Bombay High Court
State Of Maharashtra, Through ... vs Ramesh Jijeba Lahane And Another on 8 December, 2014
Bench: B.R. Gavai
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL CONFIRMATION CASE NO. 01/2014
WITH
CRIMINAL APPEAL NO. 301/2014
CRIMINAL CONFIRMATION CASE NO. 01/2014
The State of Maharashtra
through Police Station Officer
Police Station Washim (Rural)
Dist.Washim. ...APPELLANT
v e r s u s
Ramesh Jijeba Lahane
Aged about 42 years,
R/o Dattanagar, Washim
Dist. Washim. ...RESPONDENT
...........................................................................................................................
Mr.N.S.Khubalkar, Addl. Public Prosecutor for appellant
Mr S.D.Chande, Adv.for respondent
............................................................................................................................
CRIMINAL APPEAL NO. 301/2014
Ramesh Jijeba Lahane
Aged about 42 years,
R/o Dattanagar, Washim
Dist. Washim. ...APPELLANT
v e r s u s
::: Downloaded on - 08/12/2014 23:47:32 :::
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2
The State of Maharashtra
through Police Station Officer
Police Station Washim (Rural)
Dist.Washim. ...RESPONDENT
...........................................................................................................................
Mr S.D.Chande, Adv.for appellant
Mr..N.S.Khubalkar, Addl. Public Prosecutor for respondent
............................................................................................................................
CORAM: B.R. GAVAI &
V.M.DESHPANDE, JJ.
DATE OF RESERVING: 15.11.2014
DATE OF PRONOUNCEMENT: 08.12.2014
JUDGMENT: (Per V.M.Deshpande, J)
1. On reference being made by learned Additional
Sessions Judge, Washim, the present Confirmation Case bearing
Criminal Confirmation Case No.1/2014 arises for confirming the
capital punishment awarded by learned Addl. Sessions Judge,
Washim in Sessions Trial No. 51/2012 to condemned prisoner -
Ramesh Jijeba Lahane.
Ramesh Lahane has also independently challenged
the said judgment by presenting Criminal Appeal No. 301/2014.
According to him, not only the capital punishment is excessive
but the very finding of the learned Judge of the Court below
holding him guilty of committing murder of Vishwanath Lahane,
is unsustainable.
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(I) FACTUAL MATRIX
The prosecution case as it is unfolded during the
course of the trial, is narrated as below :-
Namdeo Wamnrao Rathod (PW 10) on 11.2.2012
was discharging his duties as Police Station Officer of Police
Station, Washim (Rural).
On 11.2.2012 Atmaram Ukanda Kalbande, Police
Patil of village Zakalwadi came to Police Station, Washim
(Rural). He gave report (Exh.32) that at 4 o' clock in the
noon on 11.2.2012, he received information that there is one
dead body in the well situated in the agricultural field of Pralhad
Chintaman Kalbande. He further reported that on getting such
information, he along with Pralhad went to the field to notice
that dead body of a unknown person was inside the well and it
was stinking.
Upon receiving such information through report (Exh.
32), Namdeo Rathod (PW 10) registered an accidental death
vide A.D. No. 9/2012 under Section 174 of the Code of Criminal
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Procedure (Cr.P.C.) {Exh. 31}.
2. After registering A.D. No. 9/2012, Namdeo Rathod
came to Police Station, Washim (City) for obtaining information
about missing persons. It was informed to him that one missing
report dated 7.2.2012 is with Police Station, Washim (City) in
respect of one Vishwanath Lahane, who was missing from
5.2.2012. The said report was given by son of Vishwanath, by
name, Shankar. Namdeo Rathod (PW 10) obtained the said
missing report (Exh.36). He contacted Shankar and informed
him that one dead body was found in a well situated at
Zakalwadi and, therefore, for identification purposes, he was
called on 12.2.2012.
3. On 12.2.2012, PW 10-Rathod along with his Police
Staff and Panch, Police Patil went to the spot. Shankar Lahane
and his relatives were also present. Namdeo Rathod (PW 10)
directed two persons to go inside the well to fetch the dead body.
The dead body was fetched outside the well. PW 10- Namdeo
Rathod noticed that the body was beheaded and the stomach
of the said body was cut in a straight direction. The said body
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was of a male person.
4. Shankar Lahane noticed corn on the leg of the dead
body and he identified that the dead body was of his father
Vishwanath Lahane.
The well in which dead body was found was
constructed one and was 60 feet deep having width of 4 feet.
Namdeo Rathod (PW 10) noticed blood on the edge of the well
on the southern side. The said was seized by him. He prepared
the Panchnama of the said spot. The said Panchnama is at Exh.57.
5. PW 10 Rathod immediately called Dog Squad. He
also requisitioned a photographer-Vishal Wankhede who took
eight photographs, according to his directions. Those photographs
are at articles A-1 to A-8. The necessary professional charges
were given to the Photographer to the tune of Rs.1,100/- and two
receipts Exhs. 87 and 88 were obtained from him.
PW 10-Rathod in presence of Panchas also drawn the
inquest panchnama (Exh.55).
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6. At about 2 o' clock in the noon the Dog Squad
reached the spot. Rathod (PW 10) directed the Dog Handler
Police Constable (Buckle No. 1523) to give direction to the dog.
After the trained dog completed its sniffing, a detailed panchnama
was prepared. During this process, articles which were found,
were seized by PW 10-Rathod under seizure panchnama (Exh.56).
The Dog Handler also prepared a panchnama in respect of the work
done by dog (Exh. 60).
7. The dead body was sent to Rural Hospital, Washim by
PW 10- Rathod through Police Constable (Buckle No.802) under
requisition to the hospital (Exh. 89).
PW 10-Namdeo Rathod also gave a separate
requisition letter to the Medical Officer requesting to hand over
the sample of flesh/skin, nails and hair of dead body under the
sealed condition. The requisition letter is at Exh. 90.
8. In the meantime, Shankar Vishwanath Lahane came to
Police Station and lodged his oral report (Exh. 37). In the said
report, the first informant named the condemned prisoner
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Ramesh, Rameshwar Maruti Kalbande and Vitthal Jayawanta
Tanpure and Sau. Laxmibai Ramesh Lahane (acquitted accused).
Since the First Information report (FIR) (Exh. 37) was disclosing
commission of a cognizable offence, PW 10-Rathod, registered a
crime vide Crime No. 18/2012 for the offence punishable under
Sections 302, 201 read with Section 34 IPC against the persons
who were named in the FIR. The printed FIR is at Exh. 38.
9. Upon registration of the crime on the very same day
i.e. 12.2.2012, Ramesh Lahane was arrested at 22:31 hours. The
arrest panchnama is at Exh.91. At the time of arrest of
Ramesh, two mobiles were found on his person. Those were
seized in the presence of Panchas. The said Panchnama is at
Exh. 62. The articles which were seized from the spot and the
mobiles were deposited in the Maalkhana.
On 13.2.2012 Police Constable Buckle No.802
brought skin, nail, clipping, hair of dead body, viscera bottle
and the blood sample in the Police Station. Those were seized by
PW 10 Namdeo in presence of Panchas under Seizure panchnama
(Exh.63).
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10. The dead body was handed over to relatives of the
deceased for last rites.
A piece of bone of hand of the deceased was sent in
a sealed condition by the Doctor. It was seized by drawing
Seizure Panchnama. A jaw which was found on the spot was
seized under seizure memo Exh. 64.
11. On 13.2.2012, PW 10 Rathod arrested Rameshwar
Maruti Kalbande and Vitthal Jaiwant Tanpure. Both were sent for
their medical examination. Ramesh was also sent for medical
examination and under Seizure memo Exh.65, blood samples of
those three persons were seized. They were produced before the
learned Magistrate for the purposes of obtaining police custody
remand. The same was granted.
12. On 16.2.2012 when Ramesh was in the custody, in
presence of Panchas, he gave his memorandum statement u/s. 27
of the Evidence Act. The said memorandum statement is at Exh.
66. By the said memorandum statement, Ramesh agreed to point
out the place wherein he has concealed bottle containing half-
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filled liquor and also clothes. He also agreed to show the place
wherein Vishwanath was beheaded. In pursuance to the
memorandum statement (Exh.66), the Investigating Officer PW
10-Rathod along with Police Staff, panchas and the condemned
prisoner-Ramesh boarded the police vehicle. Ramesh led them to
Duttanagar area in city of Washim. As per his direction, the
vehicle was stopped. Ramesh showed his house. Ramesh entered
into the house and took one of half filled country liquor bottle of
750 ml. kept in the rack of utensils. It was noticed that the said
bottle was containing about 200 ml. of country liquor.
Thereafter, he took one grey colour full pant from tinshed
adjacent to the house having bloodstains. The Investigating Officer
thereafter sealed the said full pant and liquor bottle. Thereafter as
per the direction of Ramesh, the Police party along with him
boarded the jeep again. He asked to take the vehicle at Malegaon
Road. After proceeding some distance near PKV Office, he asked
the Police party to take the vehicle on left direction. There were
one or two houses in the agricultural field. There the prisoner
asked to stop the vehicle. Thereafter he took the police party to a
field having standing toor crop. Near the boundary of the said
agricultural field where the cracks were developed, that spot was
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shown by him. He disclosed that this is a place wherein the
deceased was beheaded. From the said spot blood-stain soil and
simple earth were seized. A composite seizure memo of these
articles, namely, liquor bottle, full pant and blood mixed soil
and simple soil was was prepared. The same is at Exh. 67.
13. The Investigating Officer also requested the Tahsildar
by letter Exh. 95 and requested for drawing the map. The map
was prepared and it is at Exh.96.
14. Since during the disclosure statement Exh.66 dated
16.2.2012 prisoner-Ramesh disclosed about the complicity of one
Jayawant Lahane, the Investigating Officer arrested Jayawant
Lahane.
15. After Jayawant Lahane was arrested, the Investigating
Officer obtained his police custody remand. During his enquiry,
nothing fruitful was disclosed to the Investigating Officer
Therefore the I.O. again, on 23.2.2012 when prisoner- Ramesh
was in his custody, interrogated him. In the said statement, it
was revealed to the I.O. by prisoner-Ramesh that he had
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committed crime and not Jaiwant. He agreed to show the place
wherein the shirt he was wearing on the date of commission of
the offence, his cycle, the knife, the mobile of deceased
Vishwanath, were concealed by him. The said memorandum
statement is at Exh.69.
In pursuance to the disclosure statement (Exh. 69), the
Police party along with prisoner-Ramesh again brought the Police
Jeep and they were taken to his Duttanagar residence wherein he
showed a shirt which was hanging on a peg on the wall. The said
shirt was having faint blood stains. He also pointed out the cycle
which was parked in a tinshed.
Thereafter Ramesh took the Police party to a fallow
land in front of Chintamani Hotel. He pointed out the place i.e.
the cracks at one Babhli shrub. From there one long knife and
one mobile phone was seized. The said recovery panchmama is
at Exh. 70. Exh.71 is the spot panchnama which is the house
of prisoner-Ramesh, which was pointed out by prisoner in his
memorandum statement, as a place wherein deceased was done
to death by strangulation.
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16. On 10.3.2012, the I.O. gave a letter to the Medical
Officer making a query as to whether the neck can be severed
with the help of the seized knife. The knife was sent along with
the said letter. The said letter is at Exh.80. The Medical Officer
on the back side of the said letter itself, has given his opinion.
The said opinion is at Exh.81. By the said opinion, the Doctor
opined that the decapitation injury may be caused by such a
weapon. The I.O. then drew the query Panchnama dated
10.3.2012 (Exh.73).
In the meanwhile, the post-mortem report was also
received. The said post-mortem report is at Exh.77.
The I.O. has also obtained the blood samples of first
informant Shankar and his mother Shobhabai. The said was
obtained after giving the requisition letter Exh.102 to the Medical
Officer for DNA purpose.
17. The I.O. recorded the statement of neighbours of
prisoner-Ramesh; photograph of deceased was available along
with the missing report (Exh.36) that was shown by I.O. to the
neighbours at the time of recording their statements.
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18. On 24.2.2012, the I.O arrested the wife of the prisoner
Ramesh by name Laxmibai. The arrest panchnama is at Exh.103.
19. All the said seized articles were sent to Chemical
Analyser for obtaining the scientific opinion by giving requisition
Exh.104. Exh.105 is a request letter to the Director of Forensic
Laboratory at Nagpur for the opinion of viscera. Exh.108 is a
request letter made to the Director, Forensic Laboratory at
Kalina, Vidyanagar. Santa Cruz, Mumbai, by which a request was
made to give information in respect of the DNA about the articles
which were already sent.
In all seven C.A. reports Exhs. 117 to 123 were
received by the I.O. whereas Exhs.52 and 53 are the DNA test
reports which were received by the I.O.
20. During the investigation, it was revealed to the I.O.
that there was no role of Rameshwar Kalbande ; Vitthal Tanpure
and Jayawanta Lahane in the crime. Therefore with the requisite
permission discharge report u/s. 169 of Cr.P.C. was filed in the
court of law. Upon that, the learned Magistrate issued notice to the
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first informant. The first informant appeared in the said discharge
proceedings and objected for the discharge of Rameshwar
Kalbande and Vithal Tanpure. On 23.5.2012 the discharge
report in respect of Jayawanta Lahane was accepted by the
learned Magistrate. However, the I.O. was again directed for
re-investigation in respect of Rameshwar Kalbande and Vitthal
Tanpure. In the light of said directions, the I.O. again, re-
investigated the matter in respect of Rameshwar and Vitthal.
However nothing was found against them and, therefore, a fresh
discharge report was filed in the Court of learned Magistrate. The
said discharge report was accepted by the learned Magistrate.
The I.O. noticed in pursuance of his investigation that
there is ample material and evidence available against prisoner
Ramesh and his wife and, therefore, he filed the charge-sheet in
the Court of law.
21. The learned Magistrate in whose Court the charge-
sheet was presented, found that the offence is exclusively triable
by the Court of Sessions. Therefore, he passed committal order.
After the committal order, the case was placed in the Court of
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learned 2nd Ad-hoc Additional Sessions Judge, Washim which was
registered as Sessions Trial No. 51/2012.
Vide Exh.22 on 12th June 2013, the learned 2nd Ad-hoc
ADJ, Washim framed charge against the condemned prisoner
Ramesh and his wife Laxmibai @ Chatura Ramesh Lahane. Both
were charged that they in furtherance of their common intention,
committed murder of Vishwanath Lahane and in order to screen
themselves from legal punishment, they had destroyed the
evidence. Accordingly, a charge u/s 302 and 201 r/ws. 34 IPC
was framed against them. Both of them denied the charge and
claimed for their trial.
22. In order to bring home the guilt of the persons against
whom charge was framed, the prosecution has examined ten
witnesses. The prosecution has also relied on voluminous
documents which were proved during the course of trial.
Both Ramesh and his wife were examined u/s 313
Cr.PC. They did not examine any defence witness. According to
them, they were falsely implicated in the crime.
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23. The learned ADJ, Washim, after a full-fledged trial,
acquitted the accused no.2 Laxmibai. However, he found the
prisoner-Ramesh guilty, as a person responsible for death of
Vishwanath Lahane. The prisoner -Ramesh was heard on the point
of sentence. After hearing, in the opinion of the learned ASJ,
Washim, it is a case wherein life imprisonment is not an
adequate sentence and, therefore, he imposed capital punishment
on Ramesh Jijeba Lahane by his judgment and order of conviction
dated 3rd April, 2014.
24. As required u/s. 366 of the Cr.P.C., reference was
made to this Court by the learned ASJ for confirmation of the
death sentence passed against Ramesh. In the meanwhile, Ramesh
has also questioned the correctness of the finding holding him
guilty for commission of the murder of Vishwanath, by filing an
Appeal.
25. We have heard Shri N.S. Khubalkar, learned Addl.
Public Prosecutor for the State and Shri S.D. Chande, learned
counsel for the condemned prisoner Ramesh Lahane, in extenso.
We have also gone through in detail, the entire record and
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proceedings. We have also seen the muddemal properties, namely,
clothes of Ramesh and the weapon.
(II) POINTS FOR DETERMINATION
26. The following are the points that arises for our
determination.
Sr Points
ig Finding
.No.
1. Whether the prosecution has proved that Proved
death of Vishwanath Lahane is homicidal
one?
2. Whether the prosecution has proved that the Not proved
prisoner-Ramesh is responsible for the
homicidal death of Vishwanath Lahane?
3. Whether the capital punishment as Does not survive.
awarded by the learned court below is only
adequate punishment to the appellant?
4. What order? As per the order
(III): EVALUATION OF PROSECUTION CASE :
27. In order to bring home the guilt of the condemned
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prisoner -Ramesh, the prosecution has examined following ten
witnesses:
PW No Name Description
1. Shankar Vishwanath Lahane He is son of deceased
Vishwanath. He is the first
informant. He has lodged the
ig missing report (Exh. 36). He has
also lodged FIR (Exh. 37) upon
which the offence vide Crime
No.18/2012 was registered with
Police Station, Washim (Rural).
2 Pankaj Madhav Ingle He is the resident of vicinity
where prisoner-Ramesh resides.
He is examined on the point that
in the night of 5.2.2012 he has
seen the deceased in the
company of prisoner- Ramesh.
3. Sagar Damodhar Khillare He resides opposite the house
of prisoner-Ramesh. He is also
examined on the point of
deceased being seen lastly in
the company of prisoner
Ramesh.
4. Shobhabai Vishwanath Lahane She is the widow of Vishwanath.
She is examined on the point
that her deceased husband
informed her at the time of
going to Washim for attending
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the marriage ceremony that,
thereafter, he will visit the house
of prisoner Ramesh.
5. Jaiwanta Ramchandra Lahne The prosecution has examined
this witness to prove that on
5.2.2012 he left the deceased
Vishwanath near Chintamani
Hotel at his request so that he
could reach to the house of
ig Ramesh. He is also examined on
the point that he received phone
call from deceased on 5.2.2012
at 9.10 in the night. He has also
deposed that PW 1 Shankar
made enquiries with him on
6.2.2012 at Karanji and
enquired about the whereabouts
of deceased Vishwanath.
6 Gulabrao Dhondji Bakal He is the Panch witness on
Inquest Panchnama (Exh.55);
seizure Panchnama (Exh.66)
and Seizure Panchnama (Exh.
57).
7. Rajiv Gangadhar Chaudhari He is a Dog Handler. He took
Dog by name "Heera" at the spot
as per the request of the I.O.
and gave command to the
trained Dog. He has proved the
Dog Handler Report (Exh.60).
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8. Prakash Ananda Kamble He is the Panch who has proved
various documents on which the
prosecution intends to rely.
9. Dr.Parmeshwar Kharat He has conducted the post-
mortem and proved post-mortem
report (Exh.77). He also gave
information about the weapon
(Exh.80).
10.
Namdeo Wamanrao Rathod He is working as Police Station
Officer, P.S., Washim (Rural) and
he has conducted the entire
investigation of Crime No.
18/2012 and he has presented
charge-sheet in the court of law.
28. In addition to the oral evidence, the prosecution has
also relied upon various documents which were duly proved
during the course of trial. The prosecution which heavily relied
upon such of documents, are referred herein-below:-
Sr.No Exh.No/ Description
Date
1. Exh. 34 This is an application dated 29.8.2009 under the
signature of deceased-Vishwanath to President, Dispute
Resolving Committee of Karanji.
2. Exh. 35 A report lodged with Police Station, Shirpur by Jijeba
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Lahane, the father of the deceased. It is dated
13.10.1988
3. Exh. 36 Oral report/missing report lodged dated 7.2.2012 by
PW 1 Shankar Lahane with Police Station, Washim
{City}.
4. Exh. 37 Oral report dated 12.12.2012 lodged by PW 1
Shankar Lahane on the basis of which crime bearing
No.18/2012 for the offence punishable under section
302, 234 IPC was registered.
5. Exh. 55 Inquest Panchnama
6. Exh. 56 Seizure Panchnama showing the seizure from the
12.02.2012 spots:
(a) From the field of Uttamrao Sonuji Gore, articles
like white and black hair, half-burnt cloth, burnt
fodder, burnt ash mixed earth were seized.
(b) From the agricultural field of Shamrao Gore,
black and white hair, a human jaw of which flesh was
eaten by wild animals, three teeth were seized.
7. Exh.57 Spot Panchnama in respect of the well situated in
12.02.2012 agricultural field of Gut No.138 owned by Pralhad
Chintaman Kalbande in Zakalwadi village wherein the
dead body was found.
8. Exh.60 Joint report of Investigating Officer and Dog Handler.
12.02.2012
9. Exh. 62 Seizure memo under which two cellphone of Nokia
12.02.2012 make were seized from prisoner-Ramesh at the time
of his arrest.
10. Exh.66 Memorandum Statement of prisoner-Ramesh while he
16.02.2012 was in custody u/s. 27 of the Evidence Act.
He agreed to point out:
(i) The place from his house wherein he concealed
the liquor bottle.
(ii) His bloodstained clothes; and,
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(iii) The place where deceased Vishwanath was
beheaded.
11. Exh., 67 Recovery Panchnama in pursuance to Exh.66.
16.02.2012
(a) A liquor bottle was seized from the rack inside the
house of prisoner-Ramesh which was kept behind steel
box.
(b) A full-pant which was kept beneath gunnybag
from the tinshed adjacent to the house of prisoner
Ramesh.
(c) He showed the place in the agricultural field of
Uttam Gore where deceased was beheaded.
12. Exh.69 Memorandum statement of prisoner Ramesh u/s 27 of
23.02.2012 the Evidence Act by which he agreed to show his (1)
His clothes, (2) Weapon, (3) Cycle and, (4) The
cellphone of deceased Vishwanath.
13. Exh. 70 Recovery Panchnama in pursuance to the discovery
23.02.2012 statement Exh.69.
(a) A shirt having blood stains which was having on
the peg inside the house of prisoner Ramesh.
(b) A cycle which was parked in a tinshed adjacent to
the house of Ramesh.
(c) The wepon i.e. Knife and cellphone of deceased
Vishwanath from the crack of the ground near
Babhul tree on the eastern dhura of fallow
land /field situated in front of Chintamani Hotel.
14. Exh.72 The query Panchnama in respect of weapon.
10.03.2012
15. Exh.77 Post-mortem report.
16. Exh.104 Requisition letter sent to Chemical Analyser, Dhantoli
Nagpur.
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17. Exh.105 Requisition letter to Chemical Analyser, Dhantoli for
examination of viscera.
18. Exh. 51 CA report showing that mythyl alcohol 92 mg., per
grams in the viscera.
19. Exh.52 DNA report showing that Exh. 1 long bone sent by
Investigating Officer to the Director of Forensic Science
Laboratory, State of Maharashtra, Vidya Nagari, Kalina
Santa Cruz, Mumbai in respect of Shobhabai
Lahane ( widow of deceased) FSLML Case No. DNA
263/12, concluded to be biological parents Shankar
Lahane (PW 1) in FSLML Case No. 263/12.
29. The evidence of PW 1-Shankar Lahane would reveal
that he is the son of deceased- Vishwanath. According to him, they
hold 4 acre and 30 guntha agricultural field. He states that his
father got measured the agricultural filed through the Government
agency i.e. Taluqa Inspector of Land Records (TILR), in which it
was transpired that Ramesh has encroached upon 10 guntha land
and he was not ready to return the same. He further states that
on that count, there was a dispute between his father and
Ramesh. His father had lodged a report against Ramesh at the
Police Station and Chairman, Dispute Resolving Committee.
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He further states from the witness box that Ramesh
used to extend threats of murder to his father and, as a result, he
was so disgusted that he decided to sell the field. However,
Ramesh was obstructing the said sale.
According to Shankar (PW 1) on 5.2.2012,the marriage
of daughter of one Bharat Keshao Lahane was to be solemnsized
at Swagat Lawn, Washim. His father had gone to attend the
said marriage, but he did not return. He waited for him the
whole night and then tried to contact him on his mobile through
his cellphone, but in vain, as the phone was switched off. He
further states that on the next day morning, he met Police Patil -
Jayawanta Lahane and enquired as to whether he met his father
in the marriage. The Police Patil told him that his father met him
near Pusad Naka, Washim and his father was about to go to the
house of Ramesh to meet him, in respect of sale transaction of
the agricultural field. Shankar (PW 1) further states that
Jayawanta further told him that his father had asked him to come
to take his father if any misdeed happened. On that Jayawanta
replied to his father not to go there, if he apprehends danger to
his life. He further states that Jayawanta told his father that he
would not come to take him. Shankar further states that
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Jayawanta had told him that he met his father at about 7.40 p.m.
Jayawanta further told him that he received a phone call of his
father at around 9.10 p.m. His father called Jayawanta in front
of the house of Ramesh near Chintamani Hotel. However
Jayawanta showed his unreadiness to go there due to fear.
Jayawanta further disclosed to him that though after half-an-hour,
he phoned his father, but his phone was switched off.
Shankar further states that in the same night, he
enquired about his father with his relatives on phone; but they
replied in the negative. On the next day, Shankar, Jayawanta
Lahane, Punjab Lahane, Baburao Padgham and Giri came to
Washim and went to the house of Ramesh, but the house was
locked. At that time, Shankar was possessing a photo of his
father. He showed the said photo to the neighbours of Ramesh and
enquired whether the person in the photo had been in the house
of Ramesh in the night of 5.2.2012. Shankar further states that
in response, those persons told him that around 9.30 pm. On
5.2.2012, the said person was seen running but Ramesh and
Laxmibai were dragging him into their house. Shankar further
states that due to the said answer, he felt that the Ramesh might
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have killed his father. Therefore, they all went to Police Station,
Washim to lodge the report. The report is at Exh. 36. He also
handed over the photo of his father to police while lodging the
report.
Shankar (PW 1) further states that on the same day,
the police had brought the accused (Ramesh and his wife
Laxmibai) in Police Station for enquiry; but they did not disclose
the fact. Thereafter, he took search of his father in the adjacent
Shiwar upto three days.
Shankar further states that at about 830 p.m, he
received a call from Police Station, Washim (Rural) that body of
a person, aged about 50 years, is floating in a well situated in
Zakalwadi Shiwar which was stinking. The Police called him to
identify the said body. Therefore he, in the morning, along with
Jaideo Lahane, Datta Lahane, Anil Giri, Punjab Lahane and other
4/5 persons, rushed to Zakalwadi Shiwar. He states that the body
was already fished out by the police. He further states that the
body was not having any head and its stomach was cut and
bowels were protruding out; the body was naked. Shankar states
conf.1.14.odt
that his father was having corn on his sole. Both the toes were
short which he noticed. Considering all these features, he
identified the dead body as that of his father. He states that at
that time, his uncle Jaideo Baliram Lahane, Datta Lahane,
maternal uncle Shriram Kisan Badar were also present. They
also identified the body.
Shankar further states in his evidence that thereafter
all of them approached Police Station, Washim (Rural) and lodged
the report (Exh.37), which was scribed as per his say.
In the cross-examination, to a question put to him,
he replied that son of Baliram Lahane, namely, Jagan had not
been to the marriage ceremony; but then changed his version by
saying that he does not know. He stated in his cross-examination
that he had shown photograph of his father to 3/4 persons of
Dattanagar area, around 10.30 am to 11.00 am. on 7.2.2012 who
were not acquainted with his father. It is stated by him that the
distance between Chintamani Hotel and the house of Ramesh is
about 40 to 45 feet and his house is situated in a densely populated
area.
conf.1.14.odt
30. Another witness who is examined by the prosecution is
Pankaj Mahadeorao Ingle (PW 2). His evidence shows that he
knows the accused as they are his neighbours. He claims that he
is having an auto-rickshaw and he used to ply the same himself.
Pankaj states that on 5.2.2012 between 9.30 and 10.00 p.m. he
had come to his house with his auto. While parking his auto,
one person came near him and he asked him as to where he is
going? Thereupon, he replied that he was going to urinate.
Pankaj states that thereupon he asked the said person as to where
he resides? The said person replied that he was the guest of
Ramesh Lahane. Ramesh Lahane is the person who is present in
the dock. He further states that Ramesh took the said person to
his home. At that time, wife of Ramesh was standing on the road.
Thereafter he parked his auto, had a meal and went to sleep.
Pankaj further states that after 2/3 days, the police came to him
and he narrated the aforesaid fact to them. He further states that
at that time the police had shown him one photo, which was of
the said guest.
In the cross-examination, Pankaj has stated that he
cannot tell the exact date when his statement was recorded. He
conf.1.14.odt
further states that the distance between his house and the house of
accused is more than 350 feet. In the cross-examination, he further
admitted that since last 15 years he was working as a Manager
of Dhaba ( roadside eatery) of Jasminder Johar; in the next
breath, he volunteers that he was not working as a Manager
but as a servant.
31.
PW 3 is Sagar Khillare. According to him, he joined
his duty as a police constable on 26.8.2013. He resides at
Dattanagar area. He knows the accused as they reside in front of
his house. Ramesh used to abuse them under the influence of
liquor and, therefore, they used to ignore him. He states that he
knows Pankaj Ingle. From the witness box Sagar states that on
5.2.2012 between 8.30 and 9.30 pm, after having his meals,
that time, he saw one person murmuring under the influence of
liquor, who went towards the house of Pankaj Ingle. He states that
verbal exchange of words between Pankaj and said person were
going on. He saw this in the light of street light. He states that
Pankaj reached that person up to the house of Ramesh Lahane,
thereafter, he went to his house and Pankaj went to his house.
conf.1.14.odt
Sagar (PW 3) further states that on 17.2.2012 the
police came to his house to prepare Panchnama. That time the
police showed a photo and asked him as to whether he can
identify the said person. Thereupon he replied in affirmative
because the said person came to the house of Ramesh on
5.2.2012. Thereafter he came to know that the said person was
murdered.
In the cross-examination Sagar has admitted that
around 8.00 to 8.30 p.m. the person who was taken by Pankaj
was under heavy drunken state. He states that he has seen Pankaj
while taking away that person towards the house of Ramesh.
However he did not see him entering into the house of accused.
He states that Dattanagar is a densely populated area and the
distance between his house and house of Pankaj is more than
350 to 400 feet.
32. PW 4 Shobh Lahane is the widow of the deceased.
She has stated in her evidence that her husband had lodged a
report against Ramesh at Police Station Shirpur. Previously
Ramesh was residing at Karanji along with is first wife.
conf.1.14.odt
Thereafter he performed second marriage with Chatura and
was residing with her in the house situated in his field. She
states that Ramesh was working as agricultural labour and he
also used to sell the flesh of goats in the village, so he was called
as 'butcher'. She states that her husband had expressed his
willingness to sell the field property. Therefore, the accused asked
her husband to come to Washim in Dattanagar at his home.
Shobha (PW 4) states that the incident occurred
before 14 months. Her husband had gone to attend the
marriage of daughter of Bharat Lahane. She states that before
leaving the house, her husband had told her that he would attend
the marriage and would go to the house of Ramesh in order to
end the dispute. On that day, her husband did not return in the
night. On the next day morning, Jayawanta had come to her house
and asked whether her husband returned home. Thereon, she
replied in the negative. She states that Jayawanta told her that
her husband had met him and asked him to reach to the house of
Ramesh on his motorcycle as he wanted to enter into the
transaction of field property. Therefore, Jayawanta reached her
husband near a square. She further states that the Jayawata told
conf.1.14.odt
her that her husband had asked him to accompany him to the
house of Ramesh; however, Jayawanta expressed his inability to
go there.
She further states that on the next day her son Shankar,
Jayawanta, Punjab and others had gone to Dattanagar to see her
husband. She states that after four days, she came to know that
the dead body of her husband was lying in the well near
Zakalwadi Shiwar. Therefore, she, her son and relatives went
there. On the same day, the dead body was brought to her home
at about 9.00 p.m, which was beheaded. She identified the dead
body as that of her husband. She further states that after
recording her statement, she was called by police and her son
Shankar and were referred to hospital in order to obtain their
blood samples.
33. Another witness is PW 5- Jayawanta Ramchandra
Lahane. He states that he owns and possesses 2 acres of
agricultural land and his wife is a police patil of the village. He
is having two children and they are studying in VI and VIII
standard in Washim. He states that on 5.2.2012 he had been to
Washim to attend the marriage of daughter of one Bharat Lahane
conf.1.14.odt
and he attended the same at Swagat Lawn along with his wife.
He states that he, Sitaram Lahane, Atmaram Lahane, came at
Pusad Naka to take the beatle leaf at the pan kisok.. On seeing
them Vishwanath (deceased) came there. He also took beatle
leaf with them. He states that thereafter they went to attend the
marriage ceremony. He states that after the marriage, he along
with his wife, started to go to his home. When they reached near
Pusad Naka, he received mobile call of Vishwanath who asked
him to take him on motorcycle to the house of Ramesh for
transaction of his field. He states that he stopped his bike.
Vishwanath came there and sat on his bike. First, they came to
his room at Civil Lines and left his wife there. He states that, that
time Vishwanath asked him to reach him near Chintamani Hotel.
Accordingly, he left Vishwanath near Chintamani Hotel. It
was at about 7.30 to 7.45 p.m. Then he returned his home.
He further states in his evidence that at about 9.10
p.m., he received a phone call of Vishwanath asking him to
come to take him in front of the house of Ramesh near
Chintamani Hotel. However, he refused to go there and switched
off his mobile. He further states that on next day on 6 th, he went
conf.1.14.odt
to his village Karanji. There, son of deceased, Shankar met him
and asked him as to whether his father met him and where he
had gone. Shankar further told that his father did not return to
his house. He told Shankar that his father was intending to go
to house of Ramesh for the field transaction and he reached his
father near Chintamani Hotel.
On next day, on 7th, he received a call of Shankar
that his father did not return to his home and to take search, he
should accompany him and should reach near Dattanagar.
Accordingly around 10.00. to 10.30 hours, he reached
Dattanagar. There Panjab Lahane, Baburao Padghan, giri,
Shankar Lahane were present and he stated that they made
enquiry with neighbours of Ramesh whether the person
appearing in the photo, which was brought by Shankar, had come
there. He states the neighbor told that the said person had been
there. At that time, the house of Ramesh was locked. He states
that they went to Police Station, Washim (Urban), where Shankar
lodged the report. He states that in the Police Station the accused
were called for enquiry and after enquiry they were set free.
conf.1.14.odt
Jayawanta further states that on 11th he had been to
the house of his sister. That time, he received message from
Shankar that one body was lying in the well in Zakalwadi
Shiwar and I should reach there. On 12th, around 10. a.m. he
went near the said well. There Shankar, Gulabrao, Jaideo
lahane and other villagers had assembled. The villagers identified
the dead body as that of Vishwanath. He further states that
after lodging the report, accused-Ramesh and his wife Chatura
@ Laxmi were arrested by police. He further states that the
accused told his name falsely before the police in the crime. He
was also arrested in this crime. As nothing was found against him
during investigation, he was discharged by the court. His statement
was recorded by the police.
In the cross-examination, he states that on 11th, he
was arrested in the crime and he was in jail for three months.
34. In the present case, there is no direct evidence, in the
sense of an eye witness account, to connect prisoner-Ramesh with
the crime. Thus, the entire case of the prosecution rests on
circumstances and circumstantial evidence.
conf.1.14.odt
35. The learned Addl. Public Prosecutor has submitted that
from the prosecution case, the following are the circumstances
proving the guilt of Ramesh:
1) The fields of both deceased-Vishwanath and Ramesh were
at village Karanji. Both fields were adjacent to each other.
There exists a dispute between them over the boundary (dhura)
and small water channel (paat).
2) Deceased Vishwanath was residing at Karanji, a village
nearby Washim city. Accused Ramesh was residing along with his
second wife.
3) The measurement of area which was done by the deceased
Vishwanath through the T.I.L.R. transpired that the accused
Ramesh had grabbed 10 gunthas of field of deceased Vishwanath
which contain a small water stream.
4) Inspite of grabbing the land portion of Vishwanath, he was
not ready to relinquish the said portion.
5) Accused Ramesh always used to extend threats of murder to
Vishwanath. Vishwanath was disgusted with the threats, Hence
he decided to sell out the field, however, Ramesh was
obstructing the said sale.
6) To settle the dispute over the field, accused Ramesh had
conf.1.14.odt
called deceased Vishwanath to his house at Dattanagar. On
5.2.2012 there was marriage ceremony of daughter of one Bharat
Lahane which gave an occasion for deceased Vishwanath to go to
Washim City and go to the house of the accused Ramesh on
the issue of field dispute.
7) On 5.2.2012 Vishwanath expressed his intention to his wife
PW 4 to go to the house of Ramesh, in respect of transaction of
the field when deceased was to go to attend the marriage
ceremony at Washim city.
8) At Washim city also deceased Vishwanath expressed his
intention to PW 5-Jayawanta to go to the house of Ramesh at
Dattanagar in respect of transaction of the field.
9) On 5.2.2012 Vishwanath actually attended the marriage
ceremony of daughter of Bharat Lahane at Swagat Lawn at
Washim city at 5.00 p.m. Vishwanath had disclosed to PW 5 his
intention to visit the house of Ramesh for transaction of his
field.
10) While at Washim deceased Vishwanath had requested PW 5
Jaiwanta to drop him near the house of accused Ramesh at
Dattanagar area of Washim city.
11) PW 5 dropped deceased Vishwanath near Hotel Chintamani
conf.1.14.odt
at 7.30 to 7.45 p.m. at Washim city. The accused Ramesh was
residing near Hotel Chintamani.
12) Deceased Vishwanath was last seen in the company of
accused Ramesh in the night of 5.2.2012 at about 9.30 p.m. at the
house of accused Ramesh by witness PW 2-Pankaj and PW 3
Sagar Khillare.
13) After last seen with accused Ramesh in the night of
5.2.2012, Vishwanath did not return back to his village Karanji
where his family members were waiting for him.
14) After waiting for his father-Vishwanath, PW 1-Shankar
lodged missing report Exh. 36 with Washim Police Station on
7.2.2012.
15) In the missing report at Exh.36, PW 1 Shankar has
specifically named accused Ramesh as accused who has played
foul with his father.
16) The time of death is proximate to the time of last seen in
the night of 5.2.2012.
17) After last seen in the company of accused-Ramesh, beheaded
body of Vishwanath was found on 11.2.2012 in the well in the
field of Pralhad Kalbande.
18) The spot where the body was found was near about one
conf.1.14.odt
1.5 k.m. to the house of accused-Ramesh.
19) DNA tests proved identity of the dead body as that of
Vishwanath.
20) Under these circumstances, the accused owes an
explanation, but no explanation from the accused-Ramesh as to
where Vishwanath went from his house and, therefore,
presumption u/s. 106 of the Evidence Act has to be pressed into
service.
21) The death of Vishwanath was homicidal one.
22) Section 27 of the memorandum and consequent recoveries
from accused Ramesh.
23) The conduct of the accused at the spot where the accused
and Panch (PW 8) was the same spot where the dead body was
found on 11.2.2012 i.e. well of Pralhad Kamble and nearby fields.
24) CA reports are incriminating inasmuch as human blood were
detected thought the blood group was inconclusive on the clothes
of accused Ramesh and knife.
According to the learned Addl.P.P. the aforesaid
circumstances clearly established the charge of murder levelled
against Ramesh. In order to buttress his point, he has relied upon
conf.1.14.odt
following authoritative pronouncements :-
1) AIR 1985 SC 1692: Ram Avtar vs. State (Delhi Admn).
2) (2010) Vol.8 SCC 593: G. Parshwanath vs. State of Karnataka.
3) (2001) 6 SCC 205: Gade Lakshmi Mangaraju vs.State of A.P.
4) (1988) 3 SCC 319 : Laxmi Raj Shetty vs. State of T.N.
5) (2010) 2 SCC 353: Vijay Kumr Arora vs. State (NCT New Delhi)
6) (1992) 2 SCC 86: State of U P vs. Ashok Kumar Srivastava
7) (2000) 1 SCC 225: C.K.Raveendran vs. State of Kerala
8) (1973) 4 SCC 17: Abdul Ghani vs. State of U.P.
9) AIR 2009 SC(Supp)428(2): Mahesh Gonnade vs. State of Maharashtra
10) (2011) 3 SCC 685 : Ramesh & others vs.State of Rajasthan
11) (2013) 12 SCC 721 : Nana Keshav Lagad vs. State of Maharashtra.
36. Per contra, the learned counsel for Ramesh would
submit that, Ramesh is falsely implicated. He submits that at vital
point, the chain is broken. According to him, there is no reliable
evidence by which it could be held that deceased was seen lastly in
the company of Ramesh. He further submitted that recoveries
made at the instance of Ramesh are clearly inadmissible in
evidence.
conf.1.14.odt
37. How the Court should evaluate and consider the
prosecution case solely based on circumstances is guided by various
authoritative pronouncements of Hon'ble Apex Court right from
its judgment in the case of Hanumant vs. State of Madhya
Pradesh reported in AIR 1952 SC 343. On number of
occasions, the said principles are reiterated by the highest court of
this country. In fact, five golden principles came to be formulated
by the Apex Court in the case of Sharad Birdhichand Sarda
vs. State of Maharashtra: AIR 1984 SC 1622. With these
guiding lamps, the Court has to evaluate the entire prosecution
case which is based entirely on circumstantial evidence.
In AIR 1952 SC 343 : Hanumant Nargundkar vs.
State of MP, the Apex Court has ruled as to how the
circumstantial evidence should be appreciated, which runs as
under:-
"10. Assuming that the accused Nargundkar had
taken the tenders to his house, the prosecution in order to
bring the guilt home to the accused, has yet to prove the
other facts referred to above. No direct evidence was
adduced in proof of those facts. Reliance was placed by
the prosecution and by the Courts below on certain
circumstances, and intrinsic evidence contained in the
conf.1.14.odt
impugned document, Ex. P3-A. In dealing with
circumstantial evidence the rules specially applicable to
such evidence must be borne in mind. In such cases there
is always the danger that conjecture or suspicion may take
the place of legal proof and therefore, it is right to recall
the warning addressed by Baron Alderson to the jury in
Reg. v. Hodge,(1838) 2 Lewin 227) where he said:
"The mind was apt to take a pleasure in adapting
circumstances to one another, and even in straining them
a little, if need be, to force them to form parts of one
connected whole; and the more ingenious the mind of
the individual, the more likely was it, considering such
matters, to overreach and mislead itself, to supply some
little link that is wanting, to take for granted some fact
consistent with its previous theories and necessary to render
them incomplete."
It is well to remember 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 tendency and they
should be such as to exclude every hypothesis but the
one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability the act must have been
done by the accused. In spite of the forceful arguments
conf.1.14.odt
addressed to us by the learned Advocate-General on behalf
of the State we have not been able to discover any such
evidence either intrinsic within Ex.P-3A or outside and we
are constrained to observe that the Courts below have just
fallen into the error against which, warning was uttered
by Baron Alderson in the above mentioned case."
Further, in a landmark case: Sharad Birdhichand
Sarda vs. State of Maharashtra: AIR 1984 SC 1622, the
Hon'ble Apex Court ruled the following five golden principles
which the Hon'ble Court has said as 'Panchsheel' on proof of a
case based on circumstantial evidence.
It would be useful to reproduce the following observations from the
said authoritative pronouncements of the Apex Court:
"152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature, character and
essential proof required in a criminal case which rests on circumstantial
evidence alone. The most fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh (supra). This case has been
uniformly followed and applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail (alias) Simmi vs.
State of Uittar Pradesh (1969) 3 SCC 198; and Ramgopal v.State of
Maharashtra (AIR 1972 Sc 636;. It may be useful to extract what
Mahajan, J, has laid down in Hanumant case:
conf.1.14.odt
It is well to remember 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 tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave
any reasonable
ig ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the
accused.
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an accused can
be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned 'must' or 'should' and not 'may be' established. There is
not only a grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved' as was held by this court
in Shivaji Sahabrao Bobade v. State of Maharashtra: 1973 2 SCC 793
where the following observations were made : (SCC Para 19 P. 807 :
SCC (Cri) p. 1047.
Certainly, it is a primary principle that the accused must be and
conf.1.14.odt
not merely may be guilty before a court can convict and the mental
distance between 'may be' and 'must be' is a long and divides vague
conjectures from sure conclusions.
(2) 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 that the accused is
guilty,
(3) the circumstances should be of a conclusive nature and tendency,
they should exclude every possible hypothesis except the one to
be proved, and
(5) 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 show that in all human probability the act must
have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence."
The Apex Court in Sarda's case (supra) at paragraph 157, ruled as
under :-
"157. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only when there is
certain and explicit evidence and no person can be convicted on pure
moral conviction. ...................."
conf.1.14.odt
IV) CRITICAL ANALYSIS OF PROSECUTION CASE:
38. In the light of afore-mentioned, let us analyze the
prosecution case.
As to Point No.1 : This point is in respect of death
of Vishwanath. According to the prosecution, Vishwanath died
homicidal death.
While criticizing the prosecution case, passingly,
learned counsel for Ramesh (prisoner) submitted that merely on
the basis of identification of dead body by PW 1-Shankar and
PW 6- Gulabrao Bakkal that the dead body which was fished out
from the well was of Vishwanath, it will be unsafe to reach to the
conclusion that it was, in fact, body of Vishwanath.
PW 1-Shankar along with others reached at the
agricultural field at Zakalwadi wherein the well was situated in
view of the phone call which he received on 11.2.2012 at 8.30
p.m. from Police Station, Wshim (Rural), by which it was
intimated to him that the dead body is floating in the well. On
reaching the spot, Shankar (PW 1) identified the said dead body
as of his father Vishwanath though the said body was not having
conf.1.14.odt
head. Shankar (PW 1) identified the dead body as of his father on
the basis of two corns on the left leg and also the short toes of the
foot.
Gulabrao Bakal (PW 6) has also identified the dead
body on the said basis.
PW 1- Shankar is the son of deceased-Vishwanath. PW
6-Gulabrao Bakal is co-brother of the deceased. In view of their
relations with deceased, remembering the peculiar marks in the
nature of corns and the short toes on the foot, there is no room
to raise a suspicion in respect of their identification. We cannot
forget that the age of PW 1- Shankar is 20-years. Thus, for last
twenty years, he was observing his father with such peculiarity.
Further, on 12.2.2012 when the dead body was fished
out from the well, the I.O. has done inquest on the same in
presence of two Panchas, of course, one of the Panchas was
Gulabrao Bakal. What is important is, while doing inquest
the I.O. and Panchas noticed the following :
conf.1.14.odt
"तसेच डावया पायाचे तळ पायावर, पोचावर दोन एक एक इच
ं
ं रावर कुरप िदसत आहेत.
अत तसेच दोनही पायाची बोटे आखूड
आहेत."
Thus, the observations of Shankar (PW 1) in respect
of the dead body is also having support from the inquest
Panchnama.
What is most important about the identification is the
scientific evidence in the nature of DNA test.
A piece of bone of hand of the deceased was sent in
a sealed condition by the Doctor. It was seized by drawing a
seizure Panchnama (Exh. 64).
The blood samples of Shankar (PW 1), the son of the
deceased, and Shobhabai (PW 4), the widow, were taken and
they were seized in a sealed condition vide Exh. 74. The I.O. sent
these articles to Forensic Science Laboratory, Kalina,
Vidyanagari, Santa Cruz, Mumbai, under requisition Exhs.107
and 108 for the DNA test. The said Laboratory has given its
report, which is placed on record at Exh.52. The scientific opinion
conf.1.14.odt
after DNA was done, is as under :-
OPINION : "(1) Exh.1-long bone and Shobhabai
V .Lahane in FSLML Case No. DNA 263/12 are
concluded to be the biological parents of Shankar V.
Lahane in FSLML Case No. DNA 263/12."
In view of the aforesaid scientific evidence available
on record, the submission of the learned counsel for Ramesh
(prisoner) is highly misplaced. Therefore, there is no doubt to
record a finding that the beheaded dead body which was fished
out from the well on 12.2.2012 was of Vishwanath Jijeba
Lahane, father of PW 1 Shankar and husband of PW 4-
Shobhabai.
The dead body was sent to Rural Hospital, Washim by
PW 10 Rathod, the I.O. through Police Constable under
requisition to the hospital (Exh. 89). Dr. Parmeshwar Kharat
(PW 9) was working as Medical Officer since August, 2011 at
Civil Hospital, Washim. On 12.2.2012 a dead body was brought
to him by Police Constable. Shankar Lahane, Gulabrao Bakal and
one Mahadeo Khandare identified the said body.
conf.1.14.odt
On examination, he found that the dead body was
well nourished and cold rigor mortis were well marked. He also
noticed sign of decomposition. Greenish discolouration over
abdomen was present. He noticed post-mortem peeling off skin
over back buttock and both the upper and lower limbs. He
noticed that the head was missing. At the time of conducting post-
mortem, he noticed the following external injuries:-
"1) Decapitation injury over neck at the level of C3 C4 cervical
vertebra corresponding tissues, blood vessels, muscles, trachea,
oesophagus spinal cord amputed. Above the level of this injury
head neck face is missing. Dark red blood firmly adhered to the
cut end. Margins of injury clean cut.
2) Incised wound over front of abdomen in the midline, 5 cm.
Below nipple level size of wound is 25 cm.long, 5 cm.broad and
cavity deep from which internal visceral organs like stomach, small
and large intestine protruding out. Margins of wound one cleant
cut without any blood adhered to the cut end. Injury is vertically
placed."
The Doctor opined that the cause of death is
conf.1.14.odt
decapitation injury. According to the post-mortem report injury
No.1 is ante-mortem; whereas Injury No.2 is post-mortem.
According to the opinion of the Doctor, the cause of
death was said decapitation injury.
In view of the evidence of the Dr..Parmeshwar Kharat
(PW 9) together with the post-mortem report (Exh 77), we record
our finding that the death of Vishwanath was homicidal one and
the prosecution has proved that the nature of death of Vishwanath
is homicidal one. Accordingly, we answer the Point No.1 in the
affirmative.
39. As to Point No.2 : In view of the affirmative finding
that Vishwanath Lahane died homicidal death, the most important
question which is posed to this Court is, as to whether the
prosecution has proved that Ramesh (prisoner) is responsible for
such homicidal death of Vishwanath.
40. The Court will have to evaluate the available evidence
- both oral as well as documentary, in the light of guiding
conf.1.14.odt
principles of the decisions of Hemant Nargundkar and Sharad
Birdhichand Sarda (cited supra).
41. The prosecution case has to be examined and its
analysis has to be done on the touchstone of principles laid
down by the Hon'ble Apex Court, since there is no eye witness
account available in the present prosecution case and the entire
prosecution is based on circumstantial evidence.
According to learned Additional Public Prosecutor, the
prosecution has brought such incriminating circumstances on
record and the chain of circumstances is complete and there is no
reasonable ground for the conclusion consistent with the
innocence of Ramesh (prisoner).
The circumstances which he has culled out are already
mentioned in the preceding paragraph No.35 of this judgment.
Though the learned Addl.P.P. has culled out about 24
circumstances, if they are closely examined, then it will reveal
that they are elaborated version of following three circumstances :-
conf.1.14.odt
(A) Last seen theory;
(B) The discoveries at the instance of prisoner
Ramesh, his memorandum statement u/s 27 of the
Evidence Act; and
(C) Motive
Even the learned trial Court while concluding that
Ramesh is guilty of commission of death of Vishwanath, has
referred to above three circumstances only.
42. Now let us scrutinize the evidence to find out as to
whether the prosecution ha s established the aforesaid
circumstances beyond reasonable doubt.
(A) Last seen theory: Insofar as the proof that the
deceased was lastly seen in the company of Ramesh (prisoner),
we have the evidence of (i) Pankaj Madhav Ingle (PW 2); (ii)
Sagar Damodar Khillare (PW 2); and, (iii) Jayawant
Ramchandra Lahane (PW 5).
conf.1.14.odt
According to the prosecution, on 5.2.2012 deceased
Vishwanath left his residence at Karanji to attend the marriage of
daughter of one Bharat Keshav Lahane which was to be
solemnized at Swagat Lawn, Washim. There is no evidence
available on record as to who were his companions, when he left
his village. However, from missing report (Exh.36) which PW
1- Shankar was required to lodge since his father did not return
to house in the night, has a reference that his father left the
village with some persons at 3 o' clock on 5.2.2012. There is a
reference of one Jagan Baliram Lahane in missing report at
Exh. 36. Since the said report discloses that when all other
persons returned to the village but for his father, PW 1 Shankar
made enquiry with said Jagan about his father.
43. PW 5- is Jayawanta Lahane. He is husband of Police
Patil of village Karanji. His two sons are studying at Washim in
VI and VIII standard. According to this witness, he had been to
Washim on 5.2.2012 to attend the marriage of daughter of
Bharat Lahane. After attending the said marriage, when he had
been to one paan kiosk at Pusad Naka, along with others,
deceased Vishwanath came there. He also took paan i.e. beatle
conf.1.14.odt
leaf and thereafter they went to attend the marriage.
In view of the aforesaid evidence, one can conveniently
reach to the conclusion that on 5.2.2012 deceased Vishwanath left
his village Karanji along with some persons to attend the marriage
to be performed at Swagat Lawn at Washim.
PW 5- Jayawanta claims that after the marriage, he
along with his wife, started to go to his room on his motorcycle.
When the couple reached at Pusad Naka, PW 5 received a
mobile call of Vishwanath who asked him to take him on his
motorcycle to the house of Ramesh (prisoner). He stopped the
bike. Vishwanath came there and sat on the bike. Thereafter,
firstly, he dropped his wife at their room at Civil Lines and
thereafter he left deceased-Vishwanath near Chintamani Hotel
at about 7.30 to 7.45 p.m. and then he returned his home.
44. PW 2 is Pankaj Ingle. He claims that he ply an auto-
rickshaw. He is the resident of the same vicinity wherein the
house of Ramesh (prisoner) is situated.
According to him, on 5.2.2012 at about 9.30 to
conf.1.14.odt
10.p.m., he reached to his house and when he was parking his
auto-rickshaw, one person came near him. He asked him as to
where he was going. Thereupon, the said person replied that he
was going to urinate. Upon that, witness-Pankaj asked the said
person as to where he resides. Upon that, the said person replied
that he is the guest of Ramesh(prisoner).
PW 2-Pankaj Ingle claimed that at that time Ramesh
Lahane came and took the said person to his home, at that time,
the wife of Ramesh was standing on road. Thereafter he parked
his auto, had his meals and went to sleep.
45. PW 3 is Sagar Khillare. He is the resident of
Dattanagar area, wherein the house of Ramesh ( prisoner) is
situated. According to Sagar, on 5.2.2.2012 around 8.30 to 9.30
p.m. he had come out of his house after having his meals. That
time, he noticed one person murmuring under the influence of
liquor, who went towards the house of Pankaj (PW 2). Verbal
exchange of words were going on in between Pankaj and said
person. That time, Sagar was standing near his house. He claims
that Pankaj (PW 2) reached the said person to the house of
conf.1.14.odt
Ramesh ( prisoner). Thereafter he went to his house and Pankaj
went to his house.
46. When Vishwanath failed to return to the house at
Karanji in the night of 5.2.2012, on the next day i.e. 6.2.2012
Shankar (PW 1) met Jayawanta Lahane (PW 5) and enquired as
to whether he met his father in the marriage, whereupon
Jayawanta disclosed to him, that his father met him near Pusad
Naka. The conversation between PW 1- Shankar and PW 5-
Jayawanta which Shankar has vividly described from the
witness box during trial, has no evidentiary value, being hear-say
evidence. Further, Jayawanta (PW 5) is completely silent in his
evidence in respect of the material aspects, such as ;
(a) ".... Jayawanta Lahane further told me that my father
asked him to take him (my father) to the house of Ramesh for
transaction of his field if any misdeed happened. On that
Jayawanta replied to my father not to go there if he apprehends
to his life and further stated that Jayawanta would not go to take
him"
(b) "Jayawanta showed his unreadiness to go there due to fear.
conf.1.14.odt
Moreover Jayawanta told him that his father had phoned my
father but it was switched off".
Jayawanta (PW 5) would have been the best person
to depose aforesaid facts. He is completely silent on afore-
mentioned aspects in his evidence. Therefore, to that extent, the
evidence of PW 1-Shankar will have to be discarded though the
learned Addl.P.P. vehemently pressed the same.
47. Now let us examine the worth of the evidence of PW
2 - Pankaj and PW 3-Sagar.
The entire case of the prosecution hinges on the
evidence of these two witnesses because, if the prosecution case is
to be believed, these are only two persons who have seen
Vishwanath lastly alive and in the company of Ramesh ( prisoner).
The distance between the house of Ramesh(prisoner)
and PW 2-Pankaj is more than 350 feet as it has come on record
through his cross-examination. Though in the opening paragraph
of his evidence, Pankaj has claimed that he ply the auto
rickshaw, he has admitted in his cross-examination that since last
conf.1.14.odt
15-years, he is working as servant at Dhaba (roadside eatery)
of one Jasvinder Johar. Even in the cross-examination, firstly,
he replied that since last 15-years he was working as Manager
at the said Dhaba and then changed his version.
48. Insofar as the evidence of Sagar is concerned, from his
evidence, it is clear that Dattanagar is a densely populated area
and the distance between his house and house of Pankaj (PW 2) is
more than 350 to 400 feet. The vernacular version of Sagar
(PW 3) shows that the house of Ramesh ( prisoner) is situated
just in front of his house.
The evidence of PW- 2 Pankaj and PW- 3 Sagar on
material aspect, is entirely different which can be seen from the
following :
PW 2 -Pankaj claims that PW 3 -Sagar claims that Pankaj
he has seen Ramesh Lahane (PW 2) reached that person to
came and took said person the house of Ramesh Lahane.
to his home and at that
time wife of Ramesh was
standing on the road.
According to PW 2 Pankaj, the According to PW 3 Sagar, the
time was between 9.30 and time was between 8.,30 to 9.30
conf.1.14.odt
10.00 p.m. p.m.
The learned Addl.P.P. has submitted that insofar as the
first fact is concerned, it is just a variation and, therefore, is not
fatal to the prosecution case. He further submitted that the
variation in time is also not fatal because, according to him, the
variation is only by about one hour. According to him, their
evidence does not shake the core of the prosecution case that both
of them saw deceased- Vishwanath with Ramesh only.
The aforesaid two mentioned versions in the
evidence of PW 2- Pankaj and PW 3- Sagar cannot be termed as
minor variation. If the evidence of these two witnesses is
examined in its correct perspective, it is clear that these two
prosecution witnesses are giving an altogether different versions.
The house of Sagar is situated just in front of the
house of Ramesh (prisoner). According to this witness, it is
Pankaj who has reached deceased Vishwanath upto the house of
Ramesh. However, Pankaj is completely silent on that aspect.
Not only that, he claims that it is Ramesh, the prisoner, who took
Vishwanath, the deceased, to his house. PW 3-Sagar is
conf.1.14.odt
completely silent about the presence of wife of prisoner-Ramesh
standing on the road. Further, none of these witnesses has
claimed that they have seen Ramesh (prisoner) either taking
deceased Vishwanath inside his house or Vishwanath, on his own,
entered the house of Ramesh. On the contrary, Sagar has stated
as under :
ं जने तया इसमाला रमेशचया घराकडे नेताना मी पिहले. परत
"पक ig ं ु
तो इसम रमेशचया घरात जाताना मी पािहले नाही."
When Pankaj is completely silent or he is not
supporting the PW 3 that it is Pankaj who has reached Vishwanath
to the house of Ramesh, it will be hazardous to accept the
version of Sagar that he has seen Pankaj reaching Vishwanath
near the house of Ramesh.
From the entire evidence of Sagar, it is absolutely clear
that he is not making even a reference to the presence of Ramesh
(prisoner) or his wife either on the road or in front of his house.
Looking to the fact that Sagar's house is situated just opposite the
house of Ramesh he is the best person to notice the presence of
Ramesh as claimed by Pankaj (PW 2 ).
conf.1.14.odt
49. PW 1- Shankar has claimed that on 7.2.2012 he
along with Jayawanta Lahane (PW 5), Panjabrao, Jaideo Lahane,
Baburao Padgham and Anil Gori, Datta Lahane reached Washim
and went to the house of Ramesh (prisoner), his house was
found to be locked. That time he was possessing the photo of
his father. He showed the said photo to the neighbours of Ramesh.
However PW 1 Shankar is completely silent that he met either
Pankaj (PW 2) or Sagar (PW 3) nor Pankaj or Sagar claims
that they met Shankar on 7.2.2012.
These two prosecution witnesses identified the photo
which was shown to them by police and they identified that
Vishwanath was the same person whom they saw on 5.2.2012.
The police statements of these two witnesses are
recorded on 17.2.2012. According to the I.O., PW 10-Rathod,
he has recorded statement of witnesses on 13th. For recording
the statement of witnesses the police must have visited the
vicinity. According to PW 3-Sagar Khillare on 17.2.2012, the
police had came near to his house to prepare Panchnama and, at
that time, police had shown a photo to him. The evidence of PW 10
Rathod does not disclose that he visited the vicinity on 17.2.2012
Further, the learned Addl. P.P. was unable to point out any
conf.1.14.odt
Panchnama recorded by the I.O. on 17.2.2012.
On thing to be noted is that at the time of recording
of evidence of PW 3 Sagar, he was working as Police
Co`nstable. Therefore, the possibility that he is a partisan
witness cannot be ruled out in the light of his belated police
statement.
50.
In view of the vital difference on the material aspect as
appearing in the evidence of prosecution witness Pankaj and Sagar,
coupled with the fact that their police statements were recorded
belatedly i.e about five days of the recovery of the dead body
and particularly when none of them has stated in their evidence
that they saw deceased-Vishwanath entering inside the house of
Ramesh or Ramesh taking him inside his house, we are of the
opinion that it will be too risky to reach to the conclusion that
these two prosecution witnesses has seen deceased-Vishwanath in
the company of Ramesh the prisoner in the night on 5.2.2012
51. That leaves us to scrutinize the evidence of PW 5
Jayawanta on the aspect of last seen theory. In his evidence
Jayawanta never claims that he reached deceased Vishwanath to
conf.1.14.odt
the house of Ramesh (prisoner). His evidence would reveal that
on 5.2.2012 at about 7.30 to 7.45 p.m. he left Vishwanath near
Chintamani Hotel. In that view of the matter, it is absolutely clear
that it is not his claim that he has seen deceased going towards
the house of Ramesh after he was dropped near Chintamani Hotel.
His evidence would reveal that at about 9.10 p.m. he
received a call of Vishwanath (deceased) requesting him to come
near Chintamani Hotel to take him; however, he refused and
switched off his mobile. The Court has to examine as to whether
Jayawanta is the witness giving the truthful version.
According to PW 1-Shankar on 7.2.2012 when he
visited the locality Dattanagar in order to trace out his father
Vishwanath, he was accompanied not only with other persons but
also PW 5 Jayawanta Lahane. Since there was no trace of his
father, he reached the Police Station and lodged the missing report.
Though the learned Addl. P.P. Submitted that the
missing report was lodged on 7.2.2012 since the said date is
appearing on the said missing report (Exh.36) we have reason to
conf.1.14.odt
reject such claim. No doubt true, missing report though it is
styled as 'oral report' (Exh.36) is dated 7.2.2012, on perusal of the
original, it is revealed to us that on left hand margin portion of the
said document, there is a Station Diary Entry having No.20/2012
and it is dated 8.2.2012 at 13.30 hours. In view of the said
entry, the Court will have to put reliance on entry No. 20/2012
dated 8.2.2012 rather than oral version of PW 1 in that behalf.
52. Be that as it may, Shankar (PW 1) is very clear that at
the time of lodging of report Exh.36, PW 5 Jayawanta
accompanied him. Even Jayawanta (PW 5) has corroborated the
said fact. Thus, either on 7.2.2012 or on 8.2.2012, Jayawanta
(PW 5) was present in Police Station, Washim (city) and in his
presence, PW 1-Shankar has lodged his missing report.
Perusal of Exh.36-missing report would reveal that the
said report is completely silent about Jayawanta (PW 5) dropping
deceased near the Chintamani Hotel. Had really Jayawanta told or
disclosed the fact to Shankar (PW 1) that he has left Vishwanath
near Chintamani Hotel on 5.2.2012 in between 7.30 and 7.45
p.m. and/or he received a phone call from Vishwanath at
conf.1.14.odt
9.10 p.m., the said aspect would not have missed by Shankar while
narrating his missing report or at the time of lodging of report
(Exh36). The said fact would have been revealed by Jayawanta
(PW 5) to the police authorities at Washim (city) as it was the
first opportunity that was available to Jayawanta to report such
an important fact that he has dropped deceased Vishwanath near
Chintamani Hotel and at 9.10 p.m. he received call from
Vishwanath. The silence on the part of PW 5 -Jayawanta in the
Police Station on such vital aspect at the time of recording of
missing report (Exh.36) creates a serious doubt about the claim of
Jayawanta, that he had reached Vishwanath near Chintamani
Hotel and/or he received a phone call from Vishwanath at 9.10
p.m.
The claim of Jayawanta that he received a phone call
from Vishwanath on 5.2.2012 at 9.10 p.m. could have been easily
established by proving the CDR reports. For the reasons best
known to the I.O. and the prosecution, nothing sort of that was
done.
53. On the minute and closer scrutiny of the entire
prosecution case, it shows that following telephonic calls were
conf.1.14.odt
materialised or not, if the prosecution case is to be believed in
that behalf.
(i) A telephone call from deceased-Vishwanath to PW 5-
Jayawanta Lahane in the evening/night of 5.2.2012. (This call
was not materialised).
(ii) A telephone call from deceased-Vishwanath to PW 5-
Jayawanata at 9.10 p.m. On 5.2.2012. (This call was
materialised).
(iii) A call on the cellphone of deceased-Vishwanath by his son
PW 1- Shankar on 5.2.2012 from 9.00 p.m. (This phone call
was not materialised).
From the evidence of PW 1-Shankar, it is clear that
deceased -Vishwanath was carrying cellphone having No.
90497494523.
Though PW 5- Jayawanta Lahane, has claimed that he
received phone call from deceased-Vishwanath while he was on
his motorcycle, his evidence does not reflect the number of his
conf.1.14.odt
cellphone.
54. By first phone call that was materialised, if the
evidence of PW 5- Jayawanta is to be believed, was made by
deceased-Vishwanath to him after the marriage ceremony at
Swagat Lawn was over. The claim of PW 5- Jayawanta is that he
received phone call from deceased-Vishwanath when he was
proceeding on his motorcycle along with his wife for his room.
Since the phone call he received while he was on motorcycle,
obviously, the said phone call must have received by him on his
cellphone.
By the said phone call, according to the prosecution
case, a request was made by the deceased to drop him to the
house of Ramesh (prisoner) and accordingly, Jayawanta (PW 5)
has dropped deceased-Vishwanath near Chintamani Hotel
between 7.30 and 7.45 pm.
If the evidence of the prosecution witness Jayawanta
is to be believed, he received phone call from Vishwanath
(deceased) at 9.10 p.m. requesting him to come near
conf.1.14.odt
Chintamani Hotel for taking him from the said place.
The reference to the third phone call is in the missing
report (Exh.36) lodged by PW 1-Shankar. It is stated in the said
report that that on 5.2.2012 in the night when all other villagers
returned from the marriage except his father, he tried to make a
phone call to his father Vishwanath from 9.00 p.m. however it
was switched off.
55. In order to have corroboration in respect of the afore-
mentioned phone calls, the I.O. could have investigated in that
direction. No CDRs are produced on record.
Though CDRs would have been only corroborative in
nature but, according to us, it was a vital coupling to complete
the chain to the extent of proving the fact conclusively that phone
calls were made by deceased- Vishwanath to PW 5-Jayawanta
and in pursuance to the aid phone call, Jayawanta has dropped
deceased-Vishwanath near Chintamani Hotel. Except for this
phone call, there was no other occasion for Jayawanta to know
about the intention of deceased Vishwanath to go to the house of
conf.1.14.odt
Ramesh (prisoner). In that view of the matter, the corroboration
to the claim of PW 5-Jayawanta about the phone call was must.
Further, it is to be noted that it is the claim of PW 5-
Jayawanta that he received phone call from deceased-Vishwanath
at 9.10 p.m. on 5.2.2012 requesting him to take from the place -
Chintamani Hotel. However, according to the version of PW 1-
Shankar and the recitals in document Exh. 36 (missing report),
the phone of Vishwanath was giving signal of being switched
off from 9.00 p.m. Therefore, the production of CDRs of the calls
allegedly made by Vishwanath to PW 5-Jayawanta would have
had a great corroborative value
56. PW 5-Jayawanta has not stated in his evidence that
after the phone call to him by deceased-Vishwanath at 9.10 pm,
he made a phone call to deceased Vishwanath after half- an-hour.
If the evidence of PW 1- Shanakr is seen, he claims that on
6.2.2012 PW 5-Jayawanta informed him that after receipt of the
phone call from his father at 9.10 p.m, requesting him to take
him from the place near Chintamani Hotel and he showed his
unreadiness to go there and, thereafter, Jayawanta made a
phone call to deceased Vishwanath after half-an-hour but it was
conf.1.14.odt
found to be switched off.
Leave aside as to whether this part which is appearing
in the evidence of PW 1-Shankar is admissible or not, on its own
evaluation, the claim made by Jayawanta that he made phone
call to deceased Vishwanath after half- an- hour at 9.10 p.m, as
suggested by PW 1 Shankar in his evidence, appears to be
unnatural one; because, once Jayawanta refused to oblige the
request of deceased-Vishwanath to take him from Chintamani
Hotel in pursuance to the phone call at 9.10 p.m. and when
Jayawanta disconnected the said phone call, there was no reason
for Jayawanta to make a phone call to Vishwanath after half-an-
hour. The evidence of PW 1-Shankar is completely silent as to
what prompted Jayawanta to make a phone call after half- an-
hour.
57. Another important aspect in respect of the credibility of
this witness is concerned, is that initially on 18.2.20012 Jayawanta
was arrested by I.O. in the present crime. He was in jail for three
months in respect of the present crime. Ultimately, he was
discharged by police on the basis of the order passed by the learned
Magistrate on the discharge application moved by the I.O. The
conf.1.14.odt
police statement of PW 5-Jayawanta is recorded only after his
discharge from the present crime.
In view of the non-disclosure of the fact that he has left
deceased Vishwanath near Chintamani Hotel on 5.2.2012 or he
received the phone call of 9.10 p.m. on 5.2.2012 at the first
opportunity which was available to him right in Washim Police
Station (city ) and that his police statement was recorded
belatedly after a period of three months, there is absolutely no
doubt in our mind to reject his claim.
Exh.36-the missing report is completely silent about the
fact that on 7.2.2012 PW 1-Shankar had been in the vicinity of
Dattanagar and he has shown the photograph to the neighbours
as claimed by him in his evidence.
The first information report is lodged by PW1- Shankar
on 12.2.2012 after the identification of the dead body. It is at Exh.
37. The relevant portion from the first information report in that
behalf is reproduced hereinunder:
conf.1.14.odt
" िदनांक ७.२.२०१२ रोजी मी माझे विडलाचचा शोध घेणयास
ं ाबराव लहाने, जयवत
सोबत पज ं लहाने, जयदेव लहाने, बाबुराव
पडघम, अिनल गोरी, दता लहाने असे वाशीम येथे आले व
िचंतामणी हॉटेल चे मागे रमेश लहाने याचे घरी गेलो असता,
तयाचे घर बद
ं होते. आजूबाजूचया लोकांना मी माझया विडलाचा
फोटो दाखवून हे इथे आले होते काय अशी िवचारपूस केली
असता, तया लोकांनी सांिगतले की या फोटो मधील इसम
िदनांक ५.२.२०१२ चया राती रमेश लहानेचया घरी आले होते
व ते तयाचे घरन घरन पळू न जात असता रमेश लहाने हाने
तयांना धरन घरात आणत होता, असे शेजारचया लोकांनी
सांिगतले."
Insofar as the claim made in the FIR that it was
disclosed to Shankar by neighbours that deceased- Vishwanath was
trying to run away and that time Ramesh (prisoner) hold him
and brought to his house, is not at all supported by PW 2- Pankaj
and PW 3- Sagar Khillare.
Further, the I.O. has stated that he has recorded the
statement of neighbours. However, none of such neighbors was
examined by the prosecution to prove the fact of running
Vishwanath and he being dragged inside the house.
conf.1.14.odt
Further, in the missing report (Exh.36) there is a
reference of Jagan Baliram Lahane to whom the PW 1- Shankar
has made initial enquiry as to whereabouts about his father in the
night of 5.2.2012. However, neither Jagan was examined as
prosecution witness nor his police statement was recorded.
58. Thus, there is absolutely no credible evidence available
in the prosecution case that on 5.2.2012 Vishwanath had been to
the house of Ramesh ( prisoner) and/or any one has seen the
deceased Vishwanath alive in the company of Ramesh. Necessarily
we have to reject the theory of "last seen" as propagated by the
prosecution.
(B) Discoveries at the instance of prisoner-Ramesh in his
memorandum statement u/s 27 of the Evidence Act:
59. Another circumstance, in order to complete the chain,
which is established according to the learned Addl.P.P. for the
State as well as the learned trial Judge, is the discoveries made
by the prisoner-Ramesh while he was in police custody.
According to Namdeo Rathod (PW 10), the Investigating
Officer, Ramesh (prisoner), was arrested on 12.2.2012 at 22:31
conf.1.14.odt
hours under arrest Panchnama (Exh.91). The I.O. produced him
before the learned Magistrate and obtained his police custody
remand. According to the prosecution, on two occasions, prisoner -
Ramesh made disclosure statement , namely, on (a) 16.2.2012;
and (b) 23.2.2012
60. According to the prosecution when prisoner was in
police custody, on 16.2.2012 he made a disclosure statement u/s
27 of the Indian Evidence Act in presence of Panchas (1) Vishal
Wankhede, and (2) Prakash Ananda Kamble (PW 8). The said
memorandum statement is at Exh.66. From the admissible
portion, it is clear that he agreed to show (1) the place of his
house wherein he has concealed the half-filled liquor bottle; (2)
the blood-stained clothes concealed in his house ; and (3) the
place where deceased- Vishwanath was beheaded.
It is the case of the prosecution that in pursuance to
the said memorandum statement dated 16.2.2012, Ramesh led
the police party upto his house and showed the rack in the
kitchen meant for keeping household utensils and from there
half-filled country liquor bottle was found.
conf.1.14.odt
It is further case of the prosecution that thereafter he
came out of his house, went in the tinshed adjacent to his house
and from there he took full-pant beneath a sack.
Further, according to the prosecution, thereafter,
prisoner- Ramesh led the police party and took them to the
agricultural field of Uttam Gore and showed the place where
deceased Vishwanath was beheaded.
Let us examine and evaluate this aspect.
61. On 11.2.2012 Police Station, Washim (Rural) got the
information from Atmaram Ukanda Kalbande, Police Patil of
Zakalwadi (Exh. 32) about floating of dead body of one
unknown person in a well situated in the agricultural field of one
Pralhad Kalbande.
On 12.2.2012, the police reached in the agricultural
field bearing Gut No. 138 of Pralhad Chintaman situated in
Zakalwadi. That time PW 1 Shankar and others were also
present and in their presence the dead body was fished out from
the well. On the same day, Spot Panchnama was drawn vide
conf.1.14.odt
Exh. 57.
62. As per the prosecution case, on the very same day,
the I.O. summoned the Dog Squad and a trained dog by name
'Heea' reached on the spot along with its Handler.
Exh. 56 is the Seizure Panchnama under which
various things were seized.
Exh.56 is dated 12.2.2012. It reveals that a trained
dog along with his Handler came near the well wherein dead
body was kept. It further shows that thereafter the smell of the
said dead body was given to the said Dog. The said dog
proceeded towards the southern direction. Thereafter the I.O. and
others came to another agricultural field which was about 500
feet. The document (Exh.56) shows that said spot was
inspected by the I.O. in presence of Panchas. There, they found
burnt ash. They dug the said place, that time bad bad odour was
emitted. There they found black and while human hair. Also, they
found half burnt cloth and burnt fodder and also a plastic to
which human black and white hair were sticked. The I.O. seized
those articles. Exh.56 shows that those articles /things were
conf.1.14.odt
seized from the agricultural field of one Uttam Gore.
Exh.56 shows the further recovery of the human
black and white hair and human jaw disfigured by wild animals
and also three teeth. These articles were also seized under the
said document Exh. 56 and the place of these articles was in the
agricultural field of one Shyamrao Gore.
The recitals of Exh.56 are duly corroborated
through the evidence of prosecution witness no.7- Raju
Choudhari, Handler of the Dog, Panch witness Gulab Bakal (PW
6) and also by the I.O. Namdeo Rathod (PW 10).
63. Now as per the memorandum statement of Ramesh
dated 16.2.2012 (Exh. 66) he agreed to show the place
wherein Vishwanath was beheaded. According to the
prosecution, in pursuance to the same, he took police party in the
agricultural field of Uttam Gore and showed the place. The
Panchnama of the same is at Exha. 67. Exh.67 which shows
that Ramesh took the police party to a place wherein it was
noticed that at the said place some digging was there and
conf.1.14.odt
presence of burnt ash and burnt fodder.
The learned Addl.P.P. has heavily relied upon the
conduct of prisoner-Ramesh to show the said place in order to
connect him with the crime.
We are afraid that we can attach any importance to
the place which is shown by Ramesh as per his memorandum
statement Exh.66. It is to be noted that the police had already
visited the agricultural field of Uttam Gore on 12.2.2012. On the
said date from the very same place which was shown by Ramesh,
they had seized the articles as mentioned in the preceding
paragraph as per the Seizure Panchnama (Exh.56). The place
which was also in know of the I.O., therefore, even the subsequent
conduct of prisoner-Ramesh showing the very same place, in our
considered view, has no value in the eye of law.
64. Insofar as liquor bottle is concerned, it appears from
the prosecution case through PW 3 -Sagar that Ramesh is
habituated to drinking. If a person is habituated to drinking then
noticing the liquor bottle in his house cannot be termed as an
conf.1.14.odt
incriminating circumstance. Further, on 16.2.2012 wife of the
prisoner-Ramesh was not arrested. From the evidence of PW 8-
Prakash Kamable, the Panch, it does not appear that when they
reached to the house of Ramesh, the house was closed. It will
be useful to reproduce the relevant portion appearing in the
evidence of PW 8-Prakash Kamble, the Panch, as under :
ं र पोिलस जीपमधये बसलो. आरोपी रमेशने आमहाला तयाचे
"तयानत
घर दाखिवले, हाताचया इशायााने . आमही सवा तयाचा घरात गेलो."
Thus, it is absolutely clear that the house was not in
the exclusive control of prisoner-Ramesh. In that view of the
matter, much importance cannot be attached to the recovery of
liquor bottle from the house.
65. Insofar as the recovery of clothes is concerned, Exh.67
the Recovery Panchanma recites as under :
ं र आरोपी घराबाहेर येऊन घराला पििचम बाजूस लागून
"तयानत
असलेलया पूवा मुखी वर टीन पतयाचे शेड असलेलया कोठामधून
पोतयाची खाली लपिवलेले फुल पयांट काढू न िदला."
From the above, it is absolutely clear that full-pant
conf.1.14.odt
was recovered from the tinshed which was not a closed place
and was accessible to anybody. Therefore, we are not ready to
place any reliance on such recovery at the instance of Ramesh,
especially when such recovery is shown to be made from a place
which was not in exclusive control and domain of Ramesh.
In that view of the matter, according to our considered
view, for the aforesaid evaluation, the recoveries and showing
of the place by prisoner Ramesh must go and are of no use to
the prosecution.
66. The prosecution case further depicts that after the
first memorandum statement on 16.2.2012 during his further
police custody on 23.2.2012, prisoner-Ramesh has made another
disclosure statement u/s 27 of the Evidence Act. The said
memorandum statement is at Exh. 69. The admissible portion of
said memorandum statement shows that on 23.2.2010 Ramesh
agreed to show the place wherein Vishwanath was killed and to
show the place wherein he has concealed the shirt, his cycle and
weapon- knife and mobile of deceased Vishwanath.
conf.1.14.odt
67. According to the prosecution, in pursuance to the
memorandum statement dated 23.2.2012, Ramesh led the
police party again to his house and then shown the place which
was a peg on the wall on which the shirt was hanging.
Further, Ramesh took the police party to the adjacent
tinshed and shown the cycle.
Further, he took the police party to a fallow land in
front of Chintamani Hotel and from there, from a crack, near
one Babhli shrub, he took out the weapon knife and mobile
phone.
Further, he took police party to the agricultural field
of Shyamrao Gore and the well where he threw the dead body.
All these are recorded in Recovery Panchnama Exh.
70.
68. The recovery at the instance of Ramesh in respect of
shirt and cycle must go and it cannot stand to the scrutiny of
conf.1.14.odt
law for a minute. On 16.2.2012 the police along with Ramesh
had been to his house. They entered the house of Ramesh. The
I.O. must have searched the house that time and still the
prosecution wants to impress upon us that we must believe the
fact that on 23.2.2012 the shirt was still hanging on a peg which
was having bloodstains.
Further, on 16.2.2012 Ramesh along with the police
party had been to the tinshed in order to recover the full-pant.
Therefore, these two places were already in know of the police.
In that view of the matter, we have no other reason but to
observe that these two recoveries appear to have been shown
just to suit the prosecution case and accordingly they are
rejected.
69. Insofar as the recovery of knife and mobile phone is
concerned, Exh.70 clearly shows that it was made from the open
place. Further, without there being any identification from any of
the prosecution witnesses, including the son and widow of
deceased Vishwanath, as to whether the cellphone seized
belongs to Vishwanath (deceased), the prosecution wants us to
conf.1.14.odt
believe that the said was belonging to deceased Vishwanath.
Insofar as the place where the deceased was killed, as
per memorandum statement, is the house of Ramesh himself and
also the agricultural field of Uttam Gore and Shyamrao Gore
which was already visited by the I.O. along with his police party
prior to the date of the drawing of Panchnama (Exh. 70). On
that count also, the same has no evidentiary value though the
learned Addl.P.P. insists that the same be relied, in support of
prosecution case .
70. There is another reason for disbelieving the recoveries
from the house of prisoner-Ramesh. According to the evidence of
PW 1-Shankar and PW 5-Jayawanta, on 7.2.2012 when the
missing report (Exh.36) was lodged, Ramesh along his wife were
called in the Police Station for enquiry. The evidence of PW 5-
Jayawanta corroborates the version of PW 1 Shankar that
Ramesh and his wife were in police station and only after
enquiry they were set free. Thus, it is clear that it must be in
the mind of prisoner-Ramesh that there is a suspicion on him in
respect of death of Vishwanath. If that be so, the natural
conf.1.14.odt
conduct of any person will be to dispose of any incriminating
material and/or article from his house rather than preserving
them till 16.2.2012 and 23.2.2012 to show to the police party.
PW 8-Prakash Kamble, the panch witness, is examined
by the prosecution to show that in his presence, prisoner-Ramesh
has made his two disclosure statements. The possibility of
Prakash Kamble under the thumb and influence of the I.O. cannot
be ruled out in view of the following portion appearing in the
evidence of I.O :-
"Prakash Kamble resides near the Police Station.
Therefore, we used to call as him as Panch.".
71. Aforementioned discussion leads us to record a
specific finding that the so called recoveries and the subsequent
conduct of Ramesh in pursuance to the disclosure statement has
no value in the eye of law and, accordingly, the contention in that
regard is also rejected.
(C) MOTIVE:
72. The last part in the prosecution case is in respect of
conf.1.14.odt
the motive. According to the evidence appearing, the agricultural
fields of Vishwanath (deceased) and Ramesh (prisoner) are
adjacent to each other. According to the prosecution, the motive
to kill deceased Vishwanath is the encroachment made by
Ramesh on the agricultural field of deceased -Vishwanath.
73. According to the prosecution, Ramesh has made
encroachment over the agricultural field of deceased to the
extent of 10 gunthas. PW 1-Shankar states that there was a
dispute on that count between his father and Ramesh.
Shankar's evidence would reveal that his father lodged a
complaint with Chairman, Dispute Redressal Committee of
Karanji. It is dated 29.8.209. Exh.35 is a complaint lodged to
Police Station Officer, Shirpur ; it is dated 13.10.1988. It
shows that it was lodged by Jijeba Lahane i.e father of deceased.
Both the learned Addl.P.P. and the learned Judge of the
trial Court have relied heavily on the recitals of these two
documents to show that there was motive on the part of Ramesh
to finish him.
conf.1.14.odt
It will be pertinent to note that at the time of
recording of the evidence of Shankar in whose evidence these
two documents were exhibited as Exhs. 34 and 35, the learned
Judge has specifically recorded that these documents are
exhibited to the extent of signatures. Therefore, it is clear that
the contents of these documents remained to be proved. Further,
according to the PW 1-Shankar, Ramesh always used to extend
threats of murder to his father. There is not a single complaint
or report lodged by deceased-Vishwanath during his lifetime with
police authorities in respect of the threats extended to him by
Ramesh (prisoner).
Further, the police report (Exh.35) made to Police
Station Officer, Shrirpur is dated 13.10.1988, that is, much prior
to the date of the incident. Further, the said report was also not
lodged by deceased-Vishwanath, but by his father.
74. According to PW 5-Jayawanta at Washim deceased
Vishwanath told him that he wants to dispose of his agricultural
field and, therefore, he wants to go to the house of Rmesh
(prisoner). There is a faint corroboration in respect of
conf.1.14.odt
willingness of Vishwanath to sell the property which appears in the
evidence of PW 4-Shobhabai, the widow. According to her
evidence, deceased was asked by Ramesh to visit the house at
Washim
PW 1-Shankar is the only son of Vishwanath. He is
fully grown person. Therefore, if deceased-Vishwanath was
intending to go to the house of Ramesh in respect of sale
transaction, normally, it would have been disclosed by Vishwanath
to Shankar. The evidence of PW 1 Shankar is completely silent
about the said fact that his father intended to go to the house of
Ramesh in respect of the sale transaction.
Further, according to PW 1-Shankar and PW 4-
Shobhabai there was a dispute in respect of the agricultural field
amongst deceased Vishwanath and Ramesh. The first
information report lodged by Shankar (Exh. 37) speaks
otherwise, as can be seen from the relevant portion appearing in
the said report, as under :
"मागील दोन तीन वषाात तयाचे िवरद िशरपूर पोिलस सटेशनला
माझे विडलांनी दोन तीन वेळा तकार केली होती व एक अजा तट
ं ा
conf.1.14.odt
मुकी केद याचया कडे देऊन आपसात िमठिवले होते."
The aforesaid contents from the first information
report, thus, clearly shows that the dispute was already settled.
As observed in the preceding paragraph, though it is mentioned in
the first information report that on 2/3 occasions Vishwanath
lodged the police complaint, no such complaint is filed on record
by the prosecution.
In that view of the matter, we are of the opinion that
the prosecution has even failed to prove that there was any motive
which could be used against prisoner-Ramesh.
75. To sum up, the evaluation of the prosecution case
reminds us the observations of Hon'ble Apex Court in a case
reported at (2013) 12 SCC 406 : Sujit Biswas vs. State of
Assam. Paragraph 13 of the said judgment reads thus;
"13. Suspicion, however grave it may be,
cannot take the place of proof and there is a large
difference between something that "may be" proved,
and something that "will be proved". In a criminal
trial, suspicion no matter how strong, cannot and
conf.1.14.odt
must not be permitted to take place of proof. This is
for the reason that the mental distance between
"may be" ad "must be" is quite large, and divides
vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure that
mere conjectures or suspicion do not take the place of
legal proof. The large distance between "may be" true
and "must be" true, must be be covered by way of
clear, cogent and unimpeachable evidence produced
by the prosecution, before an accused is condemned
as a convict, and the basic and golden rule must be
applied. In such cases, while keeping in mind the
distance between "may be" true and "must be" true,
the court must maintain the vital distance between
mere conjectures and sure conclusions to be arrived
at, on the touchstone of dispassionate judicial
scrutiny, based upon a complete and comprehensive
appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on
record. The court must ensure, that miscarriage of
justice is avoided, and if the facts and circumstances
of a case so demand, then the benefit of doubt must
be given to the accused, keeping in mind that a
reasonable doubt is not an imaginary, trivial or
merely probable doubt, but a fair doubt that is
based upon reason and common sense."
conf.1.14.odt
CONCLUSIONS:
76. The prosecution case was fully based on the
circumstances only. There was no eye witness account.
Therefore, the prosecution was obliged to prove the circumstances
on which the prosecution was relying to establish fully so that
conclusion of guilt can be drawn. The facts so established in the
present prosecution case is not consistent only with the hypothesis
of the guilt of Ramesh, according to us, the chain of the evidence
is not complete. The chain of circumstances is broken at various
places. Vital couplings in the chain are missing. According to us,
the prosecution case revolves only around suspicion against the
prisoner-Ramesh. However, suspicion cannot take place of proof.
In the result, we are of the view that the conviction
of the prisoner-Ramesh cannot be sustained only on the basis of
suspicion and, therefore, the order of conviction and sentence is
liable to be set aside.
ORDER
Criminal Appeal No.301/2014 is allowed by setting
aside the judgment and order of conviction passed by learned
Additional Sessions Judge, Washim dated 3.4.2014 in Sessions
Trial Case No. 51/2012.
conf.1.14.odt
The appellant-Ramesh Jijeba Lahane be set at liberty
forthwith if he is not required in any other case.
The fine amount if any paid, be refunded to him.
Since the Criminal Appeal of the appellant is allowed
and he is acquitted of the charge, no separate orders are necessary
in Criminal Confirmation Case No.1/2014.
JUDGE JUDGE
sahare
