Bombay High Court
Vivek S/O Gulabrao Palatkar vs The State Of Maharashtra Through ... on 17 April, 2017
Bench: B.P. Dharmadhikari
Judgment apeal491.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 491 OF 2015.
Vivek s/o Gulabrao Palatkar,
Aged about 32 years,
Occupation - Agriculturist,
Resident of Navargaon, Tah. Mouda,
District Nagpur.
(Presently Central Prison at
Nagpur) ....APPELLANT.
VERSUS
State of Maharashtra,
through Police Station Aroli,
Tah. Mouda, District Nagpur. ....RESPONDENT
.
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Mr. C.R. Thakur, Advocate for the Appellant.
Mr. S.D. Shirpurkar, learned A.P.P. for Respondent.
------------------------------------
CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : APRIL 17, 2017.
Judgment apeal491.15
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Appellant - Vivek challenges the judgment and order dated
30.11.2015 delivered by the Additional Sessions Judge-4, Nagpur in Sessions
Trial No. 459/2014 holding him guilty of offences punishable under Sections
302, 201, 203 and 498-A of Indian Penal Code, and sentencing him to suffer
life imprisonment and other punishments for these offences. The victim in
the matter is his wife - Savita. Prosecution claims that on 23.05.2014 at 9
a.m. he committed her murder at Mouza Navargaon, Tahsil Mouda, District
Nagpur and thereafter set on fire that body to destroy evidence and then
gave false information to her mother, that Savita left the house by leaving
children. It is also claimed that he subjected Savita to cruelty and thereby
committed an offence under Section 498-A of Indian Penal Code.
2. We have heard Shri C.R. Thakur, learned counsel for the
appellant-accused and Shri S.D. Shirpurkar, learned A.P.P. for respondent -
State.
3. Shri Thakur, learned counsel for appellant has submitted that
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there is no eye witness and merely on the basis of suspicion, the appellant
has been roped-in in the matter. The trial Court has not formulated
circumstances or its chain to enable anybody to gather that circumstantial
evidence available on record is sufficient to hold the appellant guilty.
According to him, circumstances do not constitute a chain and do not in any
way indicate appellant as the only suspect. The circumstances looked into
are not established by adducing any cogent and convincing evidence. Same
are therefore, not inconsistent with hypothesis of innocence of present
appellant.
4. According to Shri Thakur, learned counsel, motive has not been
established and finding that charge under Section 498-A of Indian Penal
Code stands proved is perverse. Similarly, State has not produced any
panchnama of the spot where murder, allegedly took place and hence,
connection of present appellant with that spot or murder has not been
established. The recovery of so called murder weapon (leg of a cot) is not
established and the memorandum of disclosure or consequential recovery
panchnama itself cast doubt upon the correctness of assertion of prosecution
in this respect. The alleged seizure of Nevar (cotton belt used for weaving
the cot) is also not proved and neither that Nevar nor the alleged cot is
connected with the present appellant. Spot panchanama available on record
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is of the place where skeleton was found and there is no connection of
appellant with that place. Recovery of ornaments from the skeleton is again
not immediately done, and therefore, not a single circumstance is validly
proved. There is no proper identification of those ornaments which are very
common. He has taken us through the relevant material on record to urge
that the appellant is entitled to be acquitted in the matter.
5. Shri Shirpurkar, learned A.P.P. appearing on behalf of State
submits that apart from motive, there are various circumstances which
emerge from the material on record. Though the trial Court has not
expressly prepared any chain thereof, bare reading of the judgment shows
such circumstances which constitute a chain and point out appellant only as
the person involved in the crime. To facilitate consideration, he has
submitted following circumstances as forming a chain :
(1) Appellant had motive behind eliminating his wife, as he
was doubting her character and was also subjecting her to
cruelty.
(2) On 15.05.2014, the appellant brought his wife Savita and
two children to his house from her parents house.
(3) On 25.05.2015, he informed P.W.11 - Kamlakar that his
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wife left the house, leaving him and two children. He
came to the house of Kamlakar with children, stays there
overnight and claims that he went back to his village.
(4) On 30.05.2005, in an agricultural field situated in the
vicinity of his house, a burnt skeleton is found. Its
identification is established through D.N.A. Test. Dorla,
judwe and chal worn on skeleton are identified by the
mother of the deceased as belonging to the deceased i.e.
wife of the appellant.
(5) After arrest, the appellant gives a statement under Section
27 of the Indian Evidence Act and at his instance, a
wooden log, forming one of the legs of a cot used as
murder weapon and blood stained clothes are recovered.
Human blood is found on it.
(6) At the time of this recovery at his instance, on the spot a
cot with nevar is seen. On nevar blood stains were found.
Even on beam of cot, blood stains were seen
(7) The stains on nevar, blood stains from wooden beam of cot
and from soil below were found of human blood by the
Chemical Analyzer.
(8) The accused was absconding after 25.05.2014 till his
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arrest.
(9) As wife was lastly with him and in his custody, burden was
upon him and he even did not bother to lodge any missing
report.
6. Consideration can very well begin with the report at Exh.15
lodged by P.W.2- Geetabai Hariram Kawle, mother of Savita. She has
deposed that on 24.05.2014, her son Santosh received a phone call from
Kamlakar Patankar (P.W.11), who is husband of sister of the appellant. He
informed that Savita left house at 10 a.m. leaving children with the accused.
She goes to police station, Aroli and lodges report at Exh.15 on 25.05.2014.
She has informed that her daughter has gone missing; gave her description
and does not express any doubt. She states that she visited her daughters
house, but could not found her there. She has also not pointed out any ill-
treatment by the appellant.
7. P.W.11 - Kamlakar has deposed that in January, 2014 Savita had
gone to her parents with children and she resided there for 5-6 months. He
was not aware when Savita returned to her husbands house. On
24.05.2014, the appellant informed him about Savita leaving the house
without children, hence, he visited appellants house and then appellant told
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him to look after the children as there was no body to take their care. He
then states that he received a phone call from Police Station, Aroli about a
complaint lodged against the appellant. He was declared hostile. During
cross examination by A.P.P., he has stated that he called parents of Savita at
9 p.m. and informed about Savita leaving the house. He also deposes that
he returned to Nagpur with Vivek and two children. Vivek stayed with him
whole night and then left for village Navargaon. His phone was thereafter
switched off. This material therefore, shows that after 24.05.2014, Savita
was not seen by anybody. Appellant was available in the village and a
missing report was also lodged in which no doubt was cast upon the
appellant.
8. Appellant has been arrested on 11.06.2014 and as per version of
prosecution, he made a disclosure under Section 27 of the Evidence Act.
The disclosure is witnessed by one Liladhar and Nilesh. He has stated that
the wooden log (leg of cot) used by him as a weapon and clothes were
hidden by him and agreed to take the same out. He states that clothes on
his person and that wooden log was kept concealed by him near his house.
Exh.29 is this memorandum on disclosure. Exh.30 is the subsequent
recovery Panchnama. It records that the appellant led the witness and police
to a east facing house, went behind it and from eastern corner of verandah,
Judgment apeal491.15
removed some material. Below it, was a wooden log in 4 pieces and with
blood stains. While describing it, it is shown as one intact leg and there is
no separate description of these 4 pieces. Exh.30 then records that he also
points out the space where he put body of Savita on fire and then led the
police party to Nala behind the house where near roots of Karanji tree blood
stained clothes were concealed. He took out an old blue, black and while
shirt with blood stains and a faint Pink old petticoat also stained with blood.
These two clothes were also seized by the police.
9. Leeladhar (P.W.8) has also witnessed one more seizure memo. It is at
Exh.31. Place of seizure memo therein is "spot of occurrence". Plain soil,
blood stained soil, nevar (cotton belt) of wooden cot on spot and blood
scratched and removed from wooden beam of that caught on spot were
seized and sealed. However "spot of occurrence" is not described any where.
P.W.8- Leeladhar also does not speak about this spot. He does not state
anything about this process or steps and only points out the articles seized
and seizure memo at Exh.31. Prosecution therefore, has not brought on
record the place or spot from where this seizure of nevar or soil or blood
from wooden beam was effected. Whether it was inside the east facing
house or from house of the appellant or elsewhere in the village or in court
yard of the house, is not clear. According to the disclosure statement made
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by the appellant, clothes and weapon were concealed near his house and not
inside the house. Exact spot of hiding does not figure in Exh.29. Perusal of
Exh.30 reveals seizure from verandah and a nala behind the house. Both
these spots are not specifically disclosed by him in Exh.29. Though in
recovery panchanama, wooden log has been mentioned as "broken into 4
pieces", its description at seizure is as one intact log/leg. It has not been
seized from inside the house. The clothes are seized from Nala and it is
mentioned that they were concealed near bottom of Karanji Tree. Whether
they were buried or then pushed into some hole in tree, is not apparent. The
appellant has in Section 27 disclosure statement mentioned clothes on his
person. How ladies garments [petticoat] came out from that place is not
explained. Nobody has identified that petticoat as belonging to either the
deceased or the appellant. Even the shirt seized, has not been shown to be
belonging to the appellant by any independent evidence.
10. P.W.7 - Nanda is resident of the same village. She has deposed
that the appellant was residing in a field out of the village by constructing
house. A.P.P. was permitted to cross examine her. She states that on
14.06.2014, police brought the appellant to Navargaon. She has in this
cross, accepted the suggestion that the appellant Vivek took out blood
stained wooden leg of cot from "Varani"/roof. Thus, this suggestion given
Judgment apeal491.15
by the prosecution itself reveal that it was not taken out as recorded in the
panchnama Exh.30 from Verandah, from its eastern corner. It also militates
with the story that it was broken into four pieces as recorded in the
panchnama. When she was subjected to cross examination by the accused,
she has accepted the suggestion that on 24.05.2014, Savita left the house.
She has volunteered that the appellant was absconding.
11. P.W.8 - Leeladhar who has witnessed the seizure supports
retrieval of wooden leg broken into 4 pieces, blood stained shirt and
petticoat. He mentions that wooden leg was taken out from back side of his
house from a corner. He then mentioned that blood stained shirt and
petticoat was also taken out. He does not mention spot of nala or karanji
tree in it. Little later, he speaks of seizure of simple soil, blood mixed soil,
blood stained nevar and blood from wooden leg of cot vide Exh.31. He does
not speak of recovery of blood from beam of any cot. He also does not point
out the spot where said cot or nevar was lying or from where soil was lifted.
12. It is important to note that there is no panchanama of said spot
where cot with nevar was lying and from where simple soil and blood mixed
soil was lifted. Nevar allegedly was found blood stained and wooden beam
of cot was also blood stained. The recovery from spot at Exh.31 is effected
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only to bring on record the fact that murder was committed at that place.
However, why spot panchnama to bring on record exact location or
placement thereof has not been drawn, is not apparent. In view of this
discussion, it is clear that the spot of murder has not been established by the
prosecution. Similarly, the recovery under Section 27 from appellant /
accused so as to enable us to draw any adverse inference against him has
also not been brought on record by producing any cogent and convincing
evidence. On the contrary, the deposition of P.W.7 - Nanda militates with
the story of prosecution.
13. The ornaments are seized by police on 31.05.2014 i.e. on next day
after the skeleton was found. Inquest panchanama Exh.34, is drawn on
30.05.2014 and that time, no ornaments are mentioned. Inquest ends by
recording that the skeleton was sent to forensic laboratory Ramtek. This
inquest started at 11.10 a.m. on 30.05.2014 and was over by 12.10 in noon.
14. P.W.9 Arun Gurnule was the A.P.I. working with Police Station,
Aroli. He states that on 31.05.2014, he visited the spot, filtered body ash
with the help of funner before two panchas. One Dorle (mangalsutra), two
Jodwe (foot toe rings), two Tops (earings) and one Paipatti (chal) was
seized by him. He prepared seizure memo at Exh.42. These ornaments are
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identified as of deceased Savita by her mother P.W.2. Property was shown
to her at Mouda Tahsil Office, where memorandum of identification parade
was prepared. Exh.16 memorandum of identification parade shows that
only 4 pieces of ornaments were placed for identification. Thus, there were
no other similar ornaments and what ever was pointed out to P.W.2 has
been identified by her vide Exh. 16 and Exh.17. There is no evidence on
record to show that spot was guarded after removal of skeleton from it on
30.05.2014 till 31.05.2014.
15. P.W.13 - Naresh who has witnessed the seizure memo Exh.42 has
turned hostile. However, in present facts, merely because identity of
skeleton is established and it is found to be of Savita, material on record
does not enable us to connect appellant with the death of Savita.
16. Ill-treatment of Savita by the appellant is also not conclusively
established. P.W. 1 Shalikram is uncle of deceased Savita. He points out
that marriage has taken place in the year 2010. He also states that accused
was suspecting character of Savita and beating her. Hence, she came to her
mother in January, 2014. Her father Hariram had expired in the year 2006.
On 15.05.2014, accused came to fetch Savita and took her to his village
Navargaon along with the children. P.W.11 - Kamlakar on 24.05.2014
Judgment apeal491.15
informed on telephone that Savita had left the house. Hence, on
25.05.2014, Geetabai, mother of Savita lodged missing complaint at Police
Station, Aroli. In cross examination, he accepted that no complaint was filed
earlier about ill-treatment and beating by accused. He has filed oral report
on 11.06.2014 on the basis of which FIR for offence punishable under
Sections 302, 201 and 203 of Indian Penal Code came to be recorded.
17. P.W.2 - Geeta (mother) also deposes in chief that on 15.01.2014
when Savita came to her place with children, they inquired why she had
come. She told them that due to beating, she came back. She also states
that Savita disclosed that had Savita not come back, they would have been
required to attend her funeral. On 15.05.2014, appellant Vivek came and
they sent Savita with him after giving understanding. Then she speaks of
phone call from Santosh dated 24.05.2014 and lodging of a missing report.
We have already discussed about it above.
18. In cross examination, Geeta states that no police complaint was
lodged about ill-treatment and beating of Savita. Even in missing report at
Exh. 15 on 25.05.2014, there is no complaint in this respect.
19. P.W.3 Santosh is brother of Savita. He states that accused was
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taking doubt on character of Savita and beating her and hence, she used to
come to them. She lastly came on 15.01.2014 and gave appellant doubting
her character and assault by him as reasons for coming back. He also states
that on 15.05.2014, accused came and they sent Savita with him. In cross
examination, he accepted that Savita visited them prior to 15.01.2014 also
and she used to come alone. No complaint was lodged about accused
suspecting her character or beating her. He has denied that on 15.01.2014,
she did not come back because accused had taken doubt on her character or
beaten her.
20. P.W. 4 - Anil is neighbour of Geetabai and his evidence is on the
same lines. Evidence of P.W. 5- Nirmalabai, who is residing in village of
Geetabai and wife of P.W.1, is again on same lines. She had accompanied
Geetabai for lodging missing report Exh. 15 on 25.05.2014.
21. Thus, fact that appellant Vivek was suspecting Savita's character or
used to beat her has come on record for the first time when police complaint
was lodged by P.W.1 vide Exh.10. If there was ill-treatment due to her
character and beating, why such an important fact was not mentioned while
lodging missing report at Exh.15 on 25.05.2014, is not clear. Relatives of
Savita have come to Nawargaon and after she could not be traced out,
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lodged report at police station. These facts along with deposition of P.W.7
Nanda that Savita left house on 24.05.2014 militate with the story of
prosecution.
22. In view of this discussion, we find that even motive for eliminating
Savita has not been established beyond reasonable doubt.
23. Though effort has been made to show that after coming to place of
Kamlakar (P.W.11), appellant had absconded and was not available at
Navargaon, there is no such evidence available on record. It is a settled law
that 'abscondence' needs to be proved as any other fact by leading
appropriate evidence. That has not been done in the present matter.
24. Thus, circumstances constituting chain and relied upon by the trial
Court or then pressed into service by the learned A.P.P. are not substantiated
at all. There has to be cogent and convincing evidence in relation to each
such circumstance. The circumstances must link with each other to form a
chain. When link is broken, such circumstance or circumstances in isolation
cannot result in implicating the accused. Here the circumstances essential to
constitute a chain are not brought on record convincingly. Hence, evidence
of human blood on clothes allegedly recovered under Section 27, on leg of
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cot, on nevar or cot or "spot of occurence" and DNA test, cannot be used to
hold the appellant guilty as the same do not form a chain at all. Moreover,
material from which the "blood" is collected, is also not connected with the
appellant/ accused. Hence, we proceed to pass the following order.
ORDER
(1) Criminal Appeal is allowed.
(2) The appellant is acquitted of the offence punishable under
Sections 302, 201, 203 and 498-A of the Indian Penal Code.
(3) The judgment dated 30.11.2015 delivered by the Additional
Sessions Judge-4, Nagpur in Sessions Trial No. 459 of 2014
is quashed and set aside.
(4) The appellants be set free immediately, if his custody is not
required by the State in any other matter.
(5) Muddemal property be dealt with as directed by the Trial
Court after the appeal period is over.
JUDGE JUDGE
Rgd.
