ravi Pardeshi is 4:22:20. Approver Gulab came to
the hospital at about 4.30 p.m. He was required to stop near the
entrance gate of Hospital, because PW-9 Pawan, who was standing
there gave call to him. Thereafter sometime required to talk and hatch
conspiracy with accused No.1, followed by alleged act of killing of
deceased. PW-1 deposed that, it took 15 minutes to reach to the
graveyard from P.M. House. He admitted in his cross examination
that, he reached to the P.M. House at 4.30 p.m. and distance between
his house and P.M. Room is one and half kilometer. PW-4 Manoj
Patil stated before the Court that, he was at graveyard at around 4.45
p.m. and at that time, he saw accused persons with Ambulance in
graveyard. However, approver Gulab did not say in his evidence that,
PW-4 was present in the crematory. PW-5 Ashok Pawar working as
Lab Technician in the Civil Hospital met deceased between 3.45 p.m.
to 4 p.m. He saw approver's ambulance passing through gate at
around 4.15 to 4.30 p.m. As per evidence of PW-6 Dayaram
Sonawane and PW-7 Kailas Sonawane ambulance reached at 4.30
p.m. in the graveyard. PW-9 Pawan Jadhav, Sweeper in P.M. House
stated that, he left the P.M. Room at about 3 p.m. After that, he
handed over keys to accused Yuvraj and went for lunch. As per his
deposition, ambulance of Gulab entered in the Hospital at about 3.40
1.2013conf.case
p.m. and thereafter, after 10-15 minutes, ambulance proceeded to
graveyard. PW-11 Nodal Officer deposed before the Court that, the
call from mobile no. 09372573532 to the deceased was at 3:44:31
p.m., duration of said call was 17 second, and call from Yuvraj to
approver Gulab was from mobile no. 09372573532 and duration of
said cell was 21 second. PW-13 Nikhil Varma stated in his deposition
that, on 12th March, 2012, at about 5.00 to 5.30 p.m. accused Yuvraj
came to his uncle's shop. Therefore, as per evidence of the
prosecution witnesses all acts have been taken place in between 3.45
p.m. till 5.00 to 5.30 p.m. It includes PW-5 saw deceased going
towards P.M. House in between 3.45 to 4.00 p.m. Approver Gulab
received call from accused Yuvraj at 4.22 p.m. Thereafter, he came to
the hospital by his vehicle at about 4.30 p.m. Thereafter, they hatched
conspiracy to kill Dr. Vijaya Chaudhari. Dr.Vijaya Chaudhari came to
the P.M. Room, and then she entered in the P.M. House followed by
accused, and incident inside the P.M. House/mortuary as narrated by
PW-1 Gulab had taken place, and body of the deceased was wrapped,
and thereafter it was kept in ambulance, and then they left from the
Civil hospital and went to Vaikunthdam and thereafter accused
Yuvraj went to the house of accused no.4 to sell gold ornaments in
between 5.00 to 5.30 p.m.
1.2013conf.case
65. In the light of discussion hereinabove, and in particular
time stated by the prosecution witnesses in their evidence before the
Court, the entire prosecution story appears to be improbable and
unbelievable. It is also difficult to believe that, as soon as approver
Gulab arrived in the civil hospital, Yuvraj came to him and disclosed
him his plan to snatch the jewelery from the person of deceased after
killing her inside the P.M. House so as enable to repay the debt/loan
borrowed by accused Yuvraj, and for such plan PW-1 Gulab
immediately agreed without having any discussion whatsoever about
what he is going to get out of it. PW-1 Gulab in his deposition has not
stated that, accused Pankaj was also present when accused Yuvraj
disclosed him plan and when they hatched conspiracy to kill Dr.
Vijaya Chaudhari. PW-1 Gulab deposed that, Pankaj is relative of
accused Yuvraj and employed as driver of the vehicle owned by
Yuvraj. However, the prosecution has not brought on record any
material to show that, Pankaj was also part of that criminal conspiracy
hatched by Yuvraj and Gulab to kill Dr. Vijaya Chaudhari. Therefore,
the prosecution case so far it relates to hatching conspiracy interese
amongst the accused is concerned, it exclude Pankaj as it is apparent
from the evidence of PW-1 Gulab.
66. The Additional Sessions Judge while accepting the
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evidence of approver Gulab as trustworthy has observed that, the
evidence of approver Gulab is supported by independent witnesses.
However, so far actual alleged incident of killing Dr. Vijaya
Chaudhari inside the postmortem house/mortuary is concerned, from
perusal of the findings recorded by the Additional Sessions Judge, it
appears that no specific corroboration to approver's evidence has been
stated. Admittedly, in the present case, the dead body was not
recovered, and therefore, in order to have some corroboration to the
evidence of approver, so far as actual commission of offence inside
the P.M. room/mortuary is concerned, there should have been some
corroborative piece of evidence on record.
67. PW-23 Dnyandeo Gaware, who was working as Police
Inspector at Local Crime Branch, Jalgaon at the relevant time, took
investigation of C.R. No.53/2012 from Zilla Peth Police Station,
Jalgaon on 16th March, 2012. According to this witness while in
custody of police, accused no.1 Yuvraj Sable gave disclosure
statement to show the spot where he had burnt dead body of Dr.
Vijaya Chaudhari and accordingly memorandum statement of accused
no.1 Yuvraj as per his say in presence of panch witnesses at Exhibit
-99 was recorded. He further deposed that, in pursuance of the
disclosure statement at Exhibit - 99, he along with accused and other
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police staff and panchas proceeded to Neri Naka Smashan Bhumi in
police vehicle. Accused asked to stop the vehicle at Smashan Bhumi
and he took them to Platform No.11 at Smashan Bhumi. They
inspected the spot shown by the accused Yuvraj and there found ash
and bones, three clips of ladies Purse, one Pen Clip, ladies wrist watch
and Coins, one coin of Rs.2/-, one coin of Rs. 1/- and one coin of 50
paise, silver Jodve and silver Anklets. All these articles were seized in
presence of panch witnesses and Investigation Officer recorded
seizure panchanama, which was marked at Exhibit 100. According to
his further evidence before the Court accused Yuvraj was brought
back to the Police Station. Accused gave another disclosure statement
that he will show the spot, where Dr. Vijaya Chaudhari was killed.
His disclosure statement was recorded in presence of the panchas. The
same was given Exhibit - 101. Accused no.1 led police party and
panchas in police vehicle to Postmortem Room in Civil Hospital,
Jalgaon. Accused then led them inside postmortem room. Accused
showed the spot i.e. near Shitgrah of Mortuary room, where head of
victim was struck against the wall. Investigating Officer deposed that,
he examined the wall and found one hair slicked up to the blood
appearing on the wall. Two more hairs were also found appearing on
the wall. Similarly, the accused also shown two pieces of bricks
appearing in that room. Both the two pieces of bricks were having
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blood stains. Investigation Officer seized and sealed all the above
articles in presence of panchas and Exhibit - 102 was given to it.
Same was signed by the panch witnesses. It has come in the evidence
that, two pieces of bricks, hairs recovered from P.M. House, hairs
taken from the house of PW-3 and deceased, were sent for Chemical
Analysis.
68.
Through C.A. Report, nothing has been brought on
record by the prosecution that, either blood on the two pieces of
bricks was of deceased or the hairs which were recovered were of
deceased. Therefore, from C.A. Report nothing specific has been
brought on record by the prosecution so far actual incident inside the
mortuary is concerned, as well as as to corroborate the version of the
approver. As already observed, dead body is not recovered and same
claimed to have burnt, it was necessary for the prosecution to have
provide corroboration to the evidence of the approver so far actual
incident inside the P.M. Room/mortuary is concerned. If on two
pieces of brick, which were recovered from the mortuary, the blood of
deceased could have been detected then certainly it would have
treated as corroboration to testimony of PW-1. Therefore, so far
actual incident i.e. commission of actual offence of killing of
Dr.Chaudhari is concerned, there is no corroboration to the approver's
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evidence from the aforesaid C.A. Report or any other recovery.
69. It was argued by the learned Additional Public
Prosecutor that, to the approver's evidence the recovery of two pieces
of brick at the instance of accused no.1 Yuvraj, corroborates the
version of the approver as actual incident inside the mortuary is
concerned. In our opinion, merely two pieces of bricks were
recovered from the mortuary, it cannot be said prosecution has
provided corroboration to the version of PW-1 Gulab as actual
incident of killing in the P.M. Room/mortuary. Therefore, we are not
inclined to accept argument of the learned Additional Public
Prosecutor that there is due corroboration as to testimony of PW-1 as
to facts deposed by him as to what was transpired inside P.M. Room.
The Supreme Court in the case of Amitsingh Bhikamsing Thakur vs.
State of Maharashtra46 in para 29, has summed up various
requirements of Section 27 of Evidence Act, which are reproduced as
follows;
i) The fact of which evidence is sought to be given must be relevant
to the issue. It must be borne in mind that the provisions 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.
46. AIR 2007 SC 676
1.2013conf.case
ii) The fact must have been discovered.
iii) The discovery must have been in consequence of some information
received from the accused and not by accused's own act.
iv) The persons giving the information must be accused for any
offence.
v) He must be in the custody of a police Officer.
vi)
The discovery of a fact in consequence of information received
from an accused in custody must be deposed to.
vii) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest is
inadmissible.
70. It has also come in the evidence of PW-9 that, on the
date of incident, when the vehicle of Gulab left the hospital after half
an hour, he went to P.M. Room, but he did not see blood stains on the
steps and platform of the P.M. Room. He did not see blood stains on
the way to gate. He did not enter into the P.M. Room on that day. On
the next day, he opened P.M. Room, he did not notice blood stains in
P.M. Room on that day. He did not notice blood stains on the walls of
P.M. Room. Even in his evidence PW-9 has not stated that, he saw
two pieces of bricks. In fact, PW-9 is a Sweeper duly appointed and
having keys of the said P.M. House in his possession on the date of
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incident, therefore, his evidence before the Court that, he did not
notice blood stains on the wall of P.M. Room assumes importance. He
further stated in his evidence that, he did not notice two pieces of
bricks in the P.M. House on 13th March, 2012. It is also not brought
on record by the prosecution that, when PW-3 collected keys of P.M.
Room from accused Yuvraj.
71.
The prosecution did examine Devidas Budha Ahire as
PW-21. In his evidence, he stated that, he was working in local crime
branch, Jalgaon at the relevant time. He took over the charge of
investigation in Missing Complaint No. 20/2012 from PSI Shitre on
15th March, 2012. He started search of Dr. Vijaya Chaudhari. He
received a tip off that, Yuvraj Sable, Gulab Sindhi and Pankaj
Sandanshiv have carried one dead body wrapped in one cloth to Neri
Naka Smashan Bhumi, then they went to Smashan Bhumi. This
witness made inquiry with municipal Employee Dayaram Parshuram
Sonawane working there. He checked Death Register maintained at
Neri Naka Smashan Bhumi, Jalgaon. He found while inspecting the
Register that, there was entry of the name of the deceased Sakharam
Ghashiram Sabale at Page No. 027483 and there was alteration at the
column of gender of the deceased. The name of informant was written
as Yuvraj Kashinath Sable. Then he started search of the above three
1.2013conf.case
persons and so also Dr. Vijaya Chaudhari. He could not trace the
accused on 15th March, 2012. Thereafter, he went to Zilla Peth Police
Station, Jalgaon on 16th March, 2012 at about 9:15 a.m. and filed
complaint. He further identified his signature on the said complaint.
In his cross examination he specifically deposed that, he
did not find blood appearing in Smashan Bhumi, Neri Naka, Jalgaon
on 15th March, 2012. He did not notice blood stains in postmortem
room, on platform and Courtyard of Civil Hospital, Jalgaon. He did
not inform about the identification of the dead body in Smashan
Bhumi. He did not seize the Death Register on 15 th March, 2012. He
further stated that, ash was not seized on that day. It is also pertinent
to note that, as discussed here in above, PW-21 (Police Officer) went
to crematory and saw Otta No.11 and also went inside the P.M. Room
on 15.03.2012. Therefore, the prosecution case that, spot of incident
and also where dead body was cremated was discovered at the
instance of accused No.1 Yuvraj in pursuance to his memorandum
statement dated 16.03.2012, lost its significance. If PW-21
(Investigating officer) already knew both the spots on 15/03/2012,
and in fact he visited P.M. Room and also platform No.11 in
Cemetery, then on 16/03/2012 form the memorandum statement of
accused Yuvraj, nothing new fact/information was discovered on
1.2013conf.case
16/03/2012 in respect of alleged two spots, one where Dr. Vijaya
Chaudhari was killed and then cremated.
72. Therefore, the evidence of PW-9 Pawan Jadhav and
PW-21 Devidas Ahire, and the Chemical Analysis Report so far blood
appearing on pieces of brick is concerned, is not useful to the
prosecution in as much as no blood of blood group of deceased was
detected on it. Therefore, upon considering the evidence of PW-1
Gulab, so far it relates to actual commission of murder/incident inside
the mortuary is concerned, there is no corroboration to his evidence,
and therefore, it is unsafe to place reliance on the evidence of PW-1
Gulab approver, so as to sustain the conviction of the accused in
absence of corroboration.
73. The trial Court relied upon the evidence of PW-5 and
PW-9 and held that, the dead body of Dr. Vijaya Chaudhari was
taken by accused-Yuvraj, accused no.2-Pankaj and PW-1 Approver
in his ambulance to the graveyard situated at Neri Naka. As already
observed in foregoing paragraphs that, PW-5 and PW-9 in their
evidence have stated that, they saw the vehicle of PW-1 approver
actually going out of civil hospital in between 4.15 p.m. to 4.30
p.m. As discussed in foregoing paragraphs, evidence of PW-5 and
PW-9 is untrustworthy and it is unsafe to rely on their evidence.
1.2013conf.case
Even if the evidence of PW-5 and PW-9 is considered to be true to
the effect that, PW-1 Gulab, accused no.1 Yuvraj and accused no.2
Pankaj were sitting in ambulance and went to the graveyard
situated near Neri Naka, nevertheless they have not stated in their
evidence that, they saw actually keeping of the dead body by the
accused inside the ambulance. The evidence of PW-5 and PW-9 is
discussed in detail in foregoing paragraphs and there is total
mismatch of timing told by them when actually the ambulance
went outside the hospital. If their evidence is taken as it is, in that
case, they saw ambulance going out of civil hospital, in which all
three accused persons were sitting was in between 4.15 p.m. to
4.30 p.m. Infact, entire prosecution story as narrated by PW-1
approver in his evidence before the Court starts only after arrival of
P.W. 1 in the hospital at about 4.30 p.m. As per the evidence of
approver, hatching of the criminal conspiracy and going inside the
hospital started after 4.35 p.m., and therefore, the evidence of PW-5
and PW-9 to the effect that, they actually saw the ambulance going
outside the hospital in between 4.15 p.m. to 4.30 p.m. appears to
be totally inconsistent with the prosecution case, and therefore, the
said piece of evidence cannot be accepted as corroboration to the
evidence of PW-1 approver to the effect that, he himself, accused
no.1-Yuvraj and another accused Pankaj kept the dead body of Dr.
Vijaya Chaudhari in the ambulance and he drove the vehicle
accompanied with other two accused towards graveyard situated at
1.2013conf.case
Neri Naka. In the light of discussion hereinabove, it will have to be
concluded that, there is no corroboration to the evidence of
approver so far his contention that, dead body of Dr. Vijaya
Chaudhari was kept in his ambulance and he himself along with
two accused took the dead body of Dr.Vijaya Chaudhari to the
graveyard situated near Neri Naka.
74. Another circumstance, which is taken as
corroboration to the evidence of approver by the trial Court is that,
PW-1 approver stated that, his ambulance reached crematory at
Neri Naka within 15 minutes from civil hospital. PW-6 Dayaram
and PW-7 Kailas were present in the crematory and there accused
no.1 Yuvraj informed PW-7 Dayaram that, dead body was of his
grand-mother. PW-1 Gulab in his evidence stated that, accused
no.1 put his signature on Municipal Register in presence of
approver - Gulab. We have carefully perused the original Death
Report -Numerical Information Register which is part of original
record. Upon perusal of the said Death Report -Numerical
Information Register, it appears to us that, the aforesaid entry is
not chronologically maintained. PW-4 in his evidence stated that,
he came in the crematory to participate in funeral of Narayan Lotu
Sapke. It appears from the evidence of prosecution witness that, the
dead body of Narayan Lotu Sapke and arrival of the accused in
crematory is about the same time. Upon careful perusal of the
1.2013conf.case
Death Report -Numerical Information Register, so far deceased
Narayan Lotu Sapke is concerned his entry is at Sr. No. 027476.
The date of death is shown on 12 th March 2012. There are other
particulars given about his age, address etc. As per prosecution
case, entry made at the instance of accused - Yuvraj, in the Death
Report -Numerical Information Register is at Sr. No. 027483.
Though the date is mentioned as 12 th March, 2012, said entry is
not in sequence. At Sr. No. 027475, the name of dead person is
written as Manjulabai Krushna. The date of death is shown 12 th
March, 2012. At Sr. No. 027476, the name of dead person is written
as Narayan Lotu Sapke and the date of death is mentioned as 12 th
March, 2012. At Sr. No. 027477, the name of dead person is written
as Rago Mahendrasing Thakur and date of death is mentioned as
12th March, 2012. At Sr. No. 027478, the name of dead person is
written as Hirabai Jagannath Patayit and the date of death is
mentioned as 12th March, 2012. At Sr. No. 027479 the name of
dead person is written as Santosh Waman Sonwane and the date of
death is mentioned as 13 th March, 2012. At Sr. No. 027480, the
name of dead person is written as Ghansham Pandurang Igale and
the date of death is mentioned as 12 th March, 2012. At Sr. No.
027481, the name of dead person is written as Narmadabai Singane
and the date of death is mentioned as 13 th March, 2013. At Sr. No.
027482, the name of dead person is written as Sopan Vaikode and
date of death is mentioned as 14th March, 2012. At Sr. No. 027483,
1.2013conf.case
the name of dead person is written as Sakharam Sabale and date of
death is mentioned as 12th March, 2012. However, date on which
said entry is made in said register is 14.03.2012. Upon careful
perusal of Exhibit - 76 it appears that, the name of accused no.1
Yuvraj Kashinath Sabale is mentioned and his signature is shown
as informant, however, upon careful perusal of Exhibit - 76, there
is name of accused no.1 Yuvraj and his signature, however, other
information is written in different handwriting and in different ink,
which is clearly visible upon perusal of the Exhibit - 76 in its
entirety. Therefore, in the first place the entry at Sr. No. 027483 is
not in sequence and secondly, the name of accused no.1 and his
signature is in different ink and other writing in other column is in
different handwriting and different ink.
We have also perused another Register wherein there
are column in respect of receipt number, date of cremation, date of
death, name, address and name of informant and signature. Upon
perusal of entry No. 027483, the same is not maintained in
chronological order. Upon perusal of the relevant pages of the
Register, it appears that, entry at Sr. No. 27476 is on 12 th March,
2012, followed by other entires at Sr. No. 27477 on 12 th March,
2012. Entry at Sr. No. 27478, 27479, 27480, the date of cremation
is shown as 13th March, 2012. However, in the death column so far
as entry at Sr. No. 27478 is concerned, same is shown as 12 th
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March, 2012. Entry at Sr. No. 27479 is shown on 13 th March, 2012
and entry at Sr. No. 27480 the death is shown on 12 th March, 2012.
So far as the entry at Sr. No. 27481 is concerned, the date of death
and also cremation is shown on 13th March, 2012. Entry at Sr. No.
27482 is concerned, in both the column the date of cremation and
death is shown as 14th March, 2012 and thereafter the entry at Sr.
No. 027483 is shown in the register in the column of death and
cremation as 12th March, 2012. Therefore, it creates serious doubt
about correctness of the entries made in both the registers and also
whether, accused no.1 Yuvraj has really informed to take such
entries in the death report - numerical information register at Sr.
No. 027483 as claimed by the prosecution.
It is the prosecution case that, accused No.1 Yuvraj
made signature in the register, and hand writing experts report
shows that, those are his signatures. Even if, the prosecution case
is taken as it is that, the entries in the Death Report -Numerical
Information Register are entered at the instance of accused Yuvraj
by the PW-7 as stated by PW-6 in his evidence, and Yuvraj signed
the same, the Supreme Court in the case of Magan Bihari Lal V/s
The State of Punjab 47 held that, it is unsafe to base a conviction
solely on expert opinion without substantial corroboration. In the
facts of that case, the Supreme Court held as under :-
47. 1977 Cri.L.J. 711
1.2013conf.case
"It is now well settled that, expert opinion must always be received
with great caution and perhaps none so with more caution than the
opinion of a handwriting expert. It is unsafe to base a conviction solely
on expert opinion without substantial corroboration. This type of
evidence, being opinion evidence, is by its very nature, weak and infirm
and cannot of itself form the basis for a conviction."
It is admitted position that, PW-7's handwritten portion in
the said entry in the register was not sent to hand writing expert.
75.
Though PW-4 Manoj Patil in his evidence has stated
that, he saw approver - Gulab accompanied with accused Yuvraj
and another accused Pankaj, approver Gulab in his entire evidence
has not stated that, he met PW-4 in the graveyard/cemetery.
Therefore, it creates serious doubt about the truthfulness of the
evidence of approver Gulab and so also PW-4 about arrival of
accused in the crematory with dead body of Dr.Vijaya Chaudhari
and further events told by approver during their presence in the
crematory (Vaikunthdam). It is admitted position that, accused
No.1 Yuvraj was not employee of the Corporation or Government.
He used to carry unidentified and unclaimed bodies for cremation
in his vehicle by accepting about Rs.300/- per trip to crematory
(Vaikunthdam) frequently, since about 10 to 12 years. Therefore,
in case of unidentified and unclaimed bodies, about their name,
place of residence etc. giving information in that respect would not
have been possible. Therefore, it was routine affair for accused
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No.1 Yuvraj to carry unidentified / unclaimed bodies. It is possible
that, PW6 / PW7 might have obtained his signatures on blank
pages of registers maintained by them. It has come in the evidence
of the PW-6 (Dayaram) that, many times unidentified bodies were
brought in the cemetery, whose names were not known.
76. Whether PW-1 Gulab has disclosed true and correct
facts as agreed by him while granting pardon to him, and so far his
contention that, after commission of offence on 12th March, 2012, he
received call to take the patient to Mumbai and accordingly he left
with his vehicle along with patient to Mumbai, and waited there for 2-
3 days and thereafter he went to Ratnagiri and returned back to
Jalgaon on 16th March, 2014 is concerned, upon perusal of the entire
evidence brought on record by the prosecution, the prosecution has
not made any endeavour to place on record whereabouts of Gulab
from the date of incident till his arrival at Jalgaon. PW-6 - Dayaram
Sonawane in his cross examination by the Advocate for the accused
deposed that, he has not stated before the Police that, Pankaj and
Gulab Sindhi had also come to him along with Yuvraj at about 8.00 to
8.30 p.m. Portion marked `A' in this regard is not correct and not
stated by him. He cannot say any reason as to why police mentioned
portion mark `A' in his statement. He has no enmity with police. He
1.2013conf.case
further stated that, it is not true that, none of the accused came to him
on 14/03/2012 at about 8.00 to 8.30 p.m. and they did not give him
information about the name of the deceased as Sakharam. In this
respect, it is necessary to make reference to the evidence of Dnyandeo
Gaware, Investigating officer. In his evidence, he stated that, he has
recorded the statement of PW-7 Kailash Sonawane. Portion marked
"A" and "B" in his statement are correctly recorded as per his say.
They are at Exhibit - 188 and Exhibit - 189. He further deposed that,
he has also recorded the statement of PW-6 Dayaram as per his say.
Portion marked "A" in his statement is correctly recorded as per his
say. It is marked at Exhibit - 190. PW-6 Dayaram in his statement
stated that, all the three accused i.e. Yuvraj, Pankaj and Gulab came
to his house in between 8 to 8.30 p.m. In the light of evidence of
prosecution witnesses, the statement of approver Gulab that, on the
day of incident in the evening, he left Jalgaon and came back to
Jalgaon on 16.03.2012 is not true and correct disclosure, as it has
come in the evidence of Investigating officer that, PW-6 Dayaram
told him that, all the accused came to his house at 8.30 p.m. on
14.03.2012. Therefore, the evidence of Gulab that, he left Jalgaon on
12.03.2012 and came back to Jalgaon on 16 th March, 2012 is not true
and correct disclosure and therefore, his evidence is not trustworthy
and deserves no consideration and that too, in absence of
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corroboration.
77. Approver-Gulab PW-1 in his further evidence stated
that, dead body of Dr. Vijaya Chaudhari was completely wrapped by
cloths on the head to toe. Accused no.1 Yuvraj, accused no.2
Pankaj and approver - Gulab put the dead body at the platform no.
11 of the graveyard. Accused no.1 then asked accused no.2 Pankaj
and approver Gulab to bring some more pieces of fuel wood and
following directions of accused no.1 Yuvraj, both accused no.2 and
approver-Gulab handed over the pieces of wood to accused no.1 -
Yuvraj who was arranging the pyre. They all three put the dead
body on the pyre. Thereafter there further details have been stated
by this witness. He further stated that, they came out of graveyard
and sat in ambulance of Gulab and ambulance proceeded to Pande
Chowk, where accused no.1- Yuvraj gave Rs. 5000/- to approver -
Gulab and he parted company of other two accused. Approver-
Gulab parted the company of the other two accused and went to
Mumbai and thereafter Ratnagiri. According to his version, he
received Rs. 5000/- from accused No.1, even before selling gold
ornaments, which appears to be doubtful. As already observed in
foregoing para 64, approver-Gulab did not disclose true and correct
facts before the Court that, he visited the house of PW-6 on 14 th
March, 2012 at about 8 to 8.30 p.m., as already it has come on
record through the evidence of Investigation Officer. The
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prosecution has not led any evidence which would suggest that,
PW-1 Gulab had really left the Jalgaon and came back on
16/03/2012.
78. The defence examined Dr. Narayan Gajanan Rathod
as witness. In his evidence before the Court he stated that, Dr.
Vijaya Chaudhari was serving as Medical Officer in Civil Hospital,
Jalgaon since 2006. He stated further details about assigning duty
to Medical Officer in Civil Hospital. He further stated that, one
register is maintained in that respect. Every page of said register
bears the name of dead person whose postmortem is done and
name of doctor performing autopsy and duration of postmortem
with timings and the name of concerned Police Station referring the
dead body for autopsy and signature of doctor performing autopsy.
During his recording of evidence, he stated that, he has brought the
original original Register of Civil Hospital, Jalgaon for the period
March, 2012. As per entries in the said Register, the duty hours of
Dr. Vijaya Chaudhari were from 12th March, 2012 from 8.30 a.m. to
13th March, 2012 at 8.30 a.m. As per record with him, he stated
that, Dr. Vijaya Chaudhari has performed postmortem of only one
body on 12th March, 2012 and timings of the said postmortem are
2.00 p.m. to 3.00 p.m. and this postmortem was pertaining to the
dead body. He further stated that, he received information from the
husband of Dr. Vijaya Chaudhari that, she did not return to house
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in the evening on 12th March, 2012. He further stated that, he does
not know, who has last seen Dr. Vijaya Chaudhari. He further
stated that, he has brought original duty Register of doctors. As
per the said duty Register, said Dr. Vijaya Chaudhari was on P.M.
duty as D.M.O. and P.M.O. The said Register bears the signature of
R.M.O. Dr. Bharambe. He acquainted with his signature. The
extract of this Register is already on record. When he was
confronted with the extract from the Register, he stated that, the
contents therein are identical with the original Register. He
produced the original Register before the Court. He stated that,
after verifying the said Register, the postmortem, which was
performed was of Sunita Pandit Vispute. As per record, dead body
of Sunita Vispute was brought to Civil Hospital at 1.50 p.m. on 12 th
March, 2012. Entry in that regard is taken in that Register at
Sr.No. 214. The record also shows that, Dr. Vijaya Chaudhari put
her signature in the concerned column. When he was confronted
with photocopies of extract of Entry at Sr. No. 214, which was
prepared from original Register maintained by Civil Hospital,
Jalgaon, he compared the same with the original Register and
stated that, it is correct as per original. He further stated that, two
helpers are appointed to help the Medical Officer for performing
postmortem. In March, 2012, two helpers namely Suklal Karosiya
and Pawan Baburao Jadhav were appointed as helpers. These
helpers assist the Medical Officer for lifting the dead body and
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assisting in postmortem. On 12th March, 2012, helper Suklal
Karosiya was on earned leave and he sanctioned his leave. He
further stated details about accused no.1 that, he used to bring
unclaimed dead bodies to Civil Hospital for postmortem and for that
purpose he was getting some amount from Municipal Corporation,
Jalgaon.
Upon perusal of the evidence of this witness, it is
crystal clear that, there was no entry in the Register maintained by
the hospital that, any unidentified and unclaimed body was arrived
in the hospital for postmortem and for that purpose Dr. Vijaya
Chaudhari went to the postmortem room. D.W. 1 served as Civil
Surgeon in Civil Hospital, Jalgaon during the period from June,
2009 till 7th June, 2012. He has not stated in his evidence
supporting the prosecution case that, on 12 th March, 2012, the
incident of killing of Dr. Vijaya Chaudhari as alleged by the
prosecution had taken place in the P.M. Room/Mortuary. His
evidence is significant, in as much as he was working as Civil
Surgeon as a controlling authority of entire administration of the
hospital.
79. Therefore, in the light of discussion in the foregoing
paragraphs, there is no corroboration to the evidence of approver
Gulab and therefore, it is unsafe to rely upon the evidence of PW-1
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Gulab in absence of any corroboration, as discussed hereinabove.
80. The trial Court has considered the case of the
prosecution independently without taking help of the evidence of
approver. In doing so, the trial Court relied upon the following
circumstances :-
(i) Accused No.1 was frequently visiting Civil Hospital,
Jalgaon and he was familiar with the atmosphere of
Civil Hospital, and he was helping Medical Officer
while doing post-mortem and he was carrying dead
bodies of unidentified & unclaimed person to Civil
Hospital, and thereafter to cemetery.
(ii) on 12/03/2012 he was present in Civil Hospital,
Jalgaon and he was helping Dr.Vijaya Chaudhari in
conducting post-mortem.
(iii) He has made phone call to deceased Dr. Vijaya
Chaudhari and soon after, she had come.
(iv) There was practically no reason for accused No.1 to
call Dr.Vijaya Chaudhari, as no unidentified dead
body was brought for post-mortem.
(v) Dr.Vijaya Chaudhari was last seen with Accused
No.1, 2 and approver Gulab (P.W.No.1).
(vi) After deceased Dr.Vijaya Chaudhari, was last seen
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with Accused No.1 and 2, within short span of time
Accused No.1, 2 & approver were seen at crematory
with one female dead body.
(vii) Dr.Vijaya Chaudhari was missing after the moment
she was last seen with the Accused.
(viii) Procrastination on the part of Accused No.1 to supply
necessary information to municipal employee in
respect of dead body he cremated with the help of
other Accused & approver.
(ix) Accused No.1 gave wrong & false information twice
to the Municipal Employee about the name of
deceased and name that he had given is proved to
be imaginary.
(x) There was human blood stains on the shirt of
Accused No.1, when he was arrested.
(xi) Signatures of the Accused in Municipal Register
while giving information in crematory and on the
receipt Exhibit No.75 are proved by cogent evidence.
(xii) Knowledge of Accused about the two spots where
deceased was murdered & where she was cremated.
(xiii) Accused No.1 sold gold ornaments to Accused
Mahesh on the same day i.e. on 12/03/2012 after
the incident & the same have been recovered from
the house of Accused Maheseh proved beyond all
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reasonable doubt that Accused No.1, 2 and approver
Gulab (P.W.No.1) have committed brutal murder of
Dr.Vijaya Chaudhari in pursuance of conspiracy.
In dealing with the circumstantial evidence, the
Supreme Court in the case of Hanumant V/s State of Madhya
Pradesh48 held 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. Again, the circumstances should be of a
conclusive nature and they should be such as to exclude every
hypothesis except one proposed to be proved. The Supreme Court
has consistently held that the following conditions must be fulfilled
before the case against an accused can be said to be fully established
on circumstantial evidence;-
i) the circumstances from which the conclusion of guilt is
to be drawn must or should be and not merely 'may be'
fully established,
ii) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
48. AIR 1952 S.C. 343
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that the accused is guilty,
iii) the circumstances should be of a conclusive nature and
tendency,
iv) they should exclude every possible hypothesis except the
one to be proved, and
v) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must that in all human
probability the act must have been done by the accused.
81. If the evidence of approver is excluded then the entire
prosecution case rests upon the circumstantial evidence. If
approver - Gulab's evidence is kept out of consideration, in that
case, there is no other witnesses, who have stated about the motive
for commission of alleged offence.
82. It is settled law that, while motive does not have a major
role to play in cases based on direct evidence but it assumes
importance in cases based on circumstantial evidence. The Supreme
Court in the case of Rushipal V/s State of Uttarakhand 49 in para 14
held that, it is fairly well-settled that while motive does not have a
major role to play in cases based on eye-witness account of the
49. 2013(12) SCC 551
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incident, it assumes importance in cases that rest entirely on
circumstantial evidence. It is further observed that, absence of strong
motive is something that cannot be lightly brushed aside.
83. If the present case is considered keeping aside the
evidence of approver - Gulab, absence of strong motive is
something that cannot be lightly brushed aside. If the prosecution
case is considered solely on the circumstantial evidence, in absence
of the evidence of approver, in that case, the prosecution has not
brought on record any independent evidence except the evidence of
approver about the motive for commission of alleged offence by the
accused persons. Therefore, it will have to be held that, the
prosecution has failed to bring on record strong motive for
commission of offence.
84. Admittedly, in the present case neither dead body was
recovered nor the postmortem was performed, and therefore, factum
of murder in such case must be proved by strongest possible evidence.
The Supreme Court in the case of Ramua alias Ram Lal V/s State of
U.P.50 held as under :-
"21. There is another aspect of the case. The accused is not
a defined term and Section 273 of the Code of Criminal
Procedure provides that the evidence must be taken in presence
of the accused. The explanation of Section 273 indicates that
50. 1992 Cri. L.J. 3972
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the accused includes a person in relation to whom any
proceeding under Chapter VIII has been commenced under this
Code and Chapter VIII is about Security for keeping a peace
and for good behaviour. Even if this explanation under Section
273 of the Code can be said to include a definition of word
accused but that definition if it can be so properly called is an
inclusive definition. This is not exhaustive. This term accused of
an offence is not narrowly construed and interpreted. It is at the
same time not necessary that his name must find place in the
first information report. In AIR 1958 AP 37 : (1958 Cri LJ 18)
it was held that a person who is arrested by the police during
investigation is an accused. In Amin v. State of U.P., AIR 1958
All 293 : (1958 Cri LJ 462), it has been held that the moment
suspicion attached to a person or where a witness points to his
guilt and he is taken in custody and interrogated, on that basis
he becomes a person accused of an offence. In the present case
he was taken into custody only after he has pointed out the
'Kulhari'. It means that he was not in the police custody at the
time when he pointed out the weapon used and consequently the
recovery of the weapon does not become admissible under
Section 27 of the Evidence Act. Even the statement of P.W. 7 the
Investigating officer does not show that the appellant was
arrested first and thereafter the recovery was made on his
pointing out. There is doubtful explanation to the effect that the
accused was arrested and on his pointing out some bones and
kulhari the instrument were recovered and memo Ext. Ka-4 was
prepared. The statement of the accused appellant, in order to be
admissible under S.27 of the Act, it must have been stated by the
Investigating officer P.W. 7 that the appellant was in police
custody and while he was under custody, on his pointing out the
weapon and some bones were recovered. We have perused the
statement of P.W. 7 Ram Karan Singh and we find it not to be
reliable.
1.2013conf.case
22. In the absence of positively admissible and reliable
evidence, which is lacking the recovery of the bones, chappal,
glass bangles and pieces of the clothes including blouse alone
could not be said to be sufficient to indicate that these articles
belonged to the deceased. The dead body was not recovered nor
any post-mortem has been conducted. What was the nature of
the injuries, has also not been indicated. In such matters we are
reminded of an old Maxim Corpus Delicti. This obviously
connotes that before seeking to prove that the appellant is the
author of the crime, it must be proved beyond all reasonable
doubts that the crime charged has been committed. In the
charge of murder it must be proved before convicting the
accused that murder has been committed. The body of the
victum must be recovered or must be proved by cogent
evidence. The strongest possible evidence is required as to the
fact of murder as the dead body was not forthcoming or the
bones etc. have not been proved to be of the victim.
85. In the facts of the present case also the strongest
possible evidence as to the fact of murder of Dr. Vijaya Chaudhari
and dead body, which was allegedly cremated on Platform no.11 in
Vaikunthdam is of her, has not been convincingly established.
It is true that, corpus delicti not found, even so accused
can be convicted, if there is direct or circumstantial evidence
conclusively showing that, the victim had died and that accused
committed his/her murder. The Supreme Court in the case of Ram
1.2013conf.case
Gulam Chaudhary v. State of Bihar51 in para 23 held thus :-
"23. There can be no dispute with the proposition of law set out
above. As is set out in the various authorities (referred to above), it
is not at all necessary for a conviction for murder that the corpus
delicti be found. Undoubtedly, in the absence of the corpus delicti
there must be direct or circumstantial evidence leading to the
inescapable conclusion that the person has died and that the
accused are the persons who had committed the murder. Both the
courts below have come to the conclusion, based upon the evidence
of PWs 3 and 4 (who were eyewitnesses) that Appellant 9 had killed
the accused before the body was taken away by all the appellants.
We have read the evidence of all the witnesses. We have given a
careful consideration to the material on record. We see no reason to
take a different view. The evidence in this case is direct and there is
no reason to disbelieve this evidence. We see no substance in the
submission of Mr Mishra that these two ladies could not have seen
the boy being killed and could not have in any case come to a
conclusion that he had died. Their presence at the place of incident
could not be doubted. Their evidence clearly indicates that the
incident took place before their eyes. We cannot accept the
submission of Mr Mishra that their evidence discloses that the
incident took place outside the courtyard and on the road. Mr
Mishra has relied on stray sentences. The evidence has to be read
as a whole. Read as a whole, both the ladies have given positive
evidence that the murder took place in the courtyard. We also see
no substance in the submission that PW 3 and PW 4 could not
positively say that Krishnanand Chaudhary had been killed. The
evidence is that Bijoy Chaudhary stated that "he is still alive and
should be killed". On this statement Appellant 9 gave a chhura-
blow on the chest. The evidence is that Krishnanand Chaudhary,
who was till then struggling twitched and thereafter his body
51. 2001 SCC (Cri) 1546
1.2013conf.case
became still. From this it could be concluded that death had taken
place. It must be mentioned that even PW 1, whose evidence Mr
Mishra relied upon, has deposed that Krishnanand Chaudhary had
died."
86. Yet in another exposition, the Supreme Court in the case
of Mani Kumar Thapa v. State of Sikkim52 in para 4 held as under :-
"4. Mr U.U. Lalit, learned counsel appearing for the appellant
argued that in the absence of any motive and the corpus delicti, it is
unsafe to place reliance on the circumstantial evidence adduced by the
prosecution; more so when the said evidence is replete with
discrepancies, omissions and improvements. He pointed out that in
regard to a part of the evidence of the prosecution, the courts below
themselves have not placed reliance, therefore, in a case of
circumstantial evidence of this nature, it would be dangerous to base a
conviction. We do not find much force in this argument of Mr Lalit. It is
a well-settled principle in law that in a trial for murder, it is neither an
absolute necessity nor an essential ingredient to establish corpus
delicti. The fact of the death of the deceased must be established like
any other fact. Corpus delicti in some cases may not be possible to be
traced or recovered. There are a number of possibilities where a dead
body could be disposed of without a trace, therefore, if the recovery of
the dead body is to be held to be mandatory to convict an accused, in
many a case the accused would manage to see that the dead body is
destroyed which would afford the accused complete immunity from
being held guilty or from being punished. What is therefore required in
law to base a conviction for an offence of murder is that there should
be reliable and plausible evidence that the offence of murder like any
other factum of death was committed and it must be proved by direct or
circumstantial evidence albeit the dead body may not be traced. (See
52. (2002) 7 SCC 157
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Sevaka Perumal v. State of T.N.1) Therefore, the argument that in the
absence of corpus delicti the prosecution case should be rejected,
cannot be accepted. Similar fate will follow the argument that in the
absence of any specific motive there can be no conviction. In the
instant case, PW 1, wife of the deceased, has spoken about some enmity
between A-1 and the deceased. Assuming that this evidence is
insufficient to establish the motive for murder even then if the
prosecution is able to establish beyond all reasonable doubt from other
circumstantial evidence that it is the accused (including the appellant)
alone who could have committed the murder, the absence of the motive
will not hamper a safe conviction. In the instant case the chain of
circumstances starting from the afternoon of 12-2-1988 right up to 16-
2-1988 clearly shows that the deceased was taken by A-1 and the
appellant in the jeep and thereafter the deceased was never seen. The
subsequent conduct of A-1 visiting the checkpost in the night, A-1 and
A-2 visiting the checkpost thereafter at different times without an
acceptable reason, A-1 and PW 22 visiting Kerabari Forest
Headquarters on 13-2-1988 and thereafter recovery of the belongings
of the deceased from the place where the dead body was allegedly
thrown in the first instance, the apprehension entertained by the
deceased which was made known to PW 3, the apprehension
entertained by PW 5 which was made known to his superior vide letters
Exts. P-2 and P-3, the statements of the accused made to PW 5 (to the
extent they are acceptable), the contradictory versions given by the
appellant to PWs 5 and 36, the presence of the appellant and A-1
together at the farewell function of their colleague in the evening of 12-
2-1988 and unacceptable explanation amounting to falsehood given by
the appellant in regard to his whereabouts on 12-2-1988 cumulatively
establish the continuous links in the chain of circumstances which was,
in our opinion, rightly accepted by the courts below to base a
conviction. Having carefully considered the evidence led by the
prosecution in regard to the above circumstances we are of the opinion
that the courts below were justified in arriving at the finding that the
appellant was guilty of the charge framed against him, and we find no
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reason whatsoever to disagree with this finding."
87. However, in the present case, so far recovery of articles
from P.M. Room/mortuary is concerned, from the C.A. Report
available on record nothing beneficial to the prosecution is brought on
record in the nature of corroborative piece of evidence so as to
connect the accused with killing of Dr. Vijaya Chaudhari.
88.
Arvind Meghasham Chaudhari husband of the deceased
is examined as PW-3. In his evidence, he stated that, he completed
M.B.B.S. and Diploma of ENT. He retired on 30/04/2010. Deceased
Dr.Vijaya Chaudhari was his wife and she had completed M.B.B.S.
and also passed Diploma in Pathology. She was working in Civil
Hospital, Jalgaon since 1997 as a Medical Officer. All the Medical
Officers have to do the job/duty as Medical Officer periodically. The
D.M.O. has to attend the Hospital throughout day and night for 24
hours and D.M.O. has to perform the duties of attending the serious
patients in the ward and doing postmortem in the Hospital.
He further deposed that, on 12/03/2012 his wife was
attending the duty as D.M.O. Her duty hours were 8.00 a.m. on
12/03/2012 till 8.00 a.m. on 13/03/2012. He dropped his wife at Civil
1.2013conf.case
Hospital, Jalgaon in his Car at about 8.00 a.m. to 8.30 a.m. on that
day. She returned back to his house at about 1.00 p.m. for lunch.
They took lunch together. She told him that she had to do
postmortem in a burnt case at Civil Hospital. Then he dropped his
wife at Civil Hospital, Jalgaon in his Car at about 2-00 p.m. At that
time she was wearing Blue Saree, similar coloured Blouse and she
had a white purse. She was wearing four gold Bangles, two each in
her hand and the necklace and gold Ring and Ear-rings. She had also
a Wristwatch of Citizen Company. She told him that after completion
of postmortem she would take a round of the Hospital and she had to
attend one function at Hotel Royal Palace, at about 5-00 to 5-30 p.m.
He had asked his wife as to why she was wearing gold Bangles and
other jewelery, on which she replied that, she had to attend one
function and, therefore, she was wearing jewelery.
According to this witness, he returned back from his work at
about 7-00 p.m. He gave ring to his wife at about 7.00 p.m. on her
mobile but it was switched off. Her Mobile number was 9822756324.
It was giving out of coverage signal. He thought that, his wife might
be attending the Hospital due to some urgent work. He was waiting
for her. He took meal at about 8.15 p.m. and went to sleep. He further
deposed that, on 2nd June, 2012, he was called by the Taluka
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Magistrate at about 10 a.m. for identification of articles etc.
He further deposed that, as his wife did not return on
13/03/2012, he made enquiry with R.M.O. Nitin Bharambe in Civil
Hospital at 8.00 a.m. about his wife. Nitin Bharambe made enquiry
with other Staff and informed him that, Dr.Vijaya Chaudhari had left
the Civil Hospital at about 3.00 p.m. on 12/03/2012. Then he made
enquiry with Pawan, who was assisting in p.m. duty. Pawan told him
that Dr.Vijaya Chaudhari had finished the postmortem of Sunita
Vispute at about 3.00 p.m.on 12/03/2012. He further told him that
after finishing p.m. Dr.Vijaya Chaudhari proceeded to take round in
Civil Hospital. Thereafter, he went to Hotel Royal palace to enquire
about his wife. He got information that, his wife had not attended the
function at Royal Palace Hotel on 12/03/2012. Then he made enquiry
with his relatives about his wife, but he could not get any clue.
Therefore, he went to Jilhapeth Police Station and lodged missing
report. He identified the missing report and the signatures on it,
which was shown to him. The same is at Exhibit No.55. He identified
the wristwatch as that of his wife, which was shown to him and the
same is at Article `C'.
He further deposed that, on 16/03/2012 Police came to
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his house and he gave them the hairs of his wife stuck in her comb, at
about 3.00 to 3.30 p.m. Police seized the hairs stuck in the comb and
recorded seizure panchanama in presence of two panchas.
89. In his cross examination by the Advocate for the
accused no.1, he stated that, it is not necessary to give information to
R.M.O. about every duty done by D.M.O. It is not true that, after
receiving dead body, D.M.O. should report to R.M.O. The first
information of receipt of dead body in the Hospital is not given to
R.M.O. There are no junior doctors to help D.M.O. He admitted in his
cross examination that, there is no mention of wristwatch and gold
Ring in Exhibit -55. Exhibit - 55 is Missing Report, which was filed
by this witness on 13th March, 2012. He has further admitted in his
cross examination that, he did not recollect whether this fact was
stated by him before Police or not. He further stated that, Police did
not issue him a letter in writing to attend identification parade. He
further stated that, he received phone call to remain present at the
office of Taluka Magistrate. He further stated that, there was big
crowd in Tahsil office on 2nd June, 2012. Some persons were
accompanying him. He stated that, he identified die jewelery of his
wife on the basis of the design and look. In his cross examination by
Advocate for the accused Nos. 3 and 4, he stated that, the seized gold
1.2013conf.case
Bangles were purchased by him just prior to two months of the
incident. He has purchased readymade bangles from Rajmal
Lakhichand Jewelery Shop. He obtained a small receipt of that
purchase. That receipt was not given to Police. He did not remember
the exact price of the Bangles. There is a trademark of the shop on the
jewelery. He further stated that, he is income tax payee. The
transaction is not shown in the income tax return. He further stated
that, he does not know from where the Police had brought the other
two similar gold ornaments sets at the time of identification parade.
He further deposed that, he cannot say whether the weight of other
sets were identical to that of the identified set and only their look was
similar. He did not recollect whether the design of other sets was also
similar.
90. The learned counsel for the defence has criticize
evidence of PW3 and submitted that, so far wristwatch and gold ring
is concerned, the same was not mentioned in the Missing Report, and
therefore, this witness improved his version in his evidence, in as
much as he claimed that, he identified the wristwatch, which was
recovered from Platform no.11 of Vaikunthdham. The counsel further
submitted that, this witness has not stated that, the recovered articles
i.e. pair of Jodwa and silver anklet is of deceased. It is true that, PW-3
1.2013conf.case
in his cross examination admitted that, he did not mention watch and
ring in missing report. He did not mention about purse, pair of jodva
and silver anklet in his evidence before the Court.
Non-explanation of recovered articles, silver Jodva and
silver anklet is something, which cannot be brushed aside easily since
dead body is not recovered, and therefore, it was necessary for the
prosecution to connect those recovered articles with deceased.
Admittedly, in Missing Report there is no mention of wristwatch and
gold ring by the PW-3.
In his evidence, PW-3 has not stated that, when he
visited the Civil Hospital on 13th March, 2012, in order to find out
whereabouts of the deceased Vijaya Chaudhari, he met PW-5 Ashok
Pawar. However, PW-5 - Ashok Pawar in his evidence claimed that,
PW-3 met him in the Civil Hospital.
The PW-3 claims that, he identified three gold bangles,
Padak, four gold Beads and Karnafule on the basis of their look and
design and stated that, the said Jewelery is of his wife. In this respect,
firstly the identification of ornaments is after about two and half
months from the date of incident and secondly the procedure followed
1.2013conf.case
by Taluka Magistrate for identification is untraceable in law. If the
evidence of PW-3 is that, he did purchase the seized gold bangles just
prior to two months from the date of incident, then it is difficult to
believe that, the said transaction was not shown in the income tax
returns. According to the prosecution case, the total weight of bangles
was roughly around 32 Grams and coupled with other ornaments is of
considerable quantity, and therefore, receipt of purchase of the said
ornaments and also reflection of the said transaction in the income tax
was necessary. However, no documents are placed on record to
suggest the purchase of said ornaments or said transaction of purchase
of ornaments is shown in Income Tax Record.
Upon perusal of the evidence placed on record, it
appears that, the Taluka Magistrate conducted identification parade on
2nd June, 2012 at about 1.30 p.m. PW-3 was shown three sets of
jewelery, though he claimed that three sets were in similar in look,
however, it has come in the evidence of PW-18 Kailas Deore
(Magistrate) that, other two sets of jewelery were brought from the
Bafna Jewelers. Therefore, such identification of jewelery wherein
two sets of Jewelery from Bafna Jewelers and one set from Rajmal
Lakhichand Jewelery Shop is not significant in as much as it is easy to
identify one set of jewelery having mark of Rajmal Lakhichand
1.2013conf.case
Jewelery Shop. The prosecution in absence of receipt of purchase of
ornaments from Rajmal Lakhichand Jewelery Shop by PW-3, ought
to have examined somebody from the shop of the said Jewelery so as
to at least tell before the Court that, the said ornaments bears their
stamp and were sold to PW3.
As already observed, PW-3 claimed that, he purchased
readymade jewelery from Rajmal Lakhichand Jewelery Shop. At this
juncture, it would be appropriate to make reference to the evidence of
PW-16 Tushar Arvind Chaudhari. In his evidence, he deposed that, he
completed Fashion Textile Design diploma and he runs business at
Aurangabad under the name and style Diva Candle Crafts since last 4
to 5 years. Yogesh is his elder brother and he is working as Software
Engineer at Pune. Dr. Arvind Chaudhari (PW3) is his father and
deceased Dr. Vijaya Chaudhari was his mother. Both of them were
residing at Muktainagar. His mother was working as Medical Officer
at Civil Hospital, Jalgaon. His father was retired as medical Officer
from Civil Hospital, Jalgaon. He received a phone call on 13 th March,
2012 from his maternal uncle Kishor at about 9.00 a.m. that, his
mother was missing since 12th March, 2012. He rushed to Jalgaon and
he himself and his friend circle started search of his mother but she
could not be traced out. He further stated that, he was called at Tahsil
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Office, Jalgaon on 2nd June, 2012 for identification of gold articles of
his mother. He claimed that, the set which he identified contained
three gold Bangles, two gold Karnafule (an ear ornament), one gold
Padak (Pendant) and four gold Beads. He was shown four bold Beads.
He identified the same before the Court. When he was asked how do
he identify the articles of his mother, he deposed that, before 15 days
of the incident, he had purchased the four gold Bangles for his mother
from Jalgaon. Each Bangle was weighing 9 to 10 gram. The specific
circles in the design are also sufficient to identify the bangles. The
other articles that he identified have been seen by him many times on
the person of his mother and therefore, he could correctly identify
them. It appears that, leading question which was asked by the learned
Additional Public Prosecutor is that, how do he identify the articles of
his mother, the same was objected by the defence on the ground that,
it would cause prejudice to the case of the accused.
This witness further stated that, bangles, which were
shown to him before the Court was not kept in identification parade.
The said bangle belonged to his mother. He can identify this Bangle
on the basis of identical design with three other Bangles. The other
sets kept at the time of identification parade had similar look with
similar weight and the number of articles were also the same. In his
1.2013conf.case
cross examination, he stated that, he does not remember the name of
the shop from where he purchased the bangles, for his mother.
However, the same bangles were purchased by paying cash. However,
he admits that, he has no receipt of purchase of set of bangles. In his
cross examination by the Advocate for the accused nos. 3 and 4, he
stated that, prior to 13th March, 2012 he had come to Jalgaon 15 days
before for purchasing bangles for his mother. He further stated that,
he has not seen four Bangles on the person of his mother prior to 15
days of 13th March, 2012, when he came to Jalgaon. He specifically
stated that, it did not happen that the four bangles were purchased by
his father prior to two months of the incident. He further stated that,
he had no knowledge on 17th March, 2012 that, four bangles of his
mother were stolen and she was murdered for those Bangles. He
further stated that, he is not sure about the date of 17 th March, 2012 as
to whether on that date he was knowing about the murder of his
mother. After 5 to 6 days of the incident, he came to know about
murder of his mother for her jewelery. He further stated that, he had
not stated about the composition of set of jewelery in his statement
before Tahsildar and also that, he purchased four bangles for his
mother 15 days back. He further deposed that, he stated that, he had
seen that isolate Bangle before the Court for first time after
purchasing the same.
1.2013conf.case
90. Upon considering the evidence of PW-3 Arvind
Chadhari, father of PW-16 - Tushar Chaudhari, in his evidence he
stated that, he purchased bangles two months prior to date of incident
from the Rajmal Lakhichand Jewelery Shop and PW-16 - Tushar
Chaudhari stated that, he purchased the said bangles 15 days prior to
the date of incident and he paid the price of the said bangles in cash,
however, no receipt was produced on record, therefore, there is
material inconsistency in the version of PW-3 and PW-16 about
purchasing of bangles. The prosecution has brought on record two
version of father and son i.e. PW-3 and PW-16, that the PW-3 stated
that, the bangles were purchased two months prior to the date of
incident and PW-16 claimed that, he purchased the said bangles 15
days prior to the date of incident. He has not stated name of shop from
which he purchased the said bangles. Therefore, the said two
inconsistent versions goes to the root of the matter in as much as in
absence of receipt of purchase of bangles on record, it create serious
doubt in the mind, whether the said ornaments were really belonged
to deceased. It was necessary for the prosecution to examine either the
owner of the shop from which the bangles were purchased or at least
examine anybody from the said shop so as to establish that, the
bangles were purchased from the particular shop prior to the date of
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incident. Therefore, inconsistent version of PW-3 and PW-16 about
actual purchase of bangles is something which cannot be brushed
aside.
91. It is not the case of the prosecution that, in pursuant to
the memorandum statement of Yuvraj gold ornaments are recovered
from accused no.4. Infact recovery of these ornaments is not in
pursuant to the disclosure statement of accused - Yuvraj. However, it
appears that, when accused no.3 Maheshkumar was in police custody,
he disclosed that, he purchased the said ornaments and in pursuant to
disclosure, the said ornaments were recovered by the Investigating
Officer from his shop/house. In support of prosecution case that,
accused no.3 purchased the gold ornaments, the prosecution examine
PW-13 Nikhil Bharat Varma. His evidence is at Exhibit - 118. He is
the nephew of accused no.3. In his evidence before the Court he told
that, accused Mahesh is his uncle and accused Premlata is his aunt.
Both the accused were present in the Court. He has one more uncle
namely Rajaram. He further stated that, Mahesh Varma is the eldest
among his brothers. They constitute joint family. Their family runs
shop namely Sheth Bansilal Mishrilal Varma. Accused Mahesh and
Premlata run the shop. He further stated that, he know accused no.1 -
Yuvraj Sabale. He deposed that, on 12th March, 2012, at about 5.00 to
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5.30 p.m. accused no.1-Yuvraj Sabale had come to the shop. At that
time, he was also present in the shop. Then he has stated further
details about the ornaments given by Yuvaj Sabale. He further
deposed that, out of four bangles his aunt took out one bangle.
Thereafter his aunt Premlata went to Jalna along with that Bangle.
After 2 to 3 months his aunt returned to Jalgaon from Jalna. This
witness stated that, his aunt after return from Jalna gave him threat to
involve him in the crime, if he did not deposit the gold bangles with
local crime branch office, and therefore, he went to local crime branch
office, Jalgaon and reported all the incident to Investigating Officer
Gaware. He handed over the bangles to Investigating Officer Gaware.
He has stated further details also. However, the defence criticized his
evidence on the ground that, there is a dispute pending between
accused Premlata and this witness and therefore, he has deposed
against accused Mahesh and Premlata. In his cross examination he
admitted that, he had filed private complaint R.C.C. No. 380/2012 on
11th June, 2012. According to the defence counsel due to private
dispute pending between the parties he deposed against accused
Premalata and Mahesh. In fact, his evidence deserves to be discarded
on the ground that, his statement was recorded by the Police after
three months from the date of incident, and therefore, his evidence is
not trustworthy.
1.2013conf.case
92. It is true that, the statement of this witness was recorded
by the Police on 07.04.2012 and the charge-sheet came to be filed
within few days from recording of his statement by the Police. Such
belated statement after three months and the fact that, the private
dispute is pending between the parties creates serious doubt about the
truthfulness of evidence of PW-13 and therefore, in our opinion, the
evidence of PW-13 ought to have been discarded by the trial Court.
93. So far circumstances (i) and (ii) which are enlisted
hereinbefore in para No. 76 are concerned, it appears that, there is
evidence of PW-6, PW-7 and PW-9 and also the evidence of defence
witness Dr. Rathod, Civil Surgeon and also other documentary
evidence to suggest that, Dr. Vijaya Chuadhari and accused no.1 was
familiar with the atmosphere of Civil Hospital, and he was helping
Medical Officer while doing postmortem and he was carrying dead
bodies of unidentified and unclaimed person to Civil Hospital, and
thereafter to crematory, and therefore, so far circumstance no.1 is
concerned, the prosecution has proved the said circumstance. The
second circumstance that, on 12th March, 2012, the accused was
present in the Civil Hospital, Jalgaon and he was helping Dr. Vijaya
Chaudhari in conducting postmortem is concerned, it has come in the
1.2013conf.case
evidence of PW-9 Pawan Jadhav that, on 12th March, 2012, he called
accused no.1 Yuvraj to assist him in P.M. Room. PW-9 Dr. Pawan
Jadhav and accused no.1 Yuvraj were present in P.M. House till 3
p.m. on 12th March, 2012. Therefore, the presence of accused no.1 -
Yuvraj in P.M. House till 3 p.m. on 12 th March, 2012 has been stated
by PW-9 Pawan Jadhav, who is working as Sweeper in Civil Hospital,
Jalgaon. However, the P.M. which was conducted from 2 p.m. to 3
p.m. was of one lady Smt. Vispute. Therefore, at the highest it can be
said that, accused - Yuvraj was present till 3 p.m. in the P.M. Room
as stated by PW-9.
It appears that, neither PW-5 nor PW-9 saw Dr.Vijaya
Chaudhari entering into P.M. House. When PW-3 i.e. husband of the
complainant, went to the Hospital on the next date of incident, he met
PW-9 Pawan. PW-9 told him that, after P.M. was over at 3.00 p.m.
Dr.Vijaya Chaudhari went to the Civil Hospital for round. Therefore,
evidence of PW-9 Pawan creates serious doubt about whether he has
really seen Dr. Vijaya Chaudhari was present in the hospital after 3.00
p.m.. Thereafter his evidence creates serious doubts about its
truthfulness in the mind and it is not safe to rely upon it.
So far circumstances (iii) and (iv) relied upon by the
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trial Court is concerned, from the evidence of PW-11 Ravi Pardeshi
Nodal Officer, it appears that, accused Yuvraj made phone call to
deceased Dr. Vijaya Chaudhari at about 15:44:31, however, after
receiving such phone call, whether Dr. Vijaya Chaudhari immediately
thereafter went to the P.M. House is concerned, there is evidence of
PW-5 Ashok Pawar. So far another circumstance, the last seen
together is concerned, the evidence of PW-5 is relied upon by the trial
Court. PW-5 Ashok Pawar in his evidence stated that, on 12 th March,
2012, in between 3.45 to 4.00 p.m. he was going to the main gate of
civil hospital along with HIV kits. He met Dr. Vijaya Chaudhari on
the way. He gave wish to Dr. Vijaya Chaudhari by calling good
afternoon. According to PW-5, Dr. Vijaya Chaudhari responded him
in the same manner. He noticed that, she had put on gold ornaments
on her person on that day and she was not wearing such jewelery
daily. He did ask Dr. Vijaya Chaudhari whether, she had to attend any
function, on which she replied that, she had to attend one function,
scheduled at Royal Palace Hotel in the evening. She also told him
that, she was going towards P.M. House as there was one unidentified
dead body to come and then this witness saw Dr. Vijaya Chaudhari
going towards P.M. House and one white ambulance parked out of
P.M. House. Accused no.1 Yuvraj and approver Gulab were standing
near the ambulance and accused no.2 Pankaj was going towards the
1.2013conf.case
gate of Civil Hospital. Accused Pawan Jadhav was standing in the
gate. He did ask him as to why he was standing there and he replied
that, as Dr. Vijaya Chaudari had gone in P.M. House and one dead
body had come there. He told him that, the dead body was not brought
by that time. Then this witness went with his friend to Tea Stall.
While coming back, after consuming tea, again he saw accused no.2
Pankaj going towards P.M. House along with tobacco pouch. Again
this witness asked Pawan as to whether the dead body was brought
there or not. He replied that, the dead body was not reached there by
that time. This witness stayed about 10 to 15 minutes at Tea Stall.
Then he saw one ambulance coming towards the gate. It was driven
by approver Gulab. Accused No.1 Yuvraj and accused no.2 were also
seen in the ambulance. He has given other details. He further stated
that, after 5-10 minutes he asked his friend Sachin that, they would
see whether the P.M. work of Dr. Vijaya Chaudhari was over and he
would drop her at Royal Palace Hotel. When he along with his friend
went near P.M. House, he noticed that, it was locked. Then he went
towards Railway Station. He further stated that, on the next day
morning, the husband of Dr. Vijaya Chaudhari came to Civil Hospital
and made enquiry with him about his wife. Then he told him that, he
had seen Dr. Vijaya Chaudhari going towards P.M. House.
In his cross examination, he stated that, he cannot tell
1.2013conf.case
whether the keys of P.M. House were with Pawan (PW-9). When he
went there P.M. Room was closed. He further stated that, door of
P.M. Room was not visible from the spot where he met Dr. Vijaya
Chaudhari first. He further stated that, the P.M. Room's door is also
not visible from the tea stall. In his cross examination he further stated
that, when he went to P.M. House, same was locked. He further stated
that, he cannot tell whether the dead body is directly taken to P.M.
House. He further stated that, he was not known about the procedure
of sending the dead body to P.M. House. He did not know design on
the jewelery on the person of Dr. Vijaya Chaudhari. He further stated
that, his statement was recorded by the Police on 17 th March, 2012.
He on his own had gone to Police Station. He came to know about the
incident of Dr. Vijaya Chaudhari on 17.03.2012 at about 11 a.m., as
there was discussion in the hospital. He further stated in the cross-
examination by the Advocate for accused no.2 that, he used to talk Dr.
Vijaya Chaudhari on Mobile. It did not happen that, he called Dr.
Vijaya Chaudhari on her mobile phone for taking her to Royal Palace
Hotel. She used to call him on his mobile whenever required.
However, on the date of incident, she had not called him on his
mobile for dropping her at Hotel Royal Palace. On 12 th March, 2012,
he had come to Civil Hospital at about 3.30 p.m. for taking H.I.V.
Kit. On that day, he was allotted the duty at Railway Station. He
1.2013conf.case
further stated that, it is true that, after taking anything from Hospital,
the necessary entry has to be made in the concerned register.
However, he further stated that, he had no other evidence to show
that, he collected H.I.V. Kit.
94. If the evidence of this witness is considered in its
entirety, in the first place his duty was not in the hospital on the
relevant day. As admitted by him in his cross-examination, at the
relevant time, his duty was at Railway Station and he came at 3.30
p.m. to collect the H.I.V. Kit from the hospital. There is no entry in
the register that, he collected H.I.V. Kit from the hospital and the
prosecution has not placed any other evidence to show that, he
collected H.I.V. Kit on that day. His presence on the date of incident
in the hospital itself appears to be doubtful, in as much as, even
according to him, he came in the hospital at 3.30 p.m. to collect the
H.I.V. Kit and there is no entry in the register that he collected the
H.I.V. Kit from the hospital, though he has stated in his examination-
in-chief that, he was going towards main gate of Civil Hospital along
with H.I.V. Kit and in between 3.45 to 4 p.m. he met Dr. Vijaya
Chaudhari on the way. Infact, in the first place his presence in the
hospital itself is doubtful. Secondly, even if his evidence is believed,
at the most he saw Dr. Vijaya Chaudhari going towards P.M. House.
1.2013conf.case
He has admitted in his cross-examination, the gate of the P.M. House
was not visible - either from the place where he was standing while
talking to Dr. Vijaya Chaudhari or from the Tea Stall. It is also
difficult to fathom that, though there was no request by Dr. Vijaya
Chaudhari to him to drop her to Royal Palace Hotel to attend the
conference, he waited in the hospital expecting the call from Dr.
Vijaya Chaudhari that, she would ask him to drop her at Royal Palace
Hotel. This witness has not stated anywhere that, at the relevant time,
he saw Dr. Vijaya Chaudhari in the company of accused no.1 -
Yuvraj, accused no.2- Pankaj and Gulab. He only stated that, he saw
Dr.Vijaya Chaudhari going towards the P.M. Room. If the incident of
killing Dr. Vijaya Chaudhari as alleged by the prosecution would
have taken place in the P.M. Room in that case also some
considerable time ought to have been consumed. PW-5 himself has
stated that, he along with his friend waited at Tea Stall for about 10-
15 minutes. Infact as per his version, Tea Stall is situated infront of
Civil Hospital. Therefore, according to his evidence, he met Dr.
Vijaya Chaudhari in between 3.45 to 4 p.m. and he saw going her
towards P.M. House. However, he has not stated that, he saw Dr.
Vijaya Chaudhari entering in the P.M. Room. If his version is
believed then within 10-15 minutes from the visit of Dr. Vijaya
Chaudhari, this witness returned back in the Civil hospital and saw
1.2013conf.case
that, P.M. Room was locked. Therefore, it appears that, this witness is
got up witness. Infact, if he met Dr. Vijaya Chaudhari in between 3.45
to 4 p.m. and within 10-15 minutes he saw P.M. Room was locked.
The alleged incident of killing of Dr. Vijaya Chaudhari and taking her
dead body in the ambulance by the accused is not possible within 10-
15 minutes. Further evidence of this witness is that, in between 4.15
p.m. to 4.30 p.m. he saw ambulance driven by Gulab accompanied
with two accused going out of hospital. However, merely because he
saw ambulance going out of hospital would not lead to the inference
that, said ambulance was carrying the dead body of Dr. Vijaya
Chaudhari. If the evidence of this witness is considered in its entirety,
it appears that, his presence on the date of incident in the civil hospital
itself was doubtful. Even if his evidence is taken in its entirety, it is
difficult to fathom that, within short span of 10-15 minutes alleged act
of killing of Dr. Vijaya Chaudhari in the P.M. Room and also taking
dead body in the ambulance as alleged by the prosecution is beyond
imagination and more so, when there is no criminal antecedents to the
credit of accused persons. The prosecution has not brought any
material on record to suggest that accused are habitual criminals and
that, earlier they were involved in such commission of grave offences.
It is also unbelievable that, PW-5 who was working as Technician in
the said civil hospital, who claimed closeness with Dr. Vijaya
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Chaudhari, in as much as, she used to call him on his mobile phone
whenever required to drop her on his vehicle, and on that day without
even her phone call, he waited expecting call from Dr. Vijaya
Chaudhari for dropping her to Royal Palace Hotel, and he did not
know about the death of Dr.Vijaya Chaudhari till 17 th March, 2012. It
is difficult to fathom that, he himself went to the Police Station so as
to give statement on 17th March, 2012 when the alleged incident had
taken place on 12th March, 2012. Therefore, if the evidence of this
witness is read in its entirety, his presence on the date of incident at
the relevant time in the Civil hospital itself is doubtful. It appears that,
he is got up witness so as to suit the prosecution case and in particular
the circumstance that, the deceased was last seen in the company of
the accused persons. It is totally unsafe to rely on the evidence of PW-
5 so as to reach to the conclusion that, he saw Dr. Vijaya Chaudhari
going towards the P.M. House and further saw her in the company of
the accused person.
PW5 claimed in his evidence that, PW-3 came to the
Civil Hospital on 13.03.2012, next day of the incident, and met him.
PW-3 in his evidence has not mentioned that, he went PW-5 in the
civil hospital on 13/03/2012. The statement of this witness is recorded
by the Police in the Police Station on 17.03.2012, after about 5 days
1.2013conf.case
from the date of incident. On 16.03.2012 memorandum statement of
the accused No.1 was recorded, and pursuant to it there is recovery
panchnama. In the light of discussion herein before, evidence of PW-
5 does not appear to be true and creates serious doubt about its
reliability and truthfulness in our mind, and therefore, we refrain from
relying on it.
95.
Therefore, the vital circumstance, in the chain of the
circumstances that, Dr. Vijaya Chaudhari (deceased) was seen lastly
in the company of the accused before the alleged incident is
concerned, the prosecution has not proved beyond reasonable doubt
the said circumstance. The prosecution has not brought anything on
record by way of documentary evidence to show that, PW-5 was
present in the civil hospital at the relevant time on 12 th March, 2012.
There is no other evidence on record to prove the circumstance of last
seen together.
96. So far, phone call by accused-Yuvraj on the cell number
of deceased Dr. Vijaya Chaudhari at 3:44:31 is concerned, merely
because there was phone call from the cell phone of accused Yuvraj,
it would not lead to the conclusion that, he called her to P.M. House
so as to perform the postmortem on unidentified dead body. By any
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stretch of imagination, it is unbelievable that, without any entry in the
register/record in the civil hospital, the dead body is taken inside the
hospital and directly to the P.M. Room and then the person i.e.
accused no.1, who according to the prosecution used to help doctor in
performing the P.M., but not a servant of Government or Corporation
calls directly to Dr. Vijaya Chaudhari for performing the postmortem
of unidentified body. The prosecution has not placed anything on
record to suggest that, atleast, there was information received by the
hospital and that too, there is entry of said information in the hospital
record about receiving any unidentified body for postmortem.
Therefore, merely because, there was call from the cell phone of
accused no.1 - Yuvraj to Dr. Vijaya Chaudhari at 3:44:31, that
circumstance alone is not sufficient to hold that, accused no.1 -
Yuvraj called Dr. Vijaya Chaudhari in the P.M. House for performing
the postmortem on unidentified dead body, though there was no
unidentified dead body. Infact, the prosecution story itself is doubtful
in as much as PW-9 who is working as Sweeper and duly appointed in
the said hospital and on said day his duty was assigned for 24 hours,
handed over the keys of the P.M. Room to accused no.1-Yuvraj at 3
p.m. and accused - Yuvraj was sitting on bench infront of P.M.
Room, is not proved by the prosecution by independent evidence
except bare words of PW-9. Whether there was bench out side the
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P.M. House is concerned, it appears from the discussion in the
impugned judgment that, the learned Judge himself visited the spot
including the P.M. House. However, what was seen by the learned
Judge can not take place of the evidence or proof. The Supreme Court
in the case of Keisam Kumar Singh and another V/s State of
Manipur53 in para 13 held as under :-
"13. Lastly, the learned Sessions Judge relied on the local
inspection made by him. Here, the High Court rightly pointed out
that the learned Sessions Judge had committed a serious error of
law. Normally, a Court is not entitled to make a local inspection
and even if such an inspection is made, it can never take the place
of evidence or proof but is really meant for appreciating the
position at the spot. The Sessions Judge seems to have converted
himself into a witness in order to draw full support to the defence
case by what he may have seen.
This Court in Pritam Singh v. State of Punjab AIR 1956 SC 415
observed thus :
"A Magistrate is certainly not entitled to allow his view or
observation to take the place of evidence because such view or
observation of his cannot be tested by cross-examination and the
accused would certainly not be in a position to furnish any
explanation in regard to the same."
97. The defence examined Dr. Narayan Gajanan Rathod
as witness. In his evidence before the Court he stated that, Dr.
Vijaya Chaudhari was serving as Medical Officer in Civil Hospital,
53. A.I.R. 1985 SC 1664
1.2013conf.case
Jalgaon since 2006. He stated further details about assigning duty
to Medical Officer in Civil Hospital. He further stated that, one
register is maintained in that respect. Every page of said register
bears the name of dead person whose postmortem is done and
name of doctor performing autopsy and duration of postmortem
with timings and the name of concerned Police Station referring the
dead body for autopsy and signature of doctor performing autopsy.
During his recording of evidence, he stated that, he has brought the
original original Register of Civil Hospital, Jalgaon for the period
March, 2012. As per entries in the said Register, the duty hours of
Dr. Vijaya Chaudhari were from 12th March, 2012 from 8.30 a.m. to
13th March, 2012 at 8.30 a.m. As per record with him, he stated
that, Dr. Vijaya Chaudhari has performed postmortem of only one
body on 12th March, 2012 and timings of the said postmortem are
2.00 p.m. to 3.00 p.m. and this postmortem was pertaining to the
dead body. He further stated that, he received information from the
husband of Dr. Vijaya Chaudhari that, she did not return to house
in the evening on 12th March, 2012. He further stated that, he does
not know, who has last seen Dr. Vijaya Chaudhari. He further
stated that, he has brought original duty Register of doctors. As
per the said duty Register, said Dr. Vijaya Chaudhari was on P.M.
duty as D.M.O. and P.M.O. The said Register bears the signature of
R.M.O. Dr. Bharambe. He acquainted with his signature. The
extract of this Register is already on record. When he was
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confronted with the extract from the Register, he stated that, the
contents therein are identical with the original Register. He
produced the original Register before the Court. He stated that,
after verifying the said Register, the postmortem, which was
performed was of Sunita Pandit Vispute. As per record, dead body
of Sunita Vispute was brought to Civil Hospital at 1.50 p.m. on 12 th
March, 2012. Entry in that regard is taken in that Register at
Sr.No. 214. The record also shows that, Dr. Vijaya Chaudhari put
her signature in the concerned column. When he was confronted
with photocopies of extract of Entry at Sr. No. 214, which was
prepared from original Register maintained by Civil Hospital,
Jalgaon, he compared the same with the original Register and
stated that, it is correct as per original. He further stated that, two
helpers are appointed to help the Medical Officer for performing
postmortem. In March, 2012, two helpers namely Suklal Karosiya
and Pawan Baburao Jadhav were appointed as helpers. These
helpers assist the Medical Officer for lifting the dead body and
assisting in postmortem. On 12th March, 2012, helper Suklal
Karosiya was on earned leave and he sanctioned his leave. He
further stated details about accused no.1 that, he used to bring
unclaimed dead bodies to Civil Hospital for postmortem and for that
purpose he was getting some amount from Municipal Corporation,
Jalgaon.
98. Upon perusal of the evidence of this witness, it is
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crystal clear that, there was no entry in the Register maintained by
the hospital that, any unidentified and unclaimed body was arrived
in the hospital for postmortem and for that purpose Dr. Vijaya
Chaudhari went to the postmortem room. D.W. 1 served as Civil
Surgeon in Civil Hospital, Jalgaon during the period from June,
2009 till 7th June, 2012. He has not stated in his evidence
supporting the prosecution case that, on 12 th March, 2012, the
incident of killing of Dr. Vijaya Chaudhari as alleged by the
prosecution had taken place in the P.M. Room/Mortuary. His
evidence is significant, in as much as he was working as Civil
Surgeon as a controlling authority of entire administration of the
hospital.
99. Therefore, in the light of discussion hereinabove, the
prosecution has not proved beyond reasonable doubt that, Dr. Vijaya
Chaudhari was last seen with accused nos. 1, 2 and approver Gulab.
This circumstance has not been proved by the prosecution. An another
circumstance that, after deceased Vijaya Chaudhari was last seen with
accused nos. 1 and 2 within short span of time, accused nos. 1 and 2
and approver - Gulab was seen at crematory along with one female
dead body is concerned, even if such circumstance is taken as it is, in
the first place, the prosecution has not proved beyond reasonable
doubt that, Dr. Vijaya Chaudhari was last seen together with accused
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nos. 1 and 2 and Gulab and secondly, merely because accused nos. 1,
2 and Gulab, were seen in crematory with one female dead body that
itself would not lead to the conclusion that, said dead body was of
deceased Dr. Vijaya Chaudhari. Infact, the prosecution has brought on
record that, in between 2 p.m. to 3 p.m. Dr. Vijaya Chaudhari
performed one postmortem on dead body of Smt. Sunita Pandit
Vispute. Even if this circumstance is taken in its entirety, at the most,
it can be said that, accused nos. 1, 2 and Gulab, were seen at
crematory with one dead body. However, the prosecution has not
established beyond reasonable doubt that, the said dead body was of
Dr. Vijaya Chaudhari. As already observed, the dead body was not
recovered, and from the C.A. Report also nothing has been brought on
record which would suggest that, the said dead body was of Dr.
Vijaya Chaudhari. The another circumstance is that, Dr. Vijaya
Chaudhari was missing after the moment she was last seen with the
accused. Since the prosecution failed to establish beyond reasonable
doubt that, deceased Dr. Vijaya Chaudhari was last seen in the
company of accused, the existence of this circumstance itself would
disappear.
The Supreme Court in the case of Kanhaiya Lal V/s.
1.2013conf.case
State of Rajasthan54 held that, the circumstance of last seen together
does not by itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be something more
needs to establish to connect the accused with the commission of
crime.
100. Another circumstance relied upon by the trial Court is
that, procrastination on the part of accused no.1 to supply necessary
information to municipal employees in respect of dead body he
cremated with the help of other accused and approver and also
accused no.1 gave wrong and false information twice to the Municipal
Employee about the name of deceased and name that he had given is
proved to be imaginary, if both these circumstances are taken
together, would also not lead to only conclusion that, wrong
information given by the accused no.1 and cremation of dead body in
the crematory on the relevant date, itself is sufficient to convict the
accused. The prosecution has not proved beyond reasonable doubt
that, the dead body which was cremated on platform no.11 in the
crematory on 12th March, 2012 was of Dr. Vijaya Chaudhari. As
already observed, nothing has come on record through C.A. Report so
as to believe that, dead body which was cremated in the crematory on
54. (2014) 4 SCC 715
1.2013conf.case
that day on 12th March, 2012 as alleged by the prosecution was of
deceased Dr. Vijaya Chaudhari. The Additional Public Prosecutor
argued that, the accused no.1 suppressed the vital information about
whose dead body he cremated on 12 th March, 2012 and further he did
give wrong information to the PW-6 and PW-7 about the dead body.
The prosecution examined PW-2 to prove that, information given by
accused no.1 - Yuvraj about the dead body, which was cremated, was
of Kashiram Sabale, in that case also provisions of section 106 of the
Evidence Act would not attract automatically. In the first place to
attract the provisions of section 106 of the Evidence Act, in the facts
of the present case, the prosecution has not discharged its burden to
prove that, the dead body which was allegedly cremated on 12 th
March, 2012 on platform no.11 was of deceased Dr. Vijaya
Chaudhari. Therefore, though Additional Public Prosecutor argued
that, the aforesaid facts were within the special knowledge of accused
no.1-Yuvraj, in our opinion, that itself is not sufficient since the
prosecution has not discharged its burden to prove that, the dead body
which was cremated was of Dr. Vijaya Chaudhari. The Supreme
Court in the case of Joydeb Patra & ors V/s State of West Bengal 55
in the facts of that case in paras 7 to 9 held thus :-
"7. Learned counsel for the State, Mr. Bijan Ghosh, vehemently
submitted that since the death took place in the house of the appellants,
55. 2013 Cri.L.J. 2729
1.2013conf.case
burden was on the appellants to prove as to how the death of the
deceased actually took place. He submitted that the death of the
deceased obviously took place under very mysterious circumstances
and when the medical facilities were very near to the place of
occurrence, the appellants should have availed the medical facilities
but have not done so and this conduct of the appellants has given scope
to the prosecution to believe that they were guilty of the offence under
Section 302/34, I.P.C.
8. We are afraid, we cannot accept this submission of Mr. Ghosh.
This Court has repeatedly held that the burden to prove the guilt of the
accused beyond reasonable doubt is on the prosecution and it is only
when this burden is discharged that the accused could prove any fact
within his special knowledge under Section 106 of the Indian Evidence
Act to establish that he was not guilty. In Sucha Singh v. State of
Punjab,(2001) 4 SCC 375 : (AIR 2001 SC 1436 : 2001 AIR SCW 1292),
this Court held:
"We pointed out that Section 106 of the Evidence Act is not intended
to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but the section would apply to
cases where prosecution has succeeded in proving facts for which a
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of special
knowledge regarding such facts failed to offer any explanation
which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306 :
(2006 AIR SCW 6197), this Court reiterated:
"Section 106 of the Indian Evidence Act does not relieve the
prosecution to prove its case beyond all reasonable doubt. Only
when the prosecution case has been proved the burden in regard to
such facts which was within the special knowledge of the accused
1.2013conf.case
may be shifted to the accused for explaining the same. Of course,
there are certain exceptions to the said rule, e.g., where burden of
proof may be imposed upon the accused by reason of a statute."
9. As the prosecution has not been able to discharge its burden of
establishing beyond reasonable doubt that the deceased died due to
poisoning, in our view, the trial court and the High Court could not
have held the appellants guilty just because the appellants have not
been able to explain under what circumstances the deceased died. "
101. In the case of Sharad Birdhichand Sarda Vs. State of
Maharashtra56, the Apex Court has held that, the prosecution must
stand or fall on its own legs and it cannot derive any strength from the
weakness of the defence. 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.
It is also to be born in mind that the case in hand is a case of
circumstantial evidence and if two views are possible on the evidence
of record, one pointing to the guilt of the accused and other his
innocence, the accused is entitled to have the benefit of one which is
favourable to him.
102. Another circumstance relied upon by the trial Court was
56. (1984) 4 SCC 166
1.2013conf.case
that, there was human blood stains on the shirt of accused no.1, when
he was arrested. In fact merely because human blood stains on the
shirt of the accused no.1 was found, that itself would not lead to the
conclusion that, the said blood stains were of blood group of deceased
Dr. Vijaya Chaudhari. In fact, it is difficult to believe that, the
accused no.1 continued to wear the said shirt after three days from the
date of incident till his arrest. The C.A. Report only indicates that, the
human blood stains are found on the shirt of the accused no.1. The
Division Bench of the Bombay High Court in the case of Kailas
Tukaram Patil and another V/s State of Maharashtra,57 in the
facts of that case held that, it was for the prosecution to bring on
record the fact that, the blood had been drawn from the body of the
deceased and it was this blood which was sent to the Chemical
Analyser for analysis after taking due precautions relating to the
sealing of the same. In the present case, even it is not the case of the
prosecution that, the blood stains found on the shirt of the accused
no.1 are of blood group of the deceased. Therefore, said circumstance
should not have been taken into consideration and accepted by the
trial Court.
103. The next circumstance relied upon by the trial Court is
57. 2006 All MR (Cri) 86
1.2013conf.case
that, signatures of the accused in Municipal Register while giving
information in crematory and on the receipt Exhibit No. 75 are proved
by cogent evidence. As already observed in para 70 and 71 of this
judgment, merely because handwriting suggest that, the signatures are
of the accused on the register maintained by the Municipal Register
that itself is not the basis to convict the accused. In the first place, as
discussed in para No.70 and 71, the signature and also handwriting of
alleged signature if compared with the other handwriting in the entry
at Sr. No. 027483 are in different handwriting and ink. The
prosecution claims that, PW-7 had written information given by the
accused Yuvraj in Death Report -Numerical Information Register.
However, the prosecution did not send documents to hand writing
expert to ascertain whether, those entries are in the hand writing of
PW-7.
104. The another circumstance relied upon by the trial Court
is knowledge of accused about the two spots where deceased was
murdered and where she was cremated. It appears that, memorandum
statement of the accused no.1 was recorded on 16.02.2012. The
prosecution claims that, on 16.03.2012 accused no.1 shown two spots.
It is also pertinent to note that, as discussed here in above, PW-21
Devidas Budha Ahire (Police Officer) went to crematory and saw
1.2013conf.case
Otta No.11 and also went inside the P.M. Room on 15.03.2012.
Therefore, the prosecution case that, spot of incident and also where
dead body was cremated was discovered at the instance of accused
No.1 Yuvraj in pursuance to his memorandum statement dated
16.03.2012, lost its significance. Therefore, the prosecution cannot
claim that, from the memorandum statement of accused no.1, new fact
was discovered about two spots. PW-21 Police Officer, incharge of
the case, knew about these two spots and therefore, he visited both the
spots on 15.03.2012.
105. The prosecution has not proved that, the silver Jodave
and silver anklet, which were recovered from Otta No.11 was of Dr.
Vijaya Chaudhari. Even the PW-3 did not claim that, silver Jodave
and silver anklet was belonged to deceased. As already observed,
there is no other evidence to suggest that, the body which was
allegedly cremated at Otta No.11 on 12th March, 2012 was of Dr.
Vijaya Chaudhari except the case of the prosecution that, accused
no.1 disclosed where deceased was murdered and where she was
cremated.
106. The another circumstance relied upon by the trial Court
to convict the accused was that, accused no.1 sold gold ornaments to
1.2013conf.case
accused Mahesh on the same day i.e. on 12/03/2012 after the incident
and the same have been recovered from the house of accused Mahesh,
is proved beyond all reasonable doubt that, accused nos. 1, 2 and
Gulab (P.W. No.1) have committed brutal murder of Dr. Vijaya
Chaudhari in pursuance of conspiracy. The prosecution relied upon
the evidence of PW-4, PW-6 and PW-7 to contend that, these
witnesses saw the accused nos. 1, 2 and approver - Gulab in
crematory and accused nos.1 and 2 and approver - Gulab (PW-1) had
brought one dead body in their ambulance and they set on fire the
dead body. When the prosecution has failed to establish beyond
reasonable doubt that, deceased Dr. Vijaya Chaudhari was last seen in
the company of accused nos. 1, 2 and approver- Gulab, the evidence
of PW-4, PW-6 and PW-7 that, they saw the accused nos.1, 2 and
approver Gulab in crematory with one dead body, would not lead to
the conclusion that, the said dead body was of deceased Dr. Vijaya
Chaudhari. As already observed, the presence of PW-5 Ashok Pawar
itself was doubtful on the date of incident in the civil hospital. Even if
the evidence of PW-6 and PW-7 is considered about suspicious
conduct of accused, in that case also in absence of prosecution
discharging its burden to prove that, the dead body which was carried
out by the accused and cremated was of Dr. Vijaya Chaudhari, the
alleged suspicious conduct of the accused itself is not sufficient to
1.2013conf.case
hold that, the accused committed murder of Dr. Vijaya Chaudhari and
cremated dead body under suspicious circumstance. In order to press
into service the provisions of Section 106 of the Evidence Act, it is
necessary for the prosecution to discharge its burden under Section
101 of the Indian Evidence Act before the said provision is invoked as
already observed by the Supreme Court in the case of Joydeb Patra
(supra). In the light of discussion hereinabove, if all circumstances are
taken together and examined, in the light of evidence brought on
record by the prosecution, they do not form complete chain. The
Supreme Court in the case of Shankarlal Gyarasilal Dixit V/s State
of Maharashtra reported58 in paras 13, 31 and 32 held thus :-
"13. Since this is a case of circumstantial evidence, it is necessary
to find whether the circumstances on which the prosecution relies
are established by satisfactory evidence, often described as 'clear
and cogent' and secondly, whether the circumstances are of such
a nature as to exclude every other hypothesis save the one that the
appellant is guilty of the offences of which he is charged. In other
words, the circumstances have to be of such a nature as to be
consistent with the sole hypothesis that the accused is guilty of the
crime imputed to him.
31. It causes us some surprise that the learned Additional
Sessions Judge, Akola, who tried the case, has not shown any
awareness of the fundamental principle which governs cases
dependent solely on circumstantial evidence. Nowhere in his
judgment has the learned Judge alluded, directly or indirectly, to
58. 1981 (2) SCC 35
1.2013conf.case
the principle that in a case of circumstantial evidence, the
circumstances on which the prosecution relies must be consistent
with the sole hypothesis of the guilt of the accused. It is not to be
expected that in every case depending on circumstantial evidence,
the whole of the law governing cases of circumstantial evidence
should be set out in the judgment. Legal principles are not magic
incantations and their importance lies more in their application to
a given set of facts than in their recital in the judgment. The
simple expectation is that the judgment must show that the finding
of guilt, if any, has been reached after a proper and careful
evaluation of circumstances in order to determine whether they
are compatible with any other reasonable hypothesis.
32. The High Court, it must be said, has referred to the recent
decisions of this Court in Mahmood v. State of U.P. and
Chandmal v. State of Rajasthan in which the rule governing cases
of circumstantial evidence is reiterated. But, while formulating its
own view the High Court, with respect, fell into an error in stating
the true legal position by saying that what the court has to
consider is whether the cumulative effect of the circumstances
establishes the guilt of the accused beyond the "shadow of
doubt". In the first place, 'shadow of doubt', even in cases which
depend on direct evidence is shadow of "reasonable" doubt.
Secondly, in its practical application, the test which requires the
exclusion of other alternative hypotheses is far more rigorous
than the test of proof beyond reasonable doubt."
The Supreme Court in the abovesaid judgment held that,
in a case of circumstantial evidence, the circumstances on which the
prosecution relies must be consistent with the sole hypothesis of the
guilt of the accused. In the test as to whether the cumulative effect of
1.2013conf.case
the circumstances establishes the guilt of the accused beyond the
`shadow of doubt', the `shadow of doubt', even in cases which depend
on direct evidence, is shadow of `reasonable' doubt. Secondly, in its
practical application, the test which requires the exclusion of other
alternative hypotheses is far more rigorous than the test of proof
beyond reasonable doubt.
As already observed, the prosecution has not proved
some of the circumstances beyond reasonable doubt and there is no
complete chain of the circumstances, which would lead to only
hypothesis of the guilt of the accused.
107. The accused No.3 Maheshkumar is convicted by the
trial Court under section 235 of the Criminal Procedure Code for the
offence punishable under section 411 of Indian Penal Code and he is
sentenced to suffer rigorous imprisonment for 10 years and to pay fine
of Rs. 500/-, in default, to suffer rigorous imprisonment for three
months. The provisions of section 411 of the I.P. Code reads thus:-
"411. Dishonestly receiving stolen property.-- Whoever dishonestly
receives or retains any stolen property, knowing or having reason to
believe the same to be stolen property, shall be punished with
1.2013conf.case
imprisonment of either description for a term which may extend to three
years, or with fine, or with both."
108. In the first place, the prosecution has not proved beyond
reasonable doubt that, gold ornaments were sold by accused - Yuvraj
to accused nos. 2 and 4 namely Pankaj Maroti Sandanshiv and
Premlata Maheshkumar Varma. There is evidence of PW-13 namely
Nitin Varma, however, as already observed in the foregoing
paragraphs, his evidence is not reliable, in as much as, his statement
was recorded by the Police belatedly after three months. Admittedly
before his statement was recorded, dispute was pending between the
said witness and the accused nos. 3 and 4 before the Competent
Court. It is also not the case of the prosecution that, at the instance of
accused no.1- Yuvraj and in pursuant to his memorandum statement,
the said ornaments were recovered from the house of the accused nos.
3 and 4. In fact, in the first place, so as to meet the ingredients of
section 411 of the I.P. Code, the prosecution has to prove that, the
person who received the stolen property is received the same
dishonestly, knowingly or having reason to believe the same to be
stolen property and then only the said person shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both. In fact the prosecution has not
1.2013conf.case
brought on record the receipts of purchase of gold ornaments either by
PW-3 or PW-16. There is inconsistency in the evidence of PW-3 and
PW-16 in as much as PW-3 i.e. husband of Dr. Vijaya Chaudhari
claimed that, he purchased the gold ornaments just prior to two
months of the incident and PW-16 in his deposition has claimed that,
he purchased the said gold ornaments before 15 days of the incident.
Therefore, the prosecution case appears to be doubtful. The
identification of the ornaments after two and half months from the
date of incident that too by adopting procedure unknown to law by the
Tahsildar is also not believable. No witness has been examined from
the Jewelery shop from which the PW-3 claimed to have purchased
the gold ornaments, therefore, the entire evidence if taken into
consideration, the conviction of the accused no.3 cannot sustain. The
Supreme Court in the case of Musheer Khan @ Badshah Khan and
anr V/s State of M.P.59 in the facts of that case held that,
identification parade carried out after three months from the date of
incident in absence of any explanation for such delay, no reliance
ought to have been placed by the Courts below.
109. The Calcutta High Court in the case of Bharadwaj
Singh V/s Harimati Dasi60 while explaining the scope of section 411
59. AIR 2010 S.C. 762
60. 1952 Cri. L.J. 1298
1.2013conf.case
held as under :-
"To succeed in a prosecution under S. 411, I. P. C., the prosecution
must not only prove that the property had been stolen, but they must
also establish facts from which the Court can properly infer that the
person charged with being, in possession of stolen property either
knew the property to be stolen, or had reasonable grounds for
believing the same to have been stolen. Unless there is some prima
facie evidence as to the knowledge of the accused, the latter is
entitled to be acquitted, because, merely proving that he was in
possession of the stolen property establishes no offence of any kind."
In another case (Mohan Lal V/s State of
Maharashtra)61, while explaining scope of section 411 of I.P. Code,
in the facts of that case, Supreme Court held that, the prosecution has
to prove that, the accused/appellant was in possession of property
which he has reason to believe that, it was stolen property. In absence
of discharging the burden by the prosecution, mere presence of the
accused in the shop where the goods were tried did not essential
ingredient of section 411 of I.P. Code.
The Allahabad High Court in the case of Kishan Lal
V/s State62 in para 5 has held as under :-
"5. I have heard the learned counsel for the parties at sufficient
61. 1979 Cri. L.J. 1328
62. 1979 Cri.L.J. 309
1.2013conf.case
length and after doing so I am firmly of the view that this revision must
be allowed. Before a person could be convicted under S.411, I.P.C., it
is necessary for the prosecution to prove two things, (1) dishonest
receipt or retention of stolen property and (2) knowledge at the time of
receipt that the property received was stolen property. From the
evidence on record it does appear that the applicant had received
stolen articles, viz., one bag Ex.1 Parat Ex.2, tumbler Ex.3., Ex.4 and
copper wire weighing 21 kilo-grams and 30 grams Ex.5 from Bundu
but there is nothing convincing to show that when he received those
articles from him he knew them to be stolen property. The articles
which he had purchased from Bundu were not worth more than
Rs.400/- and it appears that for these articles he had paid Rs.357/- to
Bundu because this amount had been recovered from Bundus'
possession soon after the bargain for sale was struck. Seeing the value
of the property sold and the price payed therefor there can be no doubt
about the fact that there was nothing fishy about the transaction of sale.
An effort was made to show through the mouth of Chaman Lal (P.W.2)
that when the articles in question were being sold by Bundu to the
applicant the latter was heard telling Bundu that he should sell off the
articles at cheap rate because they were stolen property. This part of
the statement of Chaman Lal has not in the least impressed me to be
convincing. On the face of it, it appears too dressed up to be accepted
as true. Such a thing was never mentioned in the report. Even Abdul
Shakoor did not say such a thing in his statement. Obviously, this kind
of statement was introduced with a view to give strength to the
prosecution case. Therefore, as it is I am not prepared to believe that
the applicant had told Bundu that he should sell the articles at cheap
rates because they were stolen property. However, even if one took it
for a moment that the applicant suspected those articles to be stolen
property and even then purchased them that cannot go to make him
liable under S.411, I.P.C. Section 411, I.P.C. does not apply to a case
where the accused suspects the property to be stolen property. He must
have reason to believe when he received the property that it was stolen
property. The word 'believe' is a very much stronger word than
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'suspect' and it involves the necessity of showing that the circumstances
were such that a reasonable man must have felt convinced in his mind
that the property with which he was dealing must be stolen property. It
is not sufficient to show that the accused was careless, or that he had
reason to suspect that the property was stolen, or that he did not make
sufficient enquiry to ascertain whether it had been honestly acquired.
In the instant case, there is nothing convincing on record to show that
when the applicant purchased the articles in question from Bundu he
believed those articles to be stolen property. On the other hand the fact
appears to be that he was a bona fide purchaser of those articles and
he had purchased them for adequate consideration. The conviction of
the applicant under S.411, I.P.C. was, therefore, misconceived and
consequently he deserves to be acquitted."
110. Therefore, taking over all view of the matter, it clearly
reveals that there is no chain of circumstance so as to sustain the
conviction of the appellants. The Hon'ble Supreme Court in the case
of Toran Singh Vs. State of M.P.63 held that the case of the
prosecution should rest on its own strength and not on the basis of
absence of explanation or plausible defence by the accused. In the
case of State of Punjab V/s Bhajan Singh and others 64, the
Supreme Court held that, Suspicion, by itself, however strong it may
be, is not sufficient to take the place of proof and warrant a finding of
guilt of the accused.
The Supreme Court, in case of Kali Ram V/s. State of
63. AIR 2002 SC 2807
64. AIR 1975 SC 258
1.2013conf.case
Himachal Pradesh65 observed as under :
"Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case one pointing to the
guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. This principle has a
special relevance in cases wherein the guilt of the accused is sought
to be established by circumstantial evidence."
111. We are conscious of the fact that, one woman Medical
Officer lost her life and society is deprived from her services.
However, in absence of cogent, trustworthy, reliable and sufficient
evidence, we are unable to subscribe the view taken by the trial Court.
We have to remind ourself of the observations made by the Supreme
Court in the case of Sarwan Singh Rattan Singh V/s State of
Punjab66, which are as under :-
"The result is that, if the approver's evidence is discarded as
unworthy of credit and his own retracted confession is excluded
from consideration as not being voluntary of true whatever
circumstantial evidence remains is obviously insufficient to bring
home to Sarwan Singh the charge framed against him. If that be the
true position, we must hold that, the learned Judges of the High
Court were in error in convicting Sarwan Singh of the offence of
murder.
It is no doubt a matter of regret that a foul cold-blooded and cruel
murder like the present should go unpunished. It may be as Mr.
Gopal Singh strenuously urged before us that there is an element of
65. AIR 1973 SC 2773
66. AIR 1957 SC 637(1)
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truth in the prosecution story against both the appellants. Mr. Gopal
Singh contended that, considered as a whole the prosecution story
may be true; but between `may be true' and `must be true' there is
inevitably a long distance to travel and the whole of this distance
must be covered by legal, reliable and unimpeachable evidence."
112. Thus upon re-appreciation of entire evidence, we are of
the considered opinion that, the evidence of the approver is not
acceptable and cannot form basis for conviction. None of the
circumstance relied by the prosecution can be treated as incriminating
circumstance forming chain of events so complete that it leads to
draw conclusion of guilt of the accused. So also,the evidence on
record do not establish that it is the accused, who have committed the
act of murder of the deceased and involvement of person other than
accused cannot be ruled out. So also, the circumstances taken together
cumulatively do not form chain, so complete that there is no escape
from the conclusion that within all human probabilities that the crime
was committed by the accused and none else. The evidence on record
is not sufficient to prove the guilt of accused beyond reasonable
doubt. There is no clinching and credible evidence to convict the
accused for the offences levelled against them as mentioned in
paragraph No. 14. The reasons and findings recorded by the trail court
are found to be perverse and based upon improper appreciation of
evidence on record and not sustainable in law. We are of the view that
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prosecution has failed to prove the guilt against the accused beyond
reasonable doubt. Therefore, the accused deserves to be given benefit
of doubt.
113. In the result, the appeals of the accused deserve to be
allowed and conviction of the appellants is liable to be set aside. We,
therefore, pass the following order :
ig ORDER
I) Criminal Appeal Nos. 21 of 2014 and 29 of 2014 filed
by the appellants original accused are allowed.
II)The judgment and order dated 18/12/2013 passed in
Sessions Case No. 100 of 2012 by the Additional
Sessions Judge, Jalgaon convicting and sentencing the
appellant-accused no.1 Yuvraj Kashinath Sable for the
offence punishable under Sections 302 r/w 120B, 120B,
201 r/w section 120B, 397 r/w section 120B of I.P.
Code, the appellant-accused no.2 Pankaj Maroti
Sandanshiv for the offence punishable under sections
302 r/w 120B, 120B, 201 r/w 120B, 397 r/w 120B of
I.P.Code and the appellant-accused no.3 Maheshkumar
Rameshchandra Varma for the offence punishable under
Section 411 of I.P. Code is hereby set aside. The
accused is acquitted of the said offences. The
1.2013conf.case
appellants/accused be set at liberty forthwith, if not
required in any other case.
III) In view of the appeals filed by appellants are
allowed, the reference made vide Confirmation Case
No. 1 of 2013 stands disposed of in terms of decision in
Criminal Appeal Nos. 21 of 2014 and 29 of 2014.
IV) The original record and proceeding of Sessions
Case No.100 of 2012 be remitted back to Sessions
Court, Jalgaon.
Sd/- Sd/-
( V.L. ACHLIYA, J. ) ( S.S. SHINDE,J.)
sga/-
