Dnyaneshwar @ Bandu @ Lakhya ... vs The State Of Mah
2014 Latest Caselaw 68 Bom

                                                      9.2012 Cri.Appeal.odt
                                   1




                                                                     
                                          
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD




                                             
               CRIMINAL APPEAL NO. 9 OF 2012




                                            
     Dnyaneshwar @ Bandu @
     Lakhya s/o. Digambar Bhore,
     Age: 26 Years, Occu.: Agriculturist,
     R/o. Adgaon [Lasina], Tq. Purna,




                            
     District Parbhani                                 APPELLANT
                ig                                      [Orig. Accused]
               VERSUS

     State of Maharashtra
              
     [Copy served on the Public Prosecutor,
     High Court, Bench at Aurangabad]                 RESPONDENT


                                 ...
      


     Mr. Vijay Sharma, Advocate for Appellant
     Mrs. S.G. Chincholkar, APP for Respondent - State.
   



                                 ...


                            CORAM : S.S. SHINDE &





                                   N.W.SAMBRE, JJ.

RESERVED ON : 26.11.2014 PRONOUNCED ON: 09.12.2014

JUDGMENT [PER S.S.SHINDE, J.]:-

1] This Appeal is filed by the Appellant - original

accused, challenging the Judgment and Order dated

08.11.2011, passed by the learned Sessions Judge,

Parbhani in Sessions Trial No.52/2011, thereby convicting

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the appellant for the offences punishable under Section

302 of the I.P. Code and sentenced to suffer Life

Imprisonment and to pay fine of Rs.10,000/- [Rs.Ten

Thousand only], in default of payment of fine, he is

directed to undergo further S.I. For the period of six (6)

months and also for the offence punishable under Section

201 of I.P. Code and sentenced to suffer rigorous

imprisonment for three (3) Years and to pay fine of

Rs.5,000/- [Rs. Five Thousand only], in default of

payment of fine, he is directed to undergo further simple

imprisonment for the period of three (3) months.

2] Relevant facts as are necessary for the

adjudication of the instant Appeal can be summarized as

follows:

The deceased Raiwata d/o. Uttam Shelke, R/o.

Shelke wadi, Taluka Purna, District Parbhani, was a

student of 12th Standard. She was attending tuition

classes at Purna and for that purpose was residing with

her paternal aunt [father's sister] Kasabai Govind Vaidya,

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R/o. Adgaon [Lasina], Taluka Purna. On 23.11.2010, at

about 06.30 a.m. Raiwata had started from Adgaon Lasina

for Purna to attend the tuition classes, and was supposed

to return home in the afternoon, however, she did not

return back. Shri Kishan Munjaji Shelke, the grandfather

of Raiwata and others took search of Raiwata, and as she

was not found, a Missing Report was lodged on

25.11.2010 igat the Police Station Purna, bearing

No.28/2010 at about 16.30 hours. On 27.11.2010, in the

afternoon, information was received that, a dead body of

an unknown lady was found in the well situated in the

field of Gyandeo Gangaram Vaidya in Adgaon Lasina

Shivar. The field owner also informed the Police about the

same. On the basis of this information, A.D. No.44/2010

was registered at the Police Station Purna under Section

174 of the Code of Criminal Procedure. The enquiry into

accidental death case was entrusted to Head Constable

Prakash Jangale. During the A.D. Enquiry, the

grandfather of the deceased Kishan Shelke identified the

dead body found in the well of Gyandeo Vaidya, as that of

his grand daughter Raiwata. The body was taken out of

the well; it was in a decomposed state. The salwar and

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nikar were removed from the person of the deceased and

as such an inference was drawn by the Police that, the

deceased must have been subjected to forcible sexual

intercourse and in order to cause disappearance of

evidence of rape, she must have been thrown in the well

for causing her death by drowning.

According to the prosecution when the

deceased Raiwata was passing from the road, near the

stream-let abutting the field of Gyandeo Vaidya and

Shivaji Bhore, she was followed by the accused

Dnyaneshwar @ Bandu @ Lakhya. The accused accosted

her and dragged her in the standing sugarcane crop. She

raised shouts. Ganesh Solva [PW-7] noticed something

untoward happening. Ganesh Solave is an agricultural

labour in the field of Dhondiba Bhore and resident of

Barbadi. He did not disclose the incident to anybody. It

is alleged that, the accused was also noticed at the spot of

the relevant time of occurrence by Dhondiba Bhore and

Maroti Solav in a frightened state.

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Police Head Constable Prakash Jangale lodged

the report at Police Station Purna on the basis of enquiry

conducted by him in the Accidental Death Case

No.44/2010 on 29.12.2010 and on the basis of which

Crime No.200/2010 was registered under Section 302,

376, 201 of I.P. Code at Police Station Purna.

In the course of investigation, the Police

arrested the accused on 29.12.2010. The inquest and

spot panchanama were already recorded in the course of

enquiry of the Accidental Death Case. The dead body was

sent for post-mortem examination. The post-mortem

examination was conducted on 28.11.2010 between 07.30

hours to 09.00 hours. The statements of other witnesses

were recorded. After completion of the necessary

investigation, charge sheet was submitted on 27.03.2011

in the Court of Judicial Magistrate First Class, Purna. The

matter was, thereafter, committed to the Court of

Sessions at Parbhani.

3] The appellant was put on trial before the

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Sessions Judge, Parbhani. The charge was framed for the

offence under Section 302, 376 and 201 of I.P. Code. In

support of its case, the prosecution has examined 10

witnesses. After recording the evidence and hearing the

prosecution and defence, the Trial Court convicted and

sentenced the appellant as aforesaid in para No.1,

however, acquitting him of the charge under Section 376

of the I.P. Code. Hence this Appeal.

4] The learned counsel appearing for the

appellant submits that, the Autopsy Surgeon having

performed autopsy on 28.11.2010 has opined that, the

death of the deceased must have been caused before 3 to

5 days from the date of post-mortem examination. It,

therefore, indicates that, the death of the deceased has

occurred only after 24.11.2010. The entire prosecution

evidence suggests that, the incident occurred on

23.11.2010. In these circumstances, it would be

hazardous to convict the appellant on a capital charge. It

is further submitted that, the sole basis of the prosecution

case is the evidence of PW-7 Ganesh Solav, who has been

examined as an eye witness. The incredible conduct of

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this witness renders him extremely unsafe for any

reliance. This witness claims to have witnessed the

incident dated 23.11.2010 of the deceased being dragged

by the accused and that she was raising shouts. Although

he claims to have revealed his master Dhondiram Bhore

about the incident, and is also aware of the dead body of

the girl, found in the well of Gyandeo Vaidya has chosen

not to inform the developments to the police or the Police

Patil / Sarpanch etc. until his statement was recorded by

the Police on 30.12.2010 i.e. after more than a month

after the incident. It is, in these circumstances, it would

be highly unsafe to rely on the evidence of PW-7 to base a

conviction. It further deserves appreciation that, the

distance from which PW-7 has claimed to have witness the

incident, it is impossible that, he could have correctly

identified either the accused or the deceased. It is

further submitted that, on a careful perusal of the

evidence of PW-7, it is unlikely to believe that, he could

correctly identify the deceased as the same girl accosted

by the accused. It deserve appreciation that, the

observations of the Judge that from the evidence of PW-7

the identity of the accused is sufficiently established then,

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it is for the accused to prove beyond reasonable doubt

that, he dragged a girl towards the sugarcane crop was

somebody else then the deceased is patiently erroneous.

It is the prosecution which has to stand, on its own legs.

In any case, benefit of doubt can not be extended to the

prosecution. It is further submitted that, it ought to have

been appreciated that, from the evidence of the Autopsy

Surgeon there was no indication of any sexual intercourse

and as such the appellant has been acquitted of the

charge under Section 376 of the I.P. Code. In the

circumstances, there is absolutely no rhyme or reason for

the accused / appellant to commit either any offence

under Section 302 and 201 of I.P. Code. It is further

submitted that, the evidence adduced by the prosecution

is highly inadequate and insufficient to convict the

accused appellant.

5] The learned counsel further submits that, if

the prosecution has failed to establish that, the death is

homicidal, conviction of the appellant for the offence

punishable under Section 302 of I.P. Code would not

arise. It is submitted that, PW-6 Kasabai first time has

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disclosed before the Court certain new facts, which were

not in the police statement. The learned counsel in

support of his contention that, suspicion howsoever

strong, cannot substitute for legal proof, pressed into

service exposition of the Supreme Court in the case of

Ashish Batham Vs. State of M.P. reported in AIR 2002

SC 3206 and in the case of Raj Kumar Singh alias Raju

alias Batya Vs. State of Rajasthan reported in AIR

2013 SC 3150

It is submitted that, no reasons have been

forthcoming from the prosecution for delay in filing First

Information Report and also for recording the statements

of the prosecution witnesses by the police. Therefore, the

learned counsel appearing for the appellant submits that,

the appellant deserves to be acquitted.

6] On the other hand, the learned Additional

Public Prosecutor appearing for the respondent - State

submits that, accused was last seen in the company of the

deceased as stated by PW-7 in his evidence. It is further

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submitted that, there is recovery of burnt piece of salwar,

note book and writing pad belonging to the deceased and

chappals, which were concealed by the accused in the

field of Gajanan Gangaram Vaidya. Therefore, the learned

Additional Public Prosecutor submits that, the prosecution

has established guilt of the accused beyond reasonable

doubt, and therefore, appeal may be dismissed. The

learned Additional Public Prosecutor has placed reliance in

the case of Ranbir Vs. State of Punjab reported in

1973 CJ (SC) 293.

7] We have given careful consideration to the

rival submissions and also perused original record and

proceedings, relevant provisions, and the Judgments cited

by the learned counsel appearing for the parties.

In this Appeal, following questions would fall

for our consideration:

(i) Whether delay in lodging FIR and recording of the statement of the witnesses by the Police is fatal to the prosecution case?

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(ii) Whether death of Raiwata [herein after would be referred as 'victim'] was homicidal?

(iii) Since the case rest upon the circumstantial

evidence, whether the prosecution has established chain of circumstances which would lead to only hypothesis of the guilt of the accused?

(iv)

Whether on the basis of two circumstances i.e. last seen together and recovery at the

instance of the accused are sufficient to hold that the accused alone and alone is responsible for the death of the victim?

(v) Whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as

'clear and cogent' and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of

which he is charged?

8] One Prakash Nagorao Jangle was examined as

PW-5 by the prosecution. In his evidence, he stated that,

on 25.11.2010, he was attached to the Police Station

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Purna. P.S.O. on duty assigned investigation of missing

report of victim to the PW-5. He carried investigation of

the missing report. On 27.11.2010, one Ginyandeo of

Adgaon Lasina lodged A.D.report in Police Station Purna.

A.D. No.44/2010 was then registered by P.S.O. Further

enquiry was referred to PW-5. On 27.11.2010, he visited

the spot and saw dead body of female was floating on the

well water.

ig The dead body was thereafter taken away

from the well. Then, he called PW-1, who identified the

dead body as that of his grand-daughter. The inquest on

the dead body thereafter was done in presence of

panchas. Only the shirt was on the dead body. Dead body

was referred to Rural Hospital Purna for P.M. Examination.

On the next day the dead body was delivered in the

possession of the relatives of deceased. Thereafter, he

recorded the statements of the relatives of deceased

wherein they suspected something unnatural had

happened with deceased, then deceased was killed, and

thereafter her dead body was thrown in the well.

Upon careful perusal of the evidence of this

witness, he has not stated that, the relatives of victim

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whose statements are recorded, have even raised

suspicion about involvement of the appellant in the

commission of the offence.

PW-5 has further stated that, after looking

into the condition of dead body, he felt that, the deceased

was raped, and thereafter murdered. Then, he proceeded

to conduct further investigation. According to this

witness, he appointed two secret messengers to collect

the information, who then tried to gather the information.

It took them a month for said work. Thereafter, the

messengers reported to him that, village people Shri

Limbaji Solav, Maroti Solav and Vithal Bhore were talking

that, they had knowledge about the incident, they also

disclosed him that, one Ganesh Solav had seen the

deceased going to tuition classes and one unknown person

apprehended her from behind and took her in cane field.

This witness recorded the statements of those persons on

27.12.2010 and also recorded the statement of Ganesh

and Dhondiba on 28.12.2010.

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9] It appears that, though PW-5 relied upon two

secret messengers, the prosecution has not examined

those two secret messengers. It has also brought in the

evidence that, those two secret messengers also disclosed

PW-5 that, one Ganesh Solav had seen the deceased

going to tuition classes and one unknown person

apprehended her from behind and took her in cane field.

In fact, it has come in the evidence of PW-7 and PW-8

that, they knew accused. It is also brought on record by

the prosecution that, field of the accused is on the

western side of the field of PW-8. Therefore, there was no

question of telling by Ganesh Solav to the two secret

messengers that, one unknown person apprehended the

victim from behind and took her in cane field.

10] PW-5 further stated in his evidence that,

Ganesh Solav stated before him that, he saw incident by

his own eyes. He also told him that, he saw the accused

Bandu @ Lakhya @ Dnyaneshwar had caught hold the

deceased and took her to the cane filed, and thereafter,

he had recorded the statement of field owner Shri

Dhondiba wherein he has stated that, on the day of

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incident, he saw the accused Bandya, and therefore, PW-5

felt that, the accused must have committed firstly rape

and subsequently murder of deceased, and thereafter,

First Information Report was lodged on 29.12.2010.

11] Therefore, it is admitted position that, though

the alleged incident had taken place on 23.11.2010, First

Information Report came to be lodged belatedly on

29.10.2010. An impression gathered by the PW-5 was on

the basis of information collected by the two secret

messengers, and therefore, prosecution ought to have

examined those two secret messengers so as to prove the

case of the prosecution. Though, the PW-5 claims in his

evidence that, PW-7 Ganesh Solav stated before him that,

he saw incident by his own eyes, in fact, upon careful

perusal of the evidence of PW-7, he has not stated in his

evidence that, he saw actual incident of rape or killing of

victim by the accused appellant.

12] It has also come in cross examination of PW-5

that, after the investigation of A.D. Report was given to

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him, he had visited Adgaon Lasina on number of occasions

till he lodged report on 29.12.2010. Whenever he felt it

necessary, he went near the well and visited cane field.

He admits in his evidence that, he did not make an

enquiry to the adjoining land holders of the well where the

dead body of victim was found, because he felt that, the

deceased is from other village, and those people if

enquired, could not give necessary information to him,

and therefore, he appointed two messengers of village

Adgaon Lasina, who were not previously acquainted with

him.

13] It clearly appears that, PW-5 went near the

well and visited cane field and naturally adjoining fields

also. Therefore, recovery of certain articles at the

instance of accused after one month from the open field

and also from the sugar cane field looses its importance.

He has admitted in his cross examination that, inquest

panchanama Exh.21 does not indicate any external

injuries on the private part of the dead body. Upon

careful perusal of the evidence of this witness it clearly

emerges that, he himself was not keen in the investigation

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and entrusted the said job to the two secret messengers,

who are not examined by the prosecution. This witness

has recorded statements of PW-7 and PW-8 belatedly on

28.12.2010. No reasons are placed on record, why these

two witnesses kept mum for one month, and thereafter

they disclosed the alleged act of the accused, dragging

victim and taking her to sugar cane field. Therefore, in

the light of discussion herein above, it will have to be held

that, there was considerable delay in lodging the First

Information Report and recording the statements of the

witnesses, which affected the credibility of prosecution

story.

14] PW-5 in his evidence stated that, the relatives

of the deceased victim suspected something unnatural

had happened, but, they did not express any suspicion

about involvement of the accused. Upon careful reading

of evidence of PW-5, it appears that, he visited village

Adgaon Lasina on number of occasions. He has also

deposed that, he went near the well and visited sugar

cane filed. He has admitted that, he has not caused

enquiry from the adjoining field owners. He has further

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admitted that, there was no enquiry about mobile cell

number which was disclosed in the missing report.

Parents and grand father of the victim did not suspect

about anybody. He further stated in his cross

examination that, Pandan (village mud road) is situated

on Adgaon to Purna public road. People of village Adgaon

Lasina used to go both respectively by tar road and also

by kacha road which runs from Pandan road. The inquest

panchanama Exh.21 does not indicate any external

injuries on the private part of the dead body. Therefore,

upon careful perusal of his evidence, it is abundantly clear

that, Pandan is adjacent to the Adgaon to Purna public

road and is not an isolated place.

15] One Dr. Basveshwar Haugirao Kanje was

examined as PW-3. In his evidence, he stated that, on

28.11.2010, he was attached to Rural Hospital Purna as

M.O. The dead body of victim was sent to Rural Hospital

Purna on 27.11.2010 at 6.45 p.m. He himself and Dr.

Shaikh conducted the P.M. in between 7.30 a.m. and 9.00

a.m. They noticed beginning decomposition of dead body.

The shirt and dark coloured scarf was on the dead body.

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The pant however, was not there. On internal

examination, he found that, both the lungs were

congested and started softening. Stomach has also

started softening containing about 100 ml. water. No

food particles were found in the stomach. Liver and

spleen both were congested and started softening.

Viscera of the dead body and vaginal swabs were

preserved.

ig Since the dead body started decomposing,

exact opinion about cause of death could not be given

immediately as such the opinion was reserved.

16] He further stated that, during recording of his

evidence, he was shown the C.A. report pertaining to the

viscera and vaginal swabs. He further stated that, report

regarding viscera does not disclose any poison. After

perusal of the C.A. report, he stated that, probable cause

of the death of the deceased could be because of

drowning. In his cross examination, he stated that, the

death could be around 3 to 5 days prior to P.M.

Examination. Upon reading of his evidence, it clearly

emerges that, the prosecution has not firmly established

that, the death was homicidal.

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17] Star witness of prosecution i.e. PW-7 Ganesh

Solav claimed that, he saw one girl passing through a

'Pandan' [bullock cart road] towards Purna. He also saw

the accused Dnyaneshwar following said girl from few

distance who was putting on his person a shawl.

Thereafter, he heard the cries raised by that girl,

therefore, he pipped towards the road side and saw that,

accused Dnyaneshwar put shawl on her person and

dragged her towards sugarcane field. He further stated

that, he does not know what had happened thereafter.

He continued to do his work of watering the field. Within

a few minutes, one Vithal Gangadhar Bhore came to him

and asked him, has he heard cries of lady? This witness

replied that, Yes. In the meantime, his owner came along

with a tea and offered it to him. He told owner i.e. PW-8

that, there was a noise who then told him that, let it be.

He stated that, Police recorded his statement on

28.12.2010 and subsequently on 30.12.2010, and lastly

before Magistrate at Purna on 18.03.2011. Upon perusal

of his evidence in examination in chief, he nowhere stated

that, he actually witnessed the commission of the offence

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of rape or murder by the accused. He has also not stated

that, he knew victim, and the accused dragged the victim.

In short, this witness nowhere stated that, said girl was

Raiwata. Even if his evidence if he accepted as it is, at

the most, it can be said that, he saw one girl passing

through a Pandan [bullock cart road] towards Purna. He

saw accused Dnyaneshwar following that girl at a few

distance, then accused dragged said girl, and thereafter,

he heard the cries raised by that girl and then pipped

towards the road side and saw that, accused

Dnyaneshwar covered shawl on her person and dragged

her towards sugar cane field. The prosecution has not

brought cogent and convincing evidence on record to

prove that, said girl was Raiwata. Secondly, the

prosecution has not explained delay in recording the

statement of this witness. As already observed, this

witness has stated that, he saw accused Dnyaneshwar

dragging one girl towards sugar cane field, and thereafter,

he did not know what happened. Though, this witness

has named one Vithal Gangadhar Bhore, who came to him

within few minutes after witnessing the afore-mentioned

incident, the prosecution has not examined the said Vithal

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Gangadhar Bhore though he was available for

examination.

18] Upon careful perusal of the evidence of PW-7,

he stated that, incident took place prior to 7/8 months in

between 6.00 a.m. to 6.30 a.m. At that time, he was

watering the field of his owner. A bullock cart road runs

adjacent to his owner's field. It is known by local name as

'Pandan'.

The said road goes from Adgaon Lasina to

Purna. If missing report filed by Kishan Munjaji Shelke,

who is grand-father of the deceased, to the Police

Inspector, Police Station, Purna, is perused, in said report

he stated that, they are residing at village Adgaon Lasina

with grand daughter Revta i.e. deceased, and on

23.11.2010, she left house for attending classes to Purna

at 7.00 a.m. Therefore, if version of PW-7 is taken as it

is, he saw incident of dragging the girl by the accused in

the morning at 6.00 a.m. to 6.30 a.m., then as per the

missing report, deceased left the house on 23.11.2010 at

7.00 a.m. In the First Information Report, time of leaving

house by the deceased is stated 6.30 a.m. It would have

been natural human conduct that, PW-7 should have

enquired with the accused why he was dragging the girl.

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However, this witness admits in his cross examination

that, he did not ask the accused why he was dragging the

girl. It creates serious doubt about truthfulness of the

version of PW-7. In the first place, the alleged incident of

dragging, has not been stated by PW-7 on particular date.

Secondly, as per the evidence of Medical Officer, death

occurred within 3/5 days back from the date of performing

post mortem.

ig As per the evidence of owner of the well

namely Ginyandeo Gangaram Vaidya i.e. PW-2, on

27.11.2010, he had been to his field at about 2.00 p.m.,

something was smelling towards the well side therefore he

went there. He saw the female dead body floating on the

well water. Then, he went to Purna Police Station and

lodged the report. PW-7 during his cross examination

stated that, towards west of the Pandan there is a field of

Shivaji Sakharam. Towards his west a field of Uttam

Sakharam, towards west there is a field of accused

Dnyaneshwar and his brother Digambar and towards west

of that field, there is field of his owner. Towards east of

the Pandan there is a land of Gyandeo Vidya. The village

Gaothan of Adgaon is at a distance of half kilometer away

from Pandan. Therefore, it appears that, spot where PW-

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7 saw accused dragging girl in Pandan is surrounded by

fields of various persons of said village. According to PW-

7, distance between village Gaothan of Adgaon Lasina is

half kilometers away from Pandan. If the deceased

started from her house in between 6.30 a.m. to 7.00 a.m.

as claimed by the prosecution, to travel more than half

kilometer distance it will take some time. Therefore, upon

perusal of evidence of PW-7 that, he saw accused

dragging girl in the morning at 6.00 a.m. to 6.30 a.m., if

accepted, there is room for doubt that, whether girl

dragged by the accused was Raiwata or some other girl.

It is difficult to fathom that, PW-7 even after hearing

cries raised by girl, he did not ask the accused, or went at

the spot so as to find out, why girl was being dragged by

the accused. It has come in his evidence that, pandan is

adjacent to the field where he was working. Apart from

that, another person i.e. Vithal Gangadhar Bhore, has

came to him, therefore, in all human probabilities, they

ought to have enquired about such incident of dragging or

taking girl by the accused to sugarcane field, since said

incident had happened, according to PW-7 in between

6.00 a.m. to 6.30 a.m.

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19] According to this witness i.e. PW-7, after he

witnessed incident, PW-8 field owner came along with a

tea. PW-7 told PW-8 that, there was a noise, who then

told him that, let it be. Therefore, what was stated by

PW-7 to PW-8 i.e. Owner, is that, there was a noise,

except that, nothing was told to the owner, is also difficult

to believe, when PW-7 saw the accused dragging girl and

girl was crying, such incident which had happened during

morning hours, was not narrated in detailed to the owner.

PW-7 has stated that, the field of the accused

Dnyaneshwar and his brother Digambar is towards west

and adjacent to it there is a field of his owner. Suggestion

was given to this witness that, other land owners were

also present during that period. It has also come on

record that, PW-7 stated in his examination in cross that,

it is true that field of Munjaji situated adjacent to the field

of Gyandev. Team of labour for cutting the sugar cane

crop arrived to the field of Munjaji, and they had a halt at

a distance of about 1500 feet away from that field. That

field belongs to Hivrabai Vaidya.

Therefore, as already observed, well is

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situated in the field of Ginyandeo, as stated by PW-7 that,

a team of labourer for cutting the sugar cane crop has

arrived to the field of Munjaji, whose land is situated

adjacent to the field of Ginyandeo. Therefore, it is difficult

to accept the prosecution case that, if incident would have

been taken place at the relevant time, same was not

noticed by any other person including labourers, who have

come there for cutting the sugar cane.

PW-7 further deposed in his cross examination

that, one well is situated in the land of Gyandeo and a

streamlet flows adjacent to it. Village people used to go

to the streamlet to answer the nature's call early in the

morning. Therefore, it is not the case that, place where

alleged incident of dragging girl had happened is isolated

place and people have no opportunity to notice the said

incident early in the morning. PW-7 has stated in his

cross examination that, accused Dnyaneshwar used to go

to his field through the Pandan. Therefore, it appears

that, accused was acquainted with PW-7, and therefore, in

all probabilities, PW-7 ought to have enquired from the

accused Dnyaneshwar, why he was dragging the girl. It is

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also admitted by this witness in his cross examination

that, adjacent owner Shri Shivaji and Uttam had sown

wheat crop in their field after sometime. The area of the

land belonging to the accused and his brother is around 2

acres approximately. At the relevant time, it was lying

vacant [nothing was sown in that field]. Subsequently,

they had sown crop of wheat in the said land 5 to 6 days

after the incident. PW-7 has admitted in his cross

examination that, he did not try to restrain the accused

from dragging the girl. He did not disclose this fact to the

adjacent land owner Shri Vithal Bhore. He went back to

village Adgaon by 9.50 a.m. He did not report the

incident either to the Sarpanch or to the village Police

Patil. 2-3 days after the incident, he came to know that, a

dead body was floating in the well of Gyandeo. He has

witnessed incident of dragging the girl 2/3 days prior to

the day on which dead body was recovered from the well.

As per the prosecution case, dead body was seen by PW-2

on 27.11.2010 at about 2.00 p.m. Two days prior, it

means PW-7 saw the incident of dragging girl by accused

Dnyaneshwar on 24.11.2010 or 25.11.2010.

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20] It has also come in the cross examination of

PW-7 that, even after coming to know that, dead body of

Revta was floating in the well of Gyandeo, he did not go to

see the dead body. The prosecution has not brought on

record evidence suggesting that, PW-7 identified the dead

body. PW-7 has also admitted in his cross examination

that, he did not tell Govind Vaidya the husband of PW-6

that, he saw the accused dragging girl early in the

morning on the day of incident. He further stated that,

police met him for the first time after one month from the

date of the incident. He further stated that, he disclosed

the incident for the first time to the police and not to

anybody else. Therefore, on the whole evidence of this

witness does not appear to be natural, trustworthy and

not reposing faith in the prosecution case.

21] PW-8 Dhondiba Ganpatrao Bhore, who is

owner of the field wherein PW-7 Ganesh Solav was

working as servant at the relevant time. In his evidence,

PW-8 stated that, the incident took place prior to 7/8

months back. On that day, he along with Ganesh Solav

had been to his field known as 'Tambat' situate adjacent

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to the Pandan and started the electric motor to water the

said field. He, then, halted in the field for some time, and

then he came back to home. He again went back to said

field along with the tea for his labourer [Salgadi]. Whilst

he was on his way to field with a tea pot, accused

Dnyaneshwar was coming back towards village side. He

did not talk to accused. He was wearing a Sandow Banian

on his person and a pant at that time. It was a time of

about 6.45 a.m. to 7.00 a.m. in the morning. PW-8, then,

offered a cup of tea to Ganesh Solav [Salgadi]. PW-7

then told PW-8 that something had happened here. PW-8

told him that, a team of labourer for cutting the sugar

cane have assembled in the field beyond the Pandan and

it may be those labourers there. PW-8 again came back

to his home. He did not see the accused in the village for

2-3 days after the incident.

22] In his cross examination, he stated that, it is

true that, accused Dnyaneshwar used to go to his field by

a Pandan road. The road which goes to village Barbadi

approaches the road which goes from Adgaon to Purna.

Accused Dnyaneshwar sown wheat crop in his field three

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weeks after happening of the incident. He further stated

that, though police met him on the next day when the

dead body of Raiwata was found in the well in his field but

they did not record his statement. It appears that, when

he was going back to the field along with the tea pot so as

to serve the tea to his servant Ganesh Solav [i.e. PW-7],

the accused Dnyaneshwar met him on the way wearing a

sandow banian and pant on his person and he was

proceeding towards village Adgaon Lasina. However, this

witness has not stated anything that, accused was

frightened or his behaviour was abnormal. He further

stated in his cross examination that, the team of labourers

for cutting the sugarcane had arrived at in the field of

Munjaji Bhore. Therefore, this witness has stated that,

nearby field of the spot of occurrence, the team of

labourers was very much there. So far narration by the

PW-7 to him is only that, PW-7 told him that, something

had happened here and he replied to PW-7 that, team of

labourer for cutting sugar cane have assembled in the

field beyond the Pandan and it may be those labourers

there.

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If evidence of PW-7 perused carefully, it does

not inspire confidence and secondly, if his version is taken

as it is, he saw accused dragging the girl, however, there

is no corroboration to his version, and therefore, it is

unsafe to place reliance on his evidence.

23] Therefore, the prosecution has not established

beyond reasonable doubt that, accused Dnyaneshwar was

dragging the victim on the relevant day towards field. As

already observed, neither PW-7 nor any other prosecution

witnesses have actually seen the commission of rape or

murder of the victim by the accused.

24] The Trial Court while appreciating evidence of

PW-7 - Ganesh Solav observed that, his evidence

clinchingly goes to show that, he had noticed the

deceased alive for the last time in the company of the

accused and nobody has seen her alive thereafter. With

respect to the finding recorded by the trial Court, nowhere

prosecution has brought on record that, the girl to whom

accused was dragging was Raiwata. Neither PW-7 has

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stated that, the said girl was Raiwata nor PW-7 has

noticed the dead body and stated that, the dead body is of

the same girl to whom accused was dragging. Therefore,

the findings recorded by the trial Court are totally

perverse. No evidence is placed on record by the

prosecution to suggest that, PW-7 has identified and has

seen dead body and stated that, it is the same girl which

he had seen which was dragged by the accused. The trial

Court has also referred PW-7 and PW-8 as eye witnesses.

In our opinion, there is no eye witness to the actual

incident of rape or murder, and therefore, they should

not have been referred as eye witnesses to the actual

incident of rape or murder. Therefore, entire case of the

prosecution rest upon circumstantial evidence.

25] The prosecution claims that, there is evidence

in the form of the recovery at the instance of the accused

Dnyaneshwar which clinchingly goes to show that, it was

the accused and accused alone who must have dragged

the victim girl to the standing sugar cane field. The trial

Court has also accepted the said contention of the

prosecution. As per the prosecution story, evidence in

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the form of memorandum available on record at Exhibit

31 goes to show that Odhani/Dupatta, note book and

writing pad belonging to the deceased and her chappals

were concealed by the accused in the field of Gajanan

Gangaram Vaidya. It was produced by the accused before

the police and it was seized by them under seizure

panchanama Exhibit 32. Prosecution has placed reliance

upon the evidence of PW-6, wherein PW-6 Kasabai in her

evidence stated before the Court that, on the day of

incident Revta was proceeding to attend her tuition class

as usual by 6.00 a.m. to go to Purna. She was carrying

with her a register and examination pad. On that day,

she was wearing a Punjabi suit having flower design of

Red colour and a Red scarf [Odhani]. She was wearing a

brick coloured chappal on that day. She did not come

back for whole day.

If the missing complaint is perused, the time

of leaving of victim from the house is stated at 7.00 a.m.

PW-6 in her evidence has stated that, she started at 6.00

a.m. First Information Report mentions the time when

she left the house was at 6.30 a.m., therefore, the

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prosecution itself is not sure when actually victim left the

house to attend the tuition classes at Purna. It has come

in the evidence of PW-4 that, victim lastly attended the

tuition class on 20.11.2010. Thereafter, it appears that,

victim did not attend the class on 21.11.2010 and

22.11.2010 for two days before the alleged date of

incident. The prosecution has not placed any evidence on

record why the victim did not attend the class on

21.11.2010 and 22.11.2010, and whereabouts of victim

on those two days.

PW-6 was cross examined by the defence, and in her

cross examination, she stated that, she was unable to

answer as to for which subject deceased Raiwata was

taking tuition at Purna. She also does not know in which

class Raiwata took admission and the name of the

Director thereof. She has further stated that, though she

told the Investigation Officer that, Raiwata used to carry

with her the School register and examination pad while

going for the tuition. However, police has not recorded

that portion. She further stated that, she stated before

the police that, on the day of incident, Raiwata was

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wearing a flower print salwar kurta and a red scarf

[Odhani]. However that fact is also not appearing in her

police statement. If evidence of PW-10 i.e. Police Officer

is perused carefully, he has stated that, PW-6 while

recording her statement did not tell him that, victim used

to carry with her register and examination pad daily. She

even did not tell that, on the day of incident, deceased

Raiwata was wearing a Kurta Paijama of flower prints.

Therefore, in the version of PW-6, for the first time same

it was stated before the Court, was an attempt to improve

the prosecution case. According to the prosecution, burnt

piece of clothes was recovered from the sugar cane field

at the instance of the accused. In fact, it has come in the

evidence of PW-9 Ajimkhan i.e. panch, that the sugarcane

field is open place. It has also come on record that, after

harvesting the sugar cane crop, Khodwa [remains] was

set on fire, and therefore, alleged recovery of piece of

cloth, that too, after more than one month from the

alleged date of incident is difficult to believe and accept as

corroborative piece of evidence when prosecution has not

brought on record substantive evidence. It has also come

in the evidence of PW-5 (Police Officer) that, he did visit

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sugar cane field and also the well, and therefore, it is

difficult to fathom that, nobody noticed piece of cloth or

clothes of victim for more than one month. There are

many adjoining fields and from the evidence brought on

record, it appears that, said place from which the piece of

cloth or articles are recovered is an open place. Though,

prosecution claims that, Odhani, note book and writing

pad belonging to the deceased and chappals were

concealed by the accused in the field of Gajanan

Gangaram Vaidya, it has come on record that, same place

is an open place and according to the prosecution, the

said articles were concealed by the accused, in thorny

bush standing on the bandh of the land belonging to

Gajanan Vaidya and then said articles were recovered at

the instance of the accused. It is difficult to fathom that,

for more than one month, when those articles are lying on

the bandh of the field of Gajanan Vaidya, nobody has seen

or noticed the said articles. Therefore, belated recovery

of the articles, that too, from the open place is difficult to

be believed and accept as evidence.

26] The Hon'ble Supreme Court in the case of

9.2012 Cri.Appeal.odt

Amitsingh Bhikamsing Thakur Vs. State of

Maharashtra reported in AIR 2007 SC 676 in para

No.29, has summed up various requirements of Section

27 of Evidence Act, which are reproduced as follows:

i) The fact of which evidence is sought to be given

must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of

relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to

relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

ii) The fact must have been discovered.

iii) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

iv) The persons giving the information must be accused for any offence.

v) He must be in the custody of a police Officer.

vi) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

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vii) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered

can be proved. The rest is inadmissible.

The Hon'ble Supreme Court in the case of

Salim Akhtar @ Mota Vs. State of U.P. reported in AIR

2003 SCC 4076 held that, the recovery made from open

place which was accessible to all and everyone cannot be

believed. Yet in another exposition, the Supreme Court in

the case of Aslam Parwez etc. Vs. Government of NCT

of Delhi reported in AIR 2003 SC 3547 held that, the

possession of arms, revolver and cartridges recovered on

the basis of disclosure statement made by accused,

recovery made after 8 months and from open place

accessible to all and everyone, accused could not be said

to be in possession of the revolver and cartridges which

were recovered and therefore, his conviction is liable to

be set aside.

27] The prosecution has relied upon two

circumstances, firstly deceased was last seen in the

company of the accused and secondly, recovery of the

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articles at the instance of the accused. While appreciating

the circumstantial evidence, the Hon'ble Supreme Court in

the case of Hanumant Govind Nargundkar & another

Vs. State of Madhya Pradesh reported in AIR 1952

S.C. 343 held that, in cases where the evidence is of a

circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should in the first

instance be fully established, and all the facts so

established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and they should be such

as to exclude every hypothesis except one proposed to be

proved. The Supreme Court has consistently held that the

following conditions must be fulfilled before the case

against an accused can be said to be fully established on

circumstantial evidence:-

i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,

ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to

9.2012 Cri.Appeal.odt

say, they should not be explainable on any other hypothesis except that the accused is guilty,

iii) the circumstances should be of a conclusive nature and tendency,

iv) they should exclude every possible hypothesis except the one to be proved, and

v) there must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must

that in all human probability the act must have been done by the accused.

In the case of Mohd. Mannan @ Abdulo

Mannan Vs. State of Bihar, (2011) 5 SCC 317, the

Apex Court has reiterated the principles to be borne in

mind while dealing with a case based upon circumstantial

evidence in evaluation of the evidence adduced in the

case. The Apex Court has observed as under :

"In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is

9.2012 Cri.Appeal.odt

sought to be drawn are to be cogently and firmly established. The circumstances so proved must

unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was

committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction

circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence

should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-

and-fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances

of each case."

Aforementioned principle has been reiterated by

the Hon'ble Supreme Court in the case of Ajitsingh

Harnamsingh Gujral Vs. State of Maharashtra

reported in (2011) 14 SCC 401, in the case of Rajendra

Wasnik Vs. State of Maharashtra (2012) 4 SCC 37, in

the case of Shyamal Ghosh Vs. State of West Bengal

reported in (2012) 7 SCC 646 and in the case of

Harivadan Babubhai Patel Vs. State of Gujrat

reported in (2013) 7 SCC 45.

9.2012 Cri.Appeal.odt

In the case of Dhan Raj alias Dhand Vs.

State of Haryana reported in (2014) 6 SCC 745, the

Supreme Court held that, in a case of circumstantial

evidence, if there are breaks in the chain of circumstances

leading to the possibility of more than one inference.

Benefit of doubt should be given to the accused.

The Supreme Court in the case of State of

U.P. Vs. Satish reported in (2005) 3 SCC 114 in para

No.22 held thus:

"22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively

establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case

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there is positive evidence that the deceased and the accused were seen together by witnesses PWs

3 and 5, in addition to the evidence of PW 2."

Yet in another Judgment in the case of

Ramreddy Rajesh Khanna Reddy Vs. State of A.P.

reported in (2006) 10 SCC 172, in para No.27 held thus:

"27. the last-seen theory, furthermore, comes into play where the time gap between the point of

time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the

accused being the author of the crime becomes impossible. Even in such a case the courts should

look for some corroboration."

A similar view was also taken in Jaswant Gir

Vs. State of Punjab reported in (2005) 12 SCC 438.

In the case of Ajitsingh (supra), the Supreme

Court held that, victim last seen alive with the accused

and subsequently found dead. Duration of time between

two events, held, ought to be so small that possibility of

any other person being author of crime can be ruled out.

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In the case of the Shamal Ghosh (supra), Supreme Court

held that, where prosecution is relying upon last seen

theory, it must essentially establish time when accused

and deceased were last seen together as well as time of

death of deceased. Last seen theory requires a possible

link between the time when the deceased was last seen

alive and fact of death of deceased coming to light.

Reasonable proximity of time between these two events is

a necessary ingredient.

In the case of Jagroop Singh Vs. State of

Punjab reported in (2012) 11 SCC 768 has also held

that, time gap between point of time when accused was

last seen with deceased and when deceased was found

dead, is an important aspect.

28] In the case of Shankarala Gyarasilal Dixit

Vs. State of Maharashtra reported in AIR 1981 SC

765 (1), the Supreme Court held that, in a case of

circumstantial evidence, the circumstances on which the

prosecution relies must be consistent with the sole

hypothesis of the guilt of the accused. In the said case,

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the appellant therein Shankarlal Gyarasilal Dixit was

convicted by the learned Additional Sessions Judge, Akola,

for offences punishable under Sections 376 and 302 of the

Indian Penal Code on the charge that on December 10,

1978 accused raped a five-year old girl called Sunita and

thereafter committed her murder. In that case, it appears

that, the prosecution proved that, the deceased Sunita

died a homicidal death. There were injuries on the body

of Sunita. She was raped or at least attempted to be

raped before being murdered, was also proved by the

prosecution. In that case, dead body of the victim was

recovered from the bathroom of the house of the

appellant. According to the prosecution case, the

prosecution witnesses saw the appellant sleeping on a cot

in the court-yard, with a cover pulled up to his face,

Sunita was lying still and motionless in the bath-room,

wrapped in a blanket. Witness Renukabai lifted her dead

child, threw the blanket and ran home. Sunita's

underpants was missing. It also appears that, Doctor

examined the appellant on the same day. The appellant

had put on two full pants, one on the top of the other. His

under-pant was suspected to bear the mark of dried

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semen. There were marks of bruises over his left thigh,

there was no smegma around the corona glandis and

there was a small abrasion over the base of his glans-

penis which had a bluish discolouration on it. It appears

that, the appellant took defence of simple denial and

stated that, he was falsely implicated in the case at the

instance of his brother, mother and his neighbour

Shrinarayan Sharma. The Supreme Court accepted the

case of the prosecution that, Sunita died a homicidal

death and also she was raped or at least attempted to be

raped before being murdered, however, while considering

12 circumstances, which were pressed into service by the

prosecution in that case, the Supreme Court held that,

prosecution could not prove presence of the accused in

the house at the relevant time, inasmuch as, though

disclosure was made by the witnesses and in particular

Ramrao to the police in his complaint, the name of the

appellant was not disclosed. When the FIR was recorded

no one thought that the appellant was responsible for the

violence which was done to Sunita. Therefore, Supreme

Court gave benefit of doubt to the appellant and by

setting aside the Judgment of the trial Court and the High

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Court, acquitted the appellant therein. While appreciating

circumstantial evidence, the Supreme Court held that, it is

necessary to find out whether the circumstances on which

the prosecution relies are established by satisfactory

evidence, often described as 'clear and cogent' and

secondly, whether the circumstances are of such a nature

as to exclude every other hypothesis save the one that

the appellant is guilty of the offences of which he is

charged.

29] In the light of discussion in the forgoing

paragraphs, in our considered view, the prosecution has

utterly failed to establish the circumstance that, Raiwata

was last seen in the company of the accused before her

death. As already observed, even if evidence of PW-7 is

accepted as it is, he has not stated any where that, girl

which, according to him, was dragged by accused, was

Raiwata. As already observed, belated registering of First

Information Report and also recording statement of the

witnesses has created serious dent to the prosecution

case and truthfulness of the version of the prosecution

witnesses.

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The Supreme Court in the case of Harivadan

Babubhai Patel supra has held that, delay in lodging FIR,

if explanation offered is satisfactory and there is no

possibility of embellishment, delay should not be treated

as fatal to prosecution. However, in the present case, the

prosecution has not offered satisfactory explanation for

delay in lodging the First Information Report and

recording the statement of the witnesses.

30] As already observed, the alleged recovery at

the instance of the appellant was from open place

accessible to all and belatedly i.e. after one month looses

its importance and that circumstance alone not sufficient

to convict the accused.

31] The prosecution has not proved that, death

was homicidal. The appellant is acquitted for the offence

punishable under Section 376 of I.P. Code by the Trial

Court. PW-3 Dr.Basveshwar Kanje, examined dead body

and found same in decomposed state. If prosecution has

not established that, the death was homicidal, the

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conviction of the appellant for the offence punishable

under Section 302 of I.P. Code can not sustain.

32] It is settled law that, while motive does not

have a major role to play in cases based on direct

evidence but it assumes importance in cases based on

circumstantial evidence. The Supreme Court in the case of

Rushipal V/s State of Uttarakhand reported in 2013(12)

SCC 551, in para 14 held that, it is fairly well-settled that

while motive does not have a major role to play in cases

based on eye-witness account of the incident, it assumes

importance in cases that rest entirely on circumstantial

evidence. It is further observed that, absence of strong

motive is something that cannot be lightly brushed aside.

In the present case, the prosecution alleged

that, accused wanted to commit forcible intercourse with

the deceased, and therefore, after committing rape,

accused killed the deceased and dead body was thrown in

the well. However, Trial Court has acquitted the appellant

from the offence punishable under Section 376 of I.P.

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Code, and therefore, the alleged motive has not been

proved by the prosecution. Therefore, in absence of any

motive and also the findings by the Medical Officer that,

the death was homicidal, it is not possible to sustain

conviction of the appellant as ordered by the Trial Court.

33] The prosecution claims that, the deceased was

last seen in the company of the accused. Since the entire

prosecution case rests upon circumstantial evidence, this

circumstance assumes importance. However, the

circumstance of last seen together does not by itself and

necessarily lead to the inference that it was the accused

who committed the crime. There must be something more

needs to establish to connect the accused with the

commission of crime, as held by the Supreme court in the

case of Kanhaiya Lal V/s. State of Rajasthan reported

in (2014) 4 SCC 715.

34] In the light of discussion herein above, we find

that, the entire evidence and other documents placed on

record clearly indicate that, the circumstantial evidence

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brought on record by the prosecution is too short to

sustain the conviction of the appellant. It is also relevant

to mention that if two views are possible, based on the

evidence on record, one pointing to the guilt of the

accused and other their innocence, the accused is entitled

to have the benefit of one which is favourable to him.

35]

Therefore, taking over all view of the matter,

it clearly reveals that there is no complete chain of

circumstance so as to sustain the conviction of the

appellant. The Hon'ble Supreme Court in the case of

Toran Singh Vs. State of M.P. reported in AIR 2002

SC 2807 held that the case of the prosecution should rest

on its own strength and not on the basis of absence of

explanation or plausible defence by the accused. In the

case of State of Punjab V/s Bhajan Singh and others

reported in AIR 1975 SC 258, the Supreme Court held

that, suspicion, by itself, however strong it may be, is not

sufficient to take the place of proof and warrant a finding

of guilt of the accused.

9.2012 Cri.Appeal.odt

36] The Supreme Court, in case of Kali Ram V/s.

State of Himachal Pradesh, reported in AIR 1973 SC

2773 observed as under :

"Another golden thread which runs through the web of the administration of justice in criminal

cases is that if two views are possible on the evidence adduced in the case one pointing to the

guilt of the accused and the other to his innocence, the view which is favourable to the

accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."

37] In the case of Sharad Birdhichand Sarda

Vs. State of Maharashtra, reported in (1984) 4 SCC

166, the Apex Court has held that, the prosecution must

stand or fall on its own legs and it cannot derive any

strength from the weakness of the defence. It is not the

law that where there is any infirmity or lacuna in the

prosecution case, the same could be cured or supplied by

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

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It is also to be born in mind that the case in

hand is a case of circumstantial evidence and if two views

are possible on the evidence of record, one pointing to the

guilt of the accused and other his innocence, the accused

is entitled to have the benefit of one which is favourable

to him.

38]

We have to remind ourself of the observations

made by the Supreme Court in the case of Sarwan Singh

Rattan Singh V/s State of Punjab reported in AIR

1957 SC 637(1), which are as under:-

"The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from

consideration as not being voluntary of true whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him.

If that be the true position, we must hold that, the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder.

It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the

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present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us

that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered

as a whole the prosecution story may be true; but between `may be true' and `must be true' there is inevitably a long distance to

travel and the whole of this distance must be covered by legal, reliable and unimpeachable

evidence."

39] Thus, upon re-appreciation of the entire

evidence on record and after hearing the learned counsel

appearing on behalf of the appellant and the learned

Additional Public Prosecutor, we are of the considered

opinion that, the prosecution has failed to prove the

offence against the appellant beyond reasonable doubt.

The appellant, therefore, in our opinion is entitled to be

given the benefit of doubt.

40] Accordingly Criminal Appeal No. 9 of 2012 is

allowed and the conviction and sentence of the appellant

is hereby quashed and set aside and the appellant is

acquitted of the offences with which he was charged and

9.2012 Cri.Appeal.odt

convicted. Fine, if any, paid by the appellant be refunded

to him. Since the appellant is in jail, he be released

forthwith, if not required in any other case.

                Sd/-                                   Sd/-




                             
       [N.W.SAMBRE, J.]                        [S.S. SHINDE, J.]



     ...
               
     DDC