Prakash Bhimashankar Bagle vs The State Of Maharashtra
2021 Latest Caselaw 17965 Bom

                                                               1/25         cri.apeal-514-2015+2686-2021.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION
         Digitally
         signed by                             CRIMINAL APPEAL NO. 514 OF 2015
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
                                                           WITH
TALEKAR  Date:
         2021.12.23                         INTERIM APPLICATION NO. 2686 OF 2021
         18:28:23
         +0530                                               IN
                                               CRIMINAL APPEAL NO. 514 OF 2015

                      Prakash Bhimashankar Bagle
                      Age : 22 years, Occ. - Labour,
                      R/o. Mandrup, Tal. South Solapur,
                      Dist. Solapur.
                      (At present in Solapur Jail,                           ... Appellant
                      Dist. Solapur)                                         (Org. Accused)

                      Versus

                      State of Maharashtra                                   ... Respondent
                                                     ****
                      Mr.Makarand Kale a/w. Mr.Samadhan A. Kashid, Ms. Sangita
                      Jangale and Mr. Prashant M. Patil i/b Mr.Ramakant Patil for
                      appellant.
                      Mr.S.S. Hulke, APP for respondent-State.
                                                     ****

                               CORAM               : S. S. SHINDE &
                                                      N.J. JAMADAR, JJ.

Reserved for Judgment on : 1st DECEMBER 2021. Pronouncement of Judgment on : 23rd DECEMBER 2021.

JUDGMENT : (PER N.J. JAMADAR, J.)

1. This appeal is directed against the judgment and order dated

9th March 2015 in Sessions Case No.329 of 2014 passed by learned

Additional Sessions Judge, Solapur, whereby the

appellant/accused came to be convicted for the offences

Shraddha Talekar PS 2/25 cri.apeal-514-2015+2686-2021.doc

punishable under sections 302 and 452 of the Indian Penal Code,

1860 ('Penal Code') and sentenced to suffer rigorous imprisonment

for life and pay fne of Rs.10,000/- for the offence punishable under

section 302 of the Penal Code and seven years rigorous

imprisonment and fne of Rs.2,000/- for the offence punishable

under section 452 of the Penal Code, with default stipulation.

2. The background facts leading to this appeal can be stated, in

brief, as under :-

(a) Siddharam Kalgounda Birajdar (hereinafter

referred to as 'the frst informant'), is the father of

Shaila ('the deceased'). The frst informant was

residing at Lavangi, Taluka South Solapur alongwith

his wife Mahadevi, the deceased daughter Shaila,

and Premkumar, a 1½ year old son of his elder

daughter Sapana. The frst informant ran a grocery

store from the said house. The deceased used to

look-after the grocery store in addition to household

affairs.

(b) On 12th August 2014, the frst informant had

gone to Zilha Parishad, Solapur to obtain an income

certifcate. His wife Mahadevi had gone to their

Shraddha Talekar PS 3/25 cri.apeal-514-2015+2686-2021.doc

feld. At about 3:00 p.m., Mr. Pintu Imale informed

the frst informant, on cell phone, that the deceased

had sustained injuries on her hand and asked him

to return home immediately. When the frst

informant reached home, he found the deceased

lying in a pool of blood in the grocery store. She had

succumbed to her multiple injuries.

(c) The frst informant alleged that the accused,

who is a resident of the same village, had one sided

love towards the deceased. The accused used to

come to sleep at the house of his grand-mother

Vithabai Bagale, which was near the house of the

frst informant. Since the accused was teasing the

deceased and had threatened to kill her if she did

not return his advances, a month prior to the

occurrence, the frst informant, his brother-in-law

Ashok Birajdar and nephew Kallappa Bhagwantrao

Nimbargi had made an effort to dissuade the

accused from harassing the deceased. Since then,

the accused had a grudge against the deceased.

               (d)       The   frst   informant,     thus,    approached



Shraddha Talekar PS
                                           4/25           cri.apeal-514-2015+2686-2021.doc


               Mandrup Police Station            and lodged report to the

effect that the accused, taking advantage of the fact

that there was nobody in the house apart from the

deceased and his 1½ year's old grand-son, caused

death of the deceased by means of sharp weapons.

Crime was registered at C.R.No.104 of 2014 for the

offences punishable under sections 302 and 452 of

the Penal Code.

(e) Investigation commenced. During the

course of investigation, the investigating offcer

visited the scene of occurrence and drew

panchnama (Exh.6). Inquest on the body of the

deceased was held. The dead-body was sent for

post-mortem examination. The accused came to be

arrested. The accused made disclosure statements

on 12th August 2014 (Exh.11), 18th August 2014

(Exh.13) and 21st August 2014 (Exh.15) leading to

recovery of the axe (Article-A), clothes (Article-B &

C) which the accused wore at the time of

occurrence and knife (Article-D), respectively. The

investigating offcer interrogated the witnesses and

Shraddha Talekar PS 5/25 cri.apeal-514-2015+2686-2021.doc

recorded their statements. As the investigation

revealed the complicity of the accused, charge-sheet

was lodged against the accused for the offences

punishable under sections 302 and 452 of the

Penal Code.

3. Post committal, charge was framed against the accused for

the offences punishable under sections 302 and 452 of the Penal

Code. The accused abjured his guilt and claimed for trial.

4. At the trial, the prosecution examined in all six witnesses

being Tatyasaheb Baburao Shinde (PW-1), the panch witness to the

scene of occurrence panchnama (Exh.6), Gangaram Ramchandra

Gaikwad (PW-2), public witness to the discoveries made by the

accused, Siddharam Kalgounda Birajdar (PW-3)-the frst

informant, Kallappa Bhagwantrao Nimbargi (PW-4), the nephew of

the frst informant, Dr.Dattatraya Baliram Vankalas, (PW-5), the

Autopsy Surgeon and Mr.Prakash Bapurao Raskar (PW-6)-the

investigating offcer, who furnished details of investigation. The

accused did not lead any evidence in his defence, which consisted

of denial and false implication.

5. After appraisal of the evidence, the learned Additional

Sessions Judge was persuaded to return a fnding of guilt against

Shraddha Talekar PS 6/25 cri.apeal-514-2015+2686-2021.doc

the accused. The learned Additional Sessions Judge was of the

view that the prosecution succeeded in establishing that the

accused had a strong motive to eliminate the deceased. The

discoveries made by the accused leading to the recoveries of the

weapons of offence and blood stained clothes of the accused

incriminate him and the chemical analyser's report (Exh.23)

establishes the nexus between the incriminating articles and

weapons and the offence. Thus, accused came to be convicted and

sentenced, as indicated above.

6. Being aggrieved by and dissatisfed with the aforesaid

judgment of conviction and order of sentence, the accused is in

appeal.

7. We have heard Mr. Kale, the learned counsel for the appellant

and Mr. Hulke, the learned APP for the State, at length. With the

assistance of the learned counsels for the parties, we have perused

the material on record including the depositions of the witnesses

and the documents tendered for the perusal of the Court.

8. Mr. Kale, the learned counsel for the appellant strenuously

submitted that the learned Additional Sessions Judge committed a

manifest error in returning the fnding of guilt against the

appellant sans legal evidence. Indisputably, there was no eye-

Shraddha Talekar PS 7/25 cri.apeal-514-2015+2686-2021.doc

witness to the occurrence. The case rested on circumstantial

evidence. The learned Additional Sessions Judge, according to Mr.

Kale, was in gross error in not adhering to the well recognized

principles of appreciation of circumstantial evidence. According to

Mr. Kale, the learned Additional Sessions Judge lost sight of the

fact that in the case of circumstantial evidence, the inferences to be

drawn, from the proved circumstances, should be consistent only

with the hypothesis of guilt of accused and incompatible with the

innocence of the accused. Thus, the conviction recorded by the

learned Additional Sessions Judge is wholly unsustainable as it is

based on surmises and conjectures in contradistinction to legal

evidence.

9. As against this, Mr.Hulke, the learned APP endeavoured to

support the impugned judgment. It was urged that two

circumstances are potent and have defnite tendency to incriminate

the accused. Firstly, the testimony of the frst informant Siddharam

Kalgounda Birajdar (PW-3) and Kallappa Bhagwantrao Nimbargi

(PW-4) that the accused was pestering the deceased and they had

cautioned him against harassing the deceased, a month prior to

the occurrence, has gone untraversed. Secondly, the disclosures

made by the accused leading to the recovery of the weapons of

Shraddha Talekar PS 8/25 cri.apeal-514-2015+2686-2021.doc

offence i.e., axe (Article A) and knife (Article D) and the clothes

(Articles B & C) which he wore at the time of occurrence, which

have been duly proved, squarely incriminate the accused.

Moreover, the medical evidence lends credence to the prosecution

version that the injuries were caused by the weapons which were

recovered pursuant to the discovery made by the accused. Lastly,

the chemical Analyst's report (Exh.23) establishes the necessary

nexus between the weapons of offence and incriminating articles

and the offence. In this view of the matter, according to Mr. Hulke,

the learned Additional Sessions Judge was wholly justifed in

returning the fnding of guilt and, therefore, no interference is

warranted in the impugned judgment and order.

10. We have given our anxious consideration to the rival

submission canvassed across the bar. To start with, the nature of

the death, which the deceased met. Dr.Dattatraya Baliram

Vankalas, (PW-5), the Autopsy Surgeon, informed the Court that

there were as many as 15 external injuries on the person of the

deceased. Injury No. 8 namely, "incised penetrating stab wound

over left umbilical region, transverse in directions margins clean

cut, would of entry size 4 cm x 2 cm x opening deep into

abdominal cavity with bleeding through wound" was grievous. In

Shraddha Talekar PS 9/25 cri.apeal-514-2015+2686-2021.doc

the opinion of the Autopsy Surgeon, the cause of death was "shock

due to massive haemorrhage due to penetrating incised stab

wound over abdomen with injury to abdominal aorta."

11. In the light of the nature of the injuries found on the person

of the deceased, the fact that the deceased met a homicidal death,

can be said to be established beyond the pale of controversy,

especially in the context of the defence that someone who visited

the grocery store of the frst informant, where the deceased was

found lying in the pool of blood, might have caused the death of the

deceased.

12. This propels us to the question of authorship of the death. Is

the accused perpetrator of the offence? It is a common ground that

the case rests solely on circumstantial evidence. Undoubtedly, a

conviction can be based solely on circumstantial evidence provided

it is worthy of implicit reliance on the touchstone of the principles

which govern the appraisal of the circumstantial evidence. The law

relating to circumstantial evidence is well settled by a catena of

decisions.

13. In the case of Sharad Birdhichand Sarda v. State of

the conditions precedent for basing the conviction

on circumstantial evidence were expounded as under : 1 AIR 1984 SC 1622

Shraddha Talekar PS 10/25 cri.apeal-514-2015+2686-2021.doc

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

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

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

(4) they should exclude every possible hypothesis except the one to be proved; and

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

The observations of the Supreme Court in the case of C.Chenga

Reddy and others v. State of A.P. 2 are also instructive. They read as

under :-

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

14. On the aforesaid touchstone, re-adverting to the facts of the 2 (1996) 10 SCC 193

Shraddha Talekar PS 11/25 cri.apeal-514-2015+2686-2021.doc

case, the circumstances relied upon by the prosecution and, which

found in favour with the Additional Sessions Judge, can be culled

out as under :

(1) Motive.

(2) Discoveries made by the accused leading to the recovery of weapons of offence; and the clothes which the accused wore at the time of occurrence.

(3) The blood stains found on the weapons of offence and the clothes, for which no satisfactory explanation was offered by the accused.

(1) Motive :

Motive plays an important role and, at times, constitutes a

driving force to commit a crime. Thus, motive behind the crime is a

relevant factor for which evidence is adduced. In a case where there

is a clear proof of motive which compelled the perpetrator of the

offence to commit the offence, it provides an additional support in

basing the fnding of guilt. When the prosecution case rests on the

circumstantial evidence, motive for commission of an offence

assumes greater signifcance. Nonetheless, even in the case based

on the circumstantial evidence, if prosecution succeeds in

establishing each of the circumstances arrayed against the accused

Shraddha Talekar PS 12/25 cri.apeal-514-2015+2686-2021.doc

and persuades the Court to record a fnding that it was only the

accused who committed the crime, the Court would be justifed in

establishing the guilt of the accused even in the absence of proof of

motive.

15. In the case at hand, the prosecution alleges that the

unrequited love of the accused towards the deceased was the

motive for the offence. In order to appreciate the aforesaid

circumstance, a brief resume of the evidence of the frst informant-

Siddharam Birajdar (PW-3) and Kallappa Bhagwantrao Nimbargi

(PW-4) would be necessary.

16. Siddharam Kalgounda Birajdar (PW-3), the frst informant,

informed the Court that he had known the accused. The latter

used to visit his grand-mother's house which is near to the frst

informant's shop. The accused had one sided love towards the

deceased. The accused used to tease the deceased. The accused

had threatened to kill her if she did not return his love. Siddharam

Kalgounda Birajdar (PW-3) further wants the Court to believe that,

a month prior to the occurrence, he, his brother-in-law Ashok

Birajdar and nephew Kallappa Nimbargi (PW-4) attempted to

convince the deceased not to harass the deceased.

17. Kallappa Bhagwantrao Nimbargi (PW-4) ventured to lend

Shraddha Talekar PS 13/25 cri.apeal-514-2015+2686-2021.doc

support to the claim of Siddharam Kalgounda Birajdar (PW-3). He

informed the Court that he had been to the house of the frst

informant a month prior to the occurrence. The deceased had

narrated to him that the accused used to tease her as he had a one

sided love towards her. Thereupon, he, the frst informant and

Ashok Birajdar had met the accused and convinced him not to

tease the deceased as she was about to marry. Kallappa

Bhagwantrao Nimbargi (PW-4) further affrmed that, since then the

accused had a grudge against the deceased.

18. During the course of cross-examination of the frst informant

Siddharam Kalgounda Birajdar (PW-3) as well as Kallappa

Bhagwantrao Nimbargi (PW-4), it was elicited that report was not

lodged against the accused with the police about the alleged

harassment by the accused. Siddharam Kalgounda Birajdar (PW-3)

conceded that he did not apprise the parents and the grand

mother of the deceased about the alleged harassment by the

accused. Kallappa Bhagwantrao Nimbargi (PW-4) also conceded

that neither he apprised the alleged act of harassment of the

deceased by the accused to his parents nor lodged report with the

police.

19. The aforesaid evidence which bears upon the motive for the

Shraddha Talekar PS 14/25 cri.apeal-514-2015+2686-2021.doc

offence, was assailed on behalf of the appellant by canvassing a

submission that failure to lodge the report with police and take

precipitatory steps by the above witnesses renders their claim

unworthy of credence. This challenge is required to be appreciated

in the light of the fact that the frst informant Siddharam Birajdar

(PW-3) and Kallappa Nimbargi (PW-4), being the father and cousin

of the deceased, might have thought it appropriate not to escalate

the issue as it would have adversely refected upon the deceased.

Therefore, the fact that the frst informant and Kallappa Nimbargi

(PW-4) did not lodge report against the accused, at that point of

time, cannot be extolled to such a pedestal as to throw their

testimony overboard.

20. In the ordinary circumstances, a grievance with the parents

and grand-mother of the accused, would have been a natural

reaction. However, it would not be permissible to circumscribe the

reactions in a straight jacket. The frst informant Siddharam

Birajdar (PW-3) and Kallappa Bhagwantrao Nimbargi (PW-4)

deserve allowance on this count as well. It is imperative to note

that the accused had made an endeavour to drag home the point

that the deceased shared a romantic relationship with him. It was

suggested to Siddharam Birajdar (PW-3) that there was a love affair

Shraddha Talekar PS 15/25 cri.apeal-514-2015+2686-2021.doc

between the accused and the deceased and the said love affair was

the talk of the town. In this view of the matter, we are persuaded to

hold that the evidence of Siddharam Birajdar (PW-3) and Kallappa

Nimbargi (PW-4) is suffcient to sustain an inference that the

accused had unrequited love towards the deceased, in the least. We

are, however, not persuaded draw a further inference that the

accused harboured the design to eliminate the deceased in the

absence of cogent evidence on the said aspect.

(2) Discovery :

21. The basic postulate underlying section 27 of the Evidence Act

is of confrmation by subsequent events. It is based on the premise

that if a fact is actually discovered consequent to the disclosure

made by the accused, then the said discovery furnishes the

guarantee that the information disclosed by the accused was true

and, consequently, such information can safely be allowed to be

given in evidence because the truthfulness of the information is

further fortifed and confrmed by the discovery of articles, the

instruments of crime or the body of the deceased.

22. In the case of State of Maharashtra Vs. Damu, S/o. Gopinath

Shinde and Ors.3, the jurisprudential premise of section 27 was

enunciated as under :

3     (2000) 6 SCC 269

Shraddha Talekar PS
                                         16/25          cri.apeal-514-2015+2686-2021.doc

"The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confrmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

23. It would be contextually relevant to note that the courts have

been alive to the possibility of misuse of the provisions contained

in section 27 of the Evidence Act which, in effect, lifts the embargo

to the admissibility of the statements made before the police in the

preceding sections; section 24 to 26. The necessity of appreciating

the evidence of discovery with care and caution was expounded by

the Supreme Court in the case of Geejaganda Somaiah Vs. State of

Karnataka 4 in the following words :

"22 As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the

4 AIR 2007 SC 1355

Shraddha Talekar PS 17/25 cri.apeal-514-2015+2686-2021.doc

aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police offcer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act."

24. On the aforesaid touchstone, reverting to the facts of the

case, it is imperative to note that, in the case at hand, the evidence

of discovery is not of subsidiary nature, which is often the case.

Discoveries are not relied upon to support the ocular account or

other circumstances. In the absence of any other evidence, in the

facts of the case, discoveries constitute the core of the evidence,

nay the sole evidence.

25. The fate of the discoveries hinges upon the testimony of

Gangaram Ramchandra Gaikwad (PW-2), the public witness to the

three discoveries allegedly made by the accused, after an interval of

few days. Gangaram Ramchandra Gaikwad (PW-2) informed the

Court that on 16th August 2014, the accused made a disclosure

statement at Mandrup Police Station, in his presence and that of

Abdul Kadar Gulab Shaikh, another public witness, that he

desired to produce the concealed axe used in the commission of

offence. The memorandum of disclosure statement (Exh.10) was

recorded. The accused thereafter led the police party near his

house at Lavangi. The accused removed 2 to 4 stones from the

Shraddha Talekar PS 18/25 cri.apeal-514-2015+2686-2021.doc

heap of stones dumped in front of his house and took out the axe

(Article A) which was smeared with blood. The axe (Article A) was

seized under seizure panchnama (Exh.11).

26. Gangaram Gaikwad (PW-2) further informed the Court that

on 18th August 2014, the accused made a disclosure statement that

he would produce the clothes which he wore at the time of

occurrence, which were concealed in the heap of fodder (Kadaba)

dumped in front of his house. Its memorandum (Exh.12) was

drawn. The accused led the police party to the heap of fodder in

front of his house and produced a jean pant and half shirt (Articles

B and C) stained with blood, which were concealed. They were

seized under the panchnama (Exh.13).

27. On 21st August 2014, the accused again made a disclosure

statement and volunteered to produce a knife. Its memorandum

(Exh.14) was recorded. The accused led the police party to the

Kabristan (Graveyard) of village Lavangi and took out a knife

(Article D) from the thorny bushes grown in the graveyard. The

knife (Article D) was stained with blood. It was seized under

panchnama (Exh.15).

28. During the course of cross-examination, Gangaram Gaikwad

(PW-2) conceded in no uncertain terms that he and co-public

Shraddha Talekar PS 19/25 cri.apeal-514-2015+2686-2021.doc

witness Abdul had acted as panchas in other cases of Mandrup

Police Station. He went on to admit in no uncertain terms that he

had not heard any conversation between the accused and police

offcer. Though, Gangaram Gaikwad (PW-2) did not cave in to the

suggestion that he had not witnessed any of the disclosure

statements and recovery of the incriminating articles pursuant

thereto, and had signed the pachnama at the instance of the

police, yet, it would be rather hazardous to place implicit reliance

on the testimony of Gangaram Gaikwad (PW-2).

29. First and foremost, Gangaram Gaikwad (PW-2) did not depose

to the disclosure made by the accused in respect of the frst

disclosure statement. dated 16th August 2014 and the third

disclosure statement, dated 31st August 2014, with regard to the

place where the weapons were allegedly concealed. It is the

knowledge of the accused as to the factum of concealment which is

the linchpin of discovery under section 27 of the Evidence Act. If

the fact that the accused disclosed the place of concealment is not

deposed to, the evidentiary value of discovery is substantially

eroded.

30. Secondly, Gangaram Gaikwad (PW-2) appears to be at the

back and call of police. This inference is deduciable not only for the

Shraddha Talekar PS 20/25 cri.apeal-514-2015+2686-2021.doc

reason that Gangaram Gaikwad (PW-2) conceded in the cross-

examination that he had acted as a public witness in other cases

registered at Mandrup Police Station but also for the reason that

on three different dates and times of discoveries, the same public

witness was employed by the police. In the least, an inference is

inescapable that Gangaram Gaikwad (PW-2) was amenable to the

infuence of police.

31. Thirdly, the testimony of Mr.Prakash Bapurao Raskar (PW-6),

the investigating offcer, who effected the recovery pursuant to the

disclosure statements allegedly made by the accused, also suffers

from infrmities. The statements made by the accused, at each of

alleged discoveries, with reference to the place of concealment,

have not been deposed to by Mr.Prakash Bapurao Raskar (PW-6)

also.

32. In the aforesaid view of the matter, the discoveries are fraught

with infrmities. Had there been any other evidence or

circumstance of sterling quality, apart from the discoveries,

different considerations would have come into play. As indicated

above, the discoveries in the case at hand, constitute the sole

evidence. We are therefore not persuaded to discount the

infrmities with which the discoveries are fraught with.

Shraddha Talekar PS 21/25 cri.apeal-514-2015+2686-2021.doc

33. The third circumstance of the blood stains having been found

on the weapons of offence i.e., axe (Article A) and knife (Article D)

and clothes (Articles B and C) which were recovered pursuant to

the discoveries made by the accused, looses the potency, once the

evidence of discoveries does not allure confdence. The chemical

analyst's report (Exh.23) undoubtedly reveals that blood stains of

human origin were found on the axe (Article A) and knife (Article D)

and the jean pant and half shirt (Articles B and C) which were

allegedly recovered pursuant to the discoveries made by the

accused. However, the blood-group could not be determined as the

results were inconclusive. In our view, this circumstance sails or

falls with the evidence of discovery under section 27 of the

Evidence Act. As the evidence on record does not lend assurance

as regards the discoveries, this circumstance also looses probative

value.

34. In our view, the attendant circumstances cannot be lost sight

of. Firstly, the time and place of occurrence. The incident allegedly

occurred in between 2:00 p.m. to 2:30 p.m. The victim was done to

death in the grocery store. Siddharam Kalgounda Birajdar (PW-3)

conceded in the cross-examination that his house is surrounded

by other houses. To add to this, the prosecution case does not shed

Shraddha Talekar PS 22/25 cri.apeal-514-2015+2686-2021.doc

any light on the presence of Premkumar, the 1½ year old grand-

son of Siddharam Birajdar (PW-3), who was admittedly with the

deceased in the said house. No witness has endeavoured to offer an

explanation as regards his presence or absence at the time and

place of occurrence. Nor there is any evidence to establish that any

person had seen the accused in the vicinity of the house of the

deceased in proximity of the time of occurrence.

35. The situation which thus emerges is that, at best, the

prosecution can be said to have succeeded in establishing that the

accused had an unrequited love towards the deceased. At the

highest, it would lead to a needle of suspicion against the accused.

It is trite law that suspicion, however strong, cannot take the place

of proof. This sole circumstance, on its own, cannot sustain the

burden of establishing the guilt of the accused beyond reasonable

doubt sans requisite corroboration by other circumstances.

36. A proftable reference in this context can be made to a

judgment of the Supreme Court in the case of Navaneethakrishnan

Vs. State by Inspector of Police 5, wherein the principles were

culled out as under :-

"27 The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so

5 (2018) 16 SCC 161

Shraddha Talekar PS 23/25 cri.apeal-514-2015+2686-2021.doc

proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove."

(emphasis supplied)

37. The upshot of the aforesaid consideration is that the

prosecution has not succeeded in establishing the circumstances

arrayed against the accused fully and conclusively. Nor the

circumstances are of defnite tendency unerringly pointing towards

the guilt of the accused. Even if assumed to be proved, they do not

lead to the only hypothesis that the accused caused death of the

deceased. In short, there is no chain of circumstances which

establishes the guilt of the accused beyond reasonable doubt. In

our view, the learned Additional Sessions Judge was, therefore, not

Shraddha Talekar PS 24/25 cri.apeal-514-2015+2686-2021.doc

justifed in returning the fnding of guilt against the accused.

38. For the foregoing reasons, the appeal deserves to be allowed

and the impugned judgment of conviction and order of sentence, is

liable to be quashed and set aside.

39. Hence, the following order :

ORDER

(i) The appeal stands allowed.

(ii) The impugned judgment of conviction and

order of sentence dated 9th March 2015 for the

offences punishable under sections 302 and 452 of

the Penal Code passed by the learned Additional

Sessions Judge, Solapur in Sessions Case No.329 of

2014 stands quashed and set aside.

(iii) The appellant-Prakash Bhimashankar

Bagle stands acquitted of the offences punishable

under sections 302 and 452 of the Penal Code.

(iv) The appellant is in custody. He be set at

liberty forthwith, if not required to be detained in

any other case.

(v) In view of the disposal of the appeal,

Interim Application No.2686 of 2021, taken out by

Shraddha Talekar PS 25/25 cri.apeal-514-2015+2686-2021.doc

the appellant, does not survive and also stands

disposed of.

All concerned to act on an authenticated copy of this

judgment and order.

[ N.J. JAMADAR, J. ]                             [ S.S. SHINDE, J.]




Shraddha Talekar PS