Bombay High Court
Avinash Shashikant Sawant vs The State Of Maharashtra on 19 July, 2021
Bench: Nitin Jamdar, C.V. Bhadang
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.IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 107 OF 2011
Avinash Shashikant Sawant ..Appellant
V/s.
The State of Maharashtra ..Respondent
----
Mr. Chaitanya Pendse a/w. Mr. B. D. Shinde a/w. Ms. Siddhi
Bhosale for the Appellant.
Ms. Prajakta Shinde, APP for the Respondent / State.
----
CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
DATE : 19 July 2021
Judgment : (Per C. V. Bhadang, J.)
. The challenge in this Appeal is to the judgment of
conviction and sentence recorded by the learned Sessions Judge
for Greater Mumbai at Sewree on 30 November 2010 in Sessions
Case No.39/2010. By the impugned judgment, the Appellant /
Accused has been convicted for the offence punishable under
Section 302, 452 and 392 r/w. Section 397 of the Indian Penal
Code (IPC). For the offence punishable under Section 302 of
IPC, the Appellant has been sentenced to suffer imprisonment for
life and to pay fine of Rs.10,000/-, in default, to suffer R.I. for
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one year. For the offence punishable under Section 452 of IPC,
the Appellant has been further sentenced to suffer R.I. for one
year and to pay fine of Rs.2,000/-, in default, to suffer R.I. for
four months. Lastly, for the offence punishable under Section
392 r/w. 397 of IPC, the Appellant is sentenced to suffer R.I. for
seven years and to pay fine of Rs.10,000/-, in default, to suffer
R.I. for one year. The substantive sentences are directed to run
concurrently.
2. The prosecution case in brief is as under :
Now deceased Smt. Malti Prabhakar Mahadik was
residing alongwith her son Sachin and daughter-in-law Subhadra
at House No.306, Saibaba Rahivasi Sangh, Gaondevi, Santacruz
(E), Mumbai, which is said to be a part of slum area. On 17
September 2009, when the incident in question is alleged to have
happened, Sau. Surekha Kadam who is a married daughter of
Malti had also come down to stay with her mother Malti in the
said house.
3. It is said that Sachin was working with Kabu Shares
and Stocking Pvt. Ltd. while Surekha Kadam had a job in
Andheri (W), Mumbai. On the day of incident, in the morning,
both of them left the house to attend their jobs. Subhadra
Mahadik went to her maternal place.
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4. P.W.1- Ankita Pawar is a next door neighbour of Smt.
Malti Mahadik. P.W.1 is a complainant in the present case who
claims that whenever she was required to go out, she used to keep
the keys of her house with the deceased Malti. This would
indicate that there was a certain amount of trust, closeness and
acquaintance between P.W.1 and deceased Malti. Be that as it
may, P.W.1 claims that on the day of incident at about 5.30 to
5.40 p.m. she was required to go out of her house to fetch her son
from the school. She therefore locked her house and as usual
went to the house of deceased Malti to keep the keys. P.W.1 saw
that the front door of the house of the deceased Malti was partly
open. When P.W.1 Ankita Pawar entered the house to keep her
keys near the mirror on the wall, she noticed that the deceased
was lying down with her face covered with a quilt (godhadi).
Ankita suspected that Malti could be unwell and therefore
touched her soles and found her to be cold. It is at this point that
P.W.1 removed the quilt and noticed that Malti was lying in a pool
of blood having multiple injuries on her neck and stomach. P.W.1
shouted for help when some neighbours gathered, one of whom
informed to the Police about the incident.
5. The information was received by PSI Rangrao Patil
(P.W.10) attached to Vakola Police Station. PSI Patil alongwith
staff visited the spot of incident. Dr. Varsha Palkar was called at
the spot and after examination, she declared Smt. Malti to be
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dead. On the basis of complaint lodged by P.W.1 Ankita Pawar,
FIR at Crime No.365/2009 came to be registered under Section
302 of IPC against unidentified person and the investigation was
set in motion.
6. During the course of investigation, the dead body was
sent for post mortem examination after drawing of an inquest
panchanama. The Investigating Officer also drew a spot
panchanama. The statement of the witnesses came to be
recorded. It may be mentioned that the Appellant (Accused
No.1) came to be arrested on 9 October 2009. According to the
prosecution, the Appellant while in custody voluntarily gave
successive confessional statements offering to discover the
ornaments which were on the person of the deceased and other
articles. The ornaments and other articles were seized at the
instance of the Appellant. The seized articles were sent for report
of Chemical Analyzer. It may be mentioned that according to the
Investigating Officer, it transpired during the investigation that
the offence was committed by the Appellant in conspiracy with
now deceased Nilesh Khake (Accused No.2) who met with an
accidental death during the course of investigation itself. The
prosecution claims that the motive behind the incident was
commission of robbery in as much as both the accused were
unemployed and jobless.
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7. Upon completion of the investigation, a charge-sheet
came to be filed which was committed to the Court of Sessions
and was registered as Sessions Case No.39/2010. The learned
Sessions Judge framed charge against the Appellant under the
aforesaid sections to which the Appellant pleaded not guilty and
claimed to be tried. The defence of the Appellant is one of total
denial and false implication.
8. At the trial, the prosecution examined as many as
fourteen witnesses and produced the contemporary record of
investigation. The Appellant did not lead any evidence in his
defence.
9. The learned Sessions Judge by the impugned
judgment found the Appellant guilty under various heads and
accordingly he was sentenced as aforesaid. Hence, this Appeal.
10. We have heard the learned counsel for the Appellant
and the learned APP. With the assistance of the learned counsel
for the parties, we have gone through the record.
11. It is submitted by the learned counsel for the
Appellant that the case is based on circumstantial evidence. It is
submitted that thus the prosecution was required to establish the
various incriminating circumstances individually which should
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form a complete chain in itself. It is submitted that except the
circumstance of recovery, which also in the submission of the
learned counsel is not established, there is no other circumstance
brought on record to establish the guilt against the Appellant. He
has then taken us through the evidence in order to show that the
circumstance about motive is entirely absent much less proved. It
is submitted that the recovery of the ornaments and the clothes is
also doubtful. In this regard, he has referred to the evidence of
the memorandum statement (Exh.22) and the recovery
panchanama (Exh.23) in support of which the prosecution had
examined P.W.2 - Sachin Sawant as a panch. The learned counsel
has pointed out to the timing as stated by the P.W.2 and timing
recorded in Exh.22 and 23 to show that they are discrepant. It is
submitted that P.W.2 claims that it was the Investigating Officer
(P.W.13) who had told him about the statement / willingness of
the Appellant to produce the ornaments. It is submitted that if
that be so, the essential part of the recovery which is the
voluntary statement of the Accused while in custody, itself
becomes doubtful and in any event, is not personally witnessed
by P.W.2. It is submitted that there were in all four ornaments
and one yellow colour plastic bag which was allegedly recovered
from the place of which the ownership of the Appellant is neither
claimed nor established. It is also submitted that there is
discrepancy as to the weight of the ornaments as mentioned in
the panchanama and the report of the valuer. Lastly, it is
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submitted that P.W. 7 - Sachin Mahadik who is son of the
deceased has not given the description / particulars of the
ornaments and therefore the alleged identification of the
ornaments by P.W.7 before the Court also becomes doubtful and
is unacceptable. The learned counsel was at pains to point out
that even assuming that the recovery is established, it being a
circumstance of a corroborative nature by itself is not sufficient to
establish the complicity of the Appellant in the alleged offence.
12. The learned APP has supported the impugned
judgment. It is submitted that the motive for the offence is one of
robbery which stands corroborated by the recovery of the
ornaments notwithstanding some minor discrepancies. In the
submission of learned APP, the discrepancy as to the timing as
deposed by P.W.2 and the one found in the panchanama (Exh.22
and 23) does not go to the root of the matter or strike at the
veracity of the evidence of P.W.2 and the Investigating Officer
(P.W.13). It is submitted that there is also recovery of the blood
stained clothes and the circumstances taken altogether have
rightly been found by the learned Sessions Judge to be sufficient
to return a finding of guilt.
13. We have carefully considered the circumstances and
the submissions made.
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14. Indisputably, the prosecution case rests on
circumstantial evidence as there is no eye witness account of the
incident available on record. The law relating to the prosecution
case based on circumstantial evidence, is too well settled to be
restated. It is now well settled that individual incriminating
circumstances should be properly established and all such
circumstances taken together should form a complete chain
unerringly pointing to the guilt of the accused. It is now well
settled that the conclusion arising out of such circumstances
should not only be consistent with the hypothesis of the guilt but
should be inconsistent with the hypothesis of innocence. It is
further well settled that suspicion however strong, cannot take the
place of proof.
15. Coming to the present case, there are only two
circumstances on which the prosecution rests in its case. One is
motive which is said to be robbery and secondly the recovery of
the ornaments and other articles at the instance of the Appellant
under Section 27 of the Evidence Act. We find that neither the
circumstances are established and even assuming for the sake of
argument that they are proved, cannot be said to form a complete
chain to establish the complicity of the Appellant in the said
offence.
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16. Before coming to the said circumstances, it is
necessary to note that the deceased was found lying in injured
condition having multiple injuries on her neck and stomach in
her own house which is part of a slum area. P.W.1 is her next door
neighbourer. As noticed earlier, there was certain amount of trust
and deep acquaintance between the P.W.1 and the deceased in as
much as the P.W.1 claims that she was keeping the keys of her
house with the deceased whenever she was required to go out. It
has come in the evidence of P.W.1 that there is common wall
between her house and the house of deceased. Beyond the lane
in which their huts are situated there are also other huts. She
further claims that the huts in the said area are having two floors
and opposite the hut of P.W.1 and the deceased there are other
huts which are at a distance of two and half feet. It can thus be
seen that the area is thickly inhabited.
17. It has come in the evidence of Investigating Officer
(P.W.13) that the house of deceased Nilesh Khake is just opposite
to the house of deceased where P.W.14 Rupesh was also residing.
18. The son as well as daughter and the daughter-in-law
of the deceased had left the house in the morning on the day of
incident and P.W.1 found Malti lying in her house in a pool of
blood at about 5.30 to 5.40 p.m. on the same day. Thus, it is
clear that deceased Malti was done to death during the course of
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the day. We find it improbable that the deceased who had next
door neighbours and both their houses being situated in the part
of slum area which to a certain extent is densely populated,
nobody would notice the Appellant and the co-accused visiting
the deceased, assaulting and thereby seriously injuring her and
thereafter leaving unnoticed. With this, we would now refer to
the two circumstances. The fact that the Appellant is
unemployed and jobless is hardly sufficient to attribute an
intention / motive of robbery to him. Coming to the aspect of
recovery, indeed there are certain discrepancies and incongrucies
in the evidence of P.W.2. Particularly, as regards the timing when
compared with the panchanama (Exh.22 & 23). Briefly stated
the panchanama (Exh.22) indicates that the voluntary statement
of the Appellant was made between 8.50 a.m. to 9.15 a.m. when
P.W.2 clearly claims that he was called at the Police Station at 9.15
a.m. Thus, it appears to be improbable that the alleged voluntary
statement and the disclosure made by the Appellant was in the
presence of P.W.2 which is further fortified by the fact that P.W.2
claims that it was the Investigating Officer who had informed
him that the Appellant had voluntarily expressed his desire to
produce the ornaments. According to the prosecution, there
were in all five articles recovered, pursuant to the voluntary
statement which was seized vide panchanama Exh.23 which
comprise of (i) gold chain (ii) gold bangles (iii) gold earrings (iv)
one yellow metal ring and (v) one yellow coloured plastic bag
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which were wrapped in a paper and thereafter kept in a
transparent plastic bag and were sealed. There is separate
panchanama drawn at Exh.40 as the ornaments were required to
be sent to the Jeweller for valuation. Significantly enough,
neither P.W.2 nor panchanama (Exh.40) finds a reference to the
paper wrapping or the yellow coloured plastic bag. There is also
certain amount of discrepancy in the weight and lastly P.W.7 who
is son of the deceased has not given the description / particulars
of the ornaments which according to him were allegedly missing
and subject matter of robbery before their identification in the
Court. Normally the identification in the Court would stand
corroborated by the fact of concerned identifying witnesses
stating such particulars before the Investigating Officer either in
his complaint / FIR and/or statement. That apart, as rightly
submitted by the learned counsel for the Appellant, even
assuming for the sake of argument the discovery of ornaments is
proved, that by itself is not sufficient as a circumstance to find the
Appellant guilty of the offence of murder and robbery. The
learned counsel for the Appellant rightly submitted that in a
given case the person who discovers the ornaments may well be
merely a receiver of stolen property.
19. There are two other recoveries, one each on 11
October 2009 and 20 October 2009. On 11 October 2009, the
Appellant is alleged to have made a confessional statement and
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made discovery of his clothes comprising of a sando baniyan and
half jeans pant from his house. There is yet another discovery
made by the Appellant on 20 October 2009. It is significant to
note that the alleged discovery on 20 October 2009 is of the
clothes of the co-accused allegedly recovered from the house of
Rupesh Khake, the brother of the co-accused Nilesh Khake. It is
difficult to accept any such disclosure and recovery and that too
from the house of the co-accused who is dead. In our view, any
such recovery of the clothes of the co-accused from the house of
the co-accused cannot be considered as an incriminating
circumstance in the present case. It is pertinent to note that the
Investigating Officer in so far as the discovery made on 20
October 2009 states that P.W.14 Rupesh Khake who is brother of
Accused No.2 was present at the house from where the said
recovery was made. It is necessary to note that P.W. 14 was
examined by the prosecution. However, he has not stated
anything about any such recovery being made from his house at
the instance of the present Appellant. P.W.14 was examined on
the point that on 28 September 2009, according to this witness,
at about 5.30 p.m. the present Appellant had met him informing
him that he had received a phone call from Nilesh as ornaments
of the deceased Malti were with him. Appellant also allegedly
told P.W.14 that Appellant had received two more phone calls in
Hindi language of a threatening nature. The said evidence does
not take the case of the prosecution any further. So called
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statement made by P.W.14 can neither be taken as a extra judicial
confession nor can it be said to be probable in as much as P.W.14
has admitted that although police were visiting the spot from 17
September 2009 and though P.W.14 is residing next door to the
house of the deceased Malti, he did not inform about any such
statement by the Appellant to the police till 30 September 2009.
20. The evidence as to Chemical Analysis of the seized
articles also does not show that any of the articles / exhibits seized
were having the blood stains which were established to be that of
the deceased. It has come on record that the blood group of
deceased was found to be 'B' and the C.A. report as to the stains
on the clothes of the Appellant were found to be unconclusive.
21. Considering the over all circumstances, although the
fact that the deceased suffered a homicidal death is not disputed,
we are unable to hold that the prosecution evidence establishes
the complicity of the present Appellant in the said offence,
beyond reasonable doubt.
In the result, the following order is passed.
ORDER
1. The Appeal is allowed.
2. The conviction and sentence recorded against
the Appellant / Accused by the learned Sessions
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Judge, Greater Mumbai at Sewree, on 30 November
2010 in Sessions Case No.39/2010 is hereby set
aside.
3. The Appellant is acquitted of the offences as
charged.
4. The fine if paid, be refunded.
5. The Appellant be set at liberty forthwith, if
not required in connection with any other offence.
6. The part of the impugned judgment relating
to the disposed of the muddemal properties stands
confirmed.
(C. V. BHADANG, J.) (NITIN JAMDAR, J.)
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