Bombay High Court
Milind Sahebrao Lahane And ... vs State Of Maharashtra on 29 June, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.81 OF 1999
1) Milind s/o Sahebrao Lahane,
Age-23 years, Occu: Labour,
R/o- Khairav, Dist-Buldhana,
At present: Ketki Apartment,
Osmanpura, Aurangabad.
(Name of Appellant No.1 deleted as
per Court' Order dated 24th March,
1999.
Appellant No.1 has filed separate
Appeal bearing Criminal Appeal
No.106 of 1999)
2) Sumanbai @ Kalpana w/o Prakash Lahane,
Age-22 years, Occu: Labour,
R/o- As above.
...APPELLANTS
VERSUS
The State of Maharashtra,
Through G.P., High Court of
Judicature of Bombay High Court,
at Aurangabad.
...RESPONDENT
...
Mr.A.K. Bhosale Advocate (appointed) for
Appellant No.2.
Mr.P.G. Borade, A.P.P. for Respondent - State.
...
WITH
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2
CRIMINAL APPEAL NO.106 OF 1999
Milind s/o Sahebrao Lahane,
Age-23 years, Occu: Labour,
R/o- Khairav, Dist-Buldhana,
At present: Ketki Apartment,
Osmanpura, Aurangabad.
...APPELLANT
VERSUS
The State of Maharashtra,
(Through G.P., High Court of
Judicature of Bombay High Court,
at Aurangabad).
...RESPONDENT
...
Mr.A.S. Shejwal Advocate for Appellant.
Mr.P.G. Borade, A.P.P. for Respondent - State.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 06TH JUNE,2017.
DATE OF PRONOUNCING JUDGMENT: 29TH JUNE, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. As both these Criminal Appeals are
arising out of one and the same Judgment and order
passed by the trial Court, both the Appeals are
being decided by this common Judgment.
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2. Both these Appeals are directed against
the Judgment and order dated 4th December, 1999,
passed by the IInd Additional Sessions Judge,
Aurangabad in Sessions Case No.246 of 1997 thereby
convicting accused No.1 - Milind s/o Sahebrao
Lahane and accused No.2 - Sumanbai @ Kalpana w/o
Prakash Lahane for the offence punishable under
Section 302 read with 34 of the Indian Penal Code
(for short "I.P. Code") and sentencing them to
suffer imprisonment for life and to pay fine of
Rs.500-/ each, and in default, to suffer further
imprisonment for six months.
3. The prosecution case, in brief, is as
under:-
A) On 29th January, 1996, P.S.I. Mahendra
Deshmukh was present in police chowki of
Begampura, Aurangabad. At about 11.00 a.m. he
received information through anonymous telephonic
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call that, one dead body was lying near "Hanuman
Tekdi". To verify the said information, he sent
two police constables in the area of "Hanuman
Tekdi". Two constables went near "Hanuman Tekdi".
They found that the dead body of one male person
was lying there. Accordingly, they gave
information to P.S.I. Deshmukh City Chowk police
station, Aurangabad. Constable Gawali filed
written report in police station, on the basis of
which A.D. No.3 of 1996 was registered, under
Section 174 of the Code of Criminal Procedure.
B) Inquiry of A.D. No.3 of 1996 was handed
over to head constable Nikalje. P.S.I. Deshmukh
and head constable Nikalje visited the spot of
incident. They observed that the dead body of male
was lying on the ground. It was decomposed. There
was no identification mark on the dead body. There
was one black thread around the neck of the dead
body. Said thread was having knot on the backside
of the neck. Head constable Nikalje effected spot
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panchnama on the spot in presence of panchas. He
did inquest panchnama in presence of the panchas.
At the time of preparing spot panchnama, they
observed that one pair of slipper was lying on the
spot. On 29th January, 1996 police observed that
there was a white shirt and pant of white colour
on the person of the dead body. There was one
banian of white colour and underwear of blue
colour. Police seized those clothes of the
deceased, black thread (Kardoda) and pair of
slipper under seizure panchnama in presence of
panchas. Head constable Nikalje sent the dead body
for postmortem examination to Government Hospital,
Ghati at Aurangabad.
C) On 30th January, 1996 head constable
Nikalje made inquiry from the medical officer
about the cause of death. The medical officer
directed the head constable to send the dead body
to the department of Anatomy to ascertain the
cause of death of the deceased. Viscera was
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preserved for Chemical Analysis. Medical officer
opined that " due to strangulation, death can be
caused".
D) P.S.I. Deshmukh found that murder of
unknown person was committed. He also found that
to destroy proof, the dead body was thrown near
"Hanuman Tekdi". Hence he filed report in City
Chowk police station on 31st January, 1996 as per
Exhibit 37. On the basis of his report, Crime No.
I-21 of 1996 was registered under Section 302 of
the I.P. Code. Further investigation was handed
over to P.I. Lokhande (PW-20).
E) P.I. Lokhanded (PW-20) obtained document
of inquiry of A.D. No.3 of 1996, which was done by
head constable Nikalje. He found that head
constable Nikalje had seized hair and soil mixed
with blood from the spot. P.I. Lokhande received
seized articles in his custody.
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F) On 31st January, 1996 medical officer did
not give exact cause of death of the deceased, as
the dead body was decomposed. At the same time,
medical officer did not deny the possibility of
strangulation. P.I. Lokhande tried to find out
relatives of the deceased. He tried to identify
the name of the dead person. He took photographs
of the dead body with the help of photographer.
The photographs were sent to various police
stations. Paper publication was also given about
the dead body along with photograph. Pamphlets
were also circulated. But no one turned up to give
the information of the dead body of the deceased
inspite of several efforts.
G) On 2nd February, 1996 P.I. Lokhande sent
the dead body to Anatomy Department along with
letter to ascertain age and cause of death of the
deceased. P.I. Lokhande sent seized articles to
Chemical Analyzer for analysis. He send viscera,
hair of dead body, soil mixed with blood and
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clothes of deceased to Chemical Analyzer,
Aurangabad for analysis. On the request of P.I.
Lokhande, medical officer of Anatomy Department
had removed hair and teeth of the deceased and
handed over to him. Those hair and teeth were sent
to Chemical Analyzer, Aurangabad for analysis.
H) Dead body was lying with Anatomy
Department. In the meantime, P.I. Lokhande was
trying to find out the relatives of the deceased.
On 11th March, 1996, he received report from
Chemical Analyzer. Till 30th June, 1996 he did not
receive report from Anatomy Department. So also
till 30th June, 1996 no one identified dead body,
therefore, P.I. Lokhande sent "A" summary to the
Court of Chief Judicial Magistrate, Aurangabad.
I) On 10th June, 1997, PW-10 Bhagwan Lahane
came to City Chowk police station. He told that
his brother was missing. PW-10 Bhagwan Lahane
further informed that till 10th June, 1997 he was
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taking search of his brother Prakash Lahane. PW-10
Bhagwan Lahane gave information to police that his
brother Prakash was murdered by his nephew,
accused No.1 - Milind and his sister-in-law,
accused No.2 - Sumanbai.
J) On getting this information from Bhagwan
Lahane, P.I. Lokhande had shown photographs of
dead body to him. P.I. Lokhande also showed
clothes and slippers of the deceased by opening
seal in presence of panchas to Bhagwan Lahane.
Bhagwan Lahane identified that those clothes and
slippers were of his brother Prakash. He
identified photographs of the dead body of the
deceased and stated that those photographs were of
his brother.
K) P.I. Lokhande collected the information
of the accused from Bhagwan Lahane. He called both
the accused in the police station. On the very
same day, P.I. Lokhande recorded statement of
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Bhagwan Lahane and his father. With the permission
of A.C.P., P.I. Lokhande reopened a summary. He
arrested both the accused on 10th June, 1997.
L) On 11th June, 1997 P.I. Lokhande sent
P.S.I. Karanje to the house of the accused to take
search. During search, he seized two case papers.
One case paper was of "Nagarparishad Hospital" of
Cidco on which the name as Sumanbai was written.
Case papers were showing treatment given to
Sumanbai. During search, three photographs were
seized from the house of accused. One photograph
was of accused Milind, accused Sumanbai along with
one son. Another photograph was of family and
third photograph was of accused Sumanbai showing
her pregnancy. P.S.I. Karanje seized all these
articles under seizure memo at Exhibit 13. On 11th
June, 1997 P.I. Lokhande received report of
Anatomy Department. As per his request, dead body
was handed over to Bhagwan Lahane and his father.
On 11th June, 1997, P.I. Lokhande recorded the
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statements of some witnesses.
M) P.I. Lokhande carried out further
investigation. Blood samples of both the accused
were collected. On 12th June, 1997 accused No.1
Milind, while in custody, stated that he was
intending to make statement about the spot of
incident and accordingly his statement was
recorded in presence of panchas. After recording
statement of accused No.1 Milind, P.I. Lokhande,
panchas and accused No.1 Milind went to Gureganesh
Nagar by Jeep. Accused No.1 Milind took them near
hill and pointed out the spot of incident. At that
place, panchnama was effected.
N) During the course of investigation, it
was found that deceased Prakash Lahane was missing
from the house and therefore complaint was filed
with police station, Deulgaon Raja, Dist-Buldhana.
P.I. Lokhande collected the said documents from
police station, Deulgaon Raja. Further
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investigation was carried out and statements of
witnesses were recorded.
O) During the course of investigation, it
was revealed that accused No.1 - Milind and
accused No.2 - Sumanbai were having illicit
relations. Both of them committed murder of
Prakash Lahane i.e. husband of accused No.2 -
Sumanbai near "Hanuman Tekdi", Begampura,
Aurangabad. They tried to destroy the evidence of
murder by throwing the dead body of Prakash Lahane
in valley. After the murder of Prakash Lahane,
accused No.1 - Milind and accused No.2 - Sumanbai
cohabited with each other as husband and wife by
stating false surname as Lokhande. After
completing investigation, police filed charge-
sheet against both the accused before the J.M.F.C.
at Aurangabad. The J.M.F.C., Aurangabad has
committed the case to the Court of Sessions,
Aurangabad in due course.
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P) A charge for an offence punishable under
Sections 302 and 201 read with Section 34 of the
I.P. Code was framed against both the accused and
the same was explained to them. The accused
persons pleaded not guilty and claimed to be
tried, with the defence of total denial.
4. After recording the evidence and
conducting full fledged trial, the trial Court
convicted accused No.1 and accused No.2 for the
offence punishable under Section 302 read with
Section 34 of the I.P. Code and sentenced them to
suffer imprisonment for life and to pay a fine, as
afore-stated. Hence these Appeals by both the
accused.
5. Mr. Bhosale, learned counsel appearing
for the accused Sumanbai @ Kalpana w/o Prakash
Lahane, who is Appellant in Criminal Appeal No.81
of 1999 submitted that there was no eye witness to
the incident and the case of the prosecution is
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based on the circumstantial evidence only. There
is no direct evidence against the accused. He
further submitted that chain of circumstances on
which reliance was placed by the prosecution has
not been established beyond reasonable doubt by
the prosecution. He further submitted that the
entire prosecution case was based on the extra
judicial confession of the accused in presence of
the witnesses. He further submitted that there
were several contradictions, omissions,
discrepancies and improvements in the evidence of
the prosecution witnesses in respect of various
circumstances and therefore reliance could not be
placed on the oral testimony of said witnesses. He
further submitted that according to the
prosecution case, on 29th January, 1996 police
found dead body lying near Hanuman Tekdi and on
10th June, 1997 PW-10 Bhagwan identified the said
dead body to be of his brother Prakash. He further
submits that identification of dead body is not
conclusive. He further submits that Prakash was
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husband of Appellant Sumanbai and there was no
motive for her to commit murder of her husband. He
further submitted that the trial Court has not
properly appreciated the evidence brought on
record and came to the wrong conclusion.
6. Mr. Bhosale, learned counsel appearing
for accused Sumanbai, submitted that when there is
no other material available on record to establish
guilt of the accused, conviction cannot be based
on confession of the accused. In support of his
submissions, he placed reliance on the case of
Babubhai Udesinh Parmar vs. State of Gujarat1. Mr.
Bhosale, learned counsel further submitted that
there is no direct evidence to connect accused
with crime and there was no enmity between accused
and deceased and therefore the sole circumstance
that deceased was last seen in the company of
accused is not sufficient to convict accused. In
support of his submissions, he placed reliance on
1 A.I.R. 2007 S.C. 420
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the exposition of law in the case of Inderjit
Singh and another vs. State of Punjab2. In support
of his submissions regarding appreciation of
evidence when the case is based on the
circumstantial evidence, Mr. Bhosale, learned
counsel also placed reliance on the case of
Niranjan Panja vs. State of West Bengal3, Shivaji
Vasant Bagale vs. The State of Maharashtra4, State
through C.B.I. vs. Mahender Singh Dahiya5, State of
U.P. vs. Ram Balak and another6, Hukam Singh vs.
State of Rajasthan7. In support of his submissions,
Mr. Bhosale, learned counsel also placed reliance
on the reported Judgment in the case of Sahadevan
and another vs. State of T.N.8 and Samadhan Dhudaka
Koli vs. State of Maharashtra9.
7. Mr. Shejwal, learned counsel appearing
2 A.I.R. 1991 S.C. 1674
3 2010(4) Mh.L.J.(Cri.) 102
4 2012 ALL MR(Cri) 747
5 2011 ALL MR 9(Cri)1295(S.C.)
6 A.I.R.2008 S.C.(Supp)1128
7 2011 ALL SCR(O.C.C.) 44
8 A.I.R. 2012 S.C. 2435
9 2009 ALL MR(Cri)229(S.C.)
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for accused Milind Sahebrao Lahane who is
Appellant in Criminal Appeal No.106 of 1999 argued
that deceased Prakash was uncle of accused Milind
and there was no motive for accused Milind to kill
his uncle. He submitted that at the relevant time
accused Milind was taking education in the college
at Aurangabad. He further submitted that the
entire prosecution story that there were illicit
relations between accused Milind and accused
Sumanbai is false, and in fact accused Milind was
nephew of accused Sumanbai. Mr. Shejwal, learned
counsel invited our attention to the evidence of
the prosecution witnesses and the findings
recorded by the trial Court and submitted that the
findings recorded by the trial Court are not in
consonance with the evidence brought on record. He
also submitted that entire prosecution case is
based on the circumstantial evidence and the chain
of circumstances has not been established beyond
reasonable doubt by the prosecution and some links
are missing. He further submitted that both the
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accused never made any extra judicial confession
before PW-10 Bhagwan Lahane. He submitted that
PW-10 Bhagwan was influential person, serving in
police department, and he was not intending to
give share in the ancestral land to accused Milind
and accused Sumanbai and therefore in order to
grab all the ancestral property, he committed
murder of Prakash and implicated both the accused
in a false case. Mr. Shejwal, learned counsel,
therefore submitted that the Appeal may be
allowed.
8. The learned A.P.P. appearing for the
State submitted that though the case of the
prosecution is based on the circumstantial
evidence, the chain of circumstances on which
reliance was placed by the prosecution has been
established beyond reasonable doubt by the
prosecution. He further invites our attention to
the evidence of PW-10 Bhagwan and PW-18 Venkat and
submits that both the accused have made extra
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judicial confession before these prosecution
witnesses wherein they have clearly admitted that
there were illicit relations between accused No.1
Milind and accused No.2 Sumanbai and they
committed murder of Prakash. He further submits
that after considering the entire evidence on
record the trial Court has convicted both the
accused and the findings recorded by the trial
Court are in consonance with the evidence brought
on record. He, therefore submits that both the
Appeals may be dismissed.
9. To prove its case, the prosecution has
examined as many as twenty witnesses. PW-1 Feroz
Khan Sikandarkhan is a panch to the spot
panchnama. He deposed that after recording
statement of accused Milind, PW-1 himself, another
panch, P.I. Lokhande, accused Milind and police
staff went to Hanuman Tekdi by police Jeep. He
further deposed that accused Milind pointed out
the spot of incident and accordingly police
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prepared spot panchnama Exhibit-31.
10. PW-2 Ravindra Hire, a Plumber and
contractor, deposed that accused No.1 was serving
with him. Accused told his name as Milind Lokhande
and he was working with PW-2 Ravindra till
September 1996. He further deposed that he engaged
accused Milind as a watchman in Ketki Apartment.
He further deposed that accused No.1 Milind was
residing on the back-side of Ketki Apartment in
tin-shed alongwith accused No.2. He further
deposed that accused No.1 told him that accused
No.2 was his wife. PW-3 Ramrao Yeshwant Maske
deposed that accused Milind was residing in one
room of his house as a tenant, along-with his wife
and son. He further deposed that accused No.1 had
taken one room from him on rent by stating his
name as Milind Lokhande and accused stayed in his
house as a tenant for about 2½ months.
11. PW-4 Rukhiya Begum w/o Abdul Gani deposed
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that her own house is situated at Mukundwadi,
Sanjay Nagar, Aurangabad. She further deposed that
she know both the accused as they were her tenants
for about two months. She further deposed that
when accused Nos.1 and 2 had taken room on rent,
they stated that they were husband and wife having
one son.
12. PW-5 Mahindra Ramrao Deshmukh is a police
officer. He deposed that at the relevant time he
was attached to City Chowk Police Station as
P.S.I. He deposed that on 29th January, 1996 he
received one anonymous call through telephone
informing that one dead body was lying near
Hanuman Tekdi. Accordingly he sent two constables
in the area of Hanuman Tekdi. He further deposed
that police constable Gavali (PW-12) gave him
information that dead body of one man was lying
near Hanuman Tekdi. He further deposed that police
constable Gavali filed written report on the basis
of which Accidental Death bearing No.3 of 1996 was
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registered under Section 174 of the Code of
Criminal Procedure. He further deposed that he
visited the spot of incident with head constable
Nikalje. He further deposed about the manner in
which investigation was carried out. He further
deposed that after investigation he found that a
murder was committed and to destroy the proof,
dead body was thrown near Hanuman Tekdi and
therefore he filed report in City Chowk Police
Station on 31st January 1996 and on the basis of
his report, offence was registered under Section
302 of the I.P. Code as Crime No.21 of 1996 and
further investigation was handed over to Lokhande,
Police Inspector of City Chowk Police Station.
13. PW-6 Rustum Sahebrao Gavane, deposed that
in the year 1997 he was serving as a watchman on
the work of Builder Dhontikar. He further deposed
that one man having surname Lokhande was engaged
as labour by his employer Mr. Dhontikar. PW-7
Kiran Dattatraya Kulkarni deposed that he
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constructed Ketki Apartment at Mahavirnagar. He
further deposed that he engaged accused Milind
Lokhande as watchman on the recommendation of
Ravindra Hire who was working with PW-7 Kiran as a
plumber. He further deposed that accused Milind
used to reside in the Apartment in the room of
watchman, along with his wife. He further deposed
that accused Milind stayed in the said room for
about two months. He further deposed that while
engaging as a watchman, accused told his name as
Milind Lokhande.
14. PW-8 Yamunabai Baban Sarode deposed that
her nephew with accused Nos.1 and 2 came to her
house as they were intending to sell gold
ornaments. She deposed that as per their request
she took them to gold-smith Kishore, who purchased
gold chain from accused Nos.1 and 2. PW-9 Kishore
Uttamrao Udavant deposed that he purchased gold
chain from both the accused.
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15. PW-10 Bhagwan Vyankatrao Lahane deposed
that deceased Prakash was his brother, accused
No.1 Milind is his nephew i.e. son of his another
brother Sahebrao, and accused No.2 Sumanbai is
wife of Prakash. He deposed that since 12th
January, 1998 he was serving as Home Dy.S.P. at
Aurangabad. He further deposed that in the month
of January, 1996 he came to know that accused
Suman and his brother Prakash were missing from
the house and while leaving the house they had
taken with them clothes and other articles. He
further deposed that his parents and he himself
tried to search his brother Prakash and accused
Sumanbai but he cold not find them. He further
deposed about the manner in which he and his
family members taken search of accused No.1 Milind
and accused No.2 Sumanbai and how he got the
information about the whereabouts of both the
accused at Ketki Apartment, Aurangabad.
. PW-10 Bhagwan Lahane further deposed that
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at Ketki Apartment they reached near one tin-shed.
In the said tin-shed he found accused Milind,
accused Sumanbai and one small son. He deposed
that he himself and his father made inquiry from
both the accused about Prakash. He deposed that
initially they gave evasive answers. He found that
Sumanbai was pregnant of nine months. He further
deposed that on enquiry it was revealed from both
the accused that Sumanbai conceived pregnancy from
accused Milind. He further deposed that they
confessed about it before them and both the
accused also confessed that they have committed
murder of Prakash.
. PW-10 Bhagwan Lahane further deposed that
accused Sumanbai confessed before him that on 25th
January, 1996 she herself, accused Milind, Prakash
and their small son had been to see Bibi Ka
Makbara from Mukundwadi. After seeing Bibi Ka
Makbara they went on back side near hill. He
further deposed that accused Sumanbai further
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confessed that at that place "Bhakri and Bhajiye"
were given to Prakash for eating. In said Bhakri
and Bhajiye there was thimet. Due to consumption
of said thing, Prakash was having giddiness. He
further deposed that she further informed that at
the relevant time accused Sumanbai caught hands of
Prakash, accused Milind had pressed neck of
Prakash from backside and dashed him against the
ground. He deposed that accused Sumanbai further
informed that accused Milind sat on chest of
Prakash. Prakash was having one thread around his
waist. Accused Milind had broken said thread,
accused Milind had tied neck of Prakash by means
of said thread. Death of Prakash was caused due to
throttling (strangulation). PW-10 Bhagwan Lahane
further deposed that he came to know all those
facts from accused Sumanbai. They left dead body
of Prakash and came back.
16. PW-18 Venkat Yadavrao Lahane deposed that
he was having three sons, namely, Sahebrao,
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Bhagwan (PW-10) and Prakash (deceased). He deposed
that accused Milind is son of Sahebrao, grand-son
of PW-18. He further deposed that Prakash and his
wife left his house before 2 to 2 and 1/2 years
ago and while leaving the house they had taken
with them household articles, clothes, cash and
one gold chain. He further deposed that his son
Prakash and daughter in law Sumanbai were missing.
He further deposed about the manner in which he
and his family members taken search of accused
No.1 Milind and accused No.2 Sumanbai and how he
got the information about the whereabouts of both
the accused at Ketki Apartment, Aurangabad.
. About the extra judicial confession by
both the accused, PW-18 Vyankat Lahane deposed
that he himself, Bhagwan (PW-10) and wife of
Bhagwan went to the room where both the accused
were residing. He deposed that accused Milind and
accused Sumanbai were present in the said house.
He further deposed that on inquiry, accused Milind
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as well as accused Suman told him tht they
themselves, Prakash and Rahul (son of Prakash and
Sumanbai) went to see "Bibi Ka Makbara". He
deposed that accused told them that they
themselves had given poison to Prakash through
Bhajiye. He deposed that they also informed that
by means of Kardoda (thread around stomach) they
caused throttling of Prakash. Said Kardoda was
around stomach of Prakash. He further deposed that
accused Suman and accused Milind told them that
Sumanbai was having pregnancy. He deposed that
they also told that Sumanbai conceived pregnancy
from accused Milind.
17. PW-11 Tejrao Kaduba Pongle was serving in
Land Records Department. He deposed that as per
the instructions of police, he drawn map of spot
of incident, Exhibit-49. PW-12 Sheshrao Ramrao
Gavali, police constable of City Chowk police
station deposed that on receiving information that
one dead body was lying at Hanuman Tekdi, he
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visited the spot of incident at Hanuman Tekdi and
thereafter filed Report Exhibit-51, on the basis
of which A.D. No.3 of 1996 was registered. PW-13
Meerabai Manohar Nikalje deposed that accused No.1
Milind was residing in her room as tenant, along
with one another tenant namely Vewal.
18. PW-14 Malhar Sambhaji Deshmukh, Special
Executive Magistrate deposed that as per the
instructions of police, he recorded confessional
statement of accused No.2 - Sumanbai, Exhibit-57,
as per her say. He deposed that accused Sumanbai
voluntarily given the confessional statement. He
further deposed that accused Suman made statement
before him that she had not participated in the
murder of her husband and she came to know about
death of her husband when police had arrested her.
He further deposed that she also made a statement
that she did not know anything about murder of her
husband. He further deposed that, accused Sumanbai
made statement before him that she was having
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daughter aged about one month, accused Sumanbai
conceived that daughter from one Milind, she also
stated that marriage between herself and Milind
was not performed but they were residing together,
Milind was her nephew. He further deposed that
accused Sumanbai stated that her husband was not
doing any work and her nephew Milind was
maintaining them.
19. PW-15 Ashok Rambhau Vewal deposed that he
is relative of accused No.1 Milind and he was
residing with accused No.1 Milind in the tenanted
room. PW-16 Sampat Yeduba Adhav, a labour, deposed
that accused No.1 Milind was working with him as
plumber on the construction site of stadium at
Milind College, Aurangabad.
20. PW-17 Dr. Amrut Apparao Mahajan,
Associate Professor, Anatomy Department at
Government Medical College, Aurangabad, deposed
that on 31st January, 1996 police requested him to
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give report by examining dead body of Prakash. He
deposed that he examined skull of dead body. He
found that skull was broken at three places. Right
parital bone was broken, right occipital bone was
broken, right frontal bone was broken. There were
three injuries to three bones of skull. He deposed
that he observed that there was ossification of
bone at juncture. He deposed that he found that
skull of dead body was fractured and that was
probable cause of death.
21. PW-19 Dr. Manohar Asaram Wakade deposed
that on 29th January, 1996 he was attached to
medical college hospital, Aurangabad as Medical
Officer. He deposed that on 29th January, 1996 one
unknown dead body of male person was produced
before him by head constable Nikalje of City Chowk
police station, Aurangabad for postmortem
examination. He deposed that as per request of
police, he himself and Dr. P.B. Kulkarni did
postmortem examination of unknown dead body in
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between 10.20 p.m. to 11.55 p.m. on 29th January,
1996. He deposed that he observed rigor mortis, he
found that rigor mortis were passed off, false
rigidity was present and accordingly he mentioned
it in column No.11 of postmortem report. He
deposed that he found that dead body was totally
decomposed, he observed signs of decomposition and
accordingly mentioned it in column No.12. He
deposed that he observed magoots on all over the
body. He found that skin and soft tissues over
head, face and anterior part of neck were missing,
edges of the skin around the decect were
irregular, bones of the face and skull exposed,
teeth were also exposed. He proved postmortem
report Exhibit-23. He deposed that at the time of
effecting postmortem, he was not sure about cause
of death. He deposed that it may or may not be due
to strangulation because interior parts of neck
were missing.
22. PW-20 Uttam Sopanrao Lokhande was the
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investigating officer. He deposed about the manner
in which the investigation of the crime was
carried out.
23. We have discussed the evidence of
prosecution witnesses in detail. The evidence of
PW-2 Ravindra, PW-3 Ramrao, PW-4 Rukhiya Begum,
PW-6 Rustum, PW-7 Kiran, PW-13 Meerabai, PW-15
Ashok and PW-16 Sampat, is on the point of alleged
illicit relationship between accused No.1 Milind
and accused No.2 Sumanbai. They have deposed in
their evidence to the effect that the accused
Milind used to pose himself as Milind "Lokhande",
though his surname is "Lahane". They deposed that
accused Nos.1 and 2 used to tell these witnesses
that they are husband and wife. Some of the
witnesses stated that both the accused stayed in
their houses as a tenant, and it is also stated by
them that they are having one son. Therefore,
evidence of all these witnesses if read
conjointly, the prosecution is successful in
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bringing on record that accused Nos.1 and 2 posed
themselves as husband and wife and also they have
one son. Admittedly, the prosecution has not
brought on record any evidence in the nature of
any document to suggest their relationship as
husband and wife. There is no any scientific
evidence brought on record that accused No.2
begotten son from accused No.1. It is significant
to note, in the facts of the present case, that
charge framed by the trial Court was for the
offences punishable under Sections 302 and 201
read with Section 34 of the I.P. Code. Therefore,
merely because the prosecution is successful to
bring on record the evidence of the aforementioned
witnesses, it has hardly any bearing on the charge
framed by the trial Court.
24. Upon careful perusal of the findings
recorded by the trial Court, it appears that as a
main piece of evidence to base the conviction of
the Appellants, the trial Court has relied upon
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the extra judicial confessions of both the accused
before PW-10 Bhagwan Lahane and PW-18 Venkat
Lahane. While accepting the prosecution evidence
in the nature of extra judicial confessions given
by the accused before aforesaid two witnesses, it
is concluded by the trial Court that the evidence
in the nature of extra judicial confession needs
no further corroboration. The trial Court has also
observed that though the body of deceased Prakash
was totally decomposed and was beyond recognition
and medical officer was unable to give exact cause
of death of deceased Prakash, nevertheless,
concluded that, as the dead body was abandoned and
it was highly decomposed, contradictory medical
evidence might have come on record. The Trial
Court further observed that medical evidence is
nothing but the opinion and it is not sufficient
to disbelieve the evidence of extra judicial
confession. While convicting the Appellants, their
subsequent conduct is also taken into
consideration by the trial Court. So far alleged
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illicit relationship between accused No.1 Milind
and accused No.2 Sumanbaai, heavy reliance is
placed upon the evidence of PW-14 Malhar Deshmukh,
Special Judicial Magistrate, before whom statement
of accused Sumanbai, under Section 164 of the Code
of Criminal Procedure was recorded.
25. In our considered view, the conviction of
the Appellants by the trial Court is based upon
wrong appreciation of the evidence and also on
misconception of facts and law. It has come in the
evidence of PW-17 Dr. Amrut Mahajan and also
another Doctor Manohar Wakade (PW-19) that it was
not possible to give definite cause of death of
Prakash. It is true that PW-17 Dr. Amrut opined
probable cause of death as fracture of skull.
However, while expressing final opinion it is
stated by PW-19 Dr. Manohar Wakade that he was not
sure about cause of death. He deposed that the
death of Prakash may or may not be due to
strangulation, because interior parts of neck were
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missing.
26. In order to appreciate prosecution case
that there was extra judicial confession given by
both the accused before PW-10 Bhagwan Lahane and
PW-18 Venkat Lahane, we have minutely perused the
said confessional statements. It is alleged that
in the said statements, the accused Sumanbai
confessed that on 25th January, 1996 she herself,
accused Milind, Prakash and their small son had
been to see Bibi Ka Makbara from Mukundwadi. After
seeing Bibi Ka Makbara they went on back side near
hill. Accused Sumanbai further confessed that at
that place "Bhakri and Bhajiye" were given to
Prakash for eating. In said Bhakri and Bhajiye
there was thimet. Due to consumption of said
thing, Prakash was having giddiness. She further
informed that at the relevant time accused
Sumanbai caught hands of Prakash, accused Milind
had pressed neck of Prakash from backside and
dashed him against the ground. He deposed that
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accused Sumanbai further informed that accused
Milind sat on chest of Prakash, Prakash was having
one thread around his waist. Accused Milind had
broken said thread, accused Milind had tied neck
of Prakash by means of said thread. Death of
Prakash was caused due to throttling
(strangulation). More or less, even the accused
No.1 Milind confessed to the above effect before
PW-10 Bhagwan and PW-18 Venkat. It appears that
Sumanbai mentioned in her confession that in
Bhakri and Bhajiye they mixed thimet, and Milind
stated that some poison was mixed in Bhajiye and
Bhakri. However, upon careful perusal of the
medical evidence, nothing of that sort was
detected from the contents of the stomach of
deceased Prakash. In absence of detecting such
thimet or poison from the contents of stomach of
deceased Prakash, such alleged extra judicial
confession cannot alone form the basis for the
conviction of the Appellants. The findings
recorded by the trial Court in Para 64-A of the
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Judgment that, administration of poison might be
in less quantity, therefore, in viscera poison
might have not detected, and it is not necessary
that viscera must show presence of poison, are the
findings without any basis. Admittedly, there is
no corroboration to the alleged extra judicial
confessions given by the Appellants before PW-10
Bhagwan and PW-18 Venkat.
27. Though the prosecution placed heavy
reliance upon the evidence of PW-14 Malhar
Deshmukh, Special Judicial Magistrate, according
to prosecution, before whom accused Sumanbai
admitted her illicit relations with Milind,
nevertheless the said statement was retracted by
her before the Court and in her defence she stated
that she had illicit relations with some Muslim
person and a female child delivered by her after
her arrest, was begotten from said Muslim person.
It is true that the prosecution did examine PW-14
Malhar Deshmukh to prove that accused No.2
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Sumanbai gave statement under Section 164 of the
Code of Criminal Procedure, nevertheless, the said
statement can be used only for the purpose of
corroboration and nothing further. The Supreme
Court in the case of Babubhai Udeshinh Parmar vs.
State of Gujarat, supra, after considering the
facts of the said case, held that when there is no
other material available on record to establish
guilt of the accused, conviction cannot be based
on confession of the accused. The Supreme Court in
the case of Sahadevan and another vs. State of
T.N., supra, in Par 12 of the Judgment, observed
as under:-
"12. There is no doubt that in the present
case, there is no eye-witness. It is a case
based upon circumstantial evidence. In case
of circumstantial evidence, the onus lies
upon the prosecution to prove the complete
chain of events which shall undoubtedly
point towards the guilt of the accused.
Furthermore, in case of circumstantial
evidence, where the prosecution relies upon
an extra-judicial confession, the court has
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to examine the same with a greater degree of
care and caution. It is a settled principle
of criminal jurisprudence that extra-
judicial confession is a weak piece of
evidence. Wherever the Court, upon due
appreciation of the entire prosecution
evidence, intends to base a conviction on an
extra-judicial confession, it must ensure
that the same inspires confidence and is
corroborated by other prosecution evidence.
If, however, the extra-judicial confession
suffers from material discrepancies or
inherent improbabilities and does not appear
to be cogent as per the prosecution version,
it may be difficult for the court to base a
conviction on such a confession. In such
circumstances, the court would be fully
justified in ruling such evidence out of
consideration."
28. According to the prosecution case, the
accused resided in rented room for about six
months, owned by PW-3 Ramrao and PW-4 Rukhiya
Begum. The prosecution has also relied upon the
evidence of PW-15 Ashok Vewal, who stated that in
the month of January, 1996, on one day Prakash
Lahane and his wife had been to their room. On
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enquiry with Prakash and accused Sumanbai, they
told him that Prakash was having eye problem,
therefore they wanted to go to Mumbai to the house
of elder brother of Prakash Lahane i.e. PW-10
Bhagwan. It is further revealed from the evidence
of PW-15 Ashok that, in the evening hours accused
Milind reached at the room. Accused Sumanbai and
her husband Prakash demanded money from accused
Milind. Accused Milind told that he had no money,
however he suggested to take money from one
relative residing at Mukundwadi. Thereafter both
the accused went to Mukundwadi, and about 9.00
p.m. they came back to the said room. Thereafter
Prakash and accused Sumanbai stayed in the said
room. On next day at about 4.00 p.m. PW-15 Ashok
observed that accused Sumanbai and Prakash Lahane
were making preparation to go out. Accused
Sumanbai told PW-15 Ashok that they were going to
Mumbai. Accused Milind told that he would go to
railway station along with Prakash Lahane and
Sumanbai. After some time they all went out. At
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about 6.00 to 6.30 p.m. accused Milind came back
and informed the PW-15 Ashok that he boarded
accused Suman, Prakash Lahane and small child in a
train going to Mumbai. Thereafter accused Milind
went to his native place to bring money from his
grand father. After 15 days, accused Sumanbai came
back along with small child. PW-15 Ashok made
enquiry as to why she came alone, on which accused
Sumanbai told that Prakash Lahane lost in Mumbai
and she came back to give the said information to
her father in law. Then she told to PW-15 Ashok
that she will make arrangement of money and will
go to her native place so as to inform the said
fact to her father in law. The evidence of PW-15
Ashok has been treated by the prosecution to
project the theory that deceased Prakash was last
seen in the company of both the accused when
accused Sumanbai, Prakash and their son left
Aurangabad by train and thereafter Prakash
(deceased) was never seen. It is the case of the
prosecution that evasive answers were given by
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accused Sumanbai and her conduct was also
suspicious, and Prakash was last seen in the
company of the accused and therefore accused
should discharge the onus under Section 106 of the
Evidence Act and explain whereabouts of Prakash or
what happened to Prakash after they left for
Mumbai. In our considered view, when Prakash was
last seen in the company of accused, and then
after 15 days Sumanbai with her son came at
Aurangabad and at that time Prakash was not seen
by PW-15 Ashok, the said time gap is so wide, and
therefore said circumstance of 'last seen' cannot
be relied upon. The Supreme Court in the case of
Shyamal Ghosh vs. State of W.B.10, on the basis of
the evidence in that case, in Para 74 of the
Judgment, observed that reasonableness of the time
gap is of some significance. If the time gap is
very large, then it is not only difficult but may
not even be proper for the Court to infer that the
accused had been last seen alive with the deceased
10 (2012) 7 S.C.C. 646
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and the former, thus, was responsible for
commission of the offence.
. The Supreme Court in the case Rambraksh
alias Jalim vs. State of Chhatisgarh 11 held that,
it is trite law that a conviction cannot be
recorded against the accused merely on the ground
that the accused was last seen with the deceased.
In other words, a conviction cannot be based on
the only circumstance of last seen together.
Normally, last seen theory comes into play where
the time gap, between the point of time when the
accused and the deceased were seen last alive and
when the deceased is found dead, is so small that
possibility of any person other than the accused
being the perpetrator of the crime becomes
impossible. To record a conviction, the last seen
together itself would not be sufficient and the
prosecution has to complete the chain of
circumstances to bring home the guilt of the
11 A.I.R. 2016 S.C. 2381
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accused.
. The Supreme Court in the case of Inderjit
Singh and another vs. State of Punjab, supra, in
Para-2 of the Judgment held that:-
"2. After giving our careful consideration,
we are unable to agree with the Courts
below. These circumstances are not
sufficient to establish guilt of the
accused. It is well settled that in a case
pending on circumstantial evidence, the
prosecution must establish all the
circumstances by independent evidence and
the circumstances so established must form
a complete chain in proof of guilt of the
accused beyond all reasonable doubts. The
circumstances so proved must also be
consistent only with the guilt of the
accused. Among the circumstances relied
upon by the prosecution, in the light of
these principles we find that except the
circumstance No.1, the other circumstances
are not incriminating. In number of cases
it has been held that the only circumstance
namely that the deceased was last seen in
the company of the accused by itself is not
sufficient to establish the guilt of the
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accused. It is no doubt true that
deceased's death was homicidal but since
there is no direct witness connecting any
of the appellants with the crime we should
fall back on the circumstantial evidence
and we are of the view that circumstances
relied upon by the prosecution are hardly
sufficient to establish the guilt of the
accused. The circumstance, i.e. the accused
also had no enmity between the accused and
the deceased and the witness would also
show that the accused also had no enmity
against the deceased. Therefore, this
circumstance is neutral. However, now
coming to the recovery of the gun, the High
Court has acquitted him of that charge. The
only relevant circumstance as pointed above
is that the appellants and the deceased
left the house together in a friendly
manner for bird-shooting. It is needless to
say that no conviction can be passed on
this sole circumstance. In the result, the
convictions and sentences awarded by the
Courts below are set aside. The appeal is
allowed. The appellants be set at liberty."
29. It is to be noted here that the probable
defence taken by accused Milind cannot be lost
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sight of, regarding the property dispute. The
defence taken by accused Milind is that his uncle
Bhagwan (PW-10) was not ready to give share in the
landed property to the father of Milind and
therefore the quarrel took place on many occasions
between Milind and Bhagwan and so also between
Prakash (deceased) and Bhagwan (PW-10). Milind
further stated that PW-10 Bhagwan has drove him
out of the house and therefore since last 5-6
years he was staying at Aurangabad and was working
for his livelihood. It is the defence of accused
Milind that as he should not claim share in the
ancestral landed property, he has been falsely
implicated in this crime by PW-10 Bhagwan with an
intention to grab whole property. The probable
defence taken by accused No.2 Sumanbai is also
identical. She stated in her defence that PW-10
Bhagwan was serving in police department and in
the family his word was final. She stated that
PW-10 Bhagwan was not ready to give any share in
the ancestral landed property, to her husband
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Prakash and therefore in order to grab the whole
property, she has been falsely implicated in the
present case.
30. It is significant to note that,
identification of dead body is doubtful. The dead
body was highly decomposed. As per the prosecution
case dead body was identified by PW-10 Bhagwan and
PW-10 Venkat, when they were shown photographs of
dead body, slippers and clothes on the person of
the dead body. Prosecution relied on the evidence
of PW-10 Bhagwan wherein he deposed that he
himself purchased those clothes and slippers for
his brother Prakash (deceased). However no
documentary evidence, either in the form of
purchase receipt of said clothes and slippers or
any other document, is brought on record by the
prosecution to prove that those clothes were
purchased by PW-10 Bhagwan. Therefore, in the
facts of the present case, the identification of
the dead body is highly doubtful.
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31. In the light of detail discussion in
foregoing paragraphs, in our considered view, in
the first place it is doubtful that really extra-
judicial confessional statement was made by the
accused before PW-10 Bhagwan and PW-18 Venkat, and
secondly even if it is assumed for the sake of
argument that the said extra-judicial confessional
statements were made, then the trial Court should
not have based the conviction on such a weak piece
of evidence as the said statements did not get any
corroboration. The Supreme Court in the case of
Sunil Rai alias Pauya and others vs. Union
Territory, Chandigarh12 has taken a view that such
confessional statement is not a very strong piece
of evidence and in any event it can be used only
for corroboration. In the case of Pancho vs. State
of Haryana13, the Supreme Court held that
confession of co-accused or extra-judicial
confession of co-accused is an extremely weak
12 (2011) 12 S.C.C. 258
13 (2011) 10 S.C.C. 165
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basis to convict the accused.
32. In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that both
the Appellants are entitled for the benefit of
doubt. Hence we pass the following order:
O R D E R
(I) Both the Criminal Appeals i.e.
Criminal Appeal No.81 of 1999 and
Criminal Appeal No.106 of 1999 are
allowed.
(II) The impugned Judgment and order
dated 4th December, 1999, passed by the
IInd Additional Sessions Judge,
Aurangabad in Sessions Case No.246 of
1997, is quashed and set aside.
(III) Both the Appellants/accused i.e.
Milind s/o Sahebrao Lahane and Sumanbai
@ Kalpana w/o Prakash Lahane, are
acquitted from all the offences with
which they were charged. Fine amount if
deposited as per impugned Judgment and
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order be refunded to the Appellants.
(III) Their bail bonds shall stand
cancelled.
(IV) It appears that this Court issued
non-bailable warrant to secure presence
of accused No.2 Sumanbai. However,
since we have allowed the Appeals and
set aside the impugned Judgment and
order, the said interim order need not
be acted upon.
(V) Since, Mr. A.K. Bhosale, the
learned counsel is appointed to
prosecute the cause of the Appellant -
Sumanbai @ Kalpana w/o Prakash Lahane,
his fees and expenses are quantified at
Rs.7000/- (Rupees Seven Thousand).
(VI) Both the Criminal Appeals are
disposed of, accordingly.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUN17
