Bombay High Court
Shabnam Alias Shabrya Alias Sunil ... vs The State Of Maharashtra on 28 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
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CRI-APPEAL-160-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.160 OF 2020
Shabnam @ Shabrya @ Sunil
Laxman @ Lasnyappa Pawar ... Appellant
Versus
The State of Maharashtra ... Respondent
......
WITH
INTERIM APPLICATION NO.558 OF 2020
IN
CRIMINAL APPEAL NO.160 OF 2020
....
Ms. Dhanlakshmi Iyer, Advocate (appointed through Legal Services) for
the Appellant.
Ms. S.V. Sonavane, APP for the Respondent-State.
....
CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
RESERVED ON : 13th SEPTEMBER, 2021
PRONOUNCED ON : 28th SEPTEMBER, 2021
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1 The appellant has filed this appeal challenging the
judgment and order dated 7.12.2019 passed by the Sessions Judge,
Sangli in Sessions Case No.70/2015. The appellant was the
Digitally
signed by
original accused No.1 in that case. Vide the impugned judgment
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2021.09.28
17:33:16
+0530
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and order, the appellant was convicted for commission of offence
punishable under Section 302 of the Indian Penal Code and was
sentenced to suffer R.I. for life and to pay a fine of Rs.10,000/-;
and in default, to suffer further R.I. for two years. He was
convicted for the offence punishable under Sections 392, 395 of the
Indian Penal Code and was sentenced to suffer R.I. for five years
and to pay a fine of Rs.5,000/-; and in default, to suffer further
S.I. for six months. He was convicted for commission of offence
punishable under Section 397 of the Indian Penal Code and was
sentenced to suffer R.I. for seven years and to pay a fine of
Rs.5,000/-; and in default, to suffer further S.I. for six months. He
was convicted for the offence punishable under Section 398 of the
Indian Penal Code and was sentenced to suffer R.I. for seven years
and to pay a fine of Rs.5,000/-; and in default, to suffer further S.I.
for six months. All the sentences were directed to run concurrently.
There were other three accused in the case. All of them were
acquitted from all these offences.
2 The prosecution case in brief is as follows:
. On 13.12.20214, the first informant Dipali Gaikwad, her
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mother, sister-in-law and mother-in-law were returning home from
a fair. At about 8:30 p.m., the accused intercepted them. Her
mother Mangal Yeware and sister-in-law Sunita Gaikwad were
murdered. Their ornaments were robbed. Even the first informant
Dipali was robbed of her golden Mangalsutra. The murder was
committed by using a knife. After that, the assailants went away.
The informant's relatives were informed. The police were
informed. FIR was lodged vide C.R. No.133/2014 at Miraj Rural
Police Station. The investigation was carried out. Spot panchnama
was conducted. Articles from the spot were seized. The appellant
was arrested on 25.12.2014. Other accused were arrested after
quite some time. Separate charge-sheets were filed. The case was
committed to the Court of Sessions and was conducted as Sessions
Case No.70/2015 before the Sessions Judge, Sangli as mentioned
earlier.
3 In its support, the prosecution examined 15 witnesses.
The evidence consisted of direct evidence as well as circumstantial
evidence. At the conclusion of the trial, the appellant was
convicted and sentenced as mentioned earlier and the other
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accused were acquitted.
4 We have heard Ms. Dhanlakshmi Iyer, learned counsel
appointed through Legal Services for the appellant and Smt. S.V.
Sonavane, learned APP for the State.
Prosecution evidence :
5 The prosecution evidence, in brief, can be categorized and
summarised as follows.
Direct evidence :
6 The most important witness in this case is PW-3 Dipali
Gaikwad. She was an eye witness and a victim in the incident.
She is a resident of village Belanki, Taluka-Miraj, District-Sangli.
Their family land is known as "Gaikwad Mala". On 13.12.2014,
there was a fair in the honour of their Goddess. Her mother
Mangal Yeware had come to her house for going to the fair and to
the temple. On 13.12.2014 at 6:00 p.m., PW-3 along with her
mother Mangal, mother-in-law Shakuntala, sister-in-law Sunita
(husband's sister), sister-in-law Kalindi (wife of husband's brother),
her children and Kalindi's children had gone to the temple. In the
evening, they started returning home. She has stated that it was
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about 8:00 p.m. They were having a battery operated torch and
there was moon-light. On their way, she suddenly heard shouts
from her mother-in-law. She saw that two persons were scuffling
with her mother-in-law and Kalindi. PW-3 has stated that she saw
faces of those persons in the light of a battery operated torch and
in moon-light. They were beating both these ladies. Kalindi ran
away from the spot towards the temple. One of them, came
towards this witness. He snatched her Mangalsutra. He told this
witness not to shout. She removed her ear-rings and Painjan and
gave them to that person. Thereafter those two persons went away
from the spot towards the railway-line. This witness raised shouts.
She saw that her mother Mangal Yeware and sister-in-law Sunita
Gaikwad had died on the spot because of the assault. She sought
help from the motorcycle riders passing from the road. Her family
was informed. Her relatives came to the spot. Then, she along
with others went to Miraj police station and lodged her FIR. The
FIR is produced on record at Exhibit-47. On the next day morning,
she showed the spot of incident to the police. In February 2015,
she attended the test identification parade held in Sangli Jail. She
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was accompanied by her mother-in-law. It is her case that she
identified one of the persons whose name was given to her as
Shabnam @ Shabraya. This is the name of the appellant.
7 After two years, she identified another accused Gouda
Sunil Bhosale in another test identification parade. She has stated
that the golden ornaments were shown to her in the police station.
. In her cross-examination, she admitted that there were
no electricity poles between her Wasti and the temple. According
to her, the culprits were carrying a battery operated torch and
during the scuffle the light from that torch fell on the faces of the
culprits and, therefore, she could identify them. She denied the
suggestion that the appellant was shown to her in the police station
after his arrest. Significantly, the ornaments which were allegedly
recovered from the appellant were not shown to her in the Court
and there is no identification of those ornaments by her in the
Court.
Recovery at the instance of the appellant :
8 The prosecution examined PW-5 Chandrakant Kore as a
pancha in whose presence the appellant had given a statement
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pursuant to which his clothes and some ornaments were recovered
on 30.12.2014. The memorandum statement is proved by this
witness at Exhibit-53 and the panchnama is at Exhibit-54.
According to the prosecution case, pursuant to the appellant's
statement, some ornaments in the form of two small golden pieces
used in mangalsutra, a golden chain, the appellant's clothes,
deceased Sunita Gaikwad's Aadhar card were recovered from one
of the temporary tents near Arag village. The articles were kept in
a tin box in that tent. The ornaments and the Aadhar card were
kept in the pant pocket. That pant was kept in that tin box.
. We have carefully seen the memorandum of the
statement given by the appellant, which is marked as Exhibit-53.
In that statement, excluding the inadmissible portion, there was no
mention of authorship of concealment and the place where the
ornaments and clothes were kept. As mentioned earlier, the
ornaments were not shown to PW-3 in the Court. Therefore, that
important link is missing. There were no allegations that the
deceased Sunita Gaikwad's Aadhar card was also taken away. It
was recovered under this panchnama. The box was not locked and
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the tent could be accessed by anybody.
Identification of the accused :
9 The prosecution has examined PW-13 Arun Sonavane,
who had conducted test identification parade concerning the
appellant. This witness was a Naib Tahsildar in Miraj Tahsil office.
His evidence is short and cryptic. He has produced Exhibits-106 &
107 purportedly being the memoranda of T.I. parade. We have
perused Exhibits-106 & 107. These are not detailed memoranda of
test identification parade. These documents are merely two charts
in respect of PW-3 Dipali Gaikwad and her mother-in-law
Shakuntala Gaikwad. It mentioned that those were prepared on
10.2.2015. There were only four dummies and they were in the
age group of 21 to 36, whereas the appellant was 19 years of age.
Both these charts merely mention that both of them i.e. Dipali and
Shakuntala identified the appellant. Apparently, PW-3 and
Shakuntala had identified the ornaments before him. However, he
has not deposed about the same in his deposition. The panchnama
dated 10.2.2015 to that effect was produced through the evidence
of the investigating officer. PW-13 has given absolutely no details
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about the procedure followed and precautions taken by him in
conducting the T.I. parade.
. In his cross-examination, however, he has stated that on
enquiry with Dipali and Shakuntala they told him that the
investigating officer had not shown the appellant to them.
Fingerprint of the appellant on the battery operated torch found at
the spot :
10 The prosecution has examined PW-1 Vasantrao Gaikwad
as a pancha, in whose presence, the spot panchnama was prepared.
He has stated that on 14.12.2014, PW-3 Dipali showed the spot of
occurrence. It was 25 ft. away from a small bridge on that
particular road. He identified all the articles shown to him in the
court which were recovered from the spot. The spot panchnama is
produced on record at Exhibit-42. It was conducted between 7:15
a.m. to 8:30 a.m. on 14.12.2014. Various articles were seized at
that time, including blood stained earth, bangle pieces etc..
Importantly, a battery operated torch was also recovered, which
has some significance. The panchnama clearly mentions that the
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articles and samples were seized, labelled and sealed.
11 The prosecution has examined PW-4 Anil Yeware, who is
a pancha, in whose presence, a finger print found on the battery
operated torch was extracted by the finger print expert. He
snapped photographs of the torch. The panchnama is produced on
record at Exhibit-49 through this witness. It was conducted
between 9:00 a.m. to 10:00 a.m..
12 The prosecution has examined PW-8 Anil Koli as the
finger print expert. He has stated that he was attached to finger
print office, Sangli. On 13.12.2014 he received a phone call from
the police at 10:20 p.m.. He went to the spot at around midnight.
It is his case that he stayed there for the entire night. On the next
day, he was shown a red coloured battery (torch). This witness
then examined it for finger prints. He collected one chance finger
print on that article. The photograph of that chance print was
taken. The investigating officer Shri Sonavane, during
investigation sent some specimen signatures of the suspects.
According to this witness, the chance finger print found on the
battery was that of the present appellant. He has also deposed that
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his office was having finger prints of the appellant as he was a
habitual offender. This witness sent his report for final opinion to
CID office, Pune along with his letter dated 5.1.2015. The final
report from the CID office was received on 13.3.2015. It is
produced on record at Exhibit-64. In his cross-examination, he
admitted that the investigating officer had not seized the battery in
his presence. The reports are produced on record through him.
Medical evidence ::
13 PW-9 Dr. Surekha Ghavade had conducted the
postmortem on the dead bodies. Mangal Yeware had two injuries.
The fatal injury was on the left side over back which had caused
injury to left lung causing the death. Sunita Gaikwad had suffered
nine stab injuries causing her death. There is no dispute about the
fact that both of them died a homicidal death.
Other evidence :
14 The other evidence in the context of the case is not very
material. PW-2 Farukh Bagwan was a pancha for seizure of the
clothes of the deceased. PW-6 Chandrakant Bhandare is in respect
of recovery of knife at the instance of accused No.2 Gauda Bhosale.
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PW-7 Rekha Patil was a pancha for inquest panchnama. PW-10
Mahesh Joshi had taken photographs of the dead body. PW-11
Rajesh Gavali was a pancha when clothes of the accused Gauda
Bhosale were seized.
15 PW-12 P.I. Devidas Sonavane was attached to Miraj Rural
Police Station and had conducted first part of the investigation and
had gone to the spot. He had called finger print expert at the spot.
The recovery of articles were made allegedly at the instance of the
appellant under the supervision of this witness. On 25.12.2014 the
police officer Bajirao Pawar had produced the appellant and this
witness had arrested him. Very significantly he has admitted that
he had shown the accused-appellant to PW-3 Dipali after his arrest.
16 PW-14 P.I. Mohan Jadhav and PW-15 P.I. Sandip Kolekar
had conducted some part of the investigation, and in particular,
had conducted the investigation in respect of other accused.
C.A. report :
17 Besides the ocular evidence, another important piece of
evidence is C.A. report which shows that the earth and most of the
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clothes of the deceased showed presence of human blood but the
blood group was inconclusive. There was "A-Group" blood on one
saree, one petticoat and on the appellant's shirt. However, the
appellant's blood group was not determined as the results were
inconclusive.
. This is the evidence led by the prosecution.
Submissions on behalf of the appellant and the State ::
18 Learned counsel for the appellant submitted that the
prosecution has not proved its case beyond reasonable doubts. The
evidence of PW-3 Dipali Gaikwad is not reliable. It is doubtful as to
whether she was present at the scene of offence at all. There was
no way she could have watched the features of the offenders.
There was darkness in the area. The identification of the appellant
is disbelieved by the learned trial Judge. She submitted that the
other circumstance of finding of finger-print on the torch recovered
from the spot is also not free from doubt. The evidence in that
regard does not inspire confidence. She submitted that the
evidence of recovery cannot be held against the appellant as it does
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not satisfy the requirement of Section 27 of the Indian Evidence
Act.
19 Learned A.P.P. on the other hand submitted that PW-3 has
explained as to how she could see the accused including the
appellant. The torch carried by the accused themselves was the
reason why PW-3 could see their faces. The recovery evidence is
important. Aadhar card of one of the deceased was recovered at
the instance of the appellant. The ornaments were identified by
PW-3 before the SEM and, therefore, this recovery is an important
incriminating piece of circumstance of evidence which is
sufficiently proved by the prosecution.
20 Learned A.P.P. submitted that finding of a chance finger
print on the battery operated torch and matching it with the
appellant is another strong link in the chain of circumstances to
establish presence of the appellant at the spot and at the time of
incident. Thus, taking into account all these pieces of evidence
together, including the direct evidence of PW-3 the prosecution has
sufficiently proved its case against the appellant.
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Reasoning :
21 We have considered these submissions. The most
important evidence in this case is of course evidence of PW-3 Dipali
Gaikwad, who herself was the alleged victim as her ornaments
were robbed. According to the prosecution, she was present when
the offence took place. Therefore, we have considered her
evidence very carefully. Admittedly, there were no street lights on
the road where the incident had taken place. The incident had
taken place at 8:30 p.m.. PW-3 has explained that she could see
the faces of the accused because the battery operated torch carried
by them was throwing light on their faces during the incident of
scuffle. She has also explained that there was moon light.
22 It is difficult to believe that such accidental fall of ray of
light from the battery operated torch on the faces of the accused
momentarily was sufficient for her to know their features. The
accused were total strangers. The explanation about seeing faces
in the moon light is also vague. The emphasis was on the torch
light. In this context, the identity of the accused assumes great
importance. It is important to know that, in the FIR itself, she has
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stated that she was not in a position to describe the accused but if
they were shown she would identify them. She had added that
both the accused were slim and were wearing pant and shirt.
23 The FIR is about two accused, whereas the prosecution
case was that there were four accused who had committed the
offence and, therefore, four accused had faced the trial.
24 The prosecution has miserably failed to substantiate their
case that the appellant was one of the offenders. The prosecution
has not brought on record the test identification parade
memorandum concerning identification of the appellant on
15.2.2015 by PW-3 Dipali. PW-13 Arun Sonavane has merely
produced a chart as mentioned earlier to show that the appellant
was made to stand along with four dummies and the chart
mentions that he was identified. No evidence was given by PW-13
as to how precautions were taken and what procedure was
followed while conducting this test identification parade.
25 Learned trial Judge has already disbelieved identification
of the appellant. In our opinion, apart from these infirmities in the
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identification of the appellant, the most important admission given
by the investigating officer i.e. PW-12 P.I. Devidas Sonavane
destroys the circumstance of identification of the appellant. He has
admitted in his cross examination that he had shown the appellant
to PW-3 after his arrest. Therefore, after all this, whatever little
value could be attached to the identification of the appellant has
been destroyed completely.
26 The other circumstance is about recovery at the instance
of the appellant. As mentioned earlier, the memorandum
statement is produced on record at Exhibit-53. Excluding the
inadmissible portion, there is nothing else in the memorandum
which can be saved as admissible portion under Section 27 of the
Indian Evidence Act. There is neither authorship of concealment
nor the place mentioned in that portion. Therefore, entire
memorandum of statement purportedly given by the appellant is
inadmissible and cannot be relied on. Therefore, the recovery
made pursuant to such statement cannot be held as an
incriminating circumstance against the appellant. The tent was
accessible and the box was not locked. In any case, under that
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panchnama a piece of golden ornament in the shape of sea-shells
was recovered. This article was not shown to PW-3 Dipali in the
Court and, therefore, there is no identification of this article. It is
the prosecution case that at the time of test identification parade
itself a separate procedure was carried out by PW-13 Arun
Sonavane wherein PW-3 Dipali had identified this ornament as
being part of the stolen articles. However, PW-13 Arun Sonavane
has not made any reference to any such identification and,
therefore, this also cannot be held against the appellant.
27 Though finding of Aadhar card of one of the deceased
Sunita Gaikwad during this recovery procedure at the instance of
the appellant would have been incriminating circumstance, but,
since the recovery itself cannot be held to be proved against the
appellant, even this circumstance cannot be used against him. In
any case, it was nobody's case that the offenders had taken away
Aadhar card of the deceased Sunita Gaikwad. There was no
reference to this Aadhar card in the entire prosecution case till its
recovery.
28 Under the same recovery panchnama, the clothes of the
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accused were seized. The C.A. report shows that there was blood
of "A group" on the T-Shirt of the appellant and human blood was
found on full-pant of the appellant, but, the blood group was
inconclusive.
29 The prosecution has not further established as to what
was the blood group of the appellant himself and, therefore, this
again cannot be connected with the appellant particularly when we
are holding that the recovery itself is not proved against the
appellant.
30 The last circumstance against the present appellant is
about finding of a chance finger print of the appellant on the
battery operated torch found at the spot. In this regard, the timing
of some panchnamas are important. The spot panchnama Exhibit-
42 was conducted between 7:15 a.m. to 8:30 a.m. on 14.12.2014.
At that time the battery operated torch was seized from the spot.
Significantly, the panchnama mentions that the articles were
seized, labels bearing signatures of panchas and police officers
were pasted on those articles and they were sealed.
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31 After that, the finger print was taken under another
panchnama which is placed on record at Exhibit-49. That
panchnama was conducted between 9:00 a.m. to 10:00 a.m.. At
that time, PW-8 Anil Koli had found the chance finger print. It was
encircled by using marking-pen. This panchnama was carried out
between 9:00 a.m. to 10:00 a.m. on 14.12.2014. The timing is
important because after the first panchnama of seizure of the
battery operated torch there is no other panchnama or evidence to
show as to how the battery operated torch was produced by the
police once it was sealed. There is no further panchnama to show
that it was unsealed to enable the finger print expert PW-8 Anil Koli
to take a chance finger print. That link is missing.
32 Even otherwise and even assuming that the battery
operated torch was not actually sealed, the prosecution story itself
shows that it was handled by the police officers, various panchas
etc. and yet, only one chance finger print could be found by PW-8
Anil Koli. This itself is not free from doubt.
33 The evidence of PW-8 Anil Koli, the finger print expert, is
also important. He has stated that he had reached the spot in the
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midnight between 13.12.2014 to 14.12.2014. he has stated that he
stayed there the whole night. He has not offered any explanation
for the same. On the next day, the investigating officer showed him
the battery operated torch and then he took that chance finger
print. However, he has not uttered a word about any panchnama
being prepared when this chance finger print was taken by him.
Curiously he has deposed that his office was having finger prints of
the appellant as he was a habitual offender. The investigating
officer himself has not produced any record to show that the
appellant was a habitual offender. Therefore, we do not find that
PW-8 is a totally independent witness. He had prepared the report
giving his opinion that the chance finger print matched with the
thumb impression of the appellant. The appellant's finger prints
were apparently taken when he was arrested and then were sent
for comparison to PW-8 Anil Koli. Because of these doubtful
circumstances, we are not inclined to place reliance on this
evidence.
34 Apart from the above circumstances, there is no material
against the present appellant. As discussed earlier, the prosecution
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evidence is not free from doubt. In our view, the prosecution has
failed to prove its case beyond reasonable doubt against the
appellant and, therefore, he deserves to be acquitted from all the
charges. Hence, the following order :
:: O R D E R ::
i. The Appeal is allowed.
ii. The judgment and order dated 7.12.2019 passed by the
Sessions Judge, Sangli in Sessions Case No.70/2015 is set
aside. The appellant is acquitted from all the charges
which he was facing in Sessions Case No.70/2015 on the
file of Sessions Judge, Sangli.
iii. The appellant be released from jail in connection with
Sessions Case No.70/2015 if not required in any other
case.
iv. Fine amount, if paid, be returned to the Appellant.
v. Criminal Appeal is disposed of in aforesaid terms. In view
of disposal of Criminal Appeal, Interim Application
No.558/2020 also stands disposed of.
vi. Ms. Dhanlaxmi Iyer was appointed by this Court.
Therefore, she be paid her fees as per rules
(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)
Deshmane (PS)
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