Bombay High Court
Nitesh Pundlikrao Kathe (In Jail) vs The State Of Maharashtra, Through ... on 18 August, 2016
Bench: B.P. Dharmadhikari
Judgment apeal468.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 468 OF 2014.
Nitesh Pundlikrao Kathe,
Aged 28 years, Occu- Service,
r/o. Gandhi Ashram, Mata Khidki,
District Amravati.
ig ....APPELLANT.
VERSUS
State of Maharashtra,
through PSO of Police Station
Frezarpura, Amravati,
District Amravati. ....RESPONDENT
.
-----------------------------------
Mr. P.W. & A.W. Mirza, Advocates for the Appellant.
Mr. V.A. Thakre, A.P.P. for Respondent.
------------------------------------
CORAM : B.P. DHARMADHIKARI &
A.S. CHANDURKAR, JJ.
DATED : AUGUST 18, 2016.
Judgment apeal468.14
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
By this appeal filed under Section 374 (2) of the Criminal
Procedure Code, the appellant / convict challenges judgment and order
dated 31.07.2014 passed by the Additional Sessions Judge, Amravati in
Sessions Trial No. 149/2013 holding him guilty of offence punishable under
Section 302 of Indian Penal Code and sentencing him to suffer
imprisonment for life as also imposing fine of Rs. 1000/- and in default
thereof, rigorous imprisonment for 6 months. He is also found guilty of
offence under Section 315 of Indian Penal Code, but, no separate sentence is
awarded because of the larger sentence, punishable under Section 302 of
Indian Penal Code, already imposed.
2. We have heard Shri Mirza, learned Counsel for the appellant /
convict and Shri Thakre, learned A.P.P. for respondent - State.
3. Shri Mirza, learned Counsel submitted that the circumstances from
"A" to "J" looked into by the trial Court as constituting chain do not form a
chain of implicating circumstances. Evidence of P.W.4 - Sau. Latabai
Nimborkar, does not establish presence of the appellant with the deceased in
the tenanted room occupied by them just before the incidence. On the
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contrary, it shows that room was already locked and appellant was outside.
He further submits that in this background, alleged events like mere visit to
Police Station, production of key of lock before the Constable PW-5 Muhekar
and reporting murder as alleged, again by itself do not constitute any
evidence. He further contents that visit by the Round Officer (P.W.1) to the
spot thereafter to verify the position is therefore, inconsequential.
4.
Evidence of P.W.5 - Police Constable, Manohar Babaraoji Muhekar
does not in any way implicate the appellant, and then the alleged statement
in the station diary (Exh.54) cannot be viewed as a statement under Section
27 of the Evidence Act. It has not been read by the Trial Court as an extra
judicial confession. Learned Counsel adds that deposition of PW-5 does not
inspire any confidence.
5. P.W. 4 was pressurized, tutored and even in her chief, by putting
a leading question, a sentence heavily relied upon by the Trial Court, has
been brought on record. That statement is not legally admissible and as
the defence of appellant in his statement under Section 313 Criminal
Procedure Code has not been looked into, the trial Court has erroneously
reached a finding of guilt. He has also raised other contentions and we
find it appropriate to refer to the same little later in the judgment.
Judgment apeal468.14
6. Shri Thakre, learned A.P.P. on the other hand heavily relies on 9
circumstances looked into by the trial Court in paragraph no.18 of its
judgment, and submits that those circumstances are proved beyond
reasonable doubt. He relies upon evidence of P.W.1 - Pawan Ashok
Bhingardive, P.W. 2 - Prabhudas Bhimrao Jamnik, P.W. 4 -Sau. Latabai
Dadarao Nimborkar and P.W. 5- Manohar Babaraoji Muhekar to urge that
said evidence along with facts on record links the appellant only with the
offence and hence, impugned judgment and the sentence needs to be
sustained.
7. It is appropriate to mention the 9 circumstances looked into by the
trial Court. As per the trial court, those circumstances are -
"(A) That accused and deceased were residing as
husband and wife in a room let out to him by
Latabai (PW 4).
(B) That Mukta had died a homicidal death in the
said room with injuries on her head and other
parts of the body. That on autopsy, deceased
Mukta was found pregnant carrying pregnancy
of about 22 weeks as revealed to Dr. Shama
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Shazia.
(C) Small Gas Cylinder, Cooker having blood and
blood stained clothes of the accused were found
in the said room.
(D) That the accused was present in the said room
along with deceased before the incident in
question.
(E)
The landlady Latabai and other neighbours
heard the noise of fall of utensils from the said
room just before approaching there.
(F) Accused was found putting lock to the door of his
room where the dead body of his wife Mukta was
lying.
(G) That the accused locked the door of his room
from outside. He visited police station and
produced the key of the lock of his room before
Shri Muhekar, Police Head Constable.
(H) That Shri Bhingardive who visited the spot to
verify the facts on the instructions of Shri
Muhekar, found the dead body of Mukta in the
said room after opening it with the help of key
produced by the accused.
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(I) That the conduct of the accused since the incident
was highly unnatural.
(J) That there were strained relations between
accused and his wife."
8. The conviction is thus based only on circumstantial evidence. The
material on record therefore has to establish these circumstances beyond the
reasonable doubt and together, they must interlink to form a complete
chain indicating the appellant only as the accused. Similarly no
circumstance inconsistent with the hypothesis of his innocence must be left
un-investigated.
9. Circumstance at "A" above i.e. the fact of residence of husband and
wife together, cannot be seen as an incriminating circumstance. Homicidal
death of Mukta (deceased wife of the appellant) in said room again by itself
does not connect the appellant with it. Circumstance at Sr.No. "C" i.e.
finding of blood stained small gas cylinder, cooker or blood stained clothes
of accused in that room, cannot be viewed differently. Circumstance at
Sr.No. "I" that conduct of accused was highly unnatural, again is of no
assistance to prosecution. Strained relations between the deceased and
appellant can be a motive, but, motive itself cannot take place of proof. If
Judgment apeal468.14
presence of appellant in the room lastly with the deceased is established,
these circumstances may be helpful in view of S.106 of the Evidence Act.
This therefore, leaves us with circumstances "D", "E", "F", "G" and "H"
which need to be appreciated first.
9. Circumstance at "H" i.e. visit by P.W. 1 - Bhingardive to the room
in occupation of the couple to verify facts or then finding of body of Mukta
in that room after opening it with the help of key produced by the appellant
in the police station, is again not a decisive circumstance. P.W.1 claims that
on 22.03.2013 in the night, he was on patrolling duty. In that night at about
1.30 a.m. to 1.40 a.m. (on 23.03.2013), he got a call from Murhekar (P.W.
5) who was on station diary duty. As per information given by Murhekar,
he came to police station and he states that he made inquires with the
appellant. Appellant told him that he was tenant of P.W. 4 since last about
one month, and there used to be quarrel between him and his wife.
Relations were strained. He suspected her relations with her aunt's son and
she was pregnant carrying since 5 months. During quarrel he inflicted blow
of cooker on her head and then three blows of small LPG cylinder. She
expired. P.W. 1 states that thereafter he was about the proceed to the spot
when P.W.4 - Lata Nimborkar and her husband Dadarao appeared in the
police station. He then visited the spot, he found Mukta was lying dead. He
Judgment apeal468.14
closed the door and phoned police. Within 15 minutes, police inspector
Jaiswal came there. He was waiting on the spot till then. Shri Jaiswal,
instructed him to lodge FIR and therefore, he went back to police station to
lodge written report. That written report is Exh.37. Printed FIR is brought
by him as Exh.38. He also identified the accused.
10. His cross shows that distance between police station and spot is
about 500 meters. He had made inquiries from P.W. 4 Lata and her husband
and they gave answers to his questions, however, he did not make record
thereof. Similarly, he did not make record of facts narrated by appellant /
accused. He reached spot at about 1.50 a.m. He denied that Jaiswal came
within 15 minutes thereafter. He was not aware whether Shri Jaiswal
immediately prepared Panchnama. He had talk with Shri Jaiswal, about the
incident and it was 2 a.m. when he reached police station to lodge report.
He denied that accused did not disclose anything to him as alleged.
11. His evidence does not show that he received any key in the police
station or then with that key he opened the lock at site. If key and lock were
in his possession lastly, he does not point out what happened to it.
12. P.W. 5 - Manohar Muhekar is the head constable on station diary
Judgment apeal468.14
entry. He states that the accused came to police station at about 1.45 a.m.
and he was frightened. He told that he had committed murder of his wife,
and requested to be arrested. He had locked the door of his room and
produced the key of that lock. Head Constable then contacted P.W.1 on
phone and P.W.1 came to police station. P.W. 4 and her husband Shri
Nimbhokar also came to police station. Nimbhokar, told him about the
incident orally. He handed over key given by the accused to P.W.1 and sent
him to spot for verification. Nibhorkar couple also went with P.W.1,
accordingly he made entry in the station diary. He proved that entry as
Exh.54. He also identified the accused. He in cross-examination could not
assign any reason why the fact of handing over key by accused to him and its
handing over by him to P.W.1 did not figure in police statement. He stated
that he had not arrested the accused and also not registered any FIR. He did
not record facts disclosed by the accused on plain paper and did not obtain
his signature. He denied that the accused had not spoken to him about
committing murder of his wife, and station diary entry was prepared after
registration of offence on complaint of P.W.1. He denied that the story of
handing over key was prepared after lodging of FIR.
13. Thus, fact of handing over key of lock by accused to PW-5 in police
station or then this witness handing over that key to P.W.1 Bhingardive for
Judgment apeal468.14
opening the lock by visiting the tenanted room, do not figure in his police
statement. This fact appears in Exh.54, which is recorded at about 1.45 a.m.
Obviously the entry is made after P.W.1 and Nimbhorkar couple proceeded
to the spot. There is thus material variance between his police statement
and this entry at Exh.54. Importance of lock on room and of its key being
with accused who came to police station need not be emphasized. This
omission in police statement of a material fact casts serious doubt on Ex. 54
itself. This evidence of PW-5 Muhekar and of PW-1 Bhingardive shows that
Exh. 54 is not recorded immediately after accused arrived in the police
station. It is entered later on i.e., after PW- 1 left the police station and
proceeded to spot for verification after questioning accused and Nimbhokar
couple. If till then no entry was made in station diary and spot verification
was felt necessary, the submission of defence that station diary was made
after recording FIR, may not be wrong. What assumes importance is that
appellant/accused was not carried to spot for verification.
14. Other important witness is P.W.4 Latabai Nimbhorkar. She and
her husband had gone to police station as deposed by P.W.1 and P.W.5.
Appellant and his wife were residing as tenant in one room of their house. In
police station, before visiting the spot, they were questioned and
information was gathered from them by PW-1. However, that information
Judgment apeal468.14
was not reduced into writing. Why no FIR could be registered then is not
apparent.
15. P.W.4 Latabai has deposed that in the night hours she, her
husband and her daughter were at home. Appellant and his wife were in
their room. Witness and her family went to sleep at about 11 p.m., while
appellant and his wife also went to sleep in their room. At about 1.30 a.m.
she heard noise of falling of utensils from the room of the accused. She got
up and opened the door of her house. Room of accused was infront of her
entrance door. Through window of accused's room she saw deceased
Mukta lying on the ground in pool of blood. There was bleeding from her
head. Door of room was locked from outside and people had gathered
there. She states that the accused came there and inquired what had
happened. He then told that he would go to lodge report. Police came
there and prepared panchnama. Thus, till this stage, she does not say that
she saw the appellant / accused inside the room in which the body was
lying or that then he came out and put lock. She places accused out of room
which was already locked. Thereafter, her examination-in-chief reads "It did
happen that when I came out of the house the accused was locking the door of
his house". Then she deposes that he told her that he was going to police
station. After he left, people from locality gathered there. Obviously the
Judgment apeal468.14
portion of her examination-in-chief mentioned supra, is an answer to some
leading question. Answer thereto and later answers given by her bring on
record the facts inconsistent with her earlier natural normal examination in
chief.
16. Her cross-examination reveals that she was not aware whether the
accused was present at his room on 22.03.2013 and she stated about his
presence because of her belief. She further states that after people gathered
at the spot, accused put lock to his room. Her cross reveals that one day
before recording her deposition in the Court, she was called in police station
and she was there for about 30 to 45 minutes. She was told about her
statement to be made before the Court. However, she denied that she
deposed as suggested by police or as per say of police that she saw bleeding
from head of deceased Mukta, when she peeped from the window. She also
denied that her deposition that she saw accused putting lock on room was
false.
17. Thus, this witness does not say that she followed accused /
appellant to police station, that any inquiry was made from her or from her
husband in the police station or that she came back with P.W.1 to the spot of
incidence. She does not say that she saw accused in the police station. She
Judgment apeal468.14
also does not state that after coming to the spot, P.W.1 opened the lock with
key and entered the room occupied by the appellant and his deceased wife.
It is important to note that prosecution has not declared her hostile. If she
woke up due to noise made by fall of the utensils and came out
immediately, normally, she should have seen the accused with blood stained
clothes or blood spread on his body parts. Accused could not have washed
himself clean or changed into different clothes in such short interval of less
than a minute.
18. Thus, though P.W.5 claims that he has given key of lock to P.W.1,
this fact is omission in his police statement. In any case he has not gone to
the spot to find out whether premises were actually locked or not. He does
not state how the lock, if any, was opened. Evidence of P.W.4 Latabai does
not conclusively establish presence of appellant inside the room with body of
his wife, she peeped through window. She while narrating the events
initially discloses that the accused came there later on i.e. after she found
that room was locked. Thereafter abruptly in response to a
suggestive/leading question, she has stated that when she came out of the
house, accused was locking the door of his house. This material is
insufficient to hold that the accused was inside with the deceased lastly. The
cross-examination of P.W.4 creates some doubt about her credibility in the
Judgment apeal468.14
matter.
19. We may at this stage point out answer to last question i.e.
Question No.68 given by the appellant in his Section 313 Criminal Procedure
Code statement. He has stated that dispute between him and Mukta was
taken to Commissioner Office as he was not willing to marry her without the
consent of his family members. He has stated that he was behaving
properly with Mukta after marriage. Here it needs to be pointed out that the
prosecution has not brought on record evidence of any neighbour to show
that there used to be any quarrel between the couple.
20. While answering question no.68 (supra), the appellant accused
stated that on the day of incidence, at 9 p.m., he had gone to meet his father
at Gandhi Ashram. He returned at about 1.30 to 2 A.M. in the mid night
and saw people gathered in front of his house. Nobody was willing to
disclose anything to him. He entered the room and saw his wife lying in
pool of blood. He came out, inquired from landlady (P.W.4) as to what had
happened, but, she also did not tell anything. Hence, he collected the lock
which was inside the room and applied in on the door. He told the landlady
that he was going to police station.
Judgment apeal468.14
21. The spot panchnama (Exh.40) does not show that police had
seized any lock from the room. Learned A.P.P. has relied upon the seizure of
one Lungi and a shirt. However, these clothes were inside the room and not
on the person of the appellant. Evidence on record shows that on clothes
which the appellant was wearing, there were no blood stains. Mukta was
killed by hitting her hard with gas cylinder or pressure cooker. There was
extensive bleeding. In this situation, if there are blood stains on some
articles in the room, that by itself is not sufficient to connect the appellant
with attack in the present matter. Nobody has come forward and deposed
that in the night the accused was seen wearing that particular shirt or lungi.
Moreover, no blood was noticed either on clothes or hands etc. of the
appellant in police station.
22. Learned A.P.P. has submitted that the appellant has taken a plea of
alibi, but, he did not examine his father or any other witness to prove his
visit at Gandhi Ashram or his return at 1.30 to 2.00 in midnight. We need
not to delve on this aspect, as the prosecution has to establish its story and
the guilt of the appellant independently. If at the time when utensils fell and
made noise, accused was not inside the room, neither this circumstance nor
Section 106 of Evidence Act can come to the rescue of the prosecution.
Judgment apeal468.14
23. We cannot forget that the appellant before us was also a constable
working in the police force. If he went to police station and made a
statement as recorded in Exh.54, first material piece of evidence was key
which he produced. Its' possession should have been taken as per law, and
thereafter before opening lock of the room again necessary panchnama
ought to have been drawn. The prosecution could have obtained finger
prints on key, on lock or then foot prints and finger prints inside the room
or on gas cylinder or cooker to demonstrate that except the deceased and
appellant, no third person ever entered the room. There is no investigation
on these lines.
24. In view of this discussion, we find that circumstances 'D', 'E' and
'H' mentioned supra are insufficient to prove involvement of accused in the
crime. Fact that accused was found putting lock to the door of his room
when dead body was lying inside, is not conclusively established. Fact that
accused produced key of lock in police station before P.W.5 Shri Muhekar, is
also not conclusively established. In view of earlier part of examination in
chief of PW-4 Latabai, involvement of some third person can not be totally
ruled out.
25. We are therefore, constrained to give benefit of doubt to the
Judgment apeal468.14
appellant. We find material lacunae in the investigation and the said defects
are unacceptable in law. As ordered by the Hon'ble Supreme Court State of
Gujarat v. Kishanbhai -- (2014) 5 SCC 108, we direct the respondent
State of Maharashtra to hold appropriate enquiry in the mode and manner
in which the investigation has been carried out and lacunae therein. This is
more necessary since the accused/ appellant happened to be the employee
of police department and his employment itself may have influenced the
same.
26. Though we dispose of the appeal, restoration of faith of citizens in
police force is absolutely necessary. Hence we also order that the enquiry
into defective investigation be completed within a period of 12 weeks and
officers/persons responsible therefor be dealt with as per law. Compliance
Report should be submitted to the Registry of this Court by 31.12.2016.
Matter be listed for taking on record this compliance on 20.01.2017.
27. With above direction, we proceed to pass the following order :
"(i) Criminal Appeal is allowed.
(ii) The conviction and sentence of appellant under
Sections 302 and 315 of Indian Penal Code, passed
Judgment apeal468.14
by the Additional Sessions Judge, Amravati on
31.07.2014 in Session Trial No. 149/2013 is hereby
quashed and set aside. The appellant is acquitted
of the aforesaid offences. He be set at liberty
forthwith, if not required in any other case.
(iii) Fine amount if paid, be refunded to the appellant.
(iv) Muddemal property be destroyed after appeal
period is over."
JUDGE JUDGE
Rgd.
Judgment apeal468.14
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