Prakash S/O Kisan Nikhate (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 6622 Bom

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                                                            apeal98.16.odt

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR


                  Criminal Appeal No.98 of 2016


  Prakash s/o Kisan Nikhate,
  Aged about 25 years,
  R/o Deshmukh Galli,
  Risod, Tah. Risod,
  Dist. Washim.                                   ... Appellant
                                                      (In Jail)


       Versus


  The State of Maharashtra,
  through Police Station Officer,
  Risod, Tah. Risod,
  Dist. Washim.                                   ... Respondent



  Shri R.P. Thote, Advocate (Appointed) for Appellant.
  Shri S.M. Ukey, Additional Public Prosecutor for Respondent.


               Coram : R.K. Deshpande & Manish Pitale, JJ.

Date of Reserving the Judgment : 28th August, 2017

Date of Pronouncing the Judgment : 31st August, 2017

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Judgment (Per R.K. Deshpande, J.) :

1. The appellant-accused is convicted for the commission of

offences punishable under Sections 302 and 201 of the Indian

Penal Code (IPC) by the Sessions Court at Washim by its

judgment and order delivered in Sessions case No.50 of 2013 on

21-5-2013, on the allegation that in the intervening night of

13th and 14th December, 2012 at about 3 a.m. at his house

situated at Deshmukh Galli, Risod, the accused committed the

murder of his mother Renukabai by inflicting the blow of big

stone (referred to in the evidence as 'stone mortar' or 'Pata' or

'Dagadi Pata') on her head and also the blow of knife on her neck

with an intention to kill her. The further allegation is that during

the course of the said transaction, i.e. after the murder of

Renukabai, the accused tried to cause disappearance of certain

evidence connected with the crime, and during the process, he

washed the big stone with an intention to screen himself from

the legal punishment.

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2. The Sessions Court sentenced the accused to suffer life

imprisonment in respect of the offence punishable under

Section 302 of IPC along with fine of Rs.200/-; in default, to

suffer further simple imprisonment for fifteen days. In respect of

the offence punishable under Section 201 of IPC, he is sentenced

to suffer rigorous imprisonment for three years along with fine of

Rs.100/-; in default, to suffer simple imprisonment for fifteen

days.

3. The story of the prosecution is as under :

The incident of death of Renukabai, the mother of the

accused, took place in the intervening night of 13th and 14th

December, 2012 between 3 and 4 a.m. in a room of the

residential house where the accused and the deceased both were

asleep. The accused lodged the report in the Police Station at

6.30 a.m. that his mother sustained injuries, as she fell from the

cot and died. According to the accused, on 13-12-2012, after

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taking meal, he and his mother slept on the cot. He woke up

hearing the shouting of his mother at around 4 a.m. and found

her in a dead condition. It was a written report bearing a thumb

impression of the accused, at Exhibit 26. PW 4 Ishwar Vijay

Chavan, the Police Sub-Inspector on duty, registered Case No.47

of 2012 as an accidental death under Section 174 of the Criminal

Procedure Code.

4. PW 4 PSI Ishwar Chavan visited the spot on 14-12-2012

and started drawing panchanama at 7.15 a.m. at Exhibit 17,

which was finished at 7.45 a.m. It was signed by two panch

witnesses - PW 2 Bandu Ramkisan Wankhede and Santosh

Ambadas Raut. The inquest panchanama was carried out in

presence of three panchas at Exhibit 18, and PW 2 Bandu was

one amongst them. The photographs were snapped at

Exhibit 28. All these documents at Exhibits 17, 18 and 28 are

proved by PW 2 Bandu and PW 4 PSI Ishwar.

5. The spot panchanama at Exhibit 17, the inquest

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panchanama at Exhibit 18 and the photographs at Exhibit 28

indicate that the corpse of the victim was lying on the cot in such

a situation that the portion below waist was on the cot and the

portion from waist to head was facing the earth. The blood was

found accumulated around the portion of her head on the earth.

There were injuries on her face and neck. The left side portion of

her head was found crushed including the head. Dagadi Pata

kept below the table in the kitchen on the northern side of the

room, though found washed, contained the blood stains. In the

bath room adjacent to the room in question, the blood was found

lying and flowing. The spot panchanama contains the seizure of

some broken bangles lying in the blood, two chappal pairs, out of

which one was of male and another was of female, the sample of

the blood lying on the floor of the bath room, the sample of the

blood portion of the floor, Dagadi Pata having the blood stains,

and the blood samples seized from the spot. The corpse was sent

to the hospital for post mortem examination.

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6. PW 3 Dr. Pratap Davhale proves the external and

internal injuries described in the post mortem report at

Exhibit 21. The external and internal injuries described in his

evidence are reproduced below :

"External Injuries :

1. CLW 5 x3 x2 cm over tempo occipital region of the head.

2. CLW 2 x 2 x 1 cm over forehead right side.

3. CLW 2 x 2 x 1 cm over forehead left side.

4. CLW 1 x 1 x 1 cm over left eye brow.

5. CLW 2 x 2 x 2 cm over left cheek.

6. Cut injury angle of left side of mouth 2 x 2 cm.

7. Disruption of mucosa and inner side of mouth.

8. CLW 3 x 1 x 1 cm behind chin on left side more.

9. Deep major cutting crush injury from right angle of mandible to left middle mandible. Approximate size 10 x 6 x 4 cm.

There is major cut to hyoid bone trachea and esophagus. There is a cut carotid artery, there is a cut jugwar vessel both side and there is a cut sternomastoid muscle."

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"Internal Injuries :

1. There is a fracture skull bone tempo occipital region.

2. Haematoma 5 4 cm frontal to left parietal region of skull.

3. Fracture zygomatic arch left side.

4. Fracture teeth about 5 in number from right to left upper.

5. Fracture maxillary bone socker of tooth disrupted.

PW 3 Dr. Pratap proves the provisional certificate at Exhibit 22,

the requisition letter at Exhibit 23 and the medical opinion at

Exhibit 24. He states that the cause of death of the victim was

due to respiratory failure with severe haemorrhage due to deep

cut throat injury with multiple injuries over face and head with

intra-cranial haemorrhage. He is emphatic in saying that the

injuries sustained to the victim are sufficient in the ordinary

course to cause death of the victim. The weapons used for

causing injury was blunt and sharp. In the cross-examination, he

states that it is not true to say, considering the size and grip of

knife shown to him, the size of injury No.9 cannot be caused by

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it. He also states that if a person sleeping on the cot falls on the

utensil having the edges, the injury No.9 is not possible. He

states that even if some daily household articles from the wooden

plank above the cot fall on the person sleeping, such injury is not

possible.

7. After the spot panchanama, the accused was taken on

the same day to the Police Station. His wearings, having blood

stains, were seized, which consisted of one brown colour pant

and one white shirt of checks, under the seizure panchanama at

Exhibit 19 drawn between 2 and 3 p.m. On revealing during the

investigation of the accidental death that the death of the victim

was caused by some weapons like Dagati Pata and by knife and

upon receiving the advance post mortem report at Exhibit 22,

PW 4 PSI Ishwar Chavan prepared his own enquiry report at

Exhibit 29 and then registered the FIR at Exhibit 30 on

14-12-2012 at 19.00 hours under Sections 302 and 201 of IPC

against the accused. These documents at Exhibits 19, 22, 29

and 30 are proved by PW 4 PSI Ishwar. PW 2 Bandu, a panch

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witness, also proved the panchanama at Exhibit 19.

8. The investigation was transferred to PW 6 Shivaji

Vishwanath Lashkare, the Police Sub-Inspector, who interrogated

the accused and effected his arrest under the arrest panchanama

at Exhibit 33 on 14-12-2012 at 22.30 hours. On 15-12-2012, he

recorded the statements of the neighbourers. The accused

showed his willingness to discover the knife, said to have been

concealed by him in the waste near Hanuman Temple in

Asthabhuja Chowk. Hence, the memorandum was recorded at

Exhibit 34 under Section 27 of the Evidence Act, signed by two

panchas, viz. Shankar Tulshiram Yevle and PW 7 Sunil Namdeo

Kolpe between 9.20 and 9.40 a.m. Similarly, the seizure

panchanama was also prepared on 16-12-2012 between

9.45 and 11.20 a.m. It was also signed by the aforementioned

two panchas at Exhibit 35. These documents at Exhibits 33, 34

and 35 are proved by PW 6 PSI Shivaji.

9. On 29-12-2012, the Tahsildar was intimated in writing

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at Exhibit 36 to draw a sketch map of the spot of incident, and on

1-2-1993, a letter was written to the Regional Forensic Science

Laboratory at Exhibit 37 forwarding the items seized for

submission of the report of the Chemical Analyzer. The report of

the Chemical Analyzer at Exhibit 39 dated 30-8-2013 indicates

the analysis of one blood stain gauze in a phial labelled -

Renukabai Kisan Nikhate as inconclusive. The Chemical

Analyzer's report at Exhibit 40 dated 30-8-2013 containing the

analysis of blood in a plastic container labelled - Prakash Kisan

Nikhate, indicates the group of blood as 'O'. The documents at

Exhibits 36, 37, 39 and 40 are proved by PW 6 PSI Shivaji.

10. At Exhibit 41 is the Chemical Analyzer's report

dated 30-8-2013, which is reproduced below :

"Description of Parcels/s

Three sealed cloth parcels and five sealed parcels seals intact and as per copy sent.

Description of articles contained in Parcel/s

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1. Pata wrapped in cloth labelled - Exhibit No.A1.

2. Cement Stone pieces wrapped in paper labelled - Exhibit No.A2.

3. Piece of flooring wrapped in paper labelled - Exhibit No.A3.

4. Piece of Bangles wrapped in paper labelled - Exhibit No.A4.

5. Cottaon Swab wrapped in paper labelled - Exhibit No.A5.

6. Knife wrapped in cloth labelled - Exhibit No.B1.

7. Full Shirt] Wrapped in paper labelled -Exhibit No.B2.

                              ]
               8. Full Pant]

               9. Blouse (Cut)                      ]
                                                             ]Wrapped in cloth

10. Saree (Lugada) in 2 pieces]labelled - Exhibit No.C1.

RESULTS OF ANALYSIS

- Exhibits 1, 2, 3, 4 and 5 are stained with blood.

- Exhibit 6 is stained with blood on blade.

- Exhibit 7 has moderate number of blood stains ranging from about 0.1 to 5 cm in diameter mostly on front portion.

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- Exhibit 8 has few blood stains ranging from about 0.1 to 3 cm in diameter on both legs.

- Exhibit 9 is nearly soaked with blood.

- Exhibit 10 has innumerable blood stains ranging from about 0.1 cm in diameter to big in size spread at places.

- Blood detected on exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 is human.

- Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 are stained with blood of group 'A'."

The reports of the Chemical Analyzer at Exhibits 39, 40 and 41,

proved by PW 6 PSI Shivaji show that the blood group of the

accused is 'O', whereas on all the articles seized, it is group 'A'.

11. The learned Judge of the Sessions Court records the

finding that the circumstances brought on record clearly establish

the fact that the victim died homicidal death and not accidental.

This is based upon the inquest panchanama at Exhibit 18 and the

post mortem report at Exhibit 21. He holds that the injuries

sustained by the victim are of such a nature and description that

those cannot be caused by accidental mode, as stated by the

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accused. The learned Judge holds that considering the nature of

the injuries and the manner in which those injuries are caused, it

can be said with certainty that with an intention to kill the

victim, the multiple blow of hard and blunt object, like stone,

was given to the victim along with the further blow of sharp

weapon, like knife, to the victim on her neck, cutting it and

causing the injury of the size of 10 x 6 x 4 cm, cutting hyoid

bone, trachea and esophagus. He further holds that there was

also cut to carotid artery, jugwar vessel both side, and

sternomastoid muscle. He further holds that the injuries

sustained by the victim are of such a nature and description with

those cannot be caused by accidental mode, as stated by the

accused in his report as well as tried to be brought on record in

defence. We do not find any reason to disturb these findings of

the Sessions Court.

12. There is no eye-witness to the incident and the

conviction is based upon the circumstantial evidence. The

accused and the deceased were undoubtedly together at the time

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of incident in a room in the mid-night on 13-12-2012 and

14-12-2012 between 3 and 4 a.m. The accused has also failed to

furnish any explanation in his statement under Section 313 of

the Criminal Procedure Code in respect of the alleged

incriminating circumstances. The question is what evidence is

brought on record to connect the accused with such a crime and

whether the chain of circumstantial evidence in this case is

established to maintain the conviction of the accused.

13. We have gone through the oral evidence of

PW 3 Dr. Pratap, who conducted the post mortem

between 1 and 2 p.m. and submitted his report on 14-12-2012 at

Exhibit 21. Exhibit 23 is a typed copy of the letter

dated 17/12/12 by PW 6 IO Shivaji, addressed to the Medical

Officer, informing that the accused has killed his mother by

Dagadi Pata seized from the spot of incident in presence of

panchas and the knife which he discovered. The letter seeks

opinion as to whether the injuries to the deceased are possible by

these weapons. The letter recites that Dagadi Pata and knife are

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sent for opinion. This witness identifies Dagadi Pata and knife.

The figure '17' in the date on the top of the letter is

hand-written, whereas the figure '12/12' is typed-written. The

opinion in response to it given at Exhibit 24 by PW 3 Dr. Pratap

does not bear any date and time. It divides the injuries on the

deceased in two parts, consisting of (a) injuries may have been

caused by Dagadi Pata, and (b) injuries may have been caused by

knife. It recites that the weapons sent to him were handed over

to PC 1021.

14. The seizure of Dagadi Pata is under the spot

panchanama at Exhibit 17, which was drawn by

PW 4 PSI Ishwar, and PW 2 Bandu is the only panch witness on

it, who is examined. PW 4 PSI Ishwar identifies the stone mortar

(Dagadi Pata). PW 2 Bandu speaks about the seizure of Dagadi

Pata, but states that the stains on Dagadi Pata were of brownish

colour like blood. In the examination-in-chief, when Dagadi Pata

was shown to him as seized from the spot, he replies that

"Dagadi Pata shown to me is not the same." PW 6 IO Shivaji also

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identifies stone mortar (Dagadi Pata) in his examination-in-chief.

No doubt, in the report of the Chemical Analyzer at

Exhibit 41, it is shown that Dagadi Pata contained the blood

stains of group 'A'.

15. The another weapon is the knife, which is recovered

from the accused under Section 27 of the Evidence Act under

seizure memo at Exhibit 35. PW 6 Shivaji, the Investigating

Officer to whom the investigation was transferred subsequently,

states that while in police custody on 16-12-2012, the accused

showed his willingness to discover the knife said to have been

concealed by him in the waste near Hanuman temple in

Ashtabhuja Chowk. Accordingly, the memorandum was

recorded at Exhibit 34. He further states that the accused took

the police persons and panchas at a given place and discovered

the knife, which came to be seized under the panchanama at

Exhibit 35. He states that the blade of knife was stained with

blood and the panchanama of seizure bears his signature and the

signature of the panchas, and that of the accused. This witness

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identifies the knife shown to him. PW 4 Ishwar also identifies

knife.

16. Though, the panchanama at Exhibit 35 bears signatures

of two panch witnesses, viz. Shankar Tulshiram Yevle and Sunil

Namdeo Kolpe, only one panch witness was examined, i.e. Sunil

Kolpe as PW 7, who failed to identify the accused before the

Court and stated that on 16-12-2012, the police obtained his

signatures on some documents and the memorandum and

panchanama shown to him at Exhibits 34 and 35 contained his

signature. He states in his examination-in-chief that "It did not

happen in my presence. Accused shown his willingness to

discover the knife from the place behind the temple of Hanuman

and accordingly his memorandum was prepared. It did not

happen that thereafter at his instance, knife was recovered from

given place". Since this witness turned hostile, the permission to

cross-examine was granted and the witness deposed that "It is

not true to say that memorandum and panchanama now shown

to me came to be prepared in my presence as per the happenings

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stated therein and after knowing contents of memorandum and

panchanama I signed over it." No doubt, the report of the

Chemical Analyzer at Exhibit 41 shows that the blood stains on

the knife are of group 'A'.

17. The clothes of the accused were seized on 14-12-2012

between 2 and 3 p.m. under the seizure panchanama at

Exhibit 19 in the Police Station. PW 4 PSI Ishwar drew this

panchanama. He states in cross-examination that after the spot

panchanama, the accused was taken to the Police Station, his

wearings were seized having blood stains and those were one

brown colour pant and one white shirt of checks. He states that

the seizure was carried out in presence of two panchas,

viz. Bandu Ramkisan Wankhede and Santosh Ambadas Raut.

This witness was neither confronted with nor identifies the

clothes of the accused seized under panchanama at Exhibit 19.

18. The only panch witness examined was Bandu as PW 2,

who states in his examination-in-chief that "I was again called at

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police station on same day between 2 to 3 p.m. Accused was

present there. IO shown me wearing and stated that those were

belonging to accused. It was a shirt pant having stains of blood.

Police have seized those wearings under panchanama, now

shown to me is the same, bears my signature and contents are

correct. It is Exh.19". However, he further states that "The

articles seized from spot now shown to me. The wearing pant

and shirt are not the same."

19. The inquest panchanama at Exhibit 18 shows a blouse of

yellow colour and a saree (Lugada) of brick colour as the

wearings of the deceased. The post mortem report at Exhibit 21

dated 14-12-2012 shows the wearings of the deceased as orange

colour saree and cream colour blouse. The Chemical Analyzer's

report at Exhibit 41 contains two articles, amongst others, at

serial No.9-blouse (cut), and at serial No.10-saree (Lugada) in

two pieces. The result of analysis shows that both these articles

are stained with blood of group 'A'.

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20. The spot panchanama at Exhibit 17 and the photographs

of the deceased show that the deceased was lying a pool of blood

and the blood samples were collected from the spot as well as

from the bath room and were sent to the Forensic Science

Laboratory. The Chemical Analyzer's report at Exhibit 39, which

is in respect of the result of the blood group of

deceased Renukabai, is shown as inconclusive. The wearings of

the accused were seized on 14-12-2012 under seizure

panchanama at Exhibit 19. The report of the Chemical Analyzer

at Exhibit 40 in respect of the blood sample of the accused shows

his blood group as 'O'.

21. After stating the evidence, which is brought on record,

we would like to narrate the doubtful circumstances and the

missing links in the chain of circumstances which we found as

under :

(A) The seizure of Dagadi Pata is not a recovery under

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Section 27 of the Evidence Act. PW 4 PSI Ishwar, who

seized Dagadi Pata under Exhibit 17, identifies it in his

examination-in-chief. Panch witness PW 2 Bandu on

Exhibit 17 fails to identify it when it was confronted to

him in the examination-in-chief and replies that "Dagadi

Pata shown to me is not the same." PW 2 Bandu has

neither been declared hostile nor has been

cross-examined. For this purpose, the decision of the

Apex Court in the case of Javed Masood and another v.

State of Rajasthan, reported in AIR 2010 SC 979, is relied

upon to urge that the accused is entitled to rely upon the

evidence of witness in his favour to hold that the seizure

and production of Dagadi Pata is not established.

(B) Though PW 6 IO Shivaji also identifies Dagadi Pata

in his examination-in-chief, he was neither present when

it was seized nor was entrusted with the job of IO on

14-12-2012, i.e. on the date of the seizure. His evidence

cannot, therefore, be relied upon. There is no other

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evidence on record which can be considered to accept

seizure and production of Dagadi Pata.

(C) The another weapon is the knife, which is

recovered from the accused under Section 27 of the

Evidence Act under the memorandum at Exhibit 34, and

the seizure panchanama at Exhibit 35. Though

PW 6 IO Shivaji identifies the knife, panch witness

PW 7 Sunil Kolpe fails to identify it. The another panch

witness Shankar Tulshiram Yevle at Exhibit 35 has not

been examined. For this purpose, the reliance is placed

upon the decision of the Apex Court in the case of

Mousam Singha Roy and others v. State of W.B., reported

in (2003) 12 SCC 377, to urge that the seizure has not

been established. However, we proceed further assuming

that seizure is established by PW 6 IO Shivaji.

(D) The two weapons - Dagadi Pata and knife were

sent for the opinion of PW 3 Dr. Pratap in a typed letter

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at Exhibit 23. There is nothing either in Exhibit 23 or in

the oral evidence of PW 3 to show that both these

weapons were sent, handed over or received in the

sealed envelope. PW 3 does not state in his opinion at

Exhibit 24 that weapons were de-sealed or re-sealed and

handed over to PC 1021. On the contrary, PW 3 states

in his cross-examination that there is no mention of

sealing or re-sealing of weapons in Exhibits 23 and 24.

PW 6 IO Shivaji, who sent a requisition at Exhibit 23,

does not state in his evidence that the weapons were

forwarded to PW 3 in a sealed packets.

(E) The loose handling of the weapons seized,

viz. Dagadi Pata and knife - the manner in which

Dagadi Pata and knife were sent for the opinion of

PW 3 Dr. Pratap and its return through PC 1021 (Police

Constable), fails to inspite confidence and create a doubt

about the identification of these weapons. The opinion

at Exhibit 24 given by PW 3 Dr. Pratap does not bear any

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date and time. There is also no evidence to show the

date and time of receipt of opinion at Exhibit 24. Hence,

the another doubt is that the knife was sent to PW 3 Dr.

Pratap even before it was seized.

(F) The clothes of the accused were seized on

14-12-2012 under the seizure panchanama at

Exhibit 19. PW 4 PSI Ishwar states that he drew the

panchanama in presence of two panchas - PW 2 Bandu

Ramkisan Wankhede and Santosh Ambadas Raut. The

clothes of the accused were confronted to PW 2 Bandu

for identification and he states that the wearing pant and

shirt seized are not the same. PW 2 Bandu has neither

been declared as hostile nor has been cross-

examined. In view of the decision of the Apex Court in

Javed Masood's case, cited supra, it is permissible for the

accused to rely upon evidence of PW 2 Bandu

to hold that the production of clothes of accused is not

established.

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(G) PW 4 PSI Ishwar was neither confronted with

the clothes of the accused seized under the panchanama

at Exhibit 19 nor identified the same. The another

panch witness, Santosh Ambadas Raut, has not been

examined. The seizure of the clothes of accused under

the panchanama at Exhibit 19 and their production have

not been established.

(H) Exhibit 41, which is the Chemical Analyzer's report

in respect of the blood stains on the clothes of the

deceased, indicates the blood of group 'A'. The spot

panchanama at Exhibit 17 does not speak of seizure of

the clothes of the deceased. The inquest panchanama at

Exhibit 18 and the post mortem report at Exhibit 21

show the wearings of the deceased - blouse and saree.

Neither the spot panchanama at Exhibit 17 nor the

seizure memo at Exhibit 19 indicate the seizure of

clothes of the deceased. None of the witnesses produced

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were confronted with the clothes of the deceased.

Thus, there is no evidence on record to establish the

clothes of the deceased.

(I) The spot panchanama at Exhibit 17 contains

seizure of some broken bangles lying in the blood, two

chappal pairs, the sample of blood lying on the floor of

the bath room and the sample of the floor where blood

was noticed. There is nothing in this document at

Exhibit 17 to show that the blood sample of the deceased

was taken for being sent to the Forensic Science

Laboratory. Even in his oral evidence, PW 4, who

conducted panchanama, does not state that he collected

the blood sample of deceased. Even the post mortem

report at Exhibit 21 does not show that the blood sample

of the deceased was taken. Be that as it may, the

Chemical Analyzer's report at Exhibit 39 in respect of the

blood group of the deceased is inconclusive. Neither the

collection of blood sample nor the blood group of the

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deceased has been established.

(J) The report of the Chemical Analyzer's at Exhibit 40

in respect of blood sample of the accused shows his

blood group as 'O'. The wearings of the accused were

seized under the seizure panchanama at Exhibit 19

prepared by PW 4 PSI Ishwar and he does not state that

the blood sample of the accused was taken. There is

nothing in this document to show that the blood sample

of the accused was taken. In the absence of such

evidence, it cannot be said that the blood group of the

accused as 'O' is established.

(K) There is absolutely no evidence brought on record

to establish the actual user of the weapons,

viz. Dagadi Pata, seized under the seizure panchanama

at Exhibit 17; and that of knife, seized under the memo

and seizure panchanama at Exhibits 34 and 35 in the

crime in question, for the reasons - (1) that the seizure

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of the clothes of the accused has not been established,

and (2) that there is no evidence of collection of the

blood sample of the accused. The prosecution has failed

to connect the weapons seized or produced with the

crime in question. This important link is missing in the

chain of circumstantial evidence. In view of the decision

of the Privy Council in the case of Pulukuri Kottaya and

others v. Emperor, reported in AIR (34) 1947 Privy

Council 67, the seizure of weapons is rendered useless.

(L) We thought that we might have missed certain

things from our sight and hence put a specific question

to the learned Additional Public Prosecutor to point out

to us from the record - (i) whether there was a seizure of

the clothes of the deceased, and if yes, by whom, on

which date, and under which document?, and (ii) if

there is any evidence regarding taking of blood samples

of the deceased as well as that of the accused and if such

blood samples are taken, it is by whom? The learned

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Additional Public Prosecutor clearly expressed his

inability to point out any such evidence on record and

conceded to it.

(M) Our attention was also invited to the list of items

seized prepared on 29-12-2012 by PW 6 Shivaji, the

Investigating Officer, containing the blood samples of

the deceased and the accused as items 7 and 8. This list

styled as "Muddemal Pavati" does not indicate seizure of

clothes of the deceased. Shockingly, this list prepared

on 14-12-2012 produced by prosecution shows at serial

No.9, a domestic purpose knife as Article 'C1' used in the

crime, which was actually recovered under Section 27 of

the Evidence Act on 16-12-2012 at Exhibits 34 and 35.

It is shown to have been seized by PW 6 Shivaji, who

came in picture after 14-12-2012. The articles in the list

are shown to have been handed over to PC 1021 for

being sent to Chemical Analyzer at Nagpur.

PW 6 Shivaji does not speak of blood samples of the

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deceased or of the accused.

(N) Though the list of items seized is shown to have

been prepared on 14-12-2012, Exhibit 37 is the

requisition dated 1-2-2013 addressed to the Forensic

Science Laboratory forwarding the items seized for

giving the report of the Chemical Analyzer, in response

to which, the reports at Exhibits 39, 40 and 41 were

submitted by the Chemical Analyzer on 30-8-2013.

Thus, there is a gap of almost 1 month and 4 days in

forwarding the items seized for the opinion of the

Chemical Analyzer, which is unexplained.

(O) Exhibit 37 requisition shows that the articles seized

from the spot and recovered from the accused during

investigation were sealed by M.O. Item No.8 is the

blood sample of accused taken by M.O. as article

EX-NO.C-1 and Item No.10 is the blood sample of

deceased sealed by M.O. PW 3 M.O. Dr. Pratap does not

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speak about it. Even the post mortem report does not

indicate this.

22. In the decision of the Apex Court in the case of Javed

Masood and Another v. State of Rajasthan, reported in

AIR 2010 SC 979, it is held that if the witness produced by the

prosecution does not support the theory of the production and

instead it supports the defence, the accused can rely upon such

evidence if such witness is not declared hostile and

cross-examined by the prosecution.

23. On the aspect of discovery under Section 27 of the

Evidence Act, we take the support of the law laid down by the

Privy Council in the case of Pulukuri Kottaya and others v.

Emperor, reported in AIR (34) 1947 Privy Council 67; the relevant

portion of which, contained in para 10, is reproduced below :

"10. ... It is fallacious to treat the "fact discovered"

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within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

It is apparent from the aforesaid law laid down by the Privy

Council that the information as to the past user or the past

history of the object produced is not related to its discovery in

the setting in which it is discovered.

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24. In the decision of the Apex Court in the case of

Amitsingh Bhikamsingh Thakur v. State of Maharashtra, reported

in (2007) 2 SCC 310, the aforesaid decision of the Privy Council

was followed and the requirements of Section 27 of the Evidence

Act are summed up in para 19, which is reproduced below :

"19. The various requirements of the section can be summed up as follows:

(1) 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.

(2) The fact must have been discovered.

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

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(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

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

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

25. The law laid down by the Apex Court on Section 27 of

the Evidence Act is absolutely clear and beyond pale of any

doubt. The fact discovered embraces the place from which the

object is produced and the knowledge of the accused as to this.

The information given must be relevant to the issue and the

provision has nothing to do with the question of relevancy. The

relevancy of the fact discovered must be established according to

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the prescriptions relating to recovery of other evidence

connecting with the crime in order to make the fact discovered

admissible. The information as to the past user or the past

history of the object produced is not related to its discovery in

the setting in which it is discovered. The information supplied by

a person in custody that 'I will produce a knife concealed in the

roof of my house' does not lead to the discovery of knife. It leads

to a discovery of fact that a knife is concealed in the house of the

informant to his knowledge, and if the knife is proved to have

been used in the commission of the offence, the fact discovered is

very relevant. It is also laid down by the Apex Court that if to

the statement the words be added 'with which I stabbed A', these

words are inadmissible since they do not relate to the discovery

of the knife in the house of the informant. It is, therefore,

absolutely necessary to establish the factum of user of the

weapon which is discovered so as to make such discovery

admissible in evidence.

26. It is not possible for us to sustain the findings recorded

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by the learned Judge of the Sessions Court to hold the accused

guilty of the offences under Sections 302 and 201 of IPC on the

basis of the established fact that the accused and the deceased

were the only persons together on the spot of incident, and that

the accused has failed to furnish any explanation in his statement

under Section 313 of the Criminal Procedure Code in respect of

the incriminating circumstances put to him. It is also not

possible for us to hold the accused guilty of the offences by

invoking the provision of Section 106 of the Evidence Act that it

was for the accused to have explained the injuries suffered by the

deceased in the facts and circumstances of the case.

27. In the decision in the case of Vikramjit Singh alias Vicky

v. State of Punjab, reported in (2006) 12 SCC 306, the Apex

Court has held in paras 14 and 15 as under :

"14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the

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special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute."

"15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt."

The Apex Court has held that Section 106 of the Evidence Act

does not relieve the prosecution to prove its case beyond all

reasonable doubt. There may be a strong suspicion that in all

probabilities, the accused may be guilty of heinous offence but

applying the well-settled principle of law that suspicion,

however, grave may be, cannot be a substitute for proof, the

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same would lead to the only conclusion herein that the

prosecution has not been able to prove its case beyond all

reasonable doubt. The facts so established should be consistent

only with the hypothesis of the guilt of the accused, i.e. to say

they should not be explainable on any other hypothesis except

that the accused is guilty. The circumstances should be of

conclusive in nature and tendency and exclude every possible

hypothesis except to one to be proved.

28. The Sessions Court holds in para 45 of the judgment

that both the aspects of recovery of weapons and motive have

not been established. It holds that sealing and seizure of the

weapons and articles by the Investigating Agency has not been

established. The motive of illicit relationship of the victim with

some other person is also not established. In this background, it

is not possible to sustain the conviction recorded by the learned

Judge of the Sessions Court on the basis of spot panchanama,

post mortem report, inquest panchanama, chemical analyzer's

reports and failure to furnish the explanation in respect of the

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alleged incriminating circumstances.

29. The accused has a right to remain silent and he cannot

be a witness against himself. The provision of Section 106 of the

Evidence Act to shift the burden upon the accused to explain the

manner in which the death of his mother has occurred when only

both of them were together at the time of an incident, would be

attracted only if all the incriminating circumstances are

established. The explanation in the statement under Section 313

of the Criminal Procedure Code by the accused would be an

additional link in the chain of circumstantial evidence. Any

statement made by the accused under Section 313 of the

Criminal Procedure Code cannot be used as a link in the chain of

circumstantial evidence to convict the accused.

30. In our view, the doubtful circumstances and the missing

links in the chain of circumstances narrated in para 21 looked in

the light of the decisions of the Apex Court in para 22 onwards,

lead us to hold that the prosecution has failed to prove beyond

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reasonable doubt, the guilt of the accused under Sections 302

and 201 of IPC. The question of the accused failing to furnish

explanation in his statement under Section 313 of the Criminal

Procedure Code, did not arise. The learned Judge of the Sessions

Court has committed an error in holding him guilty of such

offences. The decision of the Sessions Court cannot, therefore,

be sustained and it will have to be set aside and the accused will

have to be acquitted.

31. We, therefore, allow this appeal and quash and set aside

the judgment and order dated 21-5-2013 delivered in Sessions

Case No.50 of 2013 convicting the accused for the offences under

Sections 302 and 201 of IPC. The accused is acquitted. Fine, if

any, paid be returned to him. The accused be released forthwith,

if not required in any other case. The learned counsel for the

appellant shall be entitled to fees of Rs.5,000/-

[Rupees Five Thousand].

(Manish Pitale, J.) (R.K. Deshpande, J.) Lanjewar, PS