State Of Maharashtra vs Anand Pandurang Dandale & Another
2017 Latest Caselaw 2748 Bom

                                    (1)                            crap252.98

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 252 OF 1998

The State of Maharashtra                             ..       Appellant
Through
Police Station Jawahar Nagar,
Aurangabad.
                          Versus

1.    Anand s/o. Pandurang Dandale                   ..       Respondents
      Age. 21 years, Occ. Student,                            [original
      R/o. Bibi, Tq. Lonar,                                   accused]
      Dist. Aurangabad.
      [Appeal against respondent No.1
      is abated]

2.    Suresh s/o. Madan Jadhav,
      Age. 21 years, Occ. Labour,
      R/o. Mangul Zanak, Tq. Risod,
      Dist. Akola
      At present - Daregaon,
      Tq. & Dist. Jalna.

Mr.S.J. Salgare, A.P.P. for the appellant/State.
Mr.Satej S. Jadhav, Advocate for respondent Nos. 1 & 2.

                                    CORAM :  S.S.SHINDE &
                                             S.M.GAVHANE,JJ.

DATED : 06.06.2017

J U D G M E N T : [PER : S.M.GAVHANE,J.] :-

1. This appeal is filed by the State, under section

378(1) and (3) of the Code of Criminal Procedure against

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judgment and order dated 22.05.1998 of acquittal of the

respondents (accused Nos.1 and 2) for the offences

punishable under sections 384, 302 and 201 read with

section 34 of the Indian Penal Code (for short "IPC")

passed by the Additional Sessions Judge, Aurangabad, in

Sessions Case No.61 of 1996.

2. Since the accused No.1 died on 30.07.2004 during

pendency of the appeal as per bailiff report on notice

dated 18.08.2016, appeal stands abated against him.

3. The facts of the prosecution case are as

under :-

. The complainant - Babu Rajendra Shankarrao

Kulkarni (P.W.1) and the deceased accused No.1 were

respectively residing at Bibi, Tq. Lonar and Tilak Nagar,

Aurangabad and accused No.2 was residing at Daregaon, Tq.

and Dist.Jalna at the relevant time of the incident.

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Deceased Milind was son of P.W.1 and he was residing with

P.W.1.

4. On 26.12.1993 P.W.1-the complainant lodged First

Information Report in Jawahar Nagar Police Station,

Aurangabad, alleging that on 25.12.1993 in the evening at

21.45 hours, he had a phone call at his house, he was

told that the deceased - his son has been going to

Khultabad and that he would return to home on the next

day in the morning. On his asking the name of the person,

who had phoned him, it was told that he is Nitesh Joshi.

Thereafter, on 26.12.1993 in the morning at about 11.50

hours, he had a phone call and he was told that in the

compound of his house, a bag of his son has been left,

that there is one chit in it and that he should act

accordingly and in case he acts otherwise, there would be

danger to the life of his son. Accordingly, one chit in

Hindi language in red letters was found. It was written

in the chit that his son is in their custody and in case

he failed to give Rs.25,000/- at a specified place, his

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son would be killed and that his pieces would be sent.

Again on that day at about 12.35 hours he had phone call

in frightened condition. It was probably by his son and

he said that he would come till 13.00 hours and

immediately the phone call was disconnected. Thereafter,

he had third phone call at 13.30 hours and it was asked

whether he has made arrangement of money or not?

He told that in nobody's house this much amount is

available and that as there was Sunday, banks were also

closed and therefore some time is required to arrange the

amount. Thereupon,immediately the phone was disconnected.

He had fourth phone call at about 17=00 hours and again

he was asked whether arrangement of money is made and

thereupon he told him that the money would be given, but

he may be allowed to talk to his son. But, one who had

called him was not in a position to listen to him and

finally he was told that if he wants his son alive, he

should act as per the chit, which was left in the Narayan

Hasnabadkar's Tea House, in front of Johar Lodge. The

complainant (P.W.1) reached to the said Tea House at

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about 17=25 hours and as soon as he parked the scooter,

the hotel owner asked him whether he is Kulkarni and

there upon he said "Yes". He was given the chit and he

asked the hotel owner on what basis he identified him.

Thereupon, the hotel owner told him that one who had

given the chit to him, had told him that he had phoned

Shri Kulkarni and he (Kulkarni) would come and that chit

should be handed over to him. Thereupon, when the

complainant asked him in detail, the hotel owner told

that two short persons of black complexion had come to

him before some time and they had told him to give the

said chit and that immediately they would be going to

other place with his (complainant's) son. He suspected

accused No.1 who was his tenant for some months and was

working in the workshop of his son, who has been residing

in Sahakar Nagar in Gajara Building with his maternal

brother Akash Wayal. He also suspected hotel owner.

Moreover, on the basis of initial two phone calls, he

suspected accused No.1.

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5. On the basis of above F.I.R., on the same day

Crime No.264 of 1993 for the offences punishable under

sections 363 and 384 read with section 34 of the I.P.C.

was registered in Jawaharnagar Police Station by P.S.I.

Mulak (P.W.15), who carried initial investigation. On

27.12.1993 P.S.I. Mulak arrested both the accused, seized

dagger from the house of accused No.1 and obtained sample

of blood found in the house of accused No.1, after

breaking open the door of said house and made separate

panchanamas. Further investigation was carried by P.I.

Mayal (P.W.17).

6. While the accused were in police custody, P.I.

Mayal (P.W.17), the investigating officer on 27.12.1993

recorded the memorandum statements of both the accused

that they would show the well along the nala near

Khiwansara Park in which the dead body and the motor

cycle were thrown and accordingly prepared separate

panchanamas in presence of panchas Shaikh Nabab Hyder

Patel (P.W.7) and Shaikh Karim Shaikh Hussain (P.W.13).

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So also, on the same day he visited the spot i.e. the

well in which the dead body and the motor cycle were

found and prepared panchanamas in presence of same

panchas. Thereafter, on that day inquest panchanama of

the dead body was prepared. The dead body was sent for

post-mortem examination. Dr. Anil Jinturkar (P.W.5)

conducted post-mortem examination and issued post-mortem

report. So also, P.I. Mayal (P.W.17) seized clothes of

deceased except shirt of the deceased in presence of

panchas Digambar Khake and Claivaji Gonsalves. On

27.12.1993 offence punishable under sections 302 and 201

of the I.P.C. was added in the crime already registered

against the accused. Thereafter, on 28.12.1993 joint

memorandum statement of both the accused that the shirt

of the deceased is kept in the house of accused No.1, was

prepared on 28.12.1993. Thereafter, he prepared

panchanama of seizure of shirt of the deceased. P.I.

Mayal (P.W.17) prepared panchanama of specimen hand-

writing of both the accused Nos.1 and 2 on 02.01.1994 in

presence of Prashant Mahajan (P.W.14) and Jayant Karpe

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(P.W.11). He forwarded the specimen of said hand-writing

to the Hand-writing Expert for comparing the same with

the chit articles-13 and 14. He collected opinion of the

hand-writing expert with reasons of the expert. After

completion of the investigation, charge-sheet was

submitted in the Court of Judicial Magistrate, First

Class, Aurangabad against both the accused, who committed

case to the Sessions Court, Aurangabad, which was then

made over to the Additional Sessions Judge, Aurangabad.

In the meanwhile, the accused were released on bail.

7. Charge was framed against both the accused for

the aforesaid offences, to which they pleaded not guilty

and claimed to be tried. Their defence as it appears

from the trend of cross-examination of the prosecution

witnesses and statement under section 313 of Code of

Criminal Procedure, is of total denial. Accused No.1

stated that the deceased was senior to him and was

helping him in studies. In vacation he was going to the

garage of the deceased and out of mis-understanding false

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evidence is created against him. He never written any

chit. Accused No.2 stated that he had come to Aurangabad

in search of service.

8. The prosecution has examined 17 witnesses and

relied upon memorandum panchanamas of the accused, other

panchanamas referred earlier and Exh.53-opinion of hand

writing expert. Considering the post mortem report and

the evidence, the learned trial Court held that the

prosecution has not proved the offences against the

accused for which they were charged and acquitted them of

the said offences by the impugned judgment. Therefore,

this appeal by the appellant/State against the said

acquittal.

9. We have heard learned A.P.P. Mr. Salgare

appearing for the appellant and Mr. Satej S. Jadhav

learned counsel appearing for respondents/accused. The

learned A.P.P. has submitted that there is no direct

evidence and the case is based on the circumstantial

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evidence. According to him the prosecution has

established the circumstances relied upon by it, which we

would refer later on to avoid repetition. Therefore,

according to him the impugned judgment of acquittal is

not correct and hence by allowing the appeal the accused

be convicted for the offences charged.

10. On the other hand Mr. Satej Jadhav, learned

counsel appearing for the accused submitted that the

circumstances relied upon by the prosecution are not

established and thus supported the impugned judgment.

11. Since the appeal is against the acquittal,

before examining the evidence, it is necessary to bear in

mind the principles in this respect laid down by the Apex

Court in the case of K.Venkateshwarlu Vs State of A.P.

AIR 2012 SC 2955, wherein it has been held in para 5

thus:-

"xxxxxx If the view taken by the trial Court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own

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view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations xxxxx."

12. To prove homicidal death of the deceased, the

prosecution has mainly relied upon the evidence of Dr.

Anil Jinturkar (P.W.5), who conducted post-mortem

examination and issued post-mortem report (Exh.24) and

Chemical Analyser's report (Exh.59). Dr.Jinturkar deposed

that he conducted post-mortem on 28.12.1993 from 10.30

a.m. to 12.00 p.m. on the dead body of the deceased and

he found following external and internal injuries :-

EXTERNAL INJURIES :-

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(1) An obliquely placed oval haematoma over left parietal region at vertex. It was 2½" x 1" size bluish.

(2) An oval bluish haematoma over left parieto temporal region 1" away and anterior to injury No.1 near sagittal suture line. It was 2"x1" size.

(3) Irregular nibbing of the both the eyelids on either sides, nibbled tissue was whitish in appearance and devoid of vital reactions.

(4) Irregular nibbling of right ear pinna, tissue was pale whitish in appearance. No evidence of vital reaction.

(5) Irregular nibbling of left ear lobules, tissue was pale white in appearance.

(6) Alae of both nostrils were nibbled out at places leaving whitish tissue beneath.

(7) Both the lips showed nibbling in irregular manner. No evidence of vital reason at nibbled margins.

(8) An obliquely placed faint yellowish (imprint abrasion) ligature mark over neck above the level of thyroid cartilage, encircling the neck, with evidence of crossing of posterior portion of neck, it was 12½" in length and ½" in width, margin of the ligature mark did not show echymosis, underlying tissue was pale in appearance, lymphnodes above the ligature mark were normal.

(9) An obliquely placed imprint abrasion i.e. ligature mark seen at left leg calf area, it was

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yellowish in appearance and 5½" x ½" in dimension, no vital activity noticed at the margins of the mark.

(10) An oval whitish yellowish parchment like abrasion at dorsum of little finger of left hand, it was ½" x ¼".

(11) Two oval whitish yellowish parchment like abrasion at right knee, located side by side, measuring 1" x ½" and ¾" x ½" respectively. No vital reactions noticed.

(12) Multiple whitish yellowish dried abrasions at left knee without any evidence of vital reaction.

(13) An oval whitish yellowish parchment like abrasion over left scrotum, 1"x½" size, no vital reactions noticed. Out of these, injury No.1 and 2 were ante-mortem and the remaining injuries were post-mortem in nature.

INTERNAL INJURIES :-

(1) Injuries under the scalp : Obliquely placed reddish subgaleal contusion seen at left parietal region at vertex and left tempero- parietal region respectively beneath injuries No.1 & 2 of column No.17, these were 3"x2" and 2½"x1½" in dimension.

(2) Brain : Meninges showed reddish contusion at left parietal region at vertex and left tempero parietal region in localised manner. Brain showed reddish subarachnoid and subdural haemorrhage covering left parietal lobe, it was 60 ml in quantity. Bridging cortical blood

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vessels were ruptured and oval pinkish red contusion seen at left parietal lobe at its medial most area i.e. at vertex, it measured 2"x1" in dimension. The brain tissue at and around it was fragile, hemorrhagic acres seen in brain substance of left cerebral hemisphere scattered hemorrhages were also noticed in cerebellum pons and medulla on left side predominantly.

. In the cross-examination the evidence of Dr.

Jinturkar that he noticed above said injuries on the

person of the deceased has gone unchallenged. He stated

that the external injuries were corresponding to the

internal injuries and said injury Nos.1 and 2 are

sufficient to cause death of a person in the ordinary

course of nature. There is no suggestion to the Doctor

that the injury Nos.1 and 2, which were sufficient to

cause death, were accidental. At the time of post-mortem

examination, Dr. Jinturkar had taken viscera. The

Chemical Analyser's report Exh.59 of analysis of viscera

shows that no poison was detected. It is nobody's case

that death of the deceased was natural. In the above

circumstances and having regard to the nature of injury

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Nos.1 and 2, which were sufficient to cause death as

deposed by the Doctor, we hold that the prosecution has

proved that the death of the deceased was homicidal. The

Trial Court has rightly held so.

13. Now it is to be seen whether the accused are

responsible for death of the deceased and that having

knowledge that they have committed offence of murder,

caused certain evidence of the said offence to disappear,

by throwing dead body and motor cycle of the deceased in

well and that they have committed offence of extortion.

14. There is no direct evidence to connect the

accused with the crime and the case is based on

circumstantial evidence. Therefore, before considering

the circumstantial evidence it is necessary to refer the

settled legal position as regards appreciation of

circumstantial evidence laid down by the Apex Court in

the case of Sharad Badrichand Sarda Vs State of

Maharashtra - AIR 1984 Supreme Court 1622, wherein it has

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been held that following conditions must be fulfilled

before a case against accused based on circumstantial

evidence can be said to be fully established:-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except that one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

15. The circumstances relied upon by the prosecution

to connect the accused with the crime are as under:-

(1) On 25.12.1993 and 26.12.1993 the complainant (PW-1) had phone calls allegedly by accused No.1 demanding money.

(2) Chits articles 13 and 14 demanding money

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were allegedly sent by accused and Exh.53- opinion of the hand writing expert.

(3) Accused Nos.1 and 2 made memorandum statements respectively Exh.29 & 31 that they would show well and recovery of dead body and motor cycle at their instance.

(4) Seizure of dagger from the house of accused No.1 as per panchanama Exh.37 and seizure of shirt of the deceased from the house of the accused No.1 as per panchanama Exh.22.

(5) Finding of blood stains on the shirt of deceased as per C.A. Report Exh.60.

16. Now, let us consider whether the prosecution has

proved the aforesaid circumstances. To prove circumstance

No.1, it has relied upon evidence of P.W's. 1,2 & 12. The

evidence of P.W.1-Babu Kulkarni, father of the deceased

is that on 25.12.1993 he had a telephone call at 09.45

p.m. and he was informed that the deceased has gone to

Khultabad. He would come on the next day morning and the

person who telephoned him told him that his name is

Nitesh Joshi. His evidence further shows that on the next

day i.e. 26.12.1993 at 11.50 a.m. again he had a

telephone call and he was told that in the Court yard of

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his house, bag of his son is kept, there is a chit in the

bag and he should act as per the said chit, else there is

danger to the life of his son/deceased. P.W.1 found bag

in the compound of his house. He further stated that

thereafter on the same day he had telephone call at about

12.50 p.m. and as per said call he was asked whether

arrangement has been made as per the said chit and he had

told that he would arrange the amount. Moreover, P.W.1

has stated that at 02.30 p.m. again he had a telephone

call and as per the said call he was told that one chit

has been kept in the Hasnabadkar's Tea House and he

should take the said chit and act as per the said chit.

He stated that he went to the hotel owner and he was

given the said chit (Exh.14). Further he stated that he

was acquainted with accused No.1 as said accused was

residing on rent in his house. He claims that as per

telephonic talk it was voice of accused No.1. In the

course of his cross-examination he has stated that the

voice in the telephonic talk at 12.35 p.m. and 05.00 p.m.

might be of accused No.1 and that he had suspicion about

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the voice of accused No.1. He stated that before lodging

the F.I.R. Mr. Dahat had told him to put the currency

notes given by him in the waste box, but he could not

assign reason of the absence of the same in F.I.R.-

Exh.14.

17. Neither in the F.I.R. Exh.14 nor in his

deposition P.W.1 has specifically stated that there was

demand of Rs.25,000/- by accused No.1 by making him

telephone call as per chit Article-13. As noted above,

P.W.1 has only stated that when there was telephone call

to him at 2.30 p.m. on 26.12.1993, it was voice of

accused No.1 and further he has stated that the person

who had telephoned him at 12.35 p.m. and 05.00 p.m. on

26.12.1993 might be accused No.1. He stated that he had

suspicion about voice of accused No.1. Thus, it cannot

be inferred that the person who had telephoned P.W.1 on

25.12.1993 and 26.12.1993 was the accused No.1.

Therefore, the evidence of P.W.1 is not sufficient to

infer that accused No.1 phoned P.W.1 and demanded

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Rs.25,000/- from him.

18. P.W.2-Nitin Mulik, who is son in law of P.W.1,

has stated in his evidence that on 26.12.1993 at 12.00

noon to 12.30 p.m. his wife Manjusha (P.W.12) informed

him on phone that somebody has taken away deceased Milind

and the chit was found in the compound of the house and

about the telephone call of threatening. He stated that

he immediately came to the house of P.W.1 and at about

01.30 p.m. there was telephone call and he had attended

the same. According to him by the said telephone call he

was told that deceased Milind is in his (the person who

called) custody and whether the amount of Rs.25,000/- has

been arranged or not. He informed to the person who

called that there is Sunday and so much amount is not in

the house and that he is arranging for the amount and

that he may be allowed to talk to Milind. He asked the

said person as to where the amount has to be kept and

said person told him not to play more tricks. According

to him he met Dy.S.P. Dahat and given him information and

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showed him the chit Article-13. He stated that the voice

on telephone was of his acquaintance and it was of

accused No.1. In the cross-examination he stated that he

was confirmed that voice on telephone was of accused

No.1. Further, he stated that before Police that he has

suspicion that the said voice was of accused No.1. He

stated before police that he was confirmed that the voice

on telephone was of accused No.1 and he had stated so

before police, but he does not know whether the police

recorded so or not.

19. P.W.12-Manjusha Kulkarni wife of P.W.2 and

sister of the deceased has stated about telephone call to

P.W.1 on 25.12.1993 as deposed by P.W.1. Moreover, she

has stated that on the next day, there was telephone call

in the morning. She attended the same and she was told

that one bag is kept in the compound of house and there

is one chit in it and to act as per the said chit. She

told the same to her father (P.W.1). According to her

the voice of the said telephone call was of accused No.1.

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She further stated about finding of chit in the compound

of house and two telephone calls at 12.30 p.m. 01.30

p.m., which were attended by her father and her husband

and about telephone call at 5.30 p.m., which was attended

by her father. In the cross-examination she stated that

she had no suspicion that voice on the telephone was of

accused No.1. She stated that she has not stated before

police that she had suspicion that said voice was of

accused No.1 and that she had told the said suspicion to

her father. She has denied the portion marked "A" in her

statement before police in this respect, so also she

stated that she had not stated before police as per

portion marked "B" in her statement before police that

she told said suspicion to her father and they all had

agreed to said suspicion. Both the portions marked "A" &

"B" were proved by the Investigating Officer P.I. Mayal-

P.W.17 and marked at Exh.68-A. From the said portion

marked Exh.68-A, it can be said that P.W.12 had only

suspicion about the voice of accused No.1 on telephone

and her father had also agreed with her said suspicion.

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Therefore, it cannot be said that the voice on telephone

call which she had attended on 26.12.1993 at the house of

her father was of accused No.1.

20. Both P.W.2 and P.W.12 have not stated that the

person who made telephone calls at the house of P.W.1,

demanded Rs.25,000/-. Moreover, the Investigating Officer

did not collect call details from telephone office to

show that really telephone calls were made by accused

No.1 at the house of P.W.1 demanding money or amount of

Rs.25,000/- as alleged in the F.I.R. (Exh.14) or as

mentioned in the chit Article-13, which was left in the

compound of house of P.W.1. Therefore, the evidence of

P.W's.1,2 and 12 referred to above is not sufficient to

infer that the complainant P.W.1 had phone calls by

accused No.1 for demanding money. As such, the

prosecution has failed to prove circumstance No.1 in

respect of phone calls to P.W.1 by accused No.1 as

alleged.

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21. As regards the circumstance No.2 - allegedly

accused wrote chits articles-13 and 14, the chit

article-13 was found in the bag of the deceased in the

compound of the house of the complainant while the chit

article-14 was given by the accused to P.W.3 - owner of

Tea House, who handed over the same to the complainant.

P.W.1-complainant has stated about finding of chit

article-13 in the compound of his house. P.W.3 has not

supported the prosecution case that he handed over chit

article-14 to P.W.1. As per chit article-13, an amount

of Rs.25,000/- was demanded from P.W.1 and that allegedly

the deceased was in the custody of accused. As per chit

article No.14, the accused gave message to P.W.1 to keep

parcel in the dust-bean in front of the house of Dy.

Director, Animal Husbandry Office, else there would be

pieces of his son - the deceased. The prosecution has

not properly proved the seizure of both the chits.

22. According to the prosecution, the Investigating

Officer - P.I. Mayal (P.W.17) had taken specimen of hand

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writing of accused No.2 in respect of chit article-13 as

per article-16 and specimen of hand-writing of accused

No.1 in respect of chit article-14, as per article-17 in

presence of panchas - Prashant Mahajan (P.W.14) and

Jayant Karpe (P.W.11) and panchanamas Exh.43 and 44 were

prepared. Both the panchas have not supported the

prosecution case, as they have denied that specimen of

hand writings as above of the accused were taken by

P.W.17. P.I. Mayal (P.W.17) has stated that he had taken

specimen of hand writing of accused No.1 in presence of

panchas as per panchanama Exh.43, as per articles-17 and

that he had taken specimen of hand writing of accused

No.2 in presence of panchas as per panchanama Exh.44, as

per article No.16. In the cross-examination, he stated

that he does not remember whether specimen of hand-

writings of both the accused were taken. In-fact, he

should have stated that he had taken specimen of hand-

writings of both the accused in respect of both the chits

article Nos.13 and 14. Therefore, when he has not stated

about taking specimen hand-writings of both the accused

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in respect of both the above said chits and when the

panchas P.W.11 and P.W.14 have not supported the

prosecution case, the panchanamas Exh.43 and 44 in

respect of taking specimen of hand-writing of accused

Nos. 1 and 2 in respect of disputed chits articles-13 and

14 are not sufficient to state that really P.I. Mayal had

taken the specimen of hand writings of both the accused.

In such circumstances, it cannot be said that P.I Mayal

had taken specimen of hand writing of accused No.2 as per

article-16 and specimen of hand writing of accused No.1

as per article-17. Therefore, comparison of said hand-

writings of accused Nos.1 and 2 with disputed hand-

writings in chits articles-13 and 14 and Exh.53-opinion

of hand-writing expert cannot be considered.

23. Assuming for the sake of arguments that P.I.

Mayal (P.W.17) had taken specimen of hand writing of

accused No.2 as per article-16 and specimen of hand

writing of accused No.1 as per article-17 and said

specimen with disputed chits articles-13 and 14 were sent

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to the hand-writing expert for examination, let us

consider whether opinion Exh.53 given by the hand-writing

expert is of any help to the prosecution to connect the

accused. P.W.16-Assistant State Examiner of Documents

has deposed that on 15.02.1994 he received article

Nos.13,14 and 15, six documents in article No.16, six

documents in article 17 and six documents in article 18.

He examined all the said documents and issued opinion

Exh.53. Said opinion Exh.53 shows that the person who

wrote red encircled writing marked S1 to S6 also wrote

red encircled writings marked Q-1. Said opinion further

shows that red encircled writings marked Q-1, Q-3 and S7

to S18 i.e. specimen hand writing of accused No.1 and

hand writings S7 to S18 have been written by one and the

same person. Thus, on the basis of above opinion of hand

writing expert, it can be said that chit article 13 is in

the hand-writing of accused No.2 and chit article 14 is

in the hand-writing of accused No.1, but when as observed

above, panchas have not supported the prosecution case

regarding taking specimen of hand writing of accused

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Nos.1 and 2 and when the evidence of hand writing expert

is extremely weak type of evidence as held by the Apex

Court in the case of S.P.S. Rathore Vs. Central Bureau of

Investigation and Anr., 2016(9) J.T.316, wherein the Apex

Court in para 30 observed thus :-

"30. It is thus clear that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The Courts, should, therefore, be wary to give much weight to the evidence of hand-writing expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence."

. Thus, Exh.53 - opinion of hand-writing expert,

unless corroborated by clear or direct or by

circumstantial evidence, cannot be relied upon to connect

the accused with the offences alleged against them.

Thus, the circumstance No.2 relied upon by the

prosecution is of no help to the case of the prosecution.

For the above reasons, we hold that circumstance Nos.1

and 2 are not sufficient to connect accused with the

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offence of extortion.

24. As regards the third circumstance that accused

No.1 made memorandum statement Exh.29 and accused No.2

made memorandum statement Exh.31 that they would show the

well in which dead body and motor-cycle of the deceased

were thrown and then panchanamas Exh.30 and 32 and spot

panchanama Exh.33 were prepared is concerned, both the

panchas Shaikh Patel (P.W.7) and Shaikh Hussain (P.W.13)

have not supported the prosecution case. P.I. Mayal

(P.W.17), the Investigating Officer has of course stated

regarding memorandum statements as above of both the

accused and preparing panchanamas referred to above in

presence of the above panchas. But when the panchas of

said panchanamas have not supported the prosecution case

and when memorandum statement Exh.29 and 31 do not bear

signatures of accused Nos.1 and 2 respectively, said

memorandum statements are not reliable. This conclusion

is based on the decision of the Apex Court in the case of

Jaskaran Singh Vs. State of Punjab, 1997 S.C.C. (Cri)

( 30 ) crap252.98

651, wherein while considering the recovery of revolver

pursuant to disclosure statement of accused under section

27 of the Evidence Act, the Apex Court has held that when

the panch witnesses were not examined at the trial, in

absence of signature or thumb impression of the appellant

/accused on the disclosure statement, no reliance could

be placed upon alleged disclosure statement of the

appellant/accused. Thus, the memorandum statements Exh.29

and Exh.31 of accused Nos. 1 and 2 and recovery

panchanams of the dead body and the motor cycle Exh.30

and Exh.32 at the instance of accused Nos. 1 and 2 and

spot panchanama Exh.33, as per which motor cycle and

other two articles were seized are of no help to the

prosecution to connect the accused with the crime.

25. As regards fourth circumstance regarding seizure

of dagger from the house of accused No.1, as per

panchanama Exh.37 and seizure of shirt of deceased from

the house of accused No.1, as per panchanama Exh.22 is

concerned, the Investigating Officer P.S.I. Mulak

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(P.W.15) seized the dagger from the house of accused No.1

as per Exh.37 in presence of panchas-Radhakisan Shinde

(P.W.8) and Vijay Kumar Patil (P.W.9). Both have not

supported the prosecution case. Therefore, the

uncorroborated evidence of P.S.I. Mulak is not sufficient

to state that really dagger was seized from the house of

accused No.1. As regards, seizure of shirt of the

deceased is concerned, the Investigating Officer P.I.

Mayal (P.W.17) and panch Ravindra Pachlohre (P.W.4) have

stated about memorandum statement Exh.21 of the accused,

which is a joint memorandum statement of the accused. In

cross-examination P.W.4 has stated that separate

memorandum statements of accused No.1 and accused No.2

were prepared. Considering this evidence, evidence of

P.W.4 regarding joint memorandum statement Exh.21 of both

the accused is not believable. The Investigating Officer

P.I. Mayal was required to prepare separate memorandum

statement of both the accused. Therefore, his evidence

regarding seizure of shirt article-5 of the deceased is

not sufficient to state that really the accused made

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memorandum statement Exh.21 and that he seized the shirt

article-5 of the deceased. Assuming for the sake of

argument that the prosecution has proved that at the

instance of accused No.1 dagger was seized and at the

instance of both the accused, shirt article-5 of the

deceased was seized, it is necessary to see whether

seizure of said articles is of any help to the

prosecution to connect the accused. The prosecution has

relied upon report of Chemical Analyser in respect of

analysis of above said shirt of deceased Exh.60 report

of Chemical Analyzer shows that blood of group "A" was

found on full manila of the deceased allegedly seized as

per panchanama Exh.22. Chemical Analyser's report

(Exh.63) shows that blood group of the deceased was "A".

However, when as observed above, the prosecution has not

properly proved the seizure of shirt article-5

circumstance of finding of stains of blood of group "A"

of the deceased on the shirt article-5, is not sufficient

to connect either of the accused with the crime.

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26. Thus, for the reasons discussed above,

circumstances Nos. 1 to 5 relied upon by the prosecution

are not established by the prosecution and they are not

sufficient to draw conclusion of the guilt of the accused

as said circumstances have not passed the tests laid down

by the Apex Court in the case of Sharad Badrichand Sarda

(Supra). Another aspect to be noted is that the

allegations made by the prosecution are mainly against

accused No.1. Moreover, the evidence which the

prosecution has tried to adduce is also against accused

No.1, who is dead and against whom appeal is abated.

There is no evidence to show that accused No.2 shared

common intention with accused No.1 in respect of

allegedly demanding money from P.W.1 or allegedly

committing offence of murder of the deceased, so as to

say that accused No.2 has committed the alleged offences

in furtherance of common intention with accused No.1.

27. The Trial Court has considered the evidence

adduced by the prosecution and on proper appreciation of

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the evidence held that the circumstantial evidence relied

upon by the prosecution is not believable. Further, the

Trial Court has rightly held that mere suspicion against

the accused cannot take place of proof. The Trial Court

on ultimate analysis of the evidence held that the

prosecution has failed to prove the offence under section

384, 302 and 201 read with section 34 of the IPC against

the accused. The said view taken by the Trial Court is a

reasonably possible view. There are no strong and

compelling circumstances to rebut the presumption of

innocence in favour of the accused, which has been

strengthened by their acquittal. Needless to state that

the impugned judgment and order of acquittal cannot be

said to be perverse or against the weight of evidence.

Therefore, there is no ground to interfere with the

impugned judgment and order of acquittal of the

respondents/ accused. Accordingly, the appeal being

devoid of merits, same is liable to be dismissed.

Accordingly, we dismiss the same. The bail bond of

accused No.2 stands canceled.

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28. The fees of Mr. Satej S. Jadhav, Advocate, who

was appointed to represent respondents/accused, is

quantified at Rs.7000/- (Rupees Seven Thousand).

       [S.M.GAVHANE,J.]                       [S.S. SHINDE,J.]


snk/2017/JUN17/crap252.98