Bhaurao S/O Maroti Keskar (In ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 6805 Bom

                                      1                  Appeal71-16.odt        



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




                   CRIMINAL APPEAL NO.71 OF 2016
                                ...


Bhaurao s/o Maroti Keskar, (In Jail),
Aged about 32 years,
R/o Pensavangi, Tq. Chikhali,
District Parbhani.                            ..             APPELLANT


                               .. Versus ..

State of Maharashtra,
Through Police Station Officer,
Parwa, District Yavatmal                      ..          RESPONDENT


Mr. S.D. Chande, Advocate for Appellant.
Mr. N.R. Rode, Additional Public Prosecutor for Respondent.

                               ....


CORAM        : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON  : August 23, 2017
PRONOUNCED ON : September 06, 2017.



JUDGMENT (per Manish Pitale, J. )

By this appeal, the appellant-sole accused has

challenged the judgment and order dated 11.09.2015 passed

by the Sessions Court, Yavatmal, in Sessions Case No. 19 of

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2014, whereby the appellant has been held guilty under

Section 302 of the Indian Penal Code (IPC) for the murder of his

wife and daughter and he has been sentenced to suffer

imprisonment for life. There is also direction to pay fine of

Rs.1,000/- and in default to undergo further simple

imprisonment for one month.

2. There is no eyewitness to the incident in the present

case and admittedly it is the case of the conviction based on

circumstantial evidence. The prosecution case is that on

28.09.2013, the wife and daughter of the appellant were found

dead in the morning by PW3 Parubai, a neighbor and upon her

raising an alarm, the matter was reported to the Police and

father of the deceased- wife of the appellant i.e. PW1 Deorao

Karande submitted an oral report on the basis of which first

information report (FIR) was registered on the same day.

3. The wife and one and half month old daughter of the

appellant were found with their throats slit open with profuse

bleeding. A knife was also found near the dead bodies.

According to PW3 Parubai, the appellant also came to the spot

where the bodies were lying and that his clothes were stained

with blood. According to PW1 Deorao, the appellant had

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caused the death of his wife and minor daughter and on that

basis, an FIR was registered and investigation was undertaken.

4. Upon investigation, it was found that the appellant

was living with his wife and daughter in a camp near the forest

where there were tents in which various persons were living,

including the appellant and his family and that all of them were

taking care of sheep, which were kept in the space surrounded

by tents. The spot panchanama, seizure panchanamas and

the post mortem reports were prepared on the day of the

incident i.e. 28.09.2013 and the appellant was arrested at 8.10

p.m. on the same day. The prosecution examined 12

witnesses in order to prove its case. The defence of the

appellant was of total denial.

5. By the judgment and order under challenge, the

Sessions Court has found that although the present case is

purely of circumstantial evidence, the prosecution has been

able to establish that the appellant alone was responsible for

the death of his wife and minor daughter. The Sessions Court

has placed emphasis on the fact that both the deceased were

in his custody and they were living with him in the same tent

and that the appellant had failed to give any explanation

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regarding the serious injuries suffered by the deceased. Apart

from this, the Sessions Court has held the presence of blood

stains on the clothes of the appellant as an incriminating

circumstance pointing towards his guilt, particularly because

the blood group of such blood stains was found to be group

"A", while the blood group of the accused was found to be

blood group "B". According to the Sessions Court, these

factors proved the guilt of the appellant beyond reasonable

doubt.

6. Mr. S.D. Chande, the learned counsel appearing for

the appellant, submitted that the prosecution had failed to

bring on record chain of circumstances which proved the guilt

of the appellant beyond reasonable doubt and that mere

presence of dead bodies outside the tent of the appellant was

not a sufficient circumstance to hold against the appellant. It

was further contended that the seizure of the clothes of the

appellant was also doubtful and that the prosecution had failed

in its duty to conclusively prove each link of chain of

circumstances to prove the guilt of the appellant.

7. On the other hand, Mr. N.R. Rode, the learned

Additional Public Prosecutor appearing for the respondent-

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State, submitted that the judgment and order of the Sessions

Court was in tune with the law relating to cases of

circumstantial evidence and that no fault could be found with

the conviction and sentence imposed upon the appellant. The

learned APP for the respondent-State emphasized on the failure

of the appellant to cogently explain the circumstances in which

the deceased had suffered the serious injuries, even when both

the deceased had been in the custody of the appellant.

8. Before embarking on the analysis of the evidence on

record and testing the correctness of the judgment and order

of the Sessions Court, it would be appropriate to examine the

approach which is to be adopted while appreciating such

evidence, as laid down in various judgments of the Hon'ble

Supreme Court.

9. In the case of Shard Birdhichand Sarda .vs. State

of Maharashtra- (1984) 4 Supreme Court Cases 116, it

has been held in paragraph 153 as follows:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

                                         6                        Appeal71-16.odt           


              (1)     the       circumstances      from        which          the

conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra ((1973) 2 SCC 793), where the following observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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 the one to be proved, and

(5) there must be a chain of evidence so

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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.

10. The Hon'ble Supreme Court has held in the case

Sujit Biswas .vs. State of Assam - (2013) 12 Supreme

Court Cases 406 that suspicion, however, grave, cannot take

place of proof and that the Court must dispassionately

scrutinize the evidence on record, so as to ensure that its

findings regarding guilt of a person are not based on

conjectures or suspicion. In the said judgment, in paragraph

13, it has been held as follows:-

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take

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the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; State v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., (2012)5 SCC 777. "

11. In the present case, as the failure to explain the

circumstances in which the deceased suffered serious injuries

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has been emphasized by the Sessions Court because the

deceased were in the custody of the appellant, it is also

necessary to consider the law as laid down in that context. In

the case of Ravirala Laxmaiah .vs. State of Andhra

Pradesh - (2013) 9 Supreme Court Cases 283, it has been

held when a person is found dead who has been in the custody

of the accused, it is necessary for the accused to give a cogent

explanation for the circumstances in which the deceased

suffered injuries. It has been further held that if such

explanation is found to be false, then it is an additional link in

the chain of circumstances pointing towards the guilt of the

accused.

12. Taking into account the above principles of law, the

evidence on record in the present case needs to be analysed to

examine as to whether the prosecution has been able to prove

its case beyond reasonable doubt and whether the Sessions

Court was justified in convicting and sentencing the appellant

under Section 302 of the IPC.

13. The incident in question occurred on 28.09.2013.

There is no eyewitness to the incident. The first person to see

the dead bodies of the wife and minor daughter of the

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appellant was PW3 Parubai, a neighbor, who claims to have

seen the dead bodies outside the tent where the appellant and

the deceased were living. This witness states that she saw the

dead bodies and informed Gangaram, Haribhau and Nagorao

about the same and further that Gangaram informed PW2

Nathu and the Police. It is relevant that Gangaram, Haribhau

and Nagorao have not been examined by the prosecution.

PW3 Parubai has further stated that she saw a knife lying near

the dead bodies and that when she shouted upon seeing the

dead bodies, the appellant also came there along with others

and that his clothes were stained with blood.

14. The prosecution examined Deorao as PW1, who was

the father of the deceased-wife of the appellant, who claimed

to have reached the spot of the incident and it was his oral

report, which formed the basis of registration of FIR against

the appellant. An analysis of the evidence of PW1 Deorao

shows that his daughter i.e. deceased Salibai was the second

wife of the appellant and that she had recently given birth to

the deceased daughter of the appellant. The said witness has

stated in his evidence that after the daughter was born, he had

himself taken his daughter Salibai to the appellant and that he

had stayed one night with them and further that everything

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was okay between the appellant and his wife (deceased

Salibai). It is crucial that in the cross-examination, the said

PW1 Deorao admitted that the Police had already prepared

panchanamas and seized articles from the spot when he

reached the spot of the incident. It is further admitted by this

witness that the Police had obtained his thumb impression on

papers, some of them being blank while on the others there

was something written. He also admitted that he was an

illiterate person.

15. The prosecution examined Nathu (PW2) who stated

that he was a relative of the appellant and that he had

engaged the appellant for protecting sheep and that he

received a phone call from Gangaram, due to which he reached

the spot of the incident. This witness stated that the Police

prepared the spot panchanama and the seizure panchanamas

in his presence. In fact, the spot panchanama (Exh.17), seizure

panchanama (Exh.18) whereby the knife, shawl, dupatta and

chappals were seized from the spot of the incident and the

inquest panchanamas of the dead bodies (Exhs. 19 and 20)

were prepared in his presence. The said PW2 Nathu is also the

witness for the said Exhs. 17, 18, 19 and 20. But, in his cross-

examination the said PW2 Nathu has stated that he had signed

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all the aforesaid exhibits in the Police Station. He has also

stated in the cross-examination that when he went to the spot

of the incident, the dead bodies were present inside the tent.

The evidence of the said PW2, therefore, damages the

prosecution case, as it renders the spot panchanama and the

seizure panchanama highly suspicious. His statement that

bodies were lying inside the tent contradicts the evidence of

other witnesses who have stated that the bodies were lying in

front of the tent.

16. The prosecution witnesses PW3 Parubai and PW4

Durga are both neighbours , who have stated that they saw the

dead bodies in front of the tent and further that the appellant

arrived along with others when PW3 Parubai shouted upon

seeing the dead bodies in front of the tent. PW4 Durga has

stated in her evidence that there was no dispute between the

appellant and his deceased wife Salibai.

17. The other prosecution witnesses are PW5 (Dr.

Madhukar Madavi) who stated that the knife in question was

capable of causing the injuries suffered by the deceased and

further that age of the injuries on both the deceased was about

12 hours earlier. PW7 Santosh is a panch witness for seizure of

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clothes of the accused i.e. seizure panchanama Exh.37. But,

the said witness has turned hostile. Although he has been

cross-examined, the prosecution has not been able to extract

anything from this hostile witness. PW8 Naresh is the panch

witness for seizure panchanama Exh.39 whereby the clothes of

the deceased were seized. This witness, although not declared

hostile, in cross-examination on behalf of the appellant-

accused, stated that he only signed the seizure panchanama

Exh.39 on the say of the Police and that he did not know from

where clothes in question were brought and that he did not

know to whom those clothes belong. In this context, the

statement of PW10 Ganesh (Head Constable) also assumes

significance because he claims to be the person who collected

the packets of clothes of the deceased from the Doctor (PW5)

who had conducted the post mortem. But, PW5 i.e. the

Doctor does not state anywhere that he had indeed handed

over the blood stained clothes of the deceased to PW10

Ganesh, thereby rendering the seizure of the clothes of the

deceased also doubtful. The investigating officer is examined

as PW12 by the prosecution.

18. The analysis of the evidence of the prosecution

witnesses and perusal of the spot panchanama, seizure

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panchanamas and the post mortem reports show that vital

links in the chain of incriminating circumstances claimed by the

prosecution, are found missing. The one major circumstance

relied upon by the prosecution i.e. the custody of the deceased

with the appellant is also based on tenuous evidence and there

is no witness who has stated as to when and where was the

appellant last seen together with the deceased wife and

daughter. All that the prosecution witnesses have stated is

that the appellant used to live in the camp along with his wife

and daughter, along with others.

19. In such circumstances, evidence regarding seizure of

blood stained clothes of the appellant and the deceased

assumes great significance. In the present case, the panch

witness regarding seizure of clothes of the appellant has turned

hostile and only the statement of the investigating officer

remains as evidence regarding seizure of such clothes. Even

with regard to the seizure of clothes of the deceased, a perusal

of the evidence of PWs 5,8 and 10 shows that there is no

convincing evidence that the clothes said to be those of the

deceased and sent for chemical analysis, were indeed the

clothes worn by the deceased at the time of the incident. The

seizure of shawl, dupatta and knife from the spot of the

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incident and the entire spot panchanama are rendered doubtful

because the witness who proved the same i.e. PW2 Nathu

admitted in his cross-examination that he had signed the spot

panchanama and the seizure panchanama in the Police Station.

20. Apart from this , another circumstance that assumes

importance is the sending of blood sample of the deceased for

chemical analysis. A perusal of the requisition Exh.45 would

show that the blood sample of the deceased was also sent for

analysis. It is further evident from Exh.51 i.e. communication

dated 21.11.2013 sent to the Deputy Director of the Regional

Laboratory that the blood sample of the deceased was initially

returned as it was not accompanied by form No.2 and that

thereafter it was again sent for analysis with the said form.

But, a perusal of the Chemical Analyser's report Exh.67 shows

that the blood sample of the deceased was not analysed and

there was no report submitted with regard to the same.

21. The reports of the Chemical Analyser at Exhs. 67 and

68 show that blood group "A" was found on the dupatta and

shawl recovered from the spot of the incident and further that

blood group "A" was also found on the seized clothes said to be

belonging to the appellant. The blood group on the knife was

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found to be inconclusive, though it was human blood. It was

further found that blood group of the appellant was group "B".

22. The factual position as it emerges from the above

discussion is that the seizure of the clothes of the appellant-

accused as also that of the deceased, is extremely doubtful.

The shawl, dupatta and knife were recovered from the spot but

not at the instance of the appellant. The spot panchanama and

the seizure panchanamas are rendered seriously doubtful

because either the panch witness has turned hostile or the

panch witnesses have admitted that they signed the seizure

panchanamas in the Police Station. Applying the principle laid

down by the Hon'ble Supreme Court in the case of Mousam

Singha Roy .vs. State of W.B. -(2003) 12 Supreme

Court Cases 377, it is evident that only the evidence of the

investigating officer is not sufficient in the absence of

corroboration by the panch witnesses because the very

purpose of requiring a panch to witness the recovery is to see

that independent witnesses vouchsafe for the fact that a

particular thing was recovered from a place in a particular

manner as alleged by the prosecution. On the said touchstone,

the seizures and recoveries in the present case are rendered

doubtful.

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23. The Chemical Analysis reports, although show that

the blood group of the appellant is blood group "B" and the

blood alleged to have been found on his clothes and that of

the deceased was blood group "A", but the crucial link to point

towards the guilt of the appellant was the blood group of the

deceased. As stated above, in the instant case, although the

blood sample of the deceased was collected, no chemical

analysis report of the same was prepared or brought on record.

Therefore, unless it was on record that the blood group of the

deceased was blood group "A", it was not proper on the part of

the Sessions Court to have jumped to the conclusion that this

was a clinching piece of evidence against the appellant. The

said aspect of the chemical analysis and blood groups, of

course, pales into insignificance, when the very seizure of the

clothes of the appellant as well as the deceased is rendered

doubtful and unbelievable.

24. It is also relevant that certain statements made by

the prosecution witnesses accrue to the benefit of the

appellant. Such statements are PW2 Nathu admitting that he

signed spot panchananma (Exh.17), seizure panchanama

(Exh.18) and inquest panchanamas (Exhs. 19 and 20) in the

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Police Station. PW1 Deorao admitted that his thumb

impressions were taken by the Police on blank paper in the

Police Station. PW4 Durga stated that there was no dispute

between the appellant and his deceased wife Salibai. Such

statements create serious doubt about the prosecution theory

that the appellant had reason to commit the murder of the

deceased as he doubted the character of deceased Salibai.

Such statements also create doubt as regards the authenticity

of the seizure panchanama and the spot panchanama. The

statements of these witnesses on record, therefore, militate

against the prosecution case and the appellant is certainly

entitled to benefit of the same.

25. In view of our findings as aforesaid with regard to the

seizure of the blood stained clothes of the appellant as well as

the deceased and the crucial missing link regarding blood

group of the deceased, the incriminating circumstance of

seizure of blood stained clothes of the appellant as emphasized

by the Sessions Court completely loses its force. Thus, the only

incriminating circumstance remaining is the finding of the

Sessions Court that the deceased were in the custody of the

appellant and that his failure to give a proper explanation

regarding the injuries suffered by the deceased, proved his

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guilt.

26. The evidence with regard to the custody of the

deceased being with the appellant in the instant case is of a

very general nature and there is no evidence on record that

the appellant was last seen together with the deceased. Even

if the tenuous evidence on record regarding custody of the

deceased being with the appellant is accepted, all that such a

circumstance amounts to is only an additional link to other

circumstantial evidence which points towards the guilt of the

appellant. In the present case the prosecution has failed to

prove any such link of circumstances to connect the appellant

to the incident in question. Applying the law laid down by the

Hon'ble Supreme Court in the case of Sharad Birdhichand

Sarda (supra) and Sujit Biswas (supra), it is clear that

suspicion, however grave cannot take place of proof and that

each link of the chain of circumstances claimed by the

prosecution has to be proved beyond reasonable doubt and

that such chain of circumstances has to point towards only one

hypothesis and i.e. of the guilt of the appellant-accused.

27. Another significant aspect of the present case

pertains to the evidence and queries put to the accused under

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Section 313 of the Cr.P.C. A perusal of the questions put to the

appellant under Section 313 of the Cr.P.C. show that the

evidence perceived to be incriminating by the Court were not

put to the appellant. They were put to the appellant in a casual

manner. This is evident from one of the questions i.e. question

no.49 wherein it was put to the appellant as to what he had to

say about one full pant and one shirt seized from him which

were before the Court as Articles 5 and 6. This cannot be an

incriminating circumstance. The incriminating circumstance

was that the clothes of the appellant were stained with blood

and this was not put to him. Further a perusal of the Chemical

Analyser's report (Exh.67) shows that Articles 5 and 6 were

actually shawl and pair of chappals and not pant and shirt. It

has been time and again laid down by the Hon'ble Supreme

Court about the significance of questions put to the accused

under Section 313 of the Cr.P.C. It has been held that the

accused must be questioned separately about each material

circumstance which is intended to be used against him and

that the whole object of the section is to afford the accused a

fair and proper opportunity of explaining circumstances which

appear against him. The questioning is expected to be fair and

it must be couched in a form which an ignorant or illiterate

person will be able to appreciate and understand. The law in

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this regard has been considered and reiterated by the Hon'ble

Supreme Court in the case of Sukhjit Singh .vs. State of

Punjab - (2014) 10 Supreme Court Cases 270.

28. Applying the aforesaid strict adherence to the

requirement as laid down under Section 313 of the Cr.P.C., it

becomes evident that in the instant case, there was insufficient

compliance and the benefit of the same must necessarily

accrue to the appellant. Thus, on this score also the judgment

of the Sessions Court is found wanting.

29. In the instant case, apart from the circumstance of

custody of the deceased allegedly being with the appellant, no

other link in the chain of circumstances has been cogently

proved by the prosecution to prove its case against the

appellant. The missing links in the prosecution case are as

follows:

(i) No evidence of the appellant and deceased

last seen together.

(ii) Vague and general statements of

witnesses that appellant lived with his wife and

daughter in the camp. No specific evidence

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that they were together in the same tent on

the night in question.

(iii) PW1 Deorao admits that this thumb

impressions were taken on blank papers in the

Police Station.

(iv) PW2 Nathu admits that he signed Exh.17

(spot panchanama), Exh.18 (seizure

panchanama) and Exhs. 19 and 20 (inquest

panchanamas) in the Police Station, thus

rendering the same extremely doubtful.

(v) Blood sample of deceased sent for

chemical analysis but report regarding blood

group not received from laboratory.

              (vI)              Admission of prosecution witnesses

              that      there      was     no   dispute   between          the

              appellant and his wife.

30. In fact, the Sessions Court has reached findings

against the appellant only in paragraph 42 of its judgment.

The chain of circumstances and each link thereof has not been

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analysed in the proper perspective when the instant case is

admittedly a case of circumstantial evidence. Even in

paragraph 42, the finding of the Sessions Court that the

appellant must have been monetarily in trouble because the

marriage with the deceased Salibai was a second marriage and

that his first wife was seeking maintenance from him, is a

finding based purely on conjecture. The finding as regards the

chemical analysis report and the blood groups is also reached

without taking into consideration the fact that the very seizure

of the clothes was rendered doubtful and that the blood group

of the deceased was never analysed and brought on record.

The Sessions Court also reached the finding that the appellant

had reason to kill his wife and daughter because he suspected

her character, when there was no evidence on record to that

effect and, in fact, the prosecution witnesses stated that there

was no dispute between the appellant and his deceased-wife.

Thus, only on the basis of the appellant allegedly having the

custody of the deceased, the Sessions court has found the

appellant guilty.

31. A perusal of the judgment of the Sessions Court

shows that the analysis of evidence has not been made in the

proper perspective and that the approach expected in a case

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of circumstantial evidence has not been adopted. We also find

that the investigation at various stages has been slipshod and

basic steps like ascertaining finger prints on the knife

recovered from the spot and obtaining chemical analysis report

of the blood sample of the deceased, have not been

undertaken.

32. We feel that mere suspicion cannot take the place of

proof, particularly in a case of circumstantial evidence like the

instant case. We find that the prosecution has failed to prove

its case beyond reasonable doubt against the appellant and

further that the Sessions Court erred in holding the appellant

guilty of offence under Section 302 of the IPC.

33. Accordingly, we allow this appeal and set aside the

judgment and order of the Sessions Court dated 11.09.2015

and we acquit the appellant of the charges levelled against

him. The appellant be released from custody forthwith, if not

required in any other case. The amount of fine, if any paid, be

refunded to the appellant.

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

halwai/p.s.