Gunvant Rohidas Bansode vs The State Of Maharashtra
2022 Latest Caselaw 78 Bom

Sherla V.


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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE SIDE

                                  CRIMINAL APPEAL NO.745 OF 2013

            Shri Gunvant Rohidas Bansode
            At Bodka, Post: Rameshwar                                               ... Appellant
            Tal. & Dist. Latur                                                    (org. accused)
            (presently at Nashik Road Central Jail)
                              Vs.
            State of Maharashtra
                                                                                 ... Respondent
            (Through Rasayani police station)



            Ms.Ameeta Kuttikrishnan, Advocate appointed for the Appellant

            Mr.S.S. Hulke, APP, for Respondent - State


                                                CORAM: S.S. SHINDE &
                                                       SURENDRA P. TAVADE, JJ.

             JUDGEMENT RESERVED ON: DECEMBER 8, 2021
             JUDGEMENT DELIVERED ON: JANUARY 4, 2022

            JUDGEMENT (PER S.S. SHINDE, J.):

1. This appeal challenges the judgment and order passed by

the learned Sessions Judge, Raigad Alibag dated 14 th March, 2011

in Sessions Case No.137 of 2009 thereby convicting the appellant

- accused for the charge under section 302 of the Indian Penal

Code and sentencing him to rigorous imprisonment for life and to

pay Rs.1,000/- as fine and in default thereof, to suffer simple

imprisonment for six months.

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2. The prosecution case in brief is as under:

The deceased Sunita and her husband Vinayak were staying

together at Mohopada, Taluka Khalapur, District Raigad.

Complainant Mohan was staying in front of their house in the same

locality. On 19.7.2009 at about 7am, Mohan had gone to bring

newspaper when his daughter had informed him on phone that

many people had assembled in front of the house of Vinayak.

Mohan immediately came and went to the house of Vinayak and

saw the dead body of Sunita in a pool of blood between the

kitchen and bedroom. There were bleeding injuries on her neck,

cheek and arm. The cupboards were open and articles in

cupboards were scattered. On enquiry, he came to know that day

before the date of the incident i.e., 18.7.2009 at about 8.30 pm, the

accused had visited the house of the deceased and demanded

money from her. Thereafter, Mohan lodged a complaint with

Rasayani Police Station and on that basis, the offence was

registered at C.R. No.36 of 2009 against the accused for the

offences punishable under sections 457, 460 and 302 of the Indian

Penal Code.

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Investigation commenced. Inquest panchanama and spot

panchanama were prepared. Two pillow covers, bedsheet, carpet

stained with blood were seized from the spot. The dead body of

Sunita was sent to hospital for postmortem. The accused was

arrested on 22.7.2009 at Balegaon, District Solapur. Chargesheet

was submitted against the accused for the offences punishable

under sections 302, 460 and 382 of the Indian Penal Code before

the learned JMFC, Khalapur, who later on, committed the case to

the Court of Sessions, Raigad Alibag.

The Sessions Court framed the charge. Thereafter,

subsequently, charge under section 460 of the Indian Penal Code

came to be deleted. The defence of the accused was that of total

denial and false implication and he claimed to be tried.

After completion of trial, the accused was held guilty and

accordingly, came to be convicted for the offences punishable

under sections 302 and 382 of the Indian Penal Code as already

mentioned herein above. Hence, this Appeal.

3. The learned Counsel appearing for the appellant - accused

has assailed the impugned judgment and order on many grounds.

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She submitted that the prosecution evidence was mainly of

circumstantial nature. The recovery of weapon (knife) at Lonavala

after a considerable period is not at all acceptable as the

prosecution had failed to establish that the appellant had gone to

Lonavala after committing the alleged crime. She submitted that

the statements of PW8 (Ayesha) and PW9 (Zarina) were not

trustworthy as they themselves were guilty of misappropriation of

stolen articles. There was no explanation by the prosecution as to

the condition of the said knife. She submitted that the evidence in

respect of C.A. report regarding blood sample of the appellant was

prepared without following proper procedure. There is no details

about the date and time when the blood sample of the accused

was taken which vitiates the reliability of the said evidence. The

learned Counsel submitted that the trial Judge failed to appreciate

the existence of foot print which was found in the blood, spilled

over the floor, of unknown person at the place of incident. This

was clearly indicative of the presence of a third person at the

relevant time. She also submitted that the motive being the

alleged crime was not properly established and still, the statement

of PW3 (Anandsing) was accepted at its face value. She further

submitted that the objection of the appellant to the conclusion

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regarding the postmortem report of the deceased that the absence

of state of rigor mortis clearly indicated that the time of the death of

the deceased, as given by the prosecution, was in clear doubt.

She submitted that mere presence of the appellant at the spot of

the incident on earlier day could not have been sufficient to prove

the alleged involvement of the appellant in the crime. There were

contradictions in respect of seizure of camera of Canon make and

the same vitiated the version of recovery of stolen articles. In the

aforesaid background, the learned Counsel for the appellant

submitted that the present Appeal deserves to be allowed and the

impugned judgement and order needs to be quashed and set

aside.

4. On the other hand, the learned APP appearing for the

Respondent - State has relied on the reasoning given by the trial

Court in the impugned judgment and order and while supporting

the same, submitted that the impugned judgment and order

challenged in Appeal needs no interference and the same may be

dismissed.

5. The prosecution has in all examined 20 witnesses in support

of its case.

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PW1 Mohan Krishnaji Soman, nephew of the deceased, is

the first informant; PW2 Anandsing Gangasing Rawat was the

servant of the deceased; PW3 Vinayak Yashwant Modak -

Milkman; PW4 Manish Vinayak Soman is the son of the deceased,

PW5 Amol Ramesh Tol had purchased camera (article 22) from

the accused; PW6 Amita Kisan Patil was the Computer Operator

at Internet Cafe at Mohapada; PW7 Navnath Pandharinath

Shenkar was the owner of mobile shop at Mohapada; PW8 Ayesha

Shaikh Rahemutla Shaikh was the rag picker; PW9 Zarina

Rahemutla Shaikh was also a rag picker and daughter of PW8

Ayesha; PW10 Rajashri Shrikant Koli Shaikh was known to

accused and in July 2009, accused had paid her Rs.2,000/-; PW11

Hemant Ramchandra Chalke, PW12 Ravindra Mahadeo Chitale,

PW13 Dileep Bhaskar, PW14 Pravin Mishrimal Soni and PW15

Baban Ram Patil were the panch witnesses; PW16 Raju

Chandsaheb Mulani was known to accused and the accused had

worked with him for one month; PW17 Ramesh Narayan

Deshmukh was the Circle Officer at Chowk, Taluka Karjat; PW18

Ganesh @ Swami Chandrashekar Awasekar in whose house the

accused had kept the stolen articles; PW19 Dr.Ghanashya Hari

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Nazirkar was the Medical Officer who had conducted the

postmortem and PW20 Sanjay Dattu Hajare was the Investigating

Officer.

6. In order to prove its case, the prosecution had relied upon

the following circumstances:

         1)       Sunita died homicidal death;

         2)       Visit of accused to Mohopada and the house of

         deceased

         3)       Monitory need of accused

         4)       Demand of money by accused from deceased

         5)       Existence of blood stains on the clothes of accused

         6)       Recovery of knife and ornaments of deceased

         7)       Recovery of stolen articles at the instance of accused

         8)       Accused was working as servant in the house of the

         deceased.

7. The main charge levelled against the accused is that of

committing murder of Sunita. So, the question that requires

determination is whether the death of Sunita was homicidal. There

is no controversy about the cause of death of Sunita on account of

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injuries sustained by her.

PW19 Dr.Nazirkar, who was serving as Medical Officer at

Rural Hospital, Chowk Tal.Khalapur, had conducted autopsy on the

dead body of Sunita. He has described 23 injuries in the

postmortem report. As per his opinion, the cause of death was

'hemorrhagic shock due to multiple injuries'. The injuries which

are mentioned in a separate sheet of the postmortem report are as

follows:

On face: right side face

1) Base of Nostril oblique extending on right side CLW 2" x 1/2" bone deep

2) CLW on right side cheek 2"x 3/4" x 1/2"

3) CLW sub-mandibular area 2" x 1/2" x 1/2"

4) CLW on cheek 1" x 1/4" x 1/4"

5) CLW on chin 2" x 1/4" frm mid line to right side

Neck and ant. chest wall

6) 1.1/2" x 1/4" x 4" approx. at the junction of neck and chest obligue. On right side.

7) CLW 1" x 1/2" x 1/2" oblique 2" below lower most portion of neck above sternum

8) 2" x 1/2" x 1/2" CLW at the base of neck oblique like figure "/-"

9) CLW 2" x 1/2" x 1/2" on anterior aspect of front of neck.

10) Near left nipple 1" meial and oblique CLW 2" x 1" x 1/2"

Left Upper limb and axilla

11) CLW 2" x 1/2" x 1/2" on anterior aspect of shoulder oblique

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12) CLW 3" x 1/2" x 1" lateral aspect of left upper limb.

13) CLW 2.1/2" x 1/2" x 1/2" on lateral aspect upper limb oblique

14) CLW 3" x 1/2" x 1" on lateral aspect oblique.

15) CLW 3" x 3/4" x 1/2" on lateral aspect oblique

16) Left side chest wall - 2" x 1" x approx. 3" depth with fracture of 3rd and 4th rib.

Left Side of Face

17) Full length through and through cut on left ear 1" upward from left ear lobe

18) CLW 3" x 1/2" x 2" on left side sub mandibular region oblique

19) CLW 2" x 1/2" x 2" on left side of neck, oblique in supra- clavicular region

20) CLW 1" x 1/4" x 1/4" on medial aspect of Patella left knee

21) Liniear abrasion on shin of tibia.

Right wrist

22) On lateral aspect, oblique 1.1/2" x 1/2" x 1" like 'V' extending on both palmer and dorsal aspect

23) CLW 2" x 1/4" x 1/4" - 2" above olecranon process on left right upper limb lateral aspect."

The injuries mentioned at serial Nos.4, 6 and 16 are shown

as fatal injuries. As per the opinion of the Medical Officer, the

injuries at serial Nos.1 to 4, 6 to 8, 11 to 19, 22 and 23 are possible

by knife. In the cross-examination, the medical officer had stated

that he did not notice rigor mortis and there were no signs of

decomposition.

8. It appears that the advocate appearing for the accused

before the trial Court submitted that when the autopsy of the dead

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body was conducted on 19th July, 2009 at about 3pm, PW19

Dr.Ghanashyam Hari Nazirkar did not notice rigor mortis on the

dead body. Also, there were no signs of decomposition. Therefore,

it was submitted before the trial Court that it can be stated that the

death was caused within two hours of beginning of postmortem

i.e., between 1pm to 2pm and consequently, the prosecution story

that the deceased died during the intervening night between 18 th

July and 19th July, 2009 is falsified.

It needs to be noted here that the trial Court had accepted

the evidence of PW2 Anandsingh who was with the deceased upto

11.30pm on 18th July and thereafter, in the morning at 8am on 19 th

July. PW2 Anandsingh and PW3 Vinayak had seen the dead body

and suggested that the death had occurred at 11.30 to 8am in the

intervening night of 18th July to 19th July.

9. In order to find out the correctness of the deposition of the

Medical Officer that no rigor mortis was found on the dead body

and the body was not decomposed, we have seen the postmortem

report where to the question in column 11, i.e., 'Regar Mortis -

Well-marked, slight or absent, whether present in the whole body

or part only." the reply given was "rigor mortis - absent. Not on

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any limb". Further, in column 12, as to the question - 'Extent, and

signs of decomposition, presence post-mortem lividity of buttocks,

loins, back and thighs or any other part. Whether bullae present

and the nature of their contained fluid. Condition of the cuticle.",

the reply given was "No evidence of decomposition or post mortem

lividity".

Therefore, considering the deposition of PW2 Anandsing

which is contrary to the deposition of the meidcal officer PW19

Dr.Nazirkar, though it can be concluded that the death was

homicidal, nevertheless, the defence is able to cause dent in the

prosecution case about the time of death of the deceased.

10. The prosecution in order to prove the visit of accused to

Mohopada and the house of the deceased, examined PW1

Mohan, PW2 Anandsing and PW4 Manish.

PW1 Mohan in his deposition before the Court stated that

PW3 Vinayak Soman is his real uncle and the deceased Sunita

was the wife of his uncle. His uncle was residing in front of his

house. PW2 Anandsing was the servant working in the house of

his uncle and aunt. His relations with his uncle are very good. His

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uncle has two sons i.e., Mangesh and Manish. Manish (PW4) was

doing business at Mumbai and Mangesh resides in America. His

uncle Vinayak and aunt Sunita were residing in their house. Their

servant Anandsing was residing in the servants' quarter. PW4

Manish had informed the police about the stolen articles i.e., gold

ornaments, laptop, camera.

On 19th July, 2009, in the morning as usual, PW1 went to

bring newspaper when he received a call on his mobile from his

daughter Seema that something wrong had taken place in the

house of his uncle. Therefore, he immediately started to proceed

to his house. On the way, he noticed that the servant Anandsing

was coming towards him. Anandsing informed him that his aunt

was lying in the house and he should come to see her. Then, he

went to the house of his uncle and noticed that his aunt was lying

in a pool of blood between kitchen and bedroom. She had

bleeding injuries on her neck; there were injuries on her hands and

her right earlobe was torn. The household articles were scattered

in the bedroom and he found her aunt in a dead condition. At

about 9.30am, he went to Rasayani Police Station and lodged a

police complaint. He was shown a copy of the said complaint and

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he stated that the contents in the said complaint are correct.

He further deposed that prior to engaging Anandsing as

servant, one Gunwant was working as servant in the house of his

uncle. He identified the said Gunwant i.e., the accused, in the

Court. He made enquiry with Anandsing about the incident and

Anandsingh told him that on the previous night, the said Gunwant

had come to the house. After PW1 lodged the complaint, police

came to the spot; prepared spot panchanama and the dead body

was taken to the hospital at Chowk and after postmortem, the

dead body was handed over to them and the last rites were

performed after two days.

11. The defence cross-examined this witness. It appears that

the defence was successful in extracting information from him that

the house of the uncle is in a locality where there are other

bungalows adjoining it and people are residing. He also admitted

that there is one temple of Lord Ram near his house. It appears

that a suggestion was given to him that the priest of the said

temple was always present in the temple, however, the said

suggestion was denied by him. He stated that the distance

between the servant's quarter and the house of his uncle is at 20'.

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There was traffic on the road in front of his house for 24 hours. On

19th July, 2009 in the night, he was in the house. He was not

visiting his uncle's house daily. He stated that he was unable to

tell as to the usual places of different articles kept in the house of

his uncle. He further stated that his aunt Sunita was physically

stout. Looking to the spot of incident, he was suspecting that the

crime was committed by more than two persons.

12. Upon a careful perusal of the evidence of PW1, it appears

that his evidence is hearsay inasmuch as PW3 Anandsing

narrated him about the death of his aunt and thereafter, he went to

the house of the aunt. He has given a very vital admission in the

cross-examination that he was suspecting that the crime was

committed by more than two persons. However, it appears that

the prosecution has tried only the present appellant. This witness

has nowhere in his examination in chief stated about the presence

of the accused in the intervening night between 11.30pm to 8am

18th July and 19th July. His evidence at the highest can be

considered as hearsay evidence and that he noticed that his aunt

was lying in an injured condition on the relevant date. In his cross-

examination, he has stated that the house of his uncle is situated

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in an area wherein other people are residing and his house is just

a few feet distance from the house of his uncle. There is a road

and the traffic on the said road is present for 24 hours.

13. The prosecution did examine PW2 Anandsing. He stated

that his native place is Uttaranchal. He was doing the household

work including cooking in the house of the deceased and her

husband Vinayak. He was staying in the servants' room of their

house. He used to call Mr.Soman as Dada and Mrs.Soman

(deceased Sunita) as Mummy. He stated that before the incident,

Dada and Mummy were only residing in the house. One Sakubai

was a sweeper in the house of Mr. & Mrs.Soman. Sakubai used to

attend the work in between 9am to 6pm.

On 18th July, 2009, at about 9am, he prepared breakfast for

Dada and Mummy. After the breakfast, Dada went to the village

Gulsunde telling this witness that he will return on the next day.

He further deposed that he and the deceased took lunch. On the

same day, at about 7.30pm, he was in the bungalow. At that time,

one boy knocked the door of the gate and so, he opened the gate

and enquired about his name to which he (said boy) told him that

his name is Gunwant (accused) and he expressed a desire to

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meet mummy (deceased). He asked the said boy Gunwant to stay

there and he went inside the bungalow and informed mummy

(deceased) that a person by name Gunwant had come. The

deceased told him that Gunwant was an old servant and instructed

him to allow him to come inside the bungalow. Thereafter,

Gunwant entered inside the premises of the bungalow; went

towards the dog in the bungalow and then, entered into the

bungalow and went into the bedroom. Gunwant went inside the

bedroom. Anandsingh also went inside the bedroom. The

deceased was in kitchen. Gunwant told Mummy (the deceased)

that he had brought some medicine for Dada. The said medicine

was like tea powder. The deceased had asked PW2 to prepare

tea for Gunwant. After tea, Gunwant asked the deceased to give

him some money whereupon the deceased informed him that

Dada was out of station and he will be returning home on the next

day and so, he may come on the next day. He stated that

Gunwant was talking with Mummy in anger and thereafter,

Gunwant went outside the house in anger. PW2 followed him upto

the gate and closed the gate. While going, Gunwant also touched

the dog. It was a female dog and her name was Diana. Gunwant

went outside at about 7.50pm or 8pm. After about 15 to 20

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minutes, the deceased had informed PW2 that she had seen

something hiding in the glass inside the bungalow. Then, he took

a torch and took search there but did not notice anything. At about

10pm, he and Mummy had dinner. They were watching television

till 11.30pm and then PW2 went to his quarter and slept and

Mummy slept in her bedroom.

He further deposed that on 19th July, 2009, at about 7.30am,

he went to the bungalow of the deceased and knocked the door

but there was no response. At about 8am, the milkman (PW3

Vinayak Modak) came. He also knocked the door but it was not

opened. Then, they went towards the backdoor and found that the

said door was half open and so the milkman and PW2 went inside

the bungalow. They noticed that the deceased was lying near the

door of bungalow in a pool of blood. There were bleeding injuries

over her person and she was in a dead condition. Then, he called

PW1 Mohan and other neighbourers. Mohan informed the police

about the incident. The police came to the spot. Then they

referred the dead body to the hospital for postmortem. He

identified Gunwant in the Court. The police enquired with him

about the incident and he narrated the incident in Hindi and the

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police reduced the same into writing in Marathi.

14. It appears that this witness was cross-examined by the

defence Counsel. During his cross-examination, he stated that

Gunwant came to the bungalow. He enquired with the deceased

as to how she was. He also enquired about the health of Dada.

He stated that it is not true to suggest that the accused was

demanding his money as he was in need. He further stated that it

is true to suggest that after taking tea, the accused went away.

There are 3 doors to the bungalow. The door from which he

always used to go into the house was closed.

15. Upon a careful perusal of his evidence, nowhere it is

suggested that the accused again came into the said house within

the proximate time of the alleged offence or that he was seen

somewhere near the bungalow or inside the bungalow or near the

bedroom. He had given admission in the cross-examination that

after having tea, the accused left the house of the deceased.

Importantly, when the Sunita suspected after 15 to 20 minutes of

the accused leaving the house that, she saw something hidden in

the glass inside the bungalow, in respect of same PW2 in his

deposition stated that, pursuant to doubt expressed by Sunita he

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took search but he did not notice anything hidden or suspicious.

The question arises when the deceased saw something hidden in

the glass inside the bungalow, the possibility of any other person

present at the relevant time in the bungalow cannot be completely

ruled out. It was for the prosecution to clear all doubts by bringing

on record cogent evidence. According to PW2, the accused had

asked for money from the deceased, however, reply given by

Sunita (deceased) is important inasmuch as she did not tell the

accused that, she will not give him the money but she stated that,

her husband is out of station and he will come on the next day.

Therefore, the reasonable inference that can be drawn is that she

was willing to consider the request of the accused to give him

money after her husband returns home on the next day. It is also

relevant to note from his evidence that there are 3 doors to the

house of the deceased. Mere visit of Gunwant i.e., the accused,

on the earlier day to the house of the deceased could not lead to

any definite conclusion showing his involvement in the alleged

commission of offence. It is an admitted position that PW2

Anandsing is residing in the servants' quarter in the same

bungalow which is 20' away from the bungalow. It has come in

his evidence that till 11.30pm on the earlier night, they were

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watching television. It is also strange to note that, he went at

7.30am to see Sunita (deceased) and found the door of bedroom

was closed and without taking any efforts to awaken her he went

back to the servants quarter, and returned only after the milkman

came at 8.30am, that too, when the milkman told him that the door

was not being opened. If the test of a reasonable man is applied

that, what he/she would think in case the door was not opened by

7.30am as usual, in that case, PW2 ought to have made sincere

efforts to open the door or at least shout loudly and call somebody

so as to open the door. The conduct of PW2 appeared to be

unnatural inasmuch as he knew everything about the daily routine

of the deceased and even then did not make efforts to awaken her.

As already observed, it has come in the cross-examination of PW1

Mohan Soman that, he suspected the crime might have been

committed by more than two persons. There appears to be

substance in the said contention in the cross-examination by

keeping in view the injuries sustained by the deceased on his

person.

16. The prosecution examined PW3 Vinayak Yashwant Modak,

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the milkman. He deposed that he was doing the milk business

and supplying milk door to door. He was supplying milk to Vinayak

Soman since last 1½ years prior to the said incident. On

19.7.2009, he went to the house of Mr.Soman at about 8am to give

milk. The gate of the compound was opened by PW2 Anandsing.

At that time, the female dog Diana came forward, so, he instructed

PW2 Anandsing to remove her. Then, he went inside the

bungalow through the main door and saw that the body was lying

covered with a blanket. After seeing so, he got frightened. Then,

he called people residing in the vicinity and then, he went away.

17. The aforesaid evidence of PW3 clearly shows that, when he

went inside the bungalow through the main door, he saw the body

was lying covered with a blanket. Therefore, the contention of

PW2 that the door was not opened at 7.30am and it is only after

PW3 came at about 8am, when he knocked the door but there was

no response, is falsified by the evidence of PW3 discussed herein

above. As already observed, PW3 in his evidence stated that

when he went inside the bungalow through the main door, he saw

that the body was lying covered with a blanket. He did not say that

the door was locked, but said it was not open and then he went

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towards the backdoor, and said door was found half opened, and

then PW3 went inside the bungalow. So, there is total

inconsistency and confusion created by the prosecution witnesses

i.e. PW2 and PW3 as to whether the door was closed or open in

the morning and, whether both of them went backside and then,

they found half of the said door was open.

In his cross-examination, PW3 had stated that he entered

into the bungalow from the main door of the bungalow. He was

the first person to reach the spot amongst the other persons.

When he reached the bungalow, at that time, Anandsing was in the

servants' quarter. As per version of prosecution witnesses usually,

the milkman (PW3) used to go to the bungalow in between 8am to

8.30am to deliver the milk. Anandsing always used to accept the

milk from the gate and main door. His timing of arrival was known

to Anandsing. When he knocked the door of compound gate, at

that time, Anandsing came from the servants' quarter and pushed

the main door of the bungalow.

18. From the joint reading of evidence of PW1, PW2 and PW3,

it is abundantly clear that there is no whisper in their evidence that

in between 11.30pm and 8am in the intervening night of 18th July

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and 19th July, they saw the accused somewhere near the

bungalow or inside the bungalow or nearby the spot of the

incident. Therefore, it can safely be concluded that there is no

evidence brought on record by the prosecution to suggest that in

between 11.30pm and 8am in the intervening night between 18 th

and 19th July, somebody saw the accused present near the vicinity

of the bungalow or inside the bungalow. In fact, the police ought to

have thoroughly enquired about the role of PW2 in the entire

episode.

19. Though one of the circumstances considered by the trial

Court is monetary need of the accused, except bare words of PW2

that he asked for money from the Sunita and, she replied that she

will consider the request of the accused after her husband returns

home the next day. Merely because the accused was in need of

money, in absence of any refusal by the deceased for giving

money or there was any hot exchange of words between them, it

is difficult to conclude that the said monetary need of the accused

can be considered as incriminating circumstance in the chain of

circumstances considered by the trial Court especially keeping in

view the deposition of PW2 Anandsing. Merely stating that he saw

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the accused in anger is not sufficient to hold that the accused was

in monetary need.

20. The prosecution relied upon the circumstance of recovery of

stolen articles at the instance of accused. In order to prove the

said circumstance, the evidence of PW12 Ravindra and PW18

Ganesh was considered. Accordingly, the trial Court considered

the circumstances of recovery of stolen articles at the instance of

the accused and existence of blood stains on the clothes of the

accused.

PW12 Ravindra is the panch witness to memorandum and

recovery panchanama. He had stated that, he was called to the

police station where the accused was present and accused had

stated that he is ready and willing to produce one bag and clothes

which he had kept in the house of his friend at village Bale.

Accordingly, the accused took the police alongwith PW12 and one

more panch witness to village Bale. In the said village, near a

temple, they stopped and the accused told one of his friends,

PW18 Ganesh, to produce the bag and clothes and accordingly,

Ganesh produced a rexin bag wherein a pant, half shirt, laptop,

camera box containing CDS and mobile handset were found in it.

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The pant was stained with blood. Accordingly, panchanama was

prepared.

21. PW5 Amol Ramesh Tol was another panch witness

who had stated that the accused had given a camera of Canon

make to him and he had produced the said camera before the

police and it was seized. However, the evidence of PW18

Ganesh, PW20 Sanjay, who was the Investigating Officer and

PW12 Ravindra Chitale, panch witness, shows that camera of

Canon make was found in a rexin bag. The Investigating Officer

PW20 Sanjay had in his cross-examination denied the suggestion

that PW5 Amol Tol produced one camera before him. Due to this

discrepancy, the trial Court has disbelieved the theory of recovery

of rexin bag at the instance of the accused.

Though the trial Court has recorded the finding, relying upon

the evidence of the panch witnesses PW18 Ganesh and PW12

Ravindra, that the seizure of rexin bag containing laptop, clothes,

etc; he has no hesitation to rely on the said evidence, the evidence

on record suggests contrary inasmuch as the witness PW5 Amol

Tol had stated that the accused had given camera of Canon make

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to him and he had paid Rs.1,000/- to the accused. Further, he had

stated that he had produced the said camera of Canon make from

the witness Amol Tol. However, the panch witness Ravindra had

stated that the camera of Canon make was found in the rexin bag

and, therefore, in the background of the aforesaid contradictory

evidence, the findings recorded by the trial Court that the said

evidence is acceptable, is not in consistence with the evidence on

record.

Thus, the finding recorded by the trial Court insofar as the

recovery of stolen articles at the instance of the accused is

concerned, same is contradictory and inconsistent and therefore

Trial Court ought to have discarded the said evidence.

22. The next circumstance relates to the recovery of knife

and gold ornaments of the deceased. In this context, the

prosecution has examined PW8 Ayesha, PW9 Zarina, PW11

Hemant, PW12 Ravindra, PW13 Dileep, PW14 Pravin and PW15

Baban. The case of the prosecution is that the accused after

committing the crime, went to Lonavala and threw away the plastic

bag containing ornaments and knife in a garbage box and during

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investigation, the same were seized. PW12 Ravindra stated that

the accused had made a statement that, he had thrown away knife

and ornaments in a garbage box near ST stand at Lonavala and

showed his willingness to show the place. Accordingly, when they

went to Lonavala and searched for the same in the garbage box,

nothing was found in it. Thus, since there was no recovery of any

article at Lonavala at the instance of the accused, the trial Court

held that the statement alleged to have been made by the accused

had no evidentiary value. In fact, the trial Court has also held that

the prosecution had not adduced any evidence to show that the

accused had thrown away the plastic bag containing knife and

gold ornaments in a garbage box at Lonavala. It also held that the

circumstance with regard to seizure of knife and ornaments is of

no avail to the prosecution to connect the accused with the alleged

offence.

23. As already discussed, insofar as the circumstance i.e.,

existence of blood stained clothes of the accused and another

circumstance of recovery of knife and gold ornaments is

concerned, the trial Court has recorded a categorical finding that

both the recoveries were not at the instance of the accused.

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24. It appears that the trial Court recorded a finding that the

blood group of the deceased was 'A'. The pant (article 15) which

was found in the rexin bag was stained with blood group 'A'

whereas the blood group of the accused is 'O'. It held that the

existence of blood stains of the deceased on the pant of the

accused shows involvement of the accused in the commission of

the offence of murder of the deceased Sunita.

Admittedly, the person who had collected blood sample from

the body of the accused and the deceased was not examined. It

was incumbent upon the prosecution to examine the said person

so as to prove that the blood sample was collected from the

accused and the body of the deceased.

25. The prosecution had examined PW12 Ravindra who stated

that he was called by police to the police station on 27.7.2009

where another panch Vinayak Gaikwad was also there. He was

asked to listen to the accused as to what he was saying. Accused

made a statement before them that he threw away the knife and

gold ornaments in a garbage box near ST stand at Lonavala so as

to avoid the involvement in the crime. The said statement of the

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accused was reduced into writing. Then the contents of the

memorandum was read over to him and his signature was

obtained. Then, the panchas, the accused and the police

personnel proceeded towards Lonavala. When they reached near

the ST stand at Lonavala, the accused asked them to stop the

vehicle at a place where the garbage box was kept. Then they

alighted from the vehicle. All of them followed the accused upto

the garbage box. Then the accused pointed the garbage box in

which he had thrown the knife and the gold ornaments. They

searched the garbage box, however, could not find anything.

Panchanama was prepared accordingly and the contents of the

same were read over to the panchas and their signatures were

obtained on it. As already observed, recovery of the aforesaid

articles at the instance of the accused has not been believed by

the trial Court.

It appears that the said witness PW12 Ravindra also stated

that on 28.7.2009, he was called to Rasayani Police Station at

about 7am. The accused was present there. He made a

statement before them that he will produce one bag and clothes

which he was wearing at the time of the incident which was kept in

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the house of his friend in village Bale. His memorandum

statement was recorded accordingly and the same was read out

and signatures of the panchas obtained on it.

Then, the accused, panchas and the police personnel went

towards Solapur. 5 kms before Solapur, the accused asked to

stop the vehicle near village Bale where the panchas and police

alighted from the vehicle. The accused went upto one house and

then, the accused Gunwant called his friend by name Ganesh.

Then, one boy came out from the house. Then, the accused

Gunwant instructed his friend Ganesh to produce the bag and

clothes. Accordingly, his friend Ganesh produced the same

before the police. Police opened the rexin bag and in the said

bag, there was one pant, half shirt, laptop, camera and box

containing CDS and mobile hand set. The pant was found stained

with blood. Then the police prepared the panchanama, seized the

articles and then the panchas signed on the panchanama. This

panch had accordingly identified the said articles.

26. We have already discussed the evidence of PW18 Ganesh

and PW5 Amol Tol wherein it is stated that the camera was

purchased from the accused. PW5 had stated that he produced

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the same before the Investigating Officer. However, the present

witness (PW12) and other witnesses had stated that the said

camera was found in the bag which was recovered at the instance

of PW18 Ganesh. Therefore, there is a complete mismatch of

deposition of PW12 with the deposition of PW5 Amol Tol.

Therefore, it is difficult to believe the evidence of this panch

witness in view of the deposition by PW5 Amol Tol that the camera

was purchased by him from the accused and the same was

produced before the police officer.

27. It appears from the admissions given by this witness in the

cross-examination that he was a habitual panch witness inasmuch

as on 27.7.2009, he received a phone call from the police and

then, he went to the police station. It appears that the alleged

incident had taken place, as per the prosecution case, in the

intervening night between 18th and 19th July, 2009, however, the

alleged memorandum statement and the recovery is belatedly

made in between 27th July and 28th July, 2009. The said time gap

also assumes importance in a case based upon circumstantial

evidence.

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28. It appears from the evidence on record that the seized

articles and, in particular, the clothes were sent to the Forensic

Laboratory on 6th August, 2009 and analysis of the same was

completed on 8th October, 2009 (exhibit 75). The same were taken

back in custody by the police on 23rd October, 2009.

It follows from the evidence on record that the person, who

had taken the blood samples from the accused and the deceased

was not examined. There was a belated recovery of the articles

on 27th July and 28th July, 2009. The alleged circumstance of

blood stains being found on the pant of the accused and other 2 -

3 articles found in the rexin bag is the only evidence relied upon by

the trial Court while convicting the appellant. We have discussed

at length that, why such alleged recovery cannot be believed in

view of the contradictory evidence given by the prosecution

witnesses.

29. Since the case in hand is based upon circumstantial

evidence, it would be apt to refer to the landmark judgment of the

Hon'ble Supreme Court in the case of Sharad Birdhi Chand

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Sarda vs. State of Maharashtra1 has held as under:

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (AIR 1973 SC 2622) where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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

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

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

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

These five golden principles, if we may say so, constitute the

1 AIR 1984 SC 1622

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panchsheel of the proof of a case based on circumstantial evidence."

30. If the case in hand is considered in the light of the

observations made by the Supreme Court in the case of Sharad

Birdhi Chand Sarda (supra), the circumstances from which the

conclusion of guilt is to be drawn is to be fully established, in the

facts of the present case. We have made a reference to the

circumstances relied upon by the prosecution in paragraph 6

above. We have in detail discussed that the prosecution has

utterly failed to establish the circumstances from which the

conclusion of guilt can be drawn or that they are consistent only

with the hypothesis of the guilt of the accused or that the

circumstances are of a conclusive nature and tendency or they

exclude every possible hypothesis except the one to be proved

and that there is a chain of evidence so complete that it does not

leave any reasonable ground for the conclusion consistent with the

innocence of the accused and shows that in all human probability,

the act must have been done by the accused. Even the remaining

circumstances which are relied upon by the prosecution suffers

from cogent and convincing evidence. It was incumbent upon the

prosecution to prove each circumstance independently and the

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chain of circumstances so as to exclude every possible hypothesis

except the one to be proved that the appellant has committed the

alleged crime and none else. In the first place, some of the

circumstances relied upon by the trial Court are not incriminating

circumstances at all. Secondly, there must be a chain of evidence

so complete as not to leave any reasonable ground for the

conclusion consistent with the innocence of the accused and must

show that in all human probability, the act must have been done by

the accused. In the present case, hardly any circumstance is

proved by the prosecution.

31. In that view of the matter, we are of the considered view that

the finding of conviction recorded by the trial Court deserves to be

interfered with. The prosecution has utterly failed to prove each

circumstance independently and the chain of circumstances so

complete that, it leads to only hypothesis of guilt of accused and

none else. Therefore, the appellant is entitled to benefit of doubt.

Accordingly, the following order is passed:

ORDER

(i) Appeal is allowed.

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(ii) The impugned judgement and order passed by the

learned Sessions Judge, Raigad Alibag dated 14 th March,

2011 in Sessions Case No.137 of 2009 is quashed and set

aside.

(iii) The accused be set at liberty and released forthwith

unless required in any other case;

(iv) The accused shall be released forthwith initially on

furnishing personal bond of Rs.5,000/-, on his undertaking

that within two months from the date of his release, he would

furnish one solvent surety in the like amount;

iv) The accused shall comply with the mandate of section

437A of Code of Criminal Procedure upon his release on

furnishing bond of Rs.5,000/-, within two months.

v) Fine amount, if any, paid by the appellant - accused be

refunded to him.

32. We appreciate the able and quality assistance rendered by

the appointed advocate Ms.Ameeta Kuttikrishnan and we quantify

her fees and expenses at Rs.10,000/- to be paid by the High Court

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Legal Services Committee within a period of four weeks from

today.

33. Criminal appeal stands disposed of accordingly.

      (SURENDRA P. TAVADE, J.)                              (S.S. SHINDE, J.)