Bombay High Court
Mahendra Bhaskar Pavre (In Jail) vs State Of Maharashtra, Thr. P.S.O. ... on 13 October, 2016
Bench: B.P. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 2/2016
WITH
CRIMINAL APPEAL NO. 276/2016.
.......
CRIMINAL CONFIRMATION CASE NO. 2/2016
State of Maharashtra,
through Police Station Officer,
Kingaon Raja, District Buldhana. ....APPLICANT.
VERSUS
Mahendra Bhaskar Pavre,
Age 36 years, Occupation - driver,
resident of Jaulka, Tq. Sindkhed Raja
P.S. Kingaon Raja, District Buldhana.
(Detained in District Prison, Buldhana) ....RESPONDENT
.
WITH
CRIMINAL APPEAL NO. 276/2016
Mahendra Bhaskar Pavre,
Aged about 30 years,
resident of Jaulka, Tq. Sindkhed Raja
District Buldhana. ....APPELLANT.
::: Uploaded on - 14/10/2016 ::: Downloaded on - 15/10/2016 00:52:56 :::
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2
VERSUS
State of Maharashtra,
through Police Station Officer,
Kingaon Raja, District Buldhana. ....RESPONDENT
.
-----------------------------------
Mr. S.M. Ukey, Addl. P.P. with Mr. N.B. Jawade, P.P. for State.
Mr. S.P. Gadling and Mr. N.B. Rathod, Advocates for Accused
------------------------------------
CORAM : B.P. DHARMADHIKARI &
A.S. CHANDURKAR, JJ.
Date of Reserving the Judgment : 26.09.2016
Date of Pronouncement : 13.10.2016
JUDGMENT. (Per B.P. Dharmadhikari, J)
1. Accused Mahendra Bhaskar Pavre has been sentenced to death by
Additional Sessions Judge (Link Court), Mehkar vide judgment dated
16.05.2016 in Sessions Trial No.42/2014. Prosecution case in brief is -
P.W.5 Chhaya is his wife. Deceased Ku. Kalyani (5 years) and deceased Ku.
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Shital (2 years) were their daughters. They have a son by name Yuvraj, who
was then 7 years old. On 24.01.2014, father of Chhaya by name Tejrao
Vithoba Thorve (P.W.6) came to her residence at village Jaulka at about 3
p.m. Accused returned back to home at about 5 p.m. in an inebriated
condition. He asked Chhaya why her father had arrived, quarreled with her,
beat her up by fists and slaps. He also slapped Tejrao when latter tried to
save his daughter. Chhaya then cooked food and after dinner family went to
sleep. Chhaya and her two daughters slept inside the room, while Tejrao
and Yuvraj slept in verandah of house of Bhaskar, who happens to be father
of accused. Accused slept in front of the house. Chhaya had bolted door
from inside. In the night, accused shouted and asked to open the door, but,
Chhaya did not open it. Next day i.e. on 26.01.2014 between 6.30 to 7 a.m.,
Chhaya after opening the door, gave water to accused to wash mouth.
Mahendra [accused] then woke up daughters Kalyani and Shital. He lifted
Shital in his arms and led Kalyani by holding hand. He told them that they
would go to bring biscuits and chocolates.
2. At 7.30 a.m. Mahendra informed Bhimrao Salve (P.W.4), that he
had thrown both the daughters in a well located in the field of said
Bhimrao's brother by name Arjunrao (P.W.3). Bhimrao informed this to
Chhaya, Tejrao and Bhaskar. They rushed to the well and found body of
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Kalyani floating on water. Shital was not seen. Chhaya then approached
police station, Kingaon Raja and lodged report. Crime No.12/2014 for
offences punishable under Sections 302, 323, 504 and 506 of Indian Penal
Code came to be registered. PW-10 Police Inspector - Sunil Hood carried out
the investigation. He visited the spot shown by the informant Chhaya. Dead
bodies were taken out; spot panchanama and other formalities like inquest
etc, were carried our. Dr. Jagannath Chate, Medical Officer (P.W.8)
conducted post mortem and opined that cause of death was asphyxia, due to
drowning. The Police Inspector Shri Hood (P.W.10) completed rest of the
investigation.
3. After committal, charge Exh.9, was explained to the accused. He
pleaded not guilty and came to be tried. As per his request, legal aid was
provided and Shri Pawar, Advocate came to be appointed to defend him.
4. Defence of accused is that of denial. In Section 313 Criminal
Procedure Code statement, in reply to question no.69 he stated that when
he was going with his two daughters, his uncle Sahebrao Pavre came there
and took custody of girls for taking them back to home. When accused came
to Kingaon Jattu diversion at about 8 a.m., he learnt that his uncle Sahebrao
had killed his daughters by throwing them into the well.
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5. Admittedly, there is no eye-witness and conviction is based on
circumstantial evidence. Trial Court has found that motive also is not
established. In paragraph no.124 of its judgment, the trial Court has found
the following circumstances to be proved :-
"(i) That Sau. Chhaya slept with her daughters Ku.
Kalyani and Ku. Shital inside the house during the
night of 25.01.2014.
(ii) That accused who slept outside was repeatedly
asking Sau. Chhaya open the door and extending
threats of killing all.
(iii) That accused woke-up Sau. Chhaya and both the
daughters about 7.00 - 7.30 from sleep.
(iv) That accused took both the daughters out with him
on pretext of feeding them chocolates and biscuits.
(v) That soon thereafter, dead bodies of both the
daughters were found in the well situated in a field
out of village.
(vi) That explanation offered by accused is
unreasonable, improbable and unsatisfactory."
6. Additional P.P. Shri S.M. Ukey, along with Shri N.B. Jawade,
learned A.P.P., arguing the confirmation case submitted that as per report
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lodged by P.W.5 Chhaya, after beating his wife, in previous evening and also
in night, accused had threatened to kill his daughters. Even in the morning
while carrying daughters, he repeated those threats. Accused Mahendra
himself informed fact of killing and place where bodies could be found to
P.W.4 Bhimrao. P.W.4 Bhimrao informed this to is brother Arjun (P.W.3)
and others. P.W.5 Chhaya, P.W.6 Tejrao and other relatives rushed to the
Well and found body of Kalyani floating, while other body was not to be
seen. Immediately F.I.R. was lodged. Thus, bodies of daughters and fact of
death was discovered due to extra judicial confession, which has been
established as per law. Mahendra was last seen with his daughters who
were dependents who gave false explanation to save himself and hence,
attempted to implicate Sahebrao. He could not establish it. Body of Shital
which could not be seen, was searched and discovered in the Well due to
his confession under Section 27 of the Evidence Act. Thus, all these events
disclose a motive and also constitute a complete chain pointing out the
Mahendra as offender. Hence the finding of guilt cannot be interfered with.
Selecting and killing daughters too young to understand anything, that too
on account of domestic quarrel with wife is nothing, but, inhuman act
arising out of gender bias and hence, punishment also does not call for
interference.
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7. He has taken us through the entire evidence on record and various
judgments to point out how the circumstances need to be seen as
aggravating circumstances and absence of the mitigating circumstances in
the matter.
8. Shri S.P. Gadling with Shri N.B. Rathod, learned counsel
appearing for the accused, have opposed the arguments of learned A.P.P.
and also argued the appeal of accused seeking acquittal.
9. He submits that the circumstances looked into for reaching the
finding of guilt do not form of a chain at all, and alleged chain is also not
complete so as to implicate nobody else, but, only the present accused.
Daughters in company of father cannot by itself constitute an incriminating
circumstance and cannot be viewed as a "last seen" event so as to reach a
finding of guilt on its basis. Mere custody or failure to support the
explanation offered by the accused in defence cannot result in his conviction.
P.W.3 or P.W.4 do not support the so called extra judicial confession and in
cross-examination their credit is destroyed. Prosecution could not muster
courage to place relevant material to the investigating officer P.W.10 Shri
Hood. Thus, their testimony has brought something new for the first time
on record during trial.
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10. Inviting attention to evidence of P.W.3 Arjun, it is pointed out that
the bodies are not discovered at the instance of the accused, and there is no
discovery under Section 27 of the Evidence Act on record. Time mentioned
in various panchnamas is also pressed into service to urge that the
investigation also is not free from doubt. Attention is invited to cross-
examination of P.W.5 - Chhaya to state that the defence raised by the
appellant/ accused cannot be labeled as not reasonable. Emphasis is given
on the fact that mother - P.W.5 does not refer to P.W.4 - Bhimrao as person
who first communicated the gruesome act to her. Entire evidence of
prosecution therefore, falls short to meet the prescribed standards and hence
deserves to be discarded.
11. Our attention is also drawn to the judgment of learned trial Court
to urge that only by applying theory of last seen and after recording
satisfaction about failure on the part of the accused to substantiate his
explanation in answer to question no.69, a finding of guilt has been reached.
It is submitted that the motive is not proved at all and hence in case based
only on circumstantial evidence, conviction is not justified. In the alternate
and without prejudice, Shri Gadling, learned counsel contends that as
conviction here is based only on inference [surmises], even otherwise,
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recourse to a punishment like death is unwarranted and unsustainable, in
law.
12. Both sides have relied upon several judgments to substantiate their
contentions and also to demonstrate the propriety or otherwise of selection
of death penalty. We will make reference to said judgments as and when
occasion therefor arises.
13. Perusal of judgment dated 16.05.2016, impugned in the appeal
filed by the accused and referred for confirmation, shows that the trial
Court has framed points in paragraph no.9 of its judgment. From paragraph
no. 10 onwards the reasons begin. In paragraph no.19, the learned trial
Court has reached a conclusion that the prosecution failed to prove beyond
reasonable doubt that the accused on 25.01.2014 at or about 5 p.m.
voluntarily caused hurt to P.W.5 - Chhaya or P.W.6 - Tejrao. The discussion
by the learned trial court is sufficient to negate theory of any utterance
disclosing intention to kill both the daughters by the accused on that day.
Because of this discussion, the learned trial court has answered point nos. 1,
2 and 3 against the prosecution and exonerated the accused of the offence
punishable under sections 323, 504 and 506 of Indian Penal Code.
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14. From paragraph no.20 onwards in said judgment, it has
discussed point nos. 4 and 5 together. The scene of occurrence at Exh.20 is
accepted by the trial court vide its discussion from paragraph nos. 23 upto
paragraph no.32. From paragraph no.33 onwards upto paragraph no. 43, it
has ascertained cause of death and from paragraph no.44 upto paragraph
no.54, it has considered the aspect of time of death. It has accepted
asphyxia due to drowning as cause of death of both the girls and also
accepted the opinion of Dr. Chate (P.W.8), that approximate time of death
of both the girls was between 4 to 6 hours from their last meal.
15. None of the parties before this Court have advanced arguments on
the cause of death or time of death.
16. From paragraph no.60 upto paragraph no.66 the learned trial
Court considers the circumstance of extra judicial confession by the accused
to P.W.4 Bhimrao along with the evidence of P.W.3 Arjun and refused to rely
upon it.
17. From paragraph no.67 onwards it has looked into the confession
allegedly given by the accused and evidence of P.W.9 - Shivaji, adduced by
the State to prove it. It concludes in paragraph no.68 that no recovery was
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made in pursuance of that memorandum statement Exh.46, and
demonstration panchnama Exh.47. As such, both the documents are found
irrelevant.
18. From paragraph no.69 onwards it has embarked on the discussion
about admissibility of evidence of P.W.5 Chhaya who happens to be wife of
accused and mother of two minor victims. It appears that Section 122 of
Evidence Act was pressed into service on behalf of the accused claiming the
same to be privileged. In paragraph no.75, Trial Court discards it. The
conclusion reached is, evidence given by P.W.5 - Chhaya is admissible
against her husband. Again accused has not assailed this exercise and
finding before us.
19. From paragraph no.76 upto paragraph no.94, circumstance of last
seen has been discussed. Discussion is in the background of answer given
by the appellant / accused to question no.69 in his statement recorded under
Section 313 of Criminal Procedure Code. Fact that accused was last seen
with the daughters is accepted by the learned trial Court.
20. From paragraph no.95 upto paragraph no. 111 impact of Section
106 of the Evidence Act and therefore, special knowledge to accused has
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been discussed. It is found that as he was last person in whose custody the
daughters were seen, hence, burden was upon him to explain later events
which were within his special knowledge. Answer given by him to question
no.69 is then reproduced and it is found unsatisfactory. On account of this
unsatisfactory unsubstantiated answer, it is held that the accused failed to
discharge the burden cast upon him by Section 106 of the Evidence Act.
21.
While discussing "motive" aspect, in paragraph no. 112 to
paragraph no.119, it is found that though the prosecution could not bring on
record any motive, absence of motive was not sufficient to view the
prosecution story with suspicion. In paragraph no.120 to 123, aspect of
conflict between medical and ocular evidence has been looked into. The
fact that as per P.W.5 - Chhaya on 25.01.2014 food was cooked between
7.30 to 8 o'clock, and parties thereafter had dinner, is evaluated in the
background of the approximate time of death brought on record through
evidence of P.W.8 - Dr. Chate. It is concluded that time of death deposed by
Dr. Chate is approximate and hence, on the basis of such material, no
inconsistency or contradiction between ocular evidence and medical
evidence could have been worked out.
22. It is in this background that in paragraph no.124, 6 circumstances,
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mentioned above, are found to be established and on said basis, a finding of
guilt has been reached. This judgment of learned trial court therefore,
reveals that only because of custody of daughters lastly with the accused
and his failure to explain what happens to them thereafter, due to Section
106 of Evidence Act, inference of his guilt has been reached.
23. Though learned Addl. P.P. has urged that the extra judicial
confession made by the accused to P.W.4 - Bhimrao has been established,
the material on record does not support this contention. Test of proof
beyond reasonable doubt needs to be used. Bhimrao has deposed that on
26.01.2014, he was going to a village by name Dusarbid, between 7 to 7.30
a.m. by motor cycle. Accused met him below "Hiwra" tree at Jaulka
bifurcation. He demanded mobile and when Bhimrao has asked as to why
he needed a mobile, accused told him that he wanted to call his elder
brother at Aurangabad. Bhimrao asked why he wanted to make that phone
call, and thereupon accused informed that he pushed both his daughters in
to the Well of Bhimrao's brother Arjun. Thereafter PW-4 immediately
returned back to village and informed the same to his brother Arjun. He
also communicated it to Bhaskar Pavre viz. father of accused.
24. His cross-examination reveals that police never approached him
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and never recorded his statement. He accepted that facts deposed to by him
were spoken for the first time in Court. He has categorically stated that he
did not make any statement before the police, thereby disowning the one
under Section 161, which police filed in present case. He was not declared
hostile and P.W.10 - Investigating Officer was not asked about this
statement by Bhimrao. The investigating officer does not say that he has
recorded statement of P.W.4 which formed part of charge-sheet. Facts
denied by Bhimrao in cross examination militating with his Section 161
statement are also not specifically put to PW-10. The prosecution through
PW-10 nowhere brings on record an assertion that he (PW-10) correctly
written the facts stated by Bhimrao while recording his Section 161 Criminal
Procedure Code statement.
25. Other important witness on extra judicial confession is P.W.3
Arjun. He stated that at about 8 a.m., P.W.4 Bhimrao gave him message
that accused pushed daughters in to Well situated in the field of this
witness. He went to the field and peeped into the Well, he saw one dead
body floating and other at the bottom. He also states that many villagers
were already present in the field before he reached there. His cross-
examination reveals that the dead bodies of girls were taken out at about 10
to 11 a.m. He further stated that the police enquired from him and he told
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police that when he peeped into the Well, another body was at the bottom.
He could not explain as to why this fact is not appearing in his statement. In
cross, he denied the statement that the incident deposed by him before the
Court were not informed earlier by him to any body. Again prosecution has
not brought necessary evidence in this respect either by declaring him
hostile or then by putting necessary question to investigating officer P.W.10.
and drawing necessary explanation
26. Fact that several persons were at the Well when Arjun went there,
is not in dispute before this Court. Even P.W.1 had stated that many
villagers had gathered at the spot of incidence. Police have not examined
Bhaskar, father of accused to whom Bhimrao allegedly gave information.
P.W.5 - Chhaya states that her husband disclosed throwing of daughters into
Well to a "person". She therefore, does not name that person and avoided
to mention any name. She further deposes that said "person" informed this
fact to her and her parents-in-law. They went to the Well of Arjun. Kalyani
was seen floating, while Shital was not to be seen. She has proved her
complaint Exh.29, printed FIR Exh.30 and her statement under Section 164
of Criminal Procedure Code at Exh.131. She did not depose about the events
leading to crime in court and hence, the same do not form part of record.
Again, the prosecution did not make attempts to bring it on record
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27. Considering the nature of crime and impact of adjudication on
social fabric, facts not coming on record also need brief mention here.
Perusal of her oral report Exh.29, or printed FIR shows that a quarrel and
beating on 25.01.2014 evening by accused to her and her father. At that
time the accused also threatened to kill children by throwing them into
Well. In the night, intervening between 25th and 26th January, again he
reiterated the threat that he would kill Chhaya and daughters by throwing
them into Well. On 26.01.2014, while taking daughters away, he told her
that he would kill both the daughters by throwing them into Well. Chhaya
has stated in her report that she never apprehended that a father would kill
his own daughters and therefore, did not raise any alarm. These threats, if
real, were very vital in this matter. All this material which is present in her
report, is not deposed to by her and prosecution has failed to bring in on
record. We, may only say here that reasons therefor are also not on record.
28. P.W.6 - Tejrao is Chhaya's father. He has deposed about enquiry
by accused in evening of 25.01.2014, as to why father of Chhaya had come.
It appears that his arrival had irked Mahendra. Tejrao states that Mahendra
after inquiry, also started beating Chhaya and when he tried to intervene,
Mahendra also beat him. Mahendra was muttering that he would kill all.
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He also deposed that in the night, Mahendra was asking Chhaya to open the
door and expressing that he would beat and kill. In the morning, Chhaya
told him that Mahendra had taken daughters for purchasing biscuits and
toffees. His cross-examination by the learned counsel for the accused shows
that his statement was recorded by police 10 to 15 days after lodging of
report. His statement was also recorded in Court. He accepted that before
Court and before police he told that Chhaya's marital life went on smooth till
she gave birth to a son, and thereafter accused started beating her under
influence of liquor. He has spoken about certain other facts, which may
have bearing on the conduct of the accused Mahendra, but, he could not
explain why those facts were not appearing in his statement. He further
states that after learning about the incidence, he immediately went to the
spot and about 100 to 150 villagers had already gathered there. Statement
at Exh.34 given by Tejrao under Section 164 of Criminal Procedure Code is
dated 14.03.2014.
29. Deposition of Tejrao or Chhaya therefore, does not show that it is
either Bhimrao (P.W.4) or then father of the accused Bhaskar, who informed
the fact of throwing of girls in Well to them. The mother P.W.5 mentions
vaguely that she got knowledge "through a person" without disclosing his
name. She also did not depose about threats allegedly given by the accused
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on 25.01.2014 in the evening or then on 26.01.2014 in the morning or in
the intervening night. There is no effort by these witnesses to bring any
motive on record. Prosecution also has not made any efforts to at least
safeguard investigation undertaken. Thus, the evidence only shows that
daughters were taken by the accused for the purpose of purchasing
chocolates and biscuits.
30.
Trial court had already found that extra judicial confession is not
established. Similarly, it has also found that prosecution has failed to bring
on record any motive. We endorse said findings.
31. Memorandum statement alleged to be under Section 27 of the
Evidence Act by accused is rightly found irrelevant by the Trial Court. These
document at Exhs. 46 and 47 do not lead to any discovery. Many villagers
had already gathered at the Well and PW-3 Arjun is not the first person to
find body floating in pursuance of extra judicial confession. Thus, exclusive
character of knowledge with Mahendra of fact that bodies of both the girls
were in the Well, also could not be brought on record by the prosecution.
Exh.46 is memorandum statement and Exh.47 is demonstration panchnama.
These documents are therefore, rightly discarded by the learned trial Court.
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32. P.W.1- Datta Taur has proved the spot panchnama of Well from
which dead bodies were removed. The fact that dead bodies were taken out
of that Well is not in dispute before us. His deposition shows that police
reached at the spot at about 1.30 p.m. to 2 p.m. and 3-4 hours was required
to take out the dead bodies. He accepted suggestion in court that the said
work continued at spot upto 5.45 p.m. to 6 p.m. He denied that he was not
present and accepted the police obtained his signature at about 5.45 to 6
p.m. after completion of panchnama. But, immediately added that police
obtained his signature at 1.30 to 2 p.m. after completion of panchnamas.
Perusal of panchnama reveals that it started at about 13 hours and
concluded at 14 hours on 26.01.2014. Shankar Wanjare and Raju Sangle
were asked to get into the Well to search for body of Shital. All these facts
are mentioned in the panchnama. Other panch Vilas Chipte (P.W.2) has
proved inquest panchnama Exh.22 and 23. He is signatory to panchnama
Exh.23. He states that inquest panchnama was prepared between 1 p.m. to
1.30 p.m. after preparation of spot panchnama. Exh.22 shows that
recording was done between 14.35 hours to 15 hours, while Exh.23 shows
that recording was done between 14 hours to 14.30 hours.
33. In this background, two other documents i.e. Exhs. 46 and 47 need
to be seen. Exh.46 is memorandum of statement of admission. It is dated
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28.01.2014. In it date and hour of arrest is mentioned as 26.01.2014 at
17.30 hours. Admission given by the accused are recorded in Exh.46.
These admissions are about events which transpired on 25.01.2014 in the
evening. He does not speak of any quarrel or beating or threat, but, only of
some arguments. He thereafter, points out that in the morning he left with
his daughters. He carried them to a pond, located in shivar of Jaulka, fed
them some "chivda" and water and then took them to a Well in the field of
P.W.3. He then threw elder daughter Kalyani in to Well and thereafter
younger daughter into it. While returning, he met Kaushal Datta Nagre and
Bhimrao Rambhau Salve, from his village. They enquired from him as to
why he was coming back so early in the morning. He stated that he was
returning after throwing his daughters in the Well of P.W.3. He returned
home and disclosed it to his wife, father-in-law and father also. After this
one demonstration panchnama to bring on record this sequence is also
drawn and it is at Exh.47. Trial Court has rightly concluded that these
documents are irrelevant. Evidence of P.W.4 Bhimrao militates with what
accused has disclosed in Exh.46. Prosecution has not examined Kushal Datta
Nagre to bring on record the enquiry made by him with accused or alleged
incriminating answers given by the accused to him. Investigation to bring
before the Court material which could have revealed exclusive nature of the
knowledge of the facts being recorded enabling Court to infer about that
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sequence, and therefore put forth Mahendra alone as author is obviously
absent. Exhs. 46 and 47 are therefore, inadmissible and have been rightly
discarded by the learned Trial Court.
34. Thus, only because daughters were with father, and father is not in
a position to explain their whereabouts or substantiate his version, the
learned trial Court has drawn an inference of guilt. The inference is based
upon Section 106 of the Evidence Act. The learned Trial Court has found
that fate of daughters ought to have been explained by the accused, as it was
a fact within his special knowledge.
35. It is no doubt true that the accused for the first time in his Section
313 Statement attempted to bring on record explanation that his daughters
were taken by Sahebrao Deorao Pavre and he killed those daughters. He
also explained reasons behind it by pointing out that Sahebrao and his son
Vinod were demanding memory card which contained objectionable
shooting about his Sister Swati. Mahendra claimed that they also threatened
to with kill his son Yuvraj. Explanation is not satisfactory and there is no
reason to inform about it to police, to facilitate prosecution to gather
relevant proof in support.
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36. Cross-examination of wife of accused (P.W.5 Chhaya) in
paragraph no.9 reveals that Vinod Pavre had a sister by name Swati whose
father is Sahebrao. Swati was married in village Raheri. Chhaya was not
knowing Mukesh Salve or Shriram Salve. But, she accepted that Salve
family resided in the village. She also accepted that she had seen Mukesh
and Shriram, but, would be unable to identify them definitely. She
accepted that there were disputes between Vinod Pavre, Sahebrao Pavre and
accused Mahendra. At this juncture on 24.08.2015, her cross examination
was deferred. It was resumed on same day after recess. She, in further
cross-examination stated that she was not aware whether Swati was not
staying with her husband and at the relevant time was in the village. She
accepted that at the time of incident, Swati was in the village. Swati was
also sister of her husband. Chhaya (witness) belonged to Boudha
community, while Mukesh Salve belonged to Matang community. She was
not aware whether there were illicit relations between Mukesh Salve and
Swati. She was not aware whether Mahendra disclosed this fact to Vinod
and Sahebrao Pavre. She was not aware that because of this there was
dispute between Vinod, Sahebrao and Mahendra; and due to it, they had
beaten Mahendra. She was not aware whether Mahendra had recorded
physical relationship between Mukesh and Swati in his mobile phone.
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37. Apart from this suggestion given to P.W.5 Chhaya by accused,
there is no effort to bring on record the material to substantiate any enmity
with Sahebrao Pavre or Vinod Pavre on the ground of alleged shooting
showing Swati with Mukesh in compromising position.
38. Her cross-examination in paragraph nos. 13 and 14 reveals that on
receipt of information about the death of two daughter, she received shock
and therefore was not conscious. She was weeping and was not paying
attention to others. She could not state approximate time at which she
reached the Well. She however, denied that she was not in a position to
precisely state as to why and in which manner incident took place. She
could not state when ashes were collected. She accepted that she did not
remember the same because she had lost her mental balance. She went to
her parents house on the day of death itself. She accepted that people
gathered there were saying that lodging of report was necessary as bodies of
girls were to be taken out of the Well. She accepted that it was decided to
lodge report against Mahendra and thereafter, her cousin father-in-law took
her to lodge report. Ankush Pavre i.e. her cousin father-in-law, Village
Sarpanch Shri Nagre, were with her at the time of lodging report. She
accepted that Ankush Pavre, happens to be brother of Sahebrao Pavre and
uncle of Swati. She denied that persons accompanying her told police about
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the incidence and Officer in-charge then asked them to produce mother of
deceased daughters before him. She stated that she personally narrated the
everything to police station officer.
39. This material on record therefore, shows that though prosecution
could have brought on record special knowledge of the fact that bodies of
both the daughters were in the Well, prosecution could not succeed in doing
it. Kushal Nagre was not produced as witness and P.W.4 - Bhimrao could
not establish extra judicial confession. P.W.4 Bhimrao did not support the
prosecution case and even there after, prosecution did not examine Kushal
Nagre. P.W. 3 Arjun also did not support prosecution. There is no
investigation to find out who first reached the Well and saw dead bodies
therein. Who was that person, source of his information would have been
important factors. There is no investigation to find out whether said person
learnt about the bodies lying in the Well because of extra judicial confession
allegedly given by the accused. There is absolutely no justification as to why
such an investigation could not be undertaken.
40. Neither P.W.5 mother of the deceased, nor her father P.W.6 have
supported the prosecution case fully to bring on record any motive. Though
P.W. 6 speaks about beating him and his daughter (P.W.5-Chhaya) on
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previous evening, P.W.5 does not support him. Statement of P.W. 6 has
been recorded belatedly. The first disclosure by the accused either to
Bhimrao or Kushal and events thereafter are also not satisfactorily brought
on record by prosecution, apparently because of reluctance of P.W.4
Bhimrao, P.W.3 Arjun and P.W.5 Chhaya. Alleged incriminating
circumstances are not proved beyond reasonable doubt. Whether there was
any incident in previous evening or night and whether there were any
threats to eliminate daughters therefore is the moot question. Why P.W.5-
Chhaya did not speak as per her police report in Court or did she lodge an
incorrect report, and in either case, reasons which persuaded that particular
course of action, can not be ascertained now. Its impact on prosecution
story also becomes incomprehensible.
41. Taking over all view of the matter, we find that merely because
daughters were last seen with their father and their dead bodies are found in
the Well thereafter, an inference of guilt of father cannot be reached.
Inability to explain whereabouts of daughters by a father by itself is not a
circumstance which can be construed as missing link in this situation. When
the witnesses who could have provided missing link or other links to
complete the chain, have avoided to do so, it is apparent that there is no
legal evidence before the court to connect the accused with the alleged act of
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throwing two minor daughters in the Well. When there is no eyewitness to
that act of throwing or to presence of the accused Mahendra in its vicinity,
circumstantial evidence falls short to indicate him only as offender. Only
failure to explain or substantiate his defense, can not, in present situation, in
absence of any motive, be viewed as an adverse circumstance against
Mahendra.
42.
In this situation we find circumstances on record insufficient to
prove beyond reasonable doubt guilt of accused and to convict him with
murder of his two minor daughters.
43. In view of the discussion above, it is not necessary for us to look
into various judgments relied upon by the respective counsel while
advancing their contentions.
44. All these lacunae have tilted balance in favour of the accused.
When we stick to the cherished principles of - let thousands guilty persons go
unpunished, but, one innocent person should not be punished, or implement
the principles of presumption of innocence, the same is on account of
absolute faith of framers of Constitution reposed in us and acquiesced in by
us, when we accepted the Constitution of India and committed ourselves to
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honour it with words "We the people of India".
45. Appellant/accused Mahendra also did not point out alleged
involvement of Sahebrao or threats to him. It may have prevented
investigation in right direction. These persons have dis-honoured that faith
and protected the real culprit. We find that the entire society/village is out
to assist them in their design and have not come forward to assist police in
the matter. The villagers in village have thus permitted two innocent female
child to be killed and have not bothered about it.
46. In this situation keeping in mind the observations of Hon'ble Apex
Court in the case of State of Gujarat .vrs. Kishanbhai ((2014) 5 SCC 108),
we find it appropriate to issue notices to - acquitted accused - Mahendra
Bhaskar Pavre; his wife P.W.4 - Chhaya Mahendra Pavre, witnesses P.W.3
Arjun Rambhau Salve, P.W.4 Bhimrao Rambhau Salve and A.P.P. P.T.
Lahudkar, as to why action for not bringing on record or suppressing
material facts and not assisting the State in punishing the guilty person
should not be taken against them. Their reply/ explanation should be filed
within a period of six weeks from today.
47. Had P.W.5 stood by her report in Court while deposing, the
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situation would have been different. Prosecution could not examine Bhaskar
Pavre to whom P.W. 4 Bhimrao allegedly communicated the admission of
murder by Mahendra (extra judicial confession) first. This confession
coupled with finding of bodies in pursuance of such extra judicial confession
could have provided a link. But the prosecution could not do so. It is
apparent that in cases where the relatives of deceased and society do not
want accused to be punished, in absence of legal evidence, benefit thereof
needs to be extended to the accused.
48. Accordingly, we extend the benefit of doubt to the appellant
/accused Mahendra Bhaskar Pavre. Judgment dated 16.05.2016, holding
him guilty of offence punishable under Section 302 of Indian Penal Code
delivered by the Additional Sessions Judge, (Link Court), Mehkar in Sessions
Trial No. 42/2014 is quashed and set aside.
49. Consequently, the sentence of death imposed upon him does not
survive, therefore, Criminal Confirmation Case No.2/2016 is answered
accordingly.
50. Criminal Appeal No. 276/2016 filed by the accused stands
allowed. The appellant Mahendra Bhaskar Pavre is exonerated of offence
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punishable under Section 302 Indian Penal Code, by giving him benefit of
doubt. He be set free, if his custody is not required in any other matter.
51. Muddemal property be dealt with as directed by the learned trial
Court after expiry of appeal period.
52. For compliance with the directions contained in paragraphs 44 to
46 and action, if necessary, matters be listed on board on 01.12.2016.
JUDGE JUDGE
Rgd.
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original signed judgment/order.
Uploaded by : R.G. Dhuriya. ig Uploaded on : 14.10.2016
