Jitendra Surajlal Neware (In ... vs The State Of Maha., Thr. P.S.O. ...
2017 Latest Caselaw 7461 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                NAGPUR BENCH, NAGPUR


                           CRIMINAL APPEAL NO.122 OF 2015


Jitendra Surajlal Neware,
Convict No.C-8986, Central
Prison, Nagpur, Distt. Nagpur.                      ..........      APPELLANT


     // VERSUS //


The State of Maharashtra,
Through P.S.O., P.S. Tumsar,
District Bhandara.                                  ..........   RESPONDENT


_________________________________________________________
          Mr.V.P.Mohod, Advocate for the Appellant.
       Ms Tajwar Khan, A.P.P. for the Respondent/State.
_________________________________________________________

                                         CORAM   :  SMT. VASANTI   A   NAIK
                                                           AND M.G.GIRATKAR, JJ.

DATE : 22.9.2017.

ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :

By this criminal appeal, appellant-Jitendra has

challenged the Judgment of the Additional Sessions Judge,

Bhandara, dated 30.12.2004 convicting the appellant for the

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offence punishable under Section 302 of the Penal Code for the

murder of his son Ayush and his daughter Arushi and sentencing

him to suffer imprisonment for life and to pay fine of Rs.5,000/-

and in default of payment of fine, to suffer rigorous

imprisonment for five months. The appellant is also convicted

for the offence punishable under Section 201 of the Penal Code

and sentenced to suffer rigorous imprisonment for three years

and to pay fine of Rs.1,000/- and in default of payment of fine,

to suffer rigorous imprisonment for one month.

2. The prosecution story, in short, is stated thus :-

Appellant-Jitendra was married to Surekha and after

Jitendra's father had driven Jitendra from his house at Mohgaon,

Jitrendra and Surekha had started residing in village Garra along

with their son Ayush, who was aged 3½ years and Arushi, who was

aged 1½ years at the relevant time. According to the prosecution,

appellant Jitendra used to quarrel with Surekha on petty matters as

he was addicted to liquor. On 15.04.2013, at about 9.00 p.m.,

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Jitendra came to his house after consuming liquor and asked

Surekha to have sexual intercourse with him. Surekha told him

that she was tired and since Jitendra thought that Surekha was

avoiding him from few days, he said that he would teach her a

lesson. On 16.04.2013, Surekha sent her son Ayush to the school at

about 8.00 a.m., Surekha and Jitendra took meals at about 9.00

a.m. and Jitendra went to the adjoining grocery shop with Arushi.

At about 5.30 p.m., Surekha returned from her work and did not

find Ayush and Arushi in the house. It is the prosecution case that

she was informed by her cousin sister Sangita that Jitendra had

taken away both the children with him. Surekha and her father

started searching for Jitendra and the children in the village. At

about 8.00 p.m. when the father of Surekha, viz. Harishchandra

met Jitendra and asked him about the children, Jitendra gave

evasive replies and did not inform him about the children.

According to the prosecution, Jitendra then told Harishchandra that

he had killed both the children and that he would become aware

about it on the next day. Harishchandra took Jitendra to the police

chowki and when Surekha asked Jitendra about the children,

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Jitendra told her that he had killed both the children. The relatives

of the children as also the police searched for the children in the

forest and the nearby places but the children were not traced. It is

the case of the prosecution that since Surekha had refused to have

sexual relationship with Jitendra, he had killed both the children.

The First Information Report was registered against Jitendra for the

offence punishable under Section 302 and Section 201 of the Penal

Code. After conducting the investigation, the charge-sheet was

filed against Jitendra and by the committal order, the case was

committed to the Court of Sessions, Bhandara. The prosecution

examined about nine witnesses in support of its case and also relied

on the documentary evidence. The defence of Jitendra was of total

denial. On an appreciation of the evidence tendered by the

prosecution, the trial Court has convicted and sentenced Jitendra

for the offences punishable under Sections 302 and 201 of the

Penal Code. The Judgment of the trial Court is challenged by

Jitendra by this appeal.

3. Shri Mohod, the learned Counsel for appellant-Jitendra,

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submitted that the trial Court did not consider the various

infirmities and loopholes in the prosecution case before convicting

the appellant. It is submitted that though Surekha (PW-1) did not

find her children in the house and nearby locality at 5.30 p.m., no

missing complaint was lodged by her till 2.00 a.m. on 17.04.2013.

It is submitted that though the case of the prosecution is based on

circumstantial evidence, the prosecution has failed to prove the

motive and also the time of death of Ayush and Arushi. It is

submitted that even if it is assumed that as per the version of

Sangita Raut (PW-4), the appellant was last seen together with

Ayush and Arushi at about 11.00 a.m. on 16.04.2013, since the

time of death is not known, the last seen together principle will not

be of any help to the prosecution. It is submitted that it is apparent

from the cross-examination of Surekha (PW-1) and Sunita

Panchbhai (PW-2) that Ayush was sometimes reached to the house

by the lady peon from the school and only sometimes Jitendra used

to bring him back. It is stated that there is no evidence on record

whatsoever to show that appellant-Jitendra was seen by any of the

prosecution witnesses going from Garra village to Baghela Talao

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which was on the other side of the village. It is submitted that the

prosecution has not examined any independent witness to prove its

case. It is stated that the Anganwadi Sevika or the school peon who

used to drop Ayush from the school to his home could have been

examined or atleast any other independent witness could have been

examined to prove that Jitendra was seen along with Ayush and

Arushi on the road which was busy during the whole day as per the

evidence of Sangita Raut (PW-4) and Harishchandra Panchbhai

(PW-5). It is submitted that the discovery is not reliable inasmuch

as the Memorandum Statement Exhibit 27 in regard to the

discovery of the dead bodies of Ayush and Arushi was recorded in

between 5.00 a.m. to 5.25 a.m. on 17.04.2013 and the panchnama

pertaining to the discovery of the dead bodies of Ayush and Arushi

was conducted in between 5.25 a.m. to 6.10 a.m. It is submitted

that a considerable distance is required to be travelled from the

Police Station to Baghela Talao and there is no time gap between

the conclusion of the discovery panchanama under Section 27 of

the Evidence Act and the discovery of the dead bodies from Baghela

Talao. It is stated that the Investigating Officer Anand Bhoite

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(PW-9) had admitted in his cross-examination that he had sent the

summons to the witnesses at about 9.00 a.m. for the discovery

panchanama. It is submitted that the Investigating Officer has then

stated that the summons to the panchas were sent at about 6.00 to

6.10 a.m. and at least half an hour to one hour was required to

serve the summons on the panchas in the village and return back to

the police station. It is stated that the aforesaid admission and the

time of conducting the panchanamas at Exhibits 27 and 28 would

render the Memorandum Statement and the recovery doubtful. It

is submitted that in this case, the chain of circumstances is not

established by the prosecution to bring home the guilt of the

accused and the aforesaid aspects of the matter were not

considered by the trial Court while convicting Jitendra for the

offences punishable under Section 302 and 201 of the Penal Code.

4. Ms Tajwar Khan, the learned Additional Public

Prosecutor appearing for the State has supported the Judgment of

the trial Court. It is submitted that the prosecution has proved that

appellant-Jitendra had a motive to murder Ayush and Arushi with a

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view to teach Surekha a lesson as she was not ready to maintain

sexual relationship with Jitendra. It is submitted that Surekha

(PW-1) has deposed that she had last seen Jitendra along with

Arushi in the morning at about 9.00 and Dhanraj Raut (PW-3), the

Kirana shop owner, who has his Kirana shop adjacent to the house

of Jitendra, had stated that Jitendra had been to his Kirana shop for

purchasing kharra for himself and Sonpapdi for Arushi at about

9.00 a.m. on 16.04.2013. It is submitted that Dhanraj (PW-3) had

seen Jitendra going towards Anganwadi road along with Arushi. It

is submitted that Sunita (PW-2), the real sister of Surekha, had also

seen Jitendra with Arushi in the morning hours. It is submitted

that Sangita Raut (PW-4), who is the cousin of Surekha, had lastly

seen Jitendra with Ayush and Arushi at about 11.00 a.m. on

Anganwadi road on 16.04.2013. It is submitted that it was

necessary for Jitendra to explain as to what he did with the children

or as to how he parted with the children after 11.00 a.m. on

16.04.2013 but Jitendra has not so explained. It is submitted that

though the time of death is not mentioned in the post-mortem

report since the P.M. report shows that the food in the viscera of

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Ayush and Arushi was semi-digested, Jitendra must have murdered

Ayush and Arushi at about 2.00 p.m. on 16.04.2013. It is

submitted that this Court may deduce from the said observation in

the post-mortem report that the time of death of Ayush and Arushi

must be at about 2.00 p.m. on 16.04.2013. The learned Additional

Public Prosecutor relied on the judgment reported in 1997 SCC

(Cri) 1083, Bhagwan Dass .vs. State of Haryana in this regard. It

is submitted that though there is some discrepancy in the time of

recording the memorandum-statement and the recovery of the dead

bodies of Ayush and Arushi, the said discrepancy needs to be

ignored. It is submitted that the last seen together principle and

the extra judicial confession made by Jitendra in the presence of

Harishchandra, the father-in-law of Jitendra, need to be considered

by this Court as some of the weighty circumstances for upholding

the conviction of Jitendra. It is submitted that when the evidence

of prosecution witnesses is convincing and reliable, the same

cannot be discarded or disbelieved merely because the prosecution

has not examined any independent witness. The learned Additional

Public Prosecutor sought for the dismissal of the appeal.

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5. In the instant case, the prosecution case is not based on

direct evidence of the eye witnesses. The case is based on the

circumstantial evidence. It is well settled that in case of

circumstantial evidence, the circumstances from which the

conclusion of the guilt is to be drawn should be fully and cogently

established. The Hon'ble Supreme Court has in the judgment

reported in AIR 1990 SC 2140 (Kishore Chand Versus State of

Himachal Pradesh) held thus :-

"In a case of circumstantial evidence, all the circumstances for which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumtances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be

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conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken the accused is entitled to the benefit of doubt. It would now be necessary to consider whether the prosecution has proved its case beyond reasonable doubt."

6. In support of its case, the prosecution has examined

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Surekha (PW-1), the wife of Jitendra. The wife has deposed that in

the morning, she had sent Ayush to the school and after taking

meals with Jitendra, she had seen Jitendra sitting in a shop with

Arushi while going for her work. She had stated that when at 5.30

p.m. she returned to the house, she did not find her children and

therefore, she and her father Harishchandra started searching for

them. Surekha has deposed that she was informed by Sangita Raut

(PW-4) that she had seen Jitendra near Anganwadi along with

Ayush and Arushi. She has stated that since Ayush and Arushi were

not found despite the efforts to search them, she went to

Baghela Police Chowki. Surekha has deposed that at Baghela

Police Chowki, the accused had told her as also the police that he

had thrown Ayush and Arushi in Baghela Talao. In her cross-

examination, Surekha made certain fatal admissions. Surekha

admitted that Jitendra never used to look after the children when

she went for labour work. She had admitted in her cross-

examination that sometimes Jitendra used to collect Ayush from the

school and bring him home and sometimes the lady peon from the

school used to reach Ayush to his home. Surekha admitted that

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when the lady peon used to reach Ayush from the school to her

home, she used to bring him only up to the road and from the road,

Ayush used to come home on his own. Surekha admitted that

Jitendra had his friends and relatives at Mitewani and Baghela and

he used to go there and return home during the night time.

Surekha further admitted that when her children were not to be

found at home, she felt that Jitendra might have taken them away.

Lastly, it is admitted by Surekha that she did not know as to who

had thrown her children in the Talao and how they have gone there

but because the police had told her that Jitendra had thrown them

in Talao she had deposed in that fashion.

7. Sunita (PW-2), the real sister of Surekha was examined

only to prove that in the morning while she was cleaning her

courtyard, she had seen Arushi going with Jitendra to the shop.

Sunita had deposed that Jitendra had told Surekha that he would

teach her a lesson as she was not ready to have sexual relationship

with him. In her cross-examination, Sunita admitted that Surekha

had not told her that there was any trouble between Surekha and

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Jitendra as Surekha was not ready to sleep with Jitendra. Sunita

admitted in her cross-examination that Jitendra used to go out

during the day for work and he used to take Arushi for playing with

him and used to bring sweets for her. She admitted that Ayush and

Arushi used to go to the neighbours' house for playing and though

the neighbours used to take away the children for playing, the

children used to return all alone to the house. She lastly admitted

that Jitendra used to go for work in the morning and used to return

back in the evening.

8. Dhanraj (PW-3) was examined only to prove that at

about 9.00 a.m., Jitendra took Arushi to his shop and Jitendra

purchased kharra for himself and Sonpapdi for Arushi and

thereafter Jitendra and Arushi had gone towards Anganwadi. In

the cross-examination, Dhanraj admitted that Jitendra used to

purchase kharra from his shop everyday before going to work and

everyday he used to come to his shop at about 9.00 a.m. He further

admitted that the villagers from Garra used to go to Baghela daily

on foot.

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9. According to the prosecution, Sangita Raut (PW-4) is the

witness who had lastly seen Jitendra, Ayush and Arushi together at

about 11.00 a.m. on 16.04.2013. Sangita had deposed that while

she was returning from Mitewani to Garra, she had seen Jitendra

along with Arushi on Anganwadi road. Sangita had admitted in her

cross-examination that she was not aware whether on that day also,

Jitendra had left his children in the house after 11.00 a.m. after she

saw them near Anganwadi. Sangita had admitted that there were

a number of people coming on foot from Mitewani to village Garra

and a large number of people used to travel on the said road.

10. Harishchandra (PW-5) is the father-in-law of Jitendra.

He had deposed that his wife had told him at about 9.30 a.m.,

when he came home on 16.04.2013, that Ayush and Arushi were

with Jitendra. Harishchandra deposed that on 15.04.2013, there

was a quarrel between Surekha and Jitendra as Surekha was not

ready to sleep with him. Harishchandra admitted in his cross-

examination that Jitendra was not talking to him properly.

Harishchandra admitted that Jitendra used to go for labour work

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out of the village and used to return at about 8.00 p.m. He further

admitted that he had not stated to the police while recording his

statement that Jitendra had told him that he had killed Ayush and

Arushi. He further stated that he could not assign any reason as to

why the said fact is not mentioned in his statement, though he had

deposed in his examination-in-chief that Jitendra had told him that

he had killed both the children.

11. Jhakir Yedekar (PW-6) is examined by the prosecution

to prove the panchanamas at Exhibits 27, 28 and 29. Exhibit 27 is

the Memorandum Statement, Exhibit 28 is the panchanama relating

to the recovery of the dead bodies and Exhibit 29 is the Spot

panchanama. Certain admissions in the cross-examination of

Jhakir would cast doubt whether he was a witness to the

panchanamas. Jhakir admitted in his cross-examination that

Jitendra was at Gobarwahi Police Station at 8.00 a.m. on

17.04.2013 and in the meantime, the police took search in the

forest area, Talao, etc. for locating Ayush and Arushi. He admitted

in his cross-examination that he had gone to Gobarwahi Police

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Station at about 9.10 a.m. He admitted in his cross-examination

that the approach way to the village is from the side of Baghela

Talao and Baghela and Garra road is full of traffic.

12. Dr.Vijaykumar Badwaik (PW-7) had conducted the post-

mortem examination. Though the said witness had stated that the

cause of death was aspexia due to drowning, the post-mortem

report proved by him did not mention the time of death.

13. Prakash Lasunte (PW-8) was examined to prove the

Memorandum Statement at Exhibit 27 and also that he was

searching for the children along with Harishchandra, Surekha and

the other villagers. Prakash (PW-8) admitted in his cross-

examination that the panchanama at Exhibit 27 was written in

Gobarwahi Police Station. It was admitted by Prakash that Jitendra

did not give any information about the children in Baghela Police

Chowki and hence, he was taken to Gobarwahi Police Station.

14. Anand Bhoite (PW-9), the Investigating Officer, on the

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other hand, deposed that the Memorandum Statement at Exhibit 27

was recorded at Baghela Police Chowki. He had deposed that he

had arrested Jitendra at about 4.00 a.m. and in the Baghela Police

Chowki Jitendra had told him that he had killed both his children

and thrown them in Baghela Talao. It is surprising that the

evidence of the Investigating Officer is not consistent with the

evidence of the panch witnesses as also Prakash (PW-8), who have

deposed that the Memorandum Statement at Exhibit 27 was

recorded at Gobarwahi Police Station and not Baghela Police

Chowki. The Investigating Officer admitted in his cross-

examination that the summons were given to the witnesses at about

9.00 a.m., but then volunteered that he had given the summons for

the panch witnesses between 6.00 to 6.10 a.m. It would be

necessary to mention at this stage that this admission would be

relevant as the Memorandum Statement is recorded between 5.00

a.m. to 5.25 a.m. on 17.04.2013. Also, it is admitted by the

Investigating Officer in his cross-examination that at least half an

hour to one hour's time is required for the Constable to go from

Garra to Gobarwahi and return after serving the summons that

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were issued at about 6.00 to 6.10 a.m. The Investigating Officer

denied that the Memorandum Statement at Exhibit 27 and the

Seizure panchanama at Exhibit 28 were written at Gobarwahi

Police Station. He further admitted that Harichandra had not

mentioned in his statement that Jitendra had told him that he had

killed the two children. On the basis of the oral evidence of the

nine witnesses, the Memorandum Statement at Exhibit 27, the

Recovery panchanamas at Exhibit 28 and Exhibit 43 and the post-

mortem report, the prosecution has sought to prove its case.

15. It will now be necessary to consider whether the

prosecution can prove its case on the basis of circumstantial

evidence by proving the motive, the last seen principle, the alleged

extra-judicial confession made by Jitendra to Harishchandra, the

Recovery panchanamas and the other evidence on record. It would

be necessary to consider whether the prosecution has proved that

Jitendra had a motive to kill Ayush and Arushi. According to the

prosecution case, Surekha was not ready to permit Jitendera to

have sexual intercourse with her and therefore, he had threatened

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Surekha   that   he   would   teach   her   a   lesson.     According   to   the

prosecution case, Jitendra told Surekha in the night of 15.4.2013

that he would teach her a lesson as she was not ready to permit

him to have sexual relations with her. Though, according to the

prosecution, the aforesaid is the motive for murdering Ayush and

Arushi, there is no whisper about the said threat in the deposition

of Surekha. Though Surekha has deposed that Jitendra used to

quarrel with her as he was addicted to liquor, there is nothing in

her deposition to point out that Jitendra had threatened her on

15.04.2013 or at any other point of time that he would teach her a

lesson as she was not ready to sleep with him. The best witness to

depose about the threat was Surekha herself as Jitendra had

allegedly threatened her in that regard. However, there is nothing

in the evidence of Surekha to prove that Jitendra had indeed

threatened her that he would teach her a lesson as she was not

sleeping with him. Since Surekha had not deposed so, the flaw in

her deposition in that regard was sought to be cured by the

evidence of Sunita Panchbhai (PW-2) and Harishchand Panchbhai

(PW-5). Sunita (PW-2) who is sister of Surekha had deposed that

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on 15.04.2013 Jitendra had asked Surekha to sleep with him, but

since she has refused to do so, Jitendra had told her that she would

be taught a lesson. In the cross-examination, Sunita (PW-2) had

however admitted that Surekha had not told her that there was any

dispute between herself and Jitendra as she had refused to have

sexual relationship with Jitendra. If Surekha had not informed

Sunita (PW-2) about the threat allegedly given by Jitendra to

Surekha in the night of 15.04.2013, it is difficult to gauge as to how

Sunita (PW-2) became aware of the said fact. Harishchand (PW-5)

has also deposed that on 15.04.2013 there was a quarrel between

Surekha and Jitendra as Surekha was not ready to maintain sexual

relationship with him. In our view, the prosecution cannot rely on

the evidence of Sunita (PW-2) and Harishchand (PW-5) to prove

that Jitendra had threatened Surekha that he would teach her a

lesson as she was not ready to sleep with him. The best witnes who

could have deposed about it was Surekha herself. But since her

evidence is silent in this regard, we are not inclined to hold that the

prosecution has proved that the motive for Jitendra to murder

Ayush and Arushi was that he was annoyed with Surekha as she

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was not ready to maintain physical relationship with him. Apart

from the aforesaid reasons, there is an additional reason for

disbelieving the case of prosecution in this regard. If really there

was a fight between Jitendra and Surekha in the night of

15.04.2013 and he had really threatened her that he would teach

her a lesson, the after effects of the fight would have remained on

the next morning also. Surekha has however deposed that in the

morning, on 16.4.2013, she had sent Ayush to school and she and

Jitendra took meals together and then she had left for work.

According to the prosecution witnesses, like his usual chore, after

having meals with Surekha in the morning of 16.4.2013, Jitendra

went to the Kirana shop for buying kharra for himself and Sonpapdi

for Arushi. It is apparent from the evidence of Surekha and Sangita

that all was well between Jitendra and Surekha on the morning of

16.4.2013. Had Jitendra really quarreled with Surekha on her

refusal to sleep with him and had threatened Surekha that he

would teach her a lesson, on the next day there would have some

trouble between Surekha and Jitendra. However, the evidence of

Surekha and Sunita clearly show that everything was normal

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between Surekha and Jitendra on the next day till Surekha and

Jitendra left the house at 9.00 a.m. In the absence of any evidence

in regard to the motive, as alleged, in the evidence of Surekha, it

would be necessary to hold that the prosecution has not succeeded

in proving beyond reasonable doubt that Jitendra had a motive to

kill his own children.

16. It would now be necessary to consider whether the

prosecution would succeed in proving that the last seen together

principle could be applicable to the circumstances of the case to

hold that only Jitendra could have murdered Ayush and Arushi.

Surekha (PW-1) has deposed that while she left the house for her

work at 9.00 a.m. on 15.04.2013, she has seen Jitendra and Arushi

going towards the shop. Sunita (PW-2) has deposed that while she

was cleaning the courtyard in the morning of 16.04.2013, she had

seen Jitendra with Arushi. Though the time is not mentioned in the

deposition of Sunita (PW-2), it is likely that the time would be

before 9.00 a.m. as she was cleaning the courtyard with cow dung

and the said work is normally done in the early morning. Sangita

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Raut (PW-4) is the witness on which the prosecution has relied to

prove that Jitendra was lastly seen with Ayush and Arushi at about

11.00 a.m. while she was returning from Mitewani to Garra.

Sangita Raut has stated in her evidence that she started on foot

from Mitewani and at about 11.00 a.m. she had seen the appellant

with Ayush and Arushi on Anganwadi road. Sangita has however

not stated in which direction Jitendra was going, at the time when

she saw him Be that as it may, Sangita is relied upon by the

prosecution to show that lastly Jitendra was seen with the children

at about 11.00 a.m. and thereafter, the children were not to be

seen. It would be necessary to consider as to what weightage

should be given to the evidence of Sangita Raut (PW-4). Sangita

has admitted in her cross-examination and so also Harishchand

(PW-5) and some other prosecution witnesses that there is a great

rush of people on Anganwadi road or the road from Garra to

Baghela Talao. It needs to be noted that the prosecution has not

examined any villager or passerby who may have seen Jitendra

with the children either at 11.00 a.m. or before or after that time

on 16.4.2013. It is admitted by Surekha in her cross-examination

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that Jitendra used to bring Ayush from the school only on some

occasions and on the other occasions, Ayush was dropped to his

house by the lady peon in the school. It is admitted by Surekha in

her cross-examination that the school peon used to drop Ayush only

till the road and Ayush used to then walk to the house on his own.

There is no evidence on record to show whether any inquiry was

made about Ayush with the school teachers or peons in the school

in which Ayush was studying, specially when Ayush was sometimes

dropped at his house by the school peon. Sunita (PW-2) has

admitted in her cross-examination that Jitendra used to go out for

work and used to return only in the evening. Such is also the

admission of Harishchand (PW-5). Surekha (PW-1) has also

admitted that Jitendra used to go to the house of his relatives at

Mitewani and Baghela and used to return home only during the

night time. Sunita (PW-2) has admitted in her cross-examination

that sometimes the neighbours used to take Ayush and Arushi to

their houses for playing with them. Sunita has admitted that though

the neighbours used to take the children to their houses to play

with them out of love and affection, after playing with Ayush and

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Arushi, the children used to return to their houses all alone and

they were not dropped. In the aforesaid set of facts, it cannot be

said solely on the basis of the evidence of Sangita Raut that the

accused was lastly seen together with Ayush and Arushi, at about

11.00 a.m. Even if we accept the evidence of Sangita Raut to hold

that Jitendra was allegedly seen together with Ayush and Arushi at

11.00 a.m. on 16.04.2013, still the last seen together principle

cannot be applied to the case in hand when the time of death of

Ayush and Arushi is not mentioned in the Post Mortem report. It is

well settled that the principle of last seen together would come into

play only when the time gap between the point of time when the

accused and the deceased were last seen alive and when the

deceased is found dead is so small that the possibility of any person

other than the accused being the author of the crime becomes

impossible. It would be necessary to refer to the Judgment of the

Hon'ble Supreme Court reported in (2005) 3 SCC 114, State of

U.P. vs. Satish in this regard. The Hon'ble Supreme Court has held

in the Judgment reported in (2003) 3 SCC 353, State of

Karnataka .vs. M.V.Mahesh that merely being last seen together is

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not enough. In the absence of any proof about the time of death of

Ayush and Arushi, the last seen together principle would not come

into play in the case in hand even if we assume that the prosecution

has succeeded in proving that Jitendra was lastly seen together

with Ayush and Arushi at 11.00 a.m. on 16.4.2013. We are not

impressed with the submission made on behalf of the State that

since the Post Mortem report shows that the food in the viscera of

Ayush and Arushi was semi-digested, the time of death would be

approximately 2.00 p.m. on 16.04.2013. The reliance placed by the

learned Additional Public Prosecutor in support of this submission

on the Judgment of the Hon'ble Supreme Court reported in 1997

SCC (Cri) 1083, Bhagwan Dass vs. State of Haryana is not well

founded. In fact, the Hon'ble Supreme Court has held in the said

Judgment that, in view of the medical evidence, no definite

conclusion could have been drawn that the deceased in that case

had died at night, at about 2.00 a.m. as canvassed on behalf of the

prosecution. Since the time of death is not proved in the instant

case, the principle of last seen together cannot come into play as we

are not aware about the exact time gap between the point of time

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when Jitendra and Ayush and Arushi were last seen together and

Ayush and Arushi had died. We are inclined to hold so, in the

circumstances of the case because there is a possibility that the

children must have been with any other person or could have been

even on their own in view of the evidence that the neighbours used

to take the children to their houses and the children used to come

to their home on their own, the school peon used to drop Ayush till

the road on some occasions and that Jitendra used to be out of the

house for work and used to return in the evening or in the night. In

the aforesaid set of facts, it would be difficult to apply the last seen

together principle to the facts of this case, specially when the time

of death is not known. The learned Counsel for the appellant has

rightly relied on the Judgment reported in 1982 (2) SCC 351,

Gambhir .vs. State of Maharashtra to canvass that in the absence

of any positive evidence about the probable time of death, it is

difficult to connect the accused with the crime as there might be a

long gap betwen the accused being seen in the company of the

deceased and the death of the deceased.

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17. We cannot rely on the extra-judicial confession allegedly

made by the accused to Harishchandra (PW-5) as the omission in

that regard is proved from the admission of Harishchandra (PW-5)

in his cross-examination that he had not told to the police while

recording his statement that Jitendra had told him that he had

killed Ayush and Arushi. The said omission is also proved from the

admission of the Investigating Officer, Anand Bhoite (PW-9) in his

cross-examination that Harishchandra (PW-5) had not mentioned

in his statement that Jitendra had told him that he had killed his

children. In these set of facts, the prosecution cannot gain any

advantage from the alleged extra-judicial confession as the same is

not proved.

18. It would now be necessary to consider whether the

Memorandum Statement under Section 27 of the Evidence Act at

Exh.27 and the Recovery panchanama pertaining to the recovery of

the dead bodies of Ayush and Arushi at Exh.28 are reliable pieces of

evidence. The time of recording of the Memorandum Statement

Exh.27 is from 5.00 a.m. till 5.25 a.m. on 17.4.2013. There is

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evidence on record to show that there is a considerable distance

between the Police Chowki and Baghela Talao from where the dead

bodies of Ayush and Arushi were recovered. Surprisingly, the

Recovery panchanama at Exh.28 shows the time from 5.25 a.m. till

6.10 a.m. There is no time gap beteen the panchanamas. Also, there

is a material discrepancy in the evidence of the Investigating Officer

and the evidence of the other witnesses and panchas as the

Investigating Officer has deposed that the Memorandum Statement

at Exh.27 was recorded in Baghela Police Chowki where as,

according to the panch witnesses and the other prosecution

witnesses namely Surekha and Harishchanda, the Memorandum

Statement at Exh.27 was recorded in Gobarwahi Police Chowki. It

is surprising that though the memorandum statement was

allegedly recorded between 5.00 a.m. to 5.30 a.m. in the Police

Station on 17.4.2013, the Investigating Officer has deposed in his

cross-examination that he had sent the witness summons for the

panchas for the memorandum statement at about 9.00 a.m. on

17.4.2013. The Investigating Officer then proceeds to add that it

was not 9.00 a.m but it was 6.00 to 6.30 a.m. He has then

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admitted that it requires about half an hour or one hour time to

serve the summons on panchas in the village and return to the

Police Station. P.W. 6 Jhakir has stated that memorandum

statement was prepared in Gobarwahi Police Station. P.W. 6 Jhakir

has admitted in his cross-examination that he had gone to

Gobarwahi Police Station at about 9.10 a.m. Admission of P.W. 6

Jhakir that he had gone to Gobarwahi Police Station at 9.10 a.m.

on 17.4.2013 matches with the evidence of the Investigating Officer

that he had sent the summons for the witnesses at about 6.00

to 6.30 a.m. from the Police Station and the messenger would

require about half an hour to one hour to report back to the Police

Station after serving the summons. If we accept the evidence of the

Investigating Officer and the panch, P.W. 6 Jhakir, it appears that

the memorandum statement which is signed by Jhakir as a witness

could have been prepared only after 9.00 a.m. However, the time

of preparation of the memorandum statement is recorded as

5.00 a.m. to 5.25 a.m. Also, as noted herein above, there is no time

gap between the recording of the memorandum statement and the

recovery panchanama though the distance between the Police

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Station and Bagheda Talao, from where the dead bodies of the

children were recovered is considerable. In the circumstances of

the case, it would be difficult for us to rely on the memorandum

statement and the recovery.

19. The prosecution has not only failed to prove the motive,

the last seen together principle, the discovery and recovery

panchanamas, the extra judicial confession but it could be further

gathered from the cross-examination of Surekha that all was well

between Surekha and Jitendra and she had tendered evidence

against him merely because the police had told her that Jitendra

had thrown both the children in the talao. Surekha has admitted in

the cross-examination that Jitendra did not look after the children

when she used to go for labour work. Surekha has admitted that

because both the children as well as Jitendra were not found in the

house, she thought that Jitendra may have taken them away. She

has admitted that when the police informed her that the dead

bodies of her children were found, she became aware that her

children had died. She has also admitted that she does not know

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who had thrown her children in the talao and as to how they had

gone there. The last admission of Surekha is fatal as she has stated

that because the police had told her that Jitendra had thrown both

the children in the talao, she had tendered the evidence in that

regard. From the evidence of Surekha, specially her cross-

examination, it could be gathered that all was well between

Surekha and Jitendra in the morning of 16.4.2013 and even before

that and merely because the police had informed her that Jitendra

had thrown both the children in Bagheda Talao, she had deposed

accordingly. In the circumstances of the case, it cannot be said that

the prosecution has proved beyond reasonable doubt that Jitendra

had committed the murder of Ayush and Arushi. Since this is a

case of circumstantial evidence, it was necessary for the prosecution

to fully and cogently establish all the circumstances from which the

conclusion of the guilt of Jitendra was required to be drawn. We

do not find that the chain of events furnished by the circumstances

is complete and that it does not leave any reasonable ground for

the conclusion consistent with the innocence of the accused. The

trial Court did not consider that Surekha did not depose about the

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motive of Jitendra to murder his children, that the principle of last

seen together could not have been applied to the facts of the case in

the absence of the proof regarding the time of death and also about

the doubtful recovery. The evidence of the prosecution witnesses

was not appreciated by the trial Court in the right perspective

before holding that Jitendra was liable to be convicted for the

offence punishable under Sections 302 and 201 of the Penal Code.

20. Hence, for the reasons aforesaid, the criminal appeal is

allowed. The judgment of the Additional Sessions Judge, Bhandara

dated 30.12.2014 is set aside. Appellant Jitendra is acquitted of the

offences punishable under Sections 302 and 201 of the Penal Code.

Appellant Jitendra be set at liberty, if he is not required in any

other crime. In the circumstances of the case, no order as to costs.

                      JUDGE                                           JUDGE



APTE/JAISWAL/WASNIK




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