Bombay High Court
Mahesh S/O Vasant Chilwante vs The Stat Of Maharashtra on 25 February, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.452 OF 2016
Mahesh s/o Vasant Chilwante,
Age : 31 years, Occupation : Labour,
R/o Ratnapur, Taluka Kallam
District Osmanabad.
...APPELLANT
(Orig. Accused)
-VERSUS-
The State of Maharashtra. ...RESPONDENT
...
Shri N.R. Shaikh, Advocate for the appellant (appointed).
Shri S.D. Ghayal, APP for the respondent/ State.
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 25th February, 2021
JUDGMENT (Per Ravindra V. Ghuge, J.):-
1. The appellant, by this appeal, seeks to challenge the judgment
and order dated 12.02.2016, delivered by the learned Additional Sessions
Judge-3, Osmanabad, in Sessions Case No.21/2015, vide which, the
appellant was convicted for having committed an offence punishable
under Section 302 r/w Section 201 of the Indian Penal Code and was
sentenced to undergo rigorous imprisonment for life.
2. On 01.11.2018, this Court had passed the following order in
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Criminal Application No.4056/2016 and had suspended the sentence and
enlarged the appellant on bail :-
"1. Present application has been filed by the original accused
for suspension of sentence awarded to him in Sessions Case
No. 21 of 2015, for the offences punishable under Section
302, 201 of Indian Penal Code by learned Additional
Sessions Judge - 3, Osmanabad.
2. The prosecution had come with a case that, an information
was received from one Kiran Mahadeo Lagdive of village
Shekapur Tq. Dist. Osmanabad that, he being the Vice
President of Tanta Mukti Abhiyaan received message from
one Prashant Bhairunath Shingare at about 08.00 to 08.30
a.m. on 20-12-2013 that a dead body of an unknown male
person is lying under Babul tree near the bandh of his field.
The dead body was covered with a bedspread. Upon this
information, he transmitted the said information to police.
API Vitthal Chandu Kale of Rural Police Station,
Osmanabad went to the said place. Spot panchanama was
carried out, thereafter inquest panchanama was carried out
and then the dead body was sent for post mortem. After
receipt of the post mortem report, the FIR was lodged. At
the time of drawing spot panchanama, API Vithal Kale had
seized a butt of cigarette, blood stains over the stone,
residue of stone, simple earth and the bed-sheet having
blood stains as well as footwear. After the post mortem was
over, the clothes on the dead body of a male person namely
pant, shirt, sweater, baniyan, handkerchief as well as chit
was seized by drawing panchanama. It was stated in the
chit that the it is written by Ganesh Keshav Shelke Tq.
Faltan Dist. Satara that, one Shivaji Mohan Vidhate, Anand
Mohan Vidhate and Hanuman Nagnath Vidhate attempted
to kill him. Further from the wallet a ticket from Miraj to
Tasgaon dated 19-12-2013 was seized. Further
investigation was taken up and basically the offence was
registered against unknown accused. Thereafter, after the
wallet containing the name of the accused was found,
accused was arrested, his house was searched. The
handwriting in the chit is stated to be of the accused and it
has been identified by P.W.5 the brother-in-law and P.W.8
Seema ex-wife of accused. Thereafter, the sample of saliva
of the accused was taken, the seized articles were sent for
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chemical analysis, the chit as well as specimen handwriting
of the accused were sent for the opinion of the handwriting
expert. After conclusion of the investigation, when it was
transpired that, even from the DNA report the profile
matched with the accused, charge-sheet was filed.
3. Accused had pleaded not guilty, trial has been conducted.
Taking into consideration the evidence on record and
hearing both the sides, the learned trial Court has held the
accused guilty of committing murder and thereby
sentenced the accused to undergo rigorous imprisonment
for life and to pay fine of Rs.5,000/-, in default, to suffer
rigorous imprisonment for one year, for the offence
punishable under Section 302 of Indian Penal Code.
Further for committing offence punishable under Section
201 of Indian Penal Code, he has been sentenced to
undergo rigorous imprisonment for five years and pay fine
of Rs.1,000/-, in default, to undergo rigorous
imprisonment for three months. The accused has
challenged the said conviction in the appeal. The appeal
has been admitted.
4. Accused contends that, the learned trial Judge has not
appreciated the evidence properly. The chit was in fact
found on the person of deceased was disclosing names of
other persons. It is stated that, diary disclosing the name of
the appellant was separately seized. The case of the
prosecution was based on circumstantial evidence. The
learned trial Judge has unnecessarily relied on the opinion
of the handwriting expert. In absence of corroboration the
said report ought not to have been relied. Only on the basis
of DNA report it cannot be said that, applicant was the
assailant. The prosecution has not proved that, there was
any kind of motive for the applicant to commit the offence.
Therefore, he has prayed for suspending the sentence and
releasing him on bail.
5. Heard learned advocate Mr. Naseem R. Shaikh for
applicant and learned Addl. Public Prosecutor Ms. P. V.
Diggikar for State. Perused the record and proceeding. Both
of them have argued in support of their respective
contentions.
6. At the outset it is required to be seen that even till the
charge-sheet was filed, the identity of the deceased was not
established. So also when the charge was framed at that
time also it was in respect of murder of an unknown
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person. Even during the trial there was no attempt on the
part of the prosecution to establish the identity of the
deceased. The fact of establishment of identity is related to
the motive. If the identity itself is not established, it cannot
be said that, there was any kind of motive or intention to
the accused to commit any crime.
7. The case of the prosecution is based on circumstantial
evidence. The circumstantial evidence is in the nature of
alleged diary of the accused in which the contents were in
the handwriting of the accused. The second circumstance
is, the DNA report in which it s reported that the sample of
the saliva of the accused matched with the residue in the
butt of cigarette, so also the blood on the clothes. Except
these two facts, there is nothing. Important point to be
noted is that, the prosecution has not clarified as to how or
by which means the murder was committed. As per the
medical evidence the probable cause of death is
hemorrhagic shock due to head injury and multiple
injuries. The external examination showed in all eight
injuries. The death might be homicidal, however in order
to connect the said death with the accused, evidence
beyond reasonable doubt was required. Only on the two
pieces of evidence, that is the presence of the diary
containing the handwriting of the accused and the butt of
cigarette whether would prove the offence beyond
reasonable doubt is a question. This is with the background
that the identity of the deceased is not established at all.
Therefore, definitely case is made out to release the
applicant on bail by suspending the sentence. Hence,
following order.
ORDER
1) Application is hereby allowed.
2) The substantial sentence awarded to the applicant
Mahesh Vasant Chilwante in Sessions Case No. 21 of 2015,
by learned Additional Sessions Judge -3, Osmanabad, on
12-02-2016, is hereby suspended till the final hearing and
disposal of Criminal Appeal No. 452 of 2016.
3) He be released on P.R. of Rs.30,000/- (thirty
thousand) with one or two sureties of Rs.15,000/- (fifteen
thousand).
4) Send the record and proceeding to the trial Court for
preparation of paper book."
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3. We have heard the learned advocate for the appellant and the
learned prosecutor for the respondent/ State, extensively on 12.02.2021,
16.02.2021, 18.02.2021 and today.
4. The case of the prosecution has been recorded in the order
passed by this Court dated 01.11.2018, reproduced above. We are,
therefore, refraining from repeating the same.
5. The prosecution had examined the following witnesses :-
- PW-1 Dr.Rekha Haridas Tike, who conducted the postmortem.
- PW-2 Vitthal Chandu Kale, informant.
- PW-3 Kiran Mahadeo Lagdive, who made a report exhibit-15
to the Police informing about an unknown male dead body lying in a field.
- PW-4 Balaji Ram Chaughule, panch witness of the seizure of
two phone diaries from the house of the appellant/ accused at Ratnapur
and for obtaining the specimen handwriting of the appellant/ accused.
- PW-5 Shivaji Mohan Vidhate, brother-in-law of the appellant.
- PW-6 Parmeshwar Vitharao Mupade, muddemal carrier.
- PW-7 Pandurang Pappu Bhosale, muddemal carrier.
- PW-8 Seema Mahesh Chilwante, divorced wife of the
appellant.
- PW-9 Santosh Kaduba Kanhere, Assistant State Examiner of
Documents (CID), handwriting expert.
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- PW-10 Subrao Bhimrao Gaware, Police Head Constable,
video- grapher of the spot where the dead body was found and prepared
the CD.
- PW-11 Balasaheb Shankar Gawade, second Investigating
Officer from 04.11.2014.
- PW-12 Dattatraya Umakant Zingade, Police Head Constable,
who seized the clothes of the appellant.
- PW-13 Vaishali Kadukar, S.D.P.O., first Investigating Officer,
who was subsequently transferred.
6. The appellant examined DW-1 Mesu Pandit Vidhate, who was
the husband of his sister.
7. The extensive submissions of the learned advocate for the
appellant can be summarized as under:-
(a) PW-8 Seema was the wife of the appellant. She had obtained
a divorce decree in HMP No.81/2013 on 12.06.2014 when the appellant
was behind the bars (due to the present case).
(b) Though the handwriting on the chit found in the pant pocket
of the dead body may be said to be matching with the handwriting of the
appellant, the prosecution cannot establish that the appellant has
murdered an unknown person.
(c) Though the saliva on the cigarette butt was subjected to a
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DNA test with the blood samples of the appellant that matched, the
prosecution cannot establish that the appellant has committed the murder
of an unidentified person.
(d) The clothes of the appellant viz. pant and shirt were seized
from his sister's house on 09.01.2014 and sent for analysis to the Forensic
Science Laboratory on 17.12.2014. The blood stains found on the clothes
did not disclose any blood group as such determination was inconclusive.
(e) Even if the deceased may be said to have suffered a homicidal
death, the prosecution has to prove that the death was caused by the
appellant and in the absence of any evidence, direct or circumstantial, the
appellant cannot be held guilty.
(f) It is most improbable that, assuming that the appellant killed
an unknown person, that the blood stained clothes would be preserved by
the appellant in his sister's home for months.
(g) The appellant was not acquainted with the dead person, there
was no motive and there was no reason at all for him to kill an unknown
person only to frame his two brothers-in-law and the paternal uncle of his
estranged wife.
(h) One day prior to the discovery of the dead body i.e.
19.12.2013, the appellant was at the house of DW-1 at Pachvamail, Taluka
Tasgaon, District Sangli, at about 07:00 PM.
(i) The appellant had claimed to have gone to Kokatnur
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(Karnataka State) for a fair and he had reached Pachvamail to meet his
mother on 19.12.2013.
(j) There can be no conviction on the basis of an insignificant
chit found inside the pant pocket of the deceased or a cigarette butt lying
near the body, despite the DNA indicating the saliva of the appellant on
such butt.
(k) A conviction cannot be based on suspicion or inferences.
(l) Reliance is placed upon the following judgments :-
(i) Jitendra Suresh Gabhane vs. The State of Maharashtra,
2017 (4) Bom. C.R. (Cri) 289 : 2017 (3) AIR Bom. R. (Cri)
(ii) State of Maharashtra and others vs. Krushna and others,
2017 (3) Crimes 383.
(iii) Baldau Sharma vs. State of Chhattisgarh, 2017 (172) AIC
603 : 2017 (2) CGLJ 274.
(iv) Murarilal vs. State of M.P., AIR 1980 SC 531.
(v) Shaikh Mohammed Salim Karimullah and others vs. State
of Maharashtra, 1998 Cri. L.J. 3170 (Bombay).
(vi) Sujit Biswas vs. State of Assam, AIR 2013 SC (cri) 1487 :
2014 (1) SCC (Cri) 677.
(vii) Chennadi Jalapathi Reddy vs. Baddam Pratapa Reddy, AIR
Online 2019 SC 970.
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(viii) D.Chenna Reddy vs. State of Andhra Pradesh, 2014 (sup)
Cri. CC 348 : 2014 (1) AICLR 842.
8. The submissions of the learned prosecutor can be summarized
as under :-
(a) The appellant had a marital discord with his wife PW-8 and
had developed animosity towards her two brothers, namely, Shivaji (PW-
5) and Anand, who has not been examined. He also had developed
animosity towards the maternal uncle of his wife, Hanumant, who has
also not been examined by the prosecution.
(b) In order to implicate the above stated three persons, he has
murdered an unknown person (deceased herein) and he planted a chit
exhibit Q/1 in the pant pocket of the deceased. He gave a fictitious name
to the unknown person as 'Ganesh Keshav Shelke', Ramwadi, Taluka
Phaltan, District Satara.
(c) Despite the best efforts of the Police Department in
publicizing the picture of the dead body all over the State and by
contacting various Police Stations to scrutinize complaints about missing
persons, no person by name Ganesh Keshav Shelke was reported to be
missing and therefore, the identity of the deceased person remained a
mystery.
(d) There can be no pardon to a person who may have murdered
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an unidentified person, purely on the ground of the identity of the
deceased person being unknown.
(e) PW-8 has specifically identified the writing on the chit as
being the handwriting of the appellant.
(f) PW-8 is a natural witness and no corroboration is necessary
when a wife identifies a particular handwriting as being the handwriting
of her husband.
(g) The appellant, by killing the unknown person, tried to
implicate three relatives of the wife and thus, got exposed since PW-8 and
PW-5 Shivaji noticed that the handwriting on the chit was the handwriting
of the appellant. His involvement in planting the chit was, therefore,
proved.
(h) A cigarette butt was found near the body. The butt was
seized and was referred to the Forensic Science Laboratory as it was
expected that the saliva of the smoker would be traced on the butt and the
filter. By the consent of the appellant, his blood sample was taken and the
DNA result clearly indicated the appellant to be the smoker of the said
cigarette.
(i) The arrest panchanama exhibit-46 dated 14.01.2014 at 21:15
hours indicates at clause 22 (Marathi portion pertaining to habits) that the
appellant was a cigarette smoker, he used to chew tobacco, he used to
consume liquor and also used to gamble. Therefore, the connection of
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the appellant with the saliva found on the cigarette butt and the location
of the butt near the dead body, is a clinching piece of evidence.
(j) The plea of alibi put forth by the appellant is completely
shattered in the cross-examination of DW-1 as there was no corroborative
evidence to support the version of DW-1 Mesu Pandit Vidhate, husband of
the sister of the appellant.
(k) PW-9 Santosh Kanhere was the Assistant State Examiner of
Documents (CID), who examined the specimen handwriting on six loose
sheets (S-1 to S-6) and natural writings on three pocket diaries (Exhibit N-
1 to N-10). He found similar writing habits indicating towards a common
authorship of Exhibits S-1 to S-6 and N-4 to N-10 and Q-1, which is the
handwriting found on the chit.
(l) PW-11 is the second I.O., who had issued the request letter to
the handwriting expert and had sought the permission of the learned
Magistrate to have the custody of the appellant, who was in magisterial
custody, for taking the blood sample so as to be referred for the purposes
of DNA testing.
(m) PW-13 is the first I.O.- SDPO, Osmanabad, who had arrested
the appellant vide arrest panchanama Exhibit-46, had obtained the
specimen handwriting of the appellant on 15.01.2014. She was thereafter,
transferred.
(n) PW-11, the second I.O., took the investigation forward and
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has established the guilt of the appellant with circumstantial evidence and
scientific evidence.
(o) Reliance is placed upon the following judgments:-
(i) State of Gujarat vs. Jayantibhai Somabhai Khant, Criminal
Appeal No.224/2012, decided on 30.04.2015, Gujarat High
Court.
(ii) Dharam Deo Yadav vs. State of U.P., (2014) 5 SCC 509.
(iii) Kishan Chand vs. State of Himachal Pradesh, Criminal
Appeal No.620/2015 decided on 16.03.2018 (Himachal
Pradesh High Court).
(iv) Vikas Bhaskar Bhalerao vs. The State of Maharashtra,
Criminal Appeal No.885/2015 decided on 16.03.2020
(Bombay High Court).
(v) Thogorani alias K. Damayanti vs. State of Orissa, 2004
Cri.L.J. 4003, Orissa High Court.
(vi) Geetha d/o Kuttan vs. The State of Kerala, Cri.MC
No.8850/2002 decided on 17.03.2005 (Kerala High
Court).
(vii) State of Karnataka vs. S.P. Prasanna, Criminal Appeal
No.1551/2005 decided on 24.06.2011 (Karnataka High
Court).
(viii) S.P. Prasanna vs. State of Karnataka, 2018 ALL SCR (Cri)
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1312.
(ix) State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808
(11 Judges Bench).
(x) Murarilal vs. State of M.P., AIR 1980 SC 531.
(xi) Santosh Kumar Singh vs. State through CBI, (2010) 9 SCC
747 (Priyadarshani Matoo case).
(xii) Mukesh and another vs. State (NCT of Delhi) and others,
(2017) 6 SCC 1 (Nirbhaya case).
9. We have perused the appeal paper book, threadbare, the
record and proceedings and the muddemal property.
WHETHER, HOMICIDAL DEATH?
10. There is no dispute about the homicidal death of the
unknown deceased. We find that there was one suggestion given to PW-1
Dr.Tike, Autopsy Surgeon, that the death of the person is possible by
falling from a tree from a distance of 15 to 20 feet. PW-1 has opined that
this could be possible. Rigor mortis was present in both legs and was
absent in both hands. Rigor mortis sets in from around the eyes, after
about three hours of the death and gradually starts spreading to the entire
body in a period of about 12 hours. It then gradually starts reducing from
head downwards and disappears in between three to four days from the
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date of death. It is, therefore, a speculation, in the absence of any specific
statement by PW-1, that the death of the unknown person may have
occurred in between 17.12.2013 and 18.12.2013.
11. PW-1 has noted the probable reason of death as being due to
haemorrhagic shock owing to head injury and multiple injuries. Contusion
was present below the right eye and blood was oozing from the mouth,
left ear and nose. Laceration inside lower lip and two central lower teeth
were noticed to have been broken. There was a bruise below the right eye
and the mandible and maxillary bones were found to be fractured.
Internal injury revealed a scalp injury and a fracture from behind the left
ear upto the forehead of the size 12 x 0.5 cm, bone depth. He has then
opined that the injuries in columns 17 and 19 would cause the death of
the person and such injuries can be caused by a weapon like a stone or a
hard blunt object.
12. Considering the suggestion that the deceased was likely to
have fallen from a tree, we have perused the spot panchanama and the
inquest panchanama along with ocular evidence. The body was lying flat
on the back and was covered with a Solapuri cloth sheet which is called in
local parlance as "Chaadar" or "Chaddar" in Hindi. If the deceased had
fallen from a tree, he would have raised cries and would have sought help.
He would have made some efforts to seek help for rescuing himself. The
fact that the body was well laid on the ground with a cloth sheet covering
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him, rules out an accidental death owing to a fall from a tree. The manner
in which the body was noticed is indicative that someone had covered a
cloth sheet on the body.
13. Taking into account the above factors, we do not find that the
Trial Court has committed any error in concluding that the unknown
person had suffered a homicidal death.
IDENTITY OF THE DEAD BODY
14. The record reveals that the Investigating Agency had
circulated the photographs of the dead person all over the State and had
tried to collect information as regards the complaints of missing persons.
So also, the village Ramwadi, Taluka Phaltan was also surveyed to find out
as to whether, there was any person by name Ganesh Keshav Shelke
(name found on the chit). There were no leads to establish the identity of
the dead body. No person came forward to identify or claim the dead body.
Finally, the S.D.P.O. performed the funeral rites. As such, it is possible that
somebody has played a prank of writing a fictitious name on the chit. Be
that as it may, the identity of the body was not established.
ANALYSIS OF THE CIGARETTE BUTT
15. The arrest panchanama indicates that the appellant was
found to be a smoker. The spot panchanama indicates that the cigarette
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butt was found on a bandh (boundary between two agricultural fields)
adjacent to the place where the dead body was found. Same was picked
up by the police as an incriminating piece of evidence. The DNA report
indicates that the DNA strain matches with the DNA of the appellant. The
spot panchanama was proved by PW-2 Vitthal Kale. Vide letter dated
09.04.2014 exhibit-53, the SDPO addressed the Director, Forensic Science
Laboratory, to tender a report after conducting the DNA test, as to
whether, the DNA profile from the saliva of the cigarette butt matches
with the DNA profile of the appellant. The said profile has matched and it
is established that the said cigarette carried the saliva of the appellant.
The Chemical Analyzer specifically expressed his interpretation as under :-
"DNA profile of saliva detected on cigarette
butt found at scene of crime in F.S.L.M.L. Case No.DNA-
562/14 and DNA profile of blood sample of Mahesh Vasant
Chilwante are identical and from one and same source of
male origin. DNA profile matched the obligate maternal
and paternal alleles present in the source of blood."
We have perused the STR LOCUS and the Genotype and we
find that the DNA of the saliva on the cigarette butt is identical to the DNA
of the appellant.
16. In Santosh Kumar Singh (supra), the Honourable Apex Court
considered the aspect of circumstantial evidence and concluded in
paragraphs 65 and 66 as under :-
"65. We now come to the circumstance with regard to the
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comparison of the semen stains with the blood taken from
the appellant. The trial court had found against the
prosecution on this aspect. In this connection, we must
emphasize that the Court cannot substitute its own opinion
for that of an expert, more particularly in a science such as
DNA profiling which is a recent development.
66. Dr. Lalji Singh in his examination in chief deposed that he
had been involved with the DNA technology ever since the
year 1974 and he had returned to India from the U.K. in
1987 and joined the CCMB, Hyderabad and had developed
indigenous methods and techniques for DNA finger
printing which were now being used in this country. We
also see that the expertise and experience of Dr. Lalji Singh
in his field has been recognized by this Court in
Kamalanantha V. State of Tamil Nadu [2005 (5) SCC 194].
We further notice that CW-1 Dr. G.V.Rao was a scientist of
equal repute and he had in fact conducted the tests under
the supervision of Dr.Lalji Singh. It was not even disputed
before us during the course of arguments that these two
scientists were persons of eminence and that the laboratory
in question was also held in the highest esteem in India.
17. It was thus, concluded that the court should not and cannot
substitute it's own opinion for that of an expert, more particularly when,
in science, such a DNA profiling by recent scientific methods would
indicate the involvement of a person in a crime or may also establish his
non-involvement.
18. In Mukesh and another (supra), the Honourable Apex Court
again had an occasion to deal with the DNA test as a piece of evidence
and concluded in paragraphs 210 to 218, 222 to 224, 227 and 228,
311.12, 311.13, 457 and 459 to 461 as under :-
"210. Having dealt with the aspect pertaining to insertion
of rod, it is apposite to advert to the medical evidence and
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post mortem report. We have, while dealing with other
aspects, referred to certain aspects including DNA analysis
of medical evidence but the same requires to be critically
dealt with as the prosecution has placed hevy reliance upon
it.
211. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the
basic genetic material in all human body cells. It is not
contained in red blood corpuscles. It is, however, present in
white corpuscles. It carries the genetic code. DNA structure
determines human character, behaviour and body
characteristics. DNA profiles are encrypted sets of numbers
that reflect a person's DNA makeup which, in forensics, is
used to identify human beings. DNA is a complex molecule.
It has a double helix structure which can be compared with
a twisted rope 'ladder'.
212. The nature and characteristics of DNA had been succinctly
explained by Phillips, L.J. in R.v. Doheny [(1997) 1 Cr App
R 369 (CA)]. In the above case, the accused were convicted
relying on results obtained by comparing DNA profiles
obtained from a stain left at the scene of the crime with
DNA profiles obtained from a sample of blood provided by
the appellant. In the above context, with regard to DNA,
the following was stated by Phillips, L.J.:
"Deoxyribonucleic acid, or DNA, consists of long
ribbon-like molecules, the chromosomes, 46 of which lie
tightly coiled in nearly every cell of the body. These
chromosomes - 23 provided from the mother and 23 from
the father at conception, form the genetic blueprint of the
body. Different sections of DNA have different identifiable
and discrete characteristics. When a criminal leaves a stain
of blood or semen at the scene of the crime it may prove
possible to extract from that crime stain sufficient sections
of DNA to enable a comparison to be made with the same
sections extracted from a sample of blood provided by the
suspect. This process is complex and we could not hope to
describe it more clearly or succinctly than did Lord Taylor,
C.J. in Deen (transcript: 21.12.1993), so we shall gratefully
adopt his description:
"The process of DNA profiling starts with DNA being
extracted from the crime stain and also from a sample
taken from the suspect. In each case the DNA is cut into
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smaller lengths by specific enzymes. The fragments
produced are sorted according to size by a process of
electrophoresis. This involves placing the fragments in a gel
and drawing them electromagnetically along a track
through the gel. The fragments with smaller molecular
weight travel further than the heavier ones. The pattern
thus created is transferred from the gel onto a membrane.
Radioactive DNA probes, taken from elsewhere, which bind
with the sequences of most interest in the sample DNA are
then applied. After the excess of the DNA probe is washed
off, an X-ray film is placed over the membrane to record
the band pattern. This produces an auto radiograph which
can be photographed. When the crime stain DNA and the
sample DNA from the suspect have been run in separate
tracks through the gel, the resultant auto-radiographs can
be compared. The two DNA profiles can then be said either
to match or not.""
213. In the United States, in an early case Frye v. United States,
it was laid down that scientific evidence is admissible only
if the principle on which it is based is substantially
established to have general acceptance in the field to which
it belonged. The US Supreme Court reversed the above
formulation in Daubert v. Merrell Dow Pharmaceuticals,
Inc. stating thus:
"11. Although the Frye decision itself focused exclusively
on "novel" scientific techniques, we do not read the
requirements of Rule 702 to apply specially or exclusively
to unconventional evidence. Of course, well- established
propositions are less likely to be challenged than those that
are novel, and they are more handily defended. Indeed,
theories that are so firmly established as to have attained
the status of scientific law, such as the laws of
thermodynamics, properly are subject to judicial notice
under Federal Rule of Evidence 201.
13. This is not to say that judicial interpretation, as
opposed to adjudicative fact finding, does not share basic
characteristics of the scientific endeavor:
"The work of a judge is in one sense enduring and in
another ephemeral... In the endless process of testing and
retesting, there is a constant rejection of the dross and a
constant retention of whatever is pure and sound and fine."
B.Cardozo, The Nature of the Judicial Process 178, 179
*20* 905apeal452o16Judgment
(1921)."
214. The principle was summarized by Blackmun, J., as
follows: (Daubert case, SCC Online US SC)
"To summarize: "general acceptance" is not a
necessary precondition to the admissibility of scientific
evidence under the Federal Rules of Evidence, but the
Rules of Evidence--especially Rule 702--do assign to the
trial judge the task of ensuring that an expert's testimony
both rests on a reliable foundation and is relevant to the
task at hand. Pertinent evidence based on scientifically
valid principles will satisfy those demands.
The inquiries of the District Court and the Court of
Appeals focused almost exclusively on "general
acceptance," as gauged by publication and the decisions of
other courts. Accordingly, the judgment of the Court of
Appeals is vacated and the case is remanded for further
proceedings consistent with this opinion."
After the above judgment, the DNA Test has been
frequently applied in the United States of America.
215. In District Attorney's Office for the Third Judicial District v.
Osborne, Roberts, C.J. of the Supreme Court of United
States, while referring to the DNA Test, stated as follows:
"DNA testing has an unparalleled ability both to exonerate
the wrongly convicted and to identify the guilty. It has the
potential to significantly improve both the criminal justice
system and police investigative practices. The Federal
Government and the States have recognized this, and have
developed special approaches to ensure that this
evidentiary tool can be effectively incorporated into
established criminal procedure-usually but not always
through legislation.
...
Modern DNA testing can provide powerful new
evidence unlike anything known before. Since its first use
in criminal investigations in the mid- 1980s, there have
been several major advances in DNA technology,
culminating in STR technology. It is now often possible to
determine whether a biological tissue matches a suspect
with near certainty. While of course many criminal trials
proceed without any forensic and scientific testing at all,
there is no technology comparable to DNA testing for
*21* 905apeal452o16Judgment
matching tissues when such evidence is at issue."
216. DNA technology as a part of Forensic Science and
scientific discipline not only provides guidance to
investigation but also supplies the Court accrued
information about the tending features of identification of
criminals. The recent advancement in modern biological
research has regularized Forensic Science resulting in
radical help in the administration of justice. In our country
also like several other developed and developing countries,
DNA evidence is being increasingly relied upon by courts.
After the amendment in the Criminal Procedure Code by
the insertion of Section 53-A by Act 25 of 2005, DNA
profiling has now become a part of the statutory scheme.
Section 53-A relates to the examination of a person
accused of rape by a medical practitioner.
217. Similarly, under Section 164-A inserted by Act 25 of 2005,
for medical examination of the victim of rape, the
description of material taken from the person of the
woman for DNA profiling is must. Section 53-A sub-section
(2) as well as Section 164-A sub-section (2) are to the
following effect:
"53-A. Examination of person accused of rape by
Medical Practitioner.-
(1) ... ... ... ...
(2) The registered medical practitioner conducting such
examination shall, without delay, examine such person and
prepare a report of his examination giving the following
particulars, namely:-
(i) the name and address of the accused and of the
person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of
the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
164-A. Medical Examination of the victim of rape.-
(1) ... ... ... ...
(2) The registered medical practitioner, to whom such
woman is sent, shall, without delay, examine her person
and prepare a report of his examination giving the
*22* 905apeal452o16Judgment
following particulars, namely:-
(i) the name and address of the woman and of the
person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of
the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail."
218. This Court had the occasion to consider various
aspects of DNA profiling and DNA reports. K.T. Thomas, J.
in Kamti Devi v. Poshi Ram, observed:
"10. We may remember that Section 112 of the
Evidence Act was enacted at a time when the modern
scientific advancements with deoxyribonucleic acid (DNA)
as well as ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a genuine
DNA test is said to be scientifically accurate. ...'"
"222. In Krishan Kumar Malik v. State of Haryana, in a gang
rape case when the prosecution did not conduct DNA test
or analysis and matching of semen of the appellant-accused
with that found on the undergarments of the prosecutrix,
this Court held that after the incorporation of Section 53- A
in CrPC, it has become necessary for the prosecution to go
in for DNA test in such type of cases. The relevant
paragraph is reproduced below:
"44. Now, after the incorporation of Section 53-A in
the Criminal Procedure Code w.e.f 23.06.2006, brought to
our notice by the learned counsel for the respondent State,
it has become necessary for the prosecution to go in for
DNA test in such type of cases, facilitating the prosecution
to prove its case against the accused. Prior to 2006, even
without the aforesaid specific provision in CrPC the
prosecution could have still restored to this procedure of
getting the DNA test or analysis and matching of semen of
the appellant with that found on the undergarments of the
prosecutrix to make it a foolproof case, but they did not do
so, thus they must face the consequences."
223. In Surendra Koli v. State of U.P., the appellant, a serial
killer, was awarded death sentence which was confirmed
*23* 905apeal452o16Judgment
by the High Court. While confirming the death sentence,
this Court relied on the result of the DNA test conducted on
the part of the body of the deceased girl. Para 12 is
reproduced below:-
"12. The DNA test of Rimpa by CDFD, a pioneer
institute in Hyderabad matched with that of blood of her
parents and brother. The doctors at AIIMS have put the
parts of the deceased girls which have been recovered by
the doctors of AIIMS together. These bodies have been
recovered in the presence of the doctors of AIIMS at the
pointing out by the accused Surendra Koli. Thus, recovery
is admissible under Section 27 of the Evidence Act."
224. In Mohammed Ajmal Mohammad Amir Kasab v. State of
Maharashtra, the accused was awarded death sentence on
charges of killing large number of innocent persons on
26th November, 2008 at Bombay. The accused with others
had come from Pakistan using a boat 'Kuber' and several
articles were recovered from 'Kuber'. The stains of sweat,
saliva and other bodily secretions on those articles were
subjected to DNA test and the DNA test matched with
several accused. The Court observed:
"333. It is seen above that among the articles
recovered from Kuber were a number of blankets, shawls
and many other items of clothing. The stains of sweat,
saliva and other bodily secretions on those articles were
subjected to DNA profiling and, excepting Imran Babar
(deceased Accused 2), Abdul Rahman Bada (deceased
Accused 5), Fahadullah (deceased Accused 7) and Shoaib
(deceased Accused 9), the rest of six accused were
connected with various articles found and recovered from
the Kuber. The appellant's DNA matched the DNA profile
from a sweat stain detected on one of the jackets. A chart
showing the matching of the DNA of the different accused
with DNA profiles from stains on different articles found
and recovered from the Kuber is annexed at the end of the
judgment as Schedule III.""
"227. In Nandlal Wasudeo Badwaik v. Lata Nandlal
Badwaik, the appellant, father of the child born to his wife,
questioned the paternity of the child on the ground that
she did not stay with him for the last two years. The Court
directed for DNA test. The DNA result opined that the
*24* 905apeal452o16Judgment
appellant was not the biological father of the child. The
Court also had the occasion to consider Section 112 of the
Evidence Act which raises a presumption that birth during
marriage is conclusive proof of legitimacy. The Court relied
on the DNA test holding the DNA test to be scientifically
accurate. The pertinent observations are extracted below:
"19. The husband's plea that he had no access to the
wife when the child was begotten stands proved by the
DNA test report and in the face of it, we cannot compel the
appellant to bear the fatherhood of a child, when the
scientific reports prove to the contrary. We are conscious
that an innocent child may not be bastardised as the
marriage between her mother and father was subsisting at
the time of her birth, but in view of the DNA test reports
and what we have observed above, we cannot forestall the
consequence. It is denying the truth. "Truth must triumph"
is the hallmark of justice.
20. As regards the authority of this Court in Kamti
Devi, this Court on appreciation of evidence came to the
conclusion that the husband had no opportunity
whatsoever to have liaison with the wife. There was no
DNA test held in the case. In the said background i.e. non-
access of the husband to the wife, this Court held that the
result of DNA test "is not enough to escape from the
conclusiveness of Section 112 of the Act." The judgment
has to be understood in the factual scenario of the said
case. The said judgment has not held that DNA test is to be
ignored. In fact, this Court has taken note of the fact that
DNA test is scientifically accurate. We hasten to add that in
none of the cases referred to above, this Court confronted
with a situation in which a DNA test report, in fact, was
available and was in conflict with the presumption of
conclusive proof of legitimacy of the child under Section
112 of the Evidence Act. In view of what we have observed
above, these judgments in no way advance the case of the
respondents."
228. From the aforesaid authorities, it is quite clear that DNA
report deserves to be accepted unless it is absolutely
dented and for non- acceptance of the same, it is to be
established that there had been no quality control or
quality assurance. If the sampling is proper and if there is
no evidence as to tampering of samples, the DNA test
*25* 905apeal452o16Judgment
report is to be accepted."
"311.12. The DNA profiling, which has been done after taking
due care for quality, proves to the hilt the presence of the
accused persons in the bus and their involvement in the
crime. The submission that certain samples were later on
taken from the accused and planted on the deceased to
prove the DNA aspect is noted only to be rejected because
it has no legs to stand upon.
311.13. The argument that the transfusion of blood has the
potentiality to give rise to two categories of DNA or two
DNAs is farthest from truth and there is no evidence on
that score. On the contrary, the evidence in exclusivity
points to the matching of the DNA of the deceased with
that of the accused on many aspects. The evidence brought
on record with regard to finger prints is absolutely
impeccable and the trial court and the High Court have
correctly placed reliance on the same and we, in our
analysis, have found that there is no reason to disbelieve
the same."
"457. DNA evidence is now a predominant forensic
technique for identifying criminals when biological tissues
are left at the scene of crime or for identifying the source of
blood found on any articles or clothes etc. recovered from
the accused or from witnesses. DNA testing on samples
such as saliva, skin, blood, hair or semen not only helps to
convict the accused but also serves to exonerate. The
sophisticated technology of DNA finger printing makes it
possible to obtain conclusive results. Section 53-A Cr.P.C. is
added by the Code of Criminal Procedure (Amendment)
Act, 2005. It provides for a detailed medical examination of
accused for an offence of rape or attempt to commit rape
by the registered medical practitioners employed in a
hospital run by the Government or by a local authority or
in the absence of such a practitioner within the radius of 16
kms. from the place where the offence has been committed
by any other registered medical practitioner."
"459. From the evidence of PW-45 and the details given in
the above tabular form, it is seen that the DNA profile
generated from blood-stained clothes of the accused
namely, A-1 Ram Singh (dead); A-2 Mukesh; A-3 Akshay;
*26* 905apeal452o16Judgment
A-4 Vinay; and A-5 Pawan Gupta @ Kalu are found
consistent with the DNA profile of the prosecutrix. Also as
noted above, two sets of DNA profile were generated from
the black colour sweater of the accused Pawan. One set of
DNA profile found to be female in origin, consistent with
the DNA profile of the prosecutrix; other set found to be
male in origin, consistent with the DNA profile of PW-1.
Likewise, two sets of DNA profile were generated from the
black colour sports jacket of accused Vinay, one of which
matched the DNA profile of the prosecutrix and another
one matched the DNA profile of PW-1. Likewise, two sets of
DNA profile were generated from the jeans pant of accused
Akshay, one of which matched the DNA profile of the
prosecutrix and another one matched the DNA profile of
PW-1. The result of DNA analysis and that of the DNA
profile generated from blood-stained clothes of the accused
found consistent with that of the victim is a strong piece of
evidence incriminating the accused in the offence.
460. DNA profile generated from the blood samples of accused
Ram Singh matched with the DNA profile generated from
the rectal swab of the victim. Blood as well as human
spermatozoa was detected in the underwear of the accused
Ram Singh (dead) and DNA profile generated therefrom
was found to be female in origin, consistent with that of
the victim. Likewise, the DNA profile generated from the
breast swab of the victim was found consistent with the
DNA profile of the accused Akshay.
461. As discussed earlier, identification by DNA genetic finger
print is almost hundred per cent precise and accurate. The
DNA profile generated from the blood-stained clothes of
the accused and other articles are found consistent with the
DNA profile of the victim and DNA profile of PW-1; this is a
strong piece of evidence against the accused. In his
evidence, PW-45 Dr. B.K. Mohapatra has stated that once
DNA profile is generated and found consistent with another
DNA profile, the accuracy is hundred per cent and we find
no reason to doubt his evidence. As pointed out by the
Courts below, the counsel for the defence did not raise any
substantive ground to rebut the findings of DNA analysis
and the findings through the examination of PW-45. The
DNA report and the findings thereon, being scientifically
*27* 905apeal452o16Judgment
accurate clearly establish the link involving the accused
persons in the incident."
19. In Mukesh and another (supra), the scientific evidence was
put to test and it was concluded that the DNA analysis cogently linked
each accused with the victims, one of whom was Nirbhaya (a fictitious
name given to the victim) who had suffered a brutal, barbaric gang rape,
unnatural sex and a barbaric assault leading to the death of Nirbhaya.
20. The DNA, which is a complex molecule and has a double
helix structure which can be compared with a twisted rope 'ladder', was
held by the Honourable Apex Court, in Nirbhaya's case, to be a specific
test which would determine human character, behaviour and body
characteristics. It would be apposite to refer to the importance of DNA
technology as a part of forensic science and scientific discipline as
observed by the Honourable Apex Court in paragraphs 210 to 228, which
are reproduced above.
21. In the instant case, the consent of the appellant for collecting
blood samples was taken and as noted above, the same was forwarded to
the Forensic Science Laboratory, which returned with a specific
conclusion/ result indicating precise matching of the DNA genotype of the
appellant and the saliva on the cigarette butt. We, therefore, have no
hesitation in accepting that this report of the Chemical Analyzer
*28* 905apeal452o16Judgment
establishes that the cigarette butt found on the bandh near the dead body
was the remainder of the cigarette smoked by the appellant.
HANDWRITING ON THE CHIT
22. PW-8 got married to the appellant around 2008 and the
marriage lasted for about five years. She claimed to have identified the
handwriting on the chit as being the handwriting of her husband. There is
no evidence adduced by her touching the aspect of the source of her
knowledge or identification of the handwriting on the chit, except that she
was his wife.
23. PW-5, brother of PW-8 and whose name appears in the chit,
claimed to have identified the handwriting of the appellant on the chit. He
has not led evidence to indicate as to what was the occasion for him to be
conversant with the handwriting of the appellant, which could have
enabled him to recognize the handwriting on the chit with precise. He is
alleged to be illiterate.
24. Nevertheless, PW-9 who was the Assistant State Examiner of
Documents with the C.I.D., submitted his opinion that the handwriting on
the chit Q-1 showed similarities with the handwriting on the specimen
samples N-4 to N-10 thereby, indicating common authorship. He has also
arrived at the same conclusion with regard to Exhibits S-1 to S-6. He has,
therefore, submitted his expert opinion that the type of writing on the chit
*29* 905apeal452o16Judgment
Q-1 is similar to the natural writing in three pocket diaries of the
appellant and the specimen handwriting found on exhibits N-4 to N-10. In
the cross-examination, PW-9 has conceded that he cannot tell the age of
the writing on each of the documents at issue, referred to him. He
specifically mentions that the handwriting on three documents exhibits N-
1 to N-3 seized from the house of the sister of the appellant, does not
match, shows dissimilarities and indicates different authors.
MOTIVE BEHIND KILLING AN UNKNOWN PERSON
25. The learned prosecutor on the basis of the record has
strenuously canvassed that the appellant was extremely disturbed due to
the marital discord and desertion by his wife. He had started blaming her
two brothers and her paternal uncle for his miseries. He had every desire
to cause harm to them and therefore, he has killed an unknown person,
prepared a fictitious chit and had given a fictitious name to the body. The
intention to insert the said chit in the pant pocket of the deceased was to
implicate his two brothers-in-law and the uncle of his wife. By doing so,
he desired to implicate them so as to fetch an order of conviction.
26. We are of the view that if the appellant had developed great
amount of animosity and antipathy towards his wife, her uncle and her
two brothers, he could have implicated his wife in the same crime. It also
appears to us that this theory of the prosecution could be said to be highly
*30* 905apeal452o16Judgment
imaginative. We are unable to be convinced that the appellant had a
strong, unbearable and uncontrollable desire to cause miseries to the wife
and the above relatives and therefore, he killed a harmless, innocent and
an unknown person so as to implicate them with the hope that they would
be prosecuted in the court of law and would be convicted. If his such
desire was of such a high intensity, he would have caused harm directly to
the wife or to any of these three relatives, instead of killing an unknown
person, to implicate them.
27. In State of Bombay v. Kathi Kalu Oghad (supra), the
Honourable Apex Court (11 judges Bench) has concluded that if an
accused person furnishes evidence in the form of giving a specimen
handwriting or impressions of his fingers or palms or his foot, it cannot be
said that such way of identification could be included in the expression "to
be a witness". We, therefore, do not find fault in the investigating
authorities collecting specimen handwriting and his blood samples as a
part of their investigation keeping in view the conclusions of the
Honourable Apex Court in Murarilal vs. State of M.P. (supra) in
paragraphs 11 and 12, which read as under :-
"11. We are firmly of the opinion that there is no rule of law,
nor any rule of prudence which has crystallized into a rule
of law, that opinion evidence of a handwriting expert must
never be acted upon, unless substantially corroborated.
But, having due regard to the imperfect nature of the
science of identification of handwriting, the approach, as
we indicated earlier, should be one of caution. Reasons for
*31* 905apeal452o16Judgment
the opinion must be carefully probed and examined. All
other relevant evidence must be considered. In appropriate
cases, corroboration may be sought. In cases where the
reasons for the opinion are convincing and there is no
reliable evidence throwing a doubt, the uncorroborated
testimony of an handwriting expert may be accepted. There
cannot be any inflexible rule on a matter which, in the
ultimate analysis, is no more than a question of testimonial
weight. We have said so much because this is an argument
frequently met with in subordinate courts and sentences
torn out of context from the judgments of this Court are
often flaunted.
12. The argument that the court should not venture to
compare writings itself, as it would thereby assume to itself
the role of an expert is entirely without force. Section 73 of
the Evidence Act expressly enables the Court to compare
disputed writings with admitted or proved writings to
ascertain whether a writing is that of the person by whom
it purports to have been written. If it is hazardous to do so,
as sometimes said, we are afraid it is one of the hazards to
which judge and litigant must expose themselves whenever
it becomes necessary. There may be cases where both sides
call experts and two voices of science are heard. There may
be cases where neither side calls an expert, being ill able to
afford him. In all such cases, it becomes the plain duty of
the Court to compare the writings and come to its own
conclusion. The duty cannot be avoided by recourse to the
statement that the court is no expert. Where there are
expert opinions they will aid the Court. Where there is
none, the Court will have to seek guidance from some
authoritative textbook and the Court's own experience and
knowledge. But discharge it must, its plain duty, with or
without expert, with or without other evidence. We may
mention that Shashi Kumar v. Subodh Kumar and
Fakhruddin v. State of Madhya Pradesh were cases where
the Court itself compared the writings."
28. Considering the law, we are of the view that such report of a
handwriting expert could be considered in the light of corroborative and
attending circumstances and at times, we could also compare the
*32* 905apeal452o16Judgment
handwriting appearing in the documents before us.
HAS THE APPELLANT MURDERED AN UNKNOWN PERSON?
29. Though the handwriting expert PW-9 has based his testimony
on specific reports and the DNA profiling establishing the saliva of the
appellant being found on the cigarette butt, the issue before us is as to
whether, we could base an order of conviction in the peculiar facts and
circumstances of this case, presuming that the accused may have killed the
deceased.
30. There is no dispute that this case rests purely on
circumstantial evidence. There is no eye witness to the homicidal death of
the unknown person. The Police Authorities have failed in establishing the
identity of a human being who had lived on this earth for about 25 to 30
years as mentioned in the postmortem report. It is a mystery as to how did
the said body or person reach the place where he was killed or may have
been killed and carried to the place where the body was found. The Police
claimed to have found blood stains on the clothes of the appellant, which
were seized from his sister's home from village Pachavamail on
09.01.2014 and which were sent for examination to the Forensic Science
Laboratory on 17.12.2014. The blood stains on the clothes were of a
human. However, the blood grouping was inconclusive.
31. No doubt, as is held in paragraph 43 of Santosh Kumar Singh
*33* 905apeal452o16Judgment
(supra), the appellant could have explained as to how his cigarette butt or
the chit landed near the dead body and inside the pant pocket,
respectively. The case of the appellant is that he has been falsely
implicated and the cigarette butt may have been planted. He has denied
the handwriting in the chit.
32. The question before us is as to whether, the prosecution has
been able to fully convince us, in the light of the law laid down in
Chandran @ Surendran and another vs. State of Kerala, 1991 Supp (1)
SCC 39, that we can safely draw a conclusion that the appellant and the
appellant alone and no other, has committed the murder. No doubt, the
prosecution has brought on record such evidence which establishes the
link of the appellant to the extent of his handwriting in the chit and his
saliva on the cigarette butt found near the body. As such, a strong
suspicion is created by such evidence which is held to be of probative
value, that the appellant was near the unknown person and planted the
chit to implicate the relatives of his wife. Being a smoker and being under
great stress, may be after having murdered an unknown person, he may
have smoked a cigarette and accidentally dropped the butt near the body.
This is a probable story on the basis of strong suspicion. However, the
Honourable Apex Court has recently held on 12.02.2021 in the case of
The State of Odisha vs. Banabihari Mohapatra and another, Special Leave
Petition (Crl) No.1156/2021, that suspicion, however strong it may be,
*34* 905apeal452o16Judgment
cannot be a substitute for substantive evidence. Suspicion can never take
place of proof and the court cannot base it's order of conviction on the
basis of suspicion.
33. In Chandran @ Surendran (supra), the Honourable Supreme
Court has held in paragraphs 12 and 13 as under:-
"12. Admittedly, there is no direct evidence connecting the
appellants with the offence. No identification parade seems
to have been conducted although PW 33 has deposed that
he requested for an identification parade. Further, there is
no evidence about the movement of these appellants near
the scene either before or after the occurrence. Therefore,
the inference of guilt of the appellants is to be drawn from
circumstantial evidence only. It is needless to emphasise
that those circumstances should be of definite tendency
pointing towards the guilt of the appellants and in their
totality must unerringly lead to the conclusion that the
offence was committed by the appellants and none else.
The circumstantial evidence adduced by the prosecution in
the instant case is two fold:
(1) The recovery of MOs 1 to 3 said to have been
made in pursuance of the statement of the first accused to
the police.
(2) The evidence of PW 30, the Fingerprint Expert to
the effect that the finger impressions found on the two
glass pieces seized from the scene of the occurrence were
found on comparison and examination as those of
appellants 1 and 2.
13. As the appellants are awarded the extreme penalty of law
only on the above two pieces of evidence, we have to
scrutinise these two circumstantial pieces of evidence in a
very careful, cautious and meticulous way and see whether
this evidence can be accepted and acted upon to mulct
these appellants with this dastardly crime. The fact that
these two murders which are cruel and revolting had been
perpetrated in a very shocking nature should not be
allowed in any way to influence the mind of the court
while examining the alleged involvement of the appellants.
*35* 905apeal452o16Judgment
It is worthwhile to recall an observation of this Court in
Datar Singh v. State of Punjab, [(1975) 4 SCC 272]
articulating that (SCC p. 275, para 3) "Courts of justice
cannot be swayed by sentiment or prejudice against a
person accused of the very reprehensible crime ....""
34. The appellant has examined DW-1 Mesu Pandit Vidhate, who
is the brother of the sister of the appellant. He has made a bald statement
in his testimony at Exhibit-71 that the appellant had gone to Kokatnur
(Karnataka State) for a fair on 19.12.2013 at about 07:00 PM. He came to
meet his mother in the village of DW-1 viz. Pachavamail and thereafter, all
of them went to Kokatnur. It is settled law that the plea of alibi has to be
supported with very strong evidence, of a high probative value, which can
be compared with the probative value of the prosecution evidence to
prove a crime beyond reasonable doubt. Besides a mere statement by DW-
1, there is no material to corroborate the journey of the appellant from
Osmanabad to Phaltan and from Phaltan to Kokatnur. Humans may lie,
but documents would not lie. Besides a solitary statement by DW-1, there
is no corroboration to support the said oral statement. Moreover, the
death of the unknown person appears to have occurred either on
17.12.2013 or 18.12.2013.
35. PW-8, divorced wife of the appellant, has stated that her
milkman had told her that he had seen the appellant loitering some time
in the area where the dead body was found. This is a statement made on
*36* 905apeal452o16Judgment
hearsay and the milkman was never examined by the prosecution. So also,
this statement is an omission since no such statement was made by PW-8
when her statement was recorded under Section 161 of the Cr.P.C..
36. It is well settled that when a court develops a suspicion about
the offence having been committed by the accused and when it finds a
doubtful case of the prosecution, of not being able to prove beyond any
doubt that the appellant alone and nobody else has committed the crime,
the benefit of doubt will have to be given to the accused. We are dealing
with a human being and the case involves his role in the crime. His
personal liberty and freedom depends upon whether, the crime can be said
to have been committed by him. As is often said in criminal jurisprudence
that nine guilty persons may be acquitted under the benefit of doubt, but
not a single innocent person could be convicted merely on the basis of
suspicion.
37. We are circumspect as to whether, we could base a conclusion
of conviction on the saliva of the appellant having been found on the
cigarette butt and his handwriting having been found in a chit retrieved
from the pant pocket of the deceased. To the extent of the chit and
cigarette butt, the evidence may be unshakable. However, the possibility of
somebody else having killed the deceased and to the misfortune of the
appellant, he having developed a desire to take the opportunity of
implicating his wife's relatives in such a death, cannot be ruled out. We do
*37* 905apeal452o16Judgment
find that the prosecution was very close to solving the murder mystery
and we also find that scientific evidence based on technological
advancement might prove only the presence of the appellant near the
dead body. What is intriguing is who has killed the unknown person and
whether, the case of the prosecution that the appellant killed the innocent
unknown person so as to implicate his wife's relatives and make them
suffer the rigours of litigation and probable conviction, could be accepted.
We find such story of 'indirect revenge' to be quite imaginative, but
unconvincing.
38. The learned Trial Court has failed to consider the crystallized
law applicable to such cases and has drawn a conclusion that as the
handwriting of the appellant matches with the chit found in the pant
pocket of the dead body and as the cigarette butt with his saliva was
found near the body, the appellant could have been the person who
murdered the unknown person, which is an unsustainable conclusion.
39. In view of the above, as the prosecution has been unable to
conclusively prove the murder of the unknown person and convince us to
draw a conclusion that the appellant, the appellant alone and nobody else
has committed the murder, that we grant the benefit of doubt to the
appellant.
40. Consequentially, this Criminal Appeal is allowed. The
impugned judgment and order dated 12.02.2016 is quashed and set aside
*38* 905apeal452o16Judgment
and the appellant is acquitted of having committed an offence punishable
under Section 302 r/w Section 201 of the Indian Penal Code. He shall,
therefore, be set at liberty and shall be released from jail. The record and
proceedings be returned to the Trial Court and the mudemal shall be
destroyed after the appeal period is over.
41. The learned prosecutor submits that the State would prefer
an appeal for challenging this judgment before the Honourable Apex
Court. In view of the said statement, while releasing the appellant/
accused from jail, he shall be subjected to the compliance of Section 437-A
of the Code of Criminal Procedure, 1973 by furnishing a P.R. Bond in the
sum of Rs.15,000/- (Rupees Fifteen Thousand) and a surety of the like
amount keeping in view the statement of the learned advocate that the
appellant is in abject poverty and though he was granted bail by this
Court, he could not furnish the sureties.
42. Since the appellant was represented through the High Court
Legal Services Sub-Committee, Aurangabad, we quantify the fees of the
learned advocate for the appellant at Rs.20,000/- (Rupees Twenty
Thousand).
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
