Radhe Zulidas Mandal vs The State Of Maharashtra
2022 Latest Caselaw 11128 Bom

                                                               Appeal.809.15.doc

ATU
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 809 OF 2015
                                     WITH
                      INTERIM APPLICATION NO. 1431 OF 2021

      Mr. Radhe Zulidas Mandal,
      Age: 23 Year, Occ. Labour,
      Residing Post Rahina, Tehisl Thana,
      Saharghat, Dist. Madhubani,
      State - Bihar.                                    ... Appellant
                                                        (Ori. Accused)
           Versus

      The State of Maharashtra,
      (At the instance of Juhu Police Station)          ... Respondent
                                                        (Ori. Complainant)

      Mr. Murtaza N. Najmi, Appointed Advocate a/w. Ms. Davinder
      Sabharwal, Advocate for Appellant.
      Mr. H.J. Dedhia, APP for Respondent - State.

                             CORAM               : A.S. GADKARI &
                                                   MILIND N. JADHAV, JJ.

                             RESERVED ON   : 19th September 2022.
                             PRONOUNCED ON : 20th October 2022.

      JUDGMENT (PER: MILIND N. JADHAV, J.)

. This Appeal challenges the Judgment and Order dated

23.09.2014 passed by the learned Additional Sessions Judge, Greater

Bombay in Sessions case No.34 of 2012 for offences punishable under:

(i) Section 302 read with Section 34 of Indian Penal Code,

1860 (for short "IPC") and sentencing him to suffer

imprisonment for life and pay fine of Rs.500/-, and in

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default, to suffer further rigorous imprisonment for

three months; and

(ii) Section 392 IPC and sentencing him to suffer rigorous

imprisonment for seven years, and pay fine of Rs.300/-

and, in default, to suffer further rigorous imprisonment

for two months; both sentences to run concurrently.

2. Shorn of unnecessary details, facts which emerge from the

prosecution case are as follows:

2.1. First informant, Ila Kantilal Mehta, PW-1 is the sister of

deceased Bharti Kapurchand Shah (for short "Bharti"). Bharti a widow

living alone hired two servants namely, (Radhe i.e. Appellant and one

Mukesh) eight days prior to the incident. On 08.09.2011, PW-1 visited

Bharti, saw one servant, a dwarf with dark skin complexion and upon

inquiry came to know that his name was Radhe (Appellant) and the

name of the other servant was Mukesh. That their working hours in

Bharti's flat were 9:30 to 11:30 am, 3:00 to 4:30 p.m. and again from

9:00 to 10:30 p.m.

2.2. On 11.09.2011 (Ganesh Visarjan day) at 10:00 a.m. husband

of PW-1 spoke to Bharti on phone. On the same day PW-1 called Bharti

on two occasions i.e. 9:30 p.m. and 12:30 a.m. (midnight), but she did

not answer or reply. Hence on 12.09.2011 PW-1 called PW-6, Hansika

Patel, neighbour of Bharti and told her that since Bharti was not

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responding to her calls. She should check on her well being. PW-6

after checking on Bharati's door told PW-1 that the door bell was

switched off and it was locked from inside.

2.3. PW-1 alongwith her husband reached Bharti's flat, opened

the door with a duplicate key, entered inside and saw Bharti lying in

the bedroom with her mouth tied with a nylon table cloth and her

tongue protruding outside alongwith strangulation marks and slight

bleeding injuries. That her gold chain and gold bangles were missing.

PW-6 called and informed the police about the scene of offence. PW-1

lodged first information report (for short "FIR") and thereafter

criminal law was set into the motion.

2.4. PW-20 - ASI Shashikant Padwal, Investigation Officer (for

short "IO") reached the spot of incident with a photographer. He

conducted Spot panchanama (Exh.21) in the presence of PW-4 Deepak

Nanubhai Painter and recovered articles namely, a blue bedsheet

(gown) (Article-A), Table Cloth (Article-C), Blue Bedsheet (Article-J),

a knife (Article-L) from under the washing machine, sealed envelope

containing bill/invoice (Article-H), diary with entry in it as "Radhe

servant start" (Article-D), Gujarati Newspaper "Janmabhoomi"

(Article-F) on which two mobile numbers were written. PW-20 carried

out Inquest panchanama (Exh.15) in the presence of two pancha

witnesses. He sent the dead body of Bharti to Cooper hospital, wherein

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the after-examination Doctor declared her dead. Thereafter, it was

sent for postmortem examination.

2.5. When PW-20 carried out further investigation it came to

light that, from Bharti's cupboard in the bedroom, foreign currency i.e.

one 50 Dollar and one Dollar currency note, a bundle of 100 notes of

Rs.1/-, a bundle of 100 notes of Rs.20/- which were given to Bharti on

08.09.2011, two diamond golden rings, one brown pouch containing

Indian currency coins are missing.

2.6. Further investigation in the case was carried out by PW-21,

Vijay Appaji - Investigating Officer (IO). He recorded the statements of

prosecution witnesses, and all seized articles were sent to Chemical

Analyzer. He received C.A. Report (Exh.61) in due course of time.

2.7. On 20.09.2011, Appellant was arrested from District

Madhubani, by Sadar Police Station, Bihar. On 22.09.2011, PSI Pawar

brought Appellant to Bombay along with the stolen articles in a (bag)

sack, along with one Nokia mobile model No.1200 and a sim card

belonging to PW-2 Santosh Rajak. All articles from the bag were sealed

and (Exh.52) which included one black pant, one black shirt, one

railway ticket dated 12.09.2011 (Article 3). On 27.09.2011 PW-1 and

PW-6 both identified the stolen property and PW-21 drew

memorandum panchanama (Exh.34).

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2.8. Appellant led police to his room at Samtanagar hutment area

near Costa Cafe where one white color cloth from a black colored rexin

bag in which there was a 50 dollar American currency note, 100 notes

of Rs.1/- were seized (Article-1). On 29.09.2011, PW-1 and PW-6

identified the currency notes.

2.9. On 09.11.2011, PW-12 Vishwanath Gaurav, Naib Tahsildar,

conducted Test Identification Parade (TIP) at Arthur Road Prison at

about 01:15 p.m. in the presence of PW-1 and PW-6. Six dummies

were asked to stand along with Appellant and PW-1 and PW-6 were

asked to identify the Appellant/accused from the dummies on

different occasions and both of them identified the Appellant. PW-12

then prepared TI panchanama (Exh.42).

2.10. After completion of investigation, chargesheet was filed in

the Court of Metropolitan Magistrate, Andheri. As the offence under

Section 302 IPC is exclusively triable by the Court of Sessions, the case

was committed to the Sessions Court, Greater Bombay for trial.

3. Prosecution case is entirely based on circumstantial

evidence. To bring home the guilt of Appellant prosecution examined

in all 21 witnesses.

4. Prosecution case is heavily based on circumstantial evidence

i.e. last seen together theory deposed by PW-6. According to PW-6, on

11.09.2011 at around 10:30 p.m. she had seen Appellant, Mashraf and

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one other servant entering Bharti's flat with a red rexin bag carried by

Appellant with "R" mark which was later recovered from Appellant

after his arrest (Article-M). Even though their working time ended at

10:30 p.m. for the day, however she has stated that she saw them

exiting Bharti's flat at 10:30 p.m. when she opened her door to put the

milk bag. PW-6 identified the articles seized from Appellant as

belonging to Bharti. She identified the Appellant in TIP conducted by

PW-12.

5. PW-11 - Dr. Pankaj Gajare, conducted postmortem on the

dead body of Bharti and prepared the PM Report (Exh.37). He has

notified the following injuries in the PM notes:-

A) On External Examination:

1. Ligature mark, seen as an abrasion over neck region, over thyroid cartilage, it is complete, horizontal, encircling the neck completely. It is soft with base pale reddish with ecchymoses, seen at edges of ligature. It is prominent posterolaterally on both sides and faint at neck region, size of 40 x 2.3 cm, it is 3 cm below left ear lobule, another ligature mark seen as an abrasion size of 15 x 2 cm running from left of mouth to left ear lobule, soft reddish, another ligature mark seen as an abrasion, size of 13 x 12 cm running from right angle of mouth to left to right ear lobule.

2. Contusion sign of 1 x 1 cm seen over right nostril is bluish in color.

3. Contusion size of 0.3 x 0.3 cm over right upper lip, mucosal surface, it is bluish.

4. Contusion size of 1.5 x 1.5 cm seen over right lip, mucosal surface is bluish.

5. Abrasion size of 3 x 2 cm is seen on the right side of the neck, 3 cm below from chin is reddish in color.

6. Abrasion size of 2.5 x 1.5 cm reddish seen over inferior right sternocleidomastoid, 4 cm above right sterno clavicular joint.

7. contusion no. 2 in no. seen over left arm postero medically, the above one is 2 x 1.5 cm, bluish on cut

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section extravasation of blood seen.

8. Contusion size of 2 x 2 cm seen over left wrist, dorsally, bluish cut section extravasation of blood seen.

9. Contusion size of 4 x 3 cm bluish seen over left dorsum of hand, centrally cut extravasation of blood seen.

10. Contusion no.2 in no. see over right dorsum of hand, medical on e in size of 4 x 4.25 cm, lateral one is size of 2 x 2 cm bluish cut section extravasation of blood seen.

B) Internal Injuries:

1. dissection of neck, I noticed the tissues under the ligature are dry, hard, parchment like, ecchymosed, laryngeal cartilage, upper tracheal rings, fracture, thyroid cartilage thyroid bones fracture bilaterally, neck muscle or ecchymosed."

5.1. PW-11 has stated that injuries mentioned in column no. 17

and 19 are on the vital parts of Bharti's body and were sufficient in the

ordinary course to cause death. He has opined that death of Bharti was

caused due to strangulation (Exh.37).

6. We have heard Mr. Murtaza N. Najmi, learned Advocate

appearing on behalf of the Appellant and Mr. H. J. Dedhia, learned

APP appearing on behalf of the State and with their able assistance

perused the entire record.

7. Admittedly prosecution's case rests only on circumstantial

evidence.

Before we allude any further, it would be apposite to

reiterate the settled law on circumstantial evidence. While

considering any case based on circumstantial evidence, it has been laid

down that onus is on the prosecution to prove that the chain of

circumstances is complete and the infirmity or lacunae in prosecution

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cannot be cured by false defence or plea. The conditions precedent

required for compliance in the case based on circumstantial evidence

as anunciated by the Supreme Court in the case of Sharad Birdhichand

Sarda v. State of Maharashtra1 are as follows:-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete 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."

7.1. In the case of G. Parshwanath vs. State of Karnataka2 the

Supreme Court has held that 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.

Paragraph No.11 of the said decision reads as under:

"11. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum.

In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take

1 (1984) Cri L J 1738 2 (2010) 8 SCC 598

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place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."

7.2. In another case decided in 2021, Surajdeo Mahto Vs The

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State of Bihar3, in paragraph Nos.29 and 30 the Supreme Court while

enunciating the law relating to circumstantial evidence has held as

under:

"29. ....The case of the prosecution in the present case heavily banks upon the principle of 'Last seen theory'. Briefly put, the last seen theory is applied where the time interval between the point of when the Accused and the deceased were last seen to- gether, and when the victim is found dead, is so small that the possibility of any other person other than the Accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a 3-judge bench of this Court in the case of Satpal v. State of Haryana (2018) 6 SCC 610, p. 6 has, however, cautioned that unless the fact of last seen is cor- roborated by some other evidence, the fact that the deceased was last seen in the vicinity of the Accused, would by itself, only be a weak kind of evidence. The Court further held:

...Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the Accused, and the recovery of the corpse being in very close proximity of time, the Accused owes an explanation Under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the Accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of re- covery or otherwise forming a chain of circumstances leading to the only inference for guilt of the Accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the Ac- cused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

30. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other ev- idence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecu- tion in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the cir- cumstances that preceded and followed from the point of the deceased being so last seen in the presence of the Accused."

8. The principles propounded in the case of Sharad Sarda ( first

supra) and G. Parshwanath (second supra) are unwaveringly 3 AIR 2021 SC 3643

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reiterated in a catena of decisions of the Supreme Court wherein it is

categorically held that while dealing with matters relating to

circumstantial evidence, combination of facts of the case should be

such that there is no escape for the accused because the facts taken in

whole do not admit to any inference but that of his guilt. It is also

coined as a "Complete Chain Link Theory" putting onus on the

prosecution to prove its case not just by one circumstance but, chain of

circumstances / events which lead to one and only one inference i.e.,

culpability of the Accused.

9. Mr. Najmi has placed reliance in the case of Tilakchand s/o

Hanaslal Biranwar and Anr. Vs. The State of Maharashtra 4, in support

of his submissions. He has drawn our attention to paragraph No.16 of

the said Judgment which reads thus:-

"16. In our criminal jurisprudence, burden to prove a case beyond reasonable doubt rests on the shoulder of the prosecution. The accused is entitled to take many defences. He may prove or he may not prove his defence. However, the prosecution cannot take advantage of any weakness in a defence case and the burden rested on the shoulder of the prosecution never gets lightened."

10. We have carefully perused the entire material and evidence

on record. On a minute perusal of evidence, it is seen that the

Appellant had started working with Bharti from 08.09.2011 and he

had introduced himself to PW-1 when he met her on 08.09.2011. PW-

1 in her deposition has stated that Appellant was a dwarf having dark

4 2019 ALL MR (Cri.) 3458

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complexion which is an unique identification feature of a person. PW-1

in her deposition has categorically stated that when she met Appellant,

Appellant informed her that his name was Radhe. However, it is seen

that when PW-1 lodged the report on 12.09.2011 i.e. just four days

later she has stated that she did not remember the name of Appellant.

It is further seen that in the report she has not described the Appellant

with his characteristic feature i.e. he being a dwarf. All that PW-1 has

stated in her report as also in her substantive evidence is that there

were two unknown house servants employed by Bharti. Perusal of

PW-1's deposition shows that she has admitted that after Bharti's

erstwhile servant Lata had left the job, she was not aware as to who

were employed by Bharti. This admission is contrary to her own

deposition in her examination-in-chief. It is pertinent to note that PW-

21 - IO in his deposition and in this very context has stated that he

inquired with PW-1, her husband and PW-6 for 15 minutes but they

did not disclose the name of Appellant. It is further pertinent to note

that assuming Bharti had employed two house servants on 08.09.2011,

there is no record whatsoever of these two house servants either in the

society register/record and/or given to the local police station

considering that Bharti was a senior citizen living alone. It has come

in evidence that watchman were employed for security purposes in the

building in which Bharti was murdered. However, prosecution has not

examined any of the said watchmen, who were on duty on the date of

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incident or lead evidence of the watchmen of the building who could

reinforced the fact of Appellant with other worker had left the house of

Bharti at about 10:30 p.m. on the date of alleged incident. However,

prosecution chose not to do so.

11. With respect to recovery evidence, it is seen that currency

notes and money went missing from Bharti's flat after she was

murdered. PW-1 records in her supplementary statement on

14.09.2011 before PW-21 that two diamond rings and currency notes

of Bharti were also found missing. PW-1 claims that when she visited

the deceased on 08.09.2011 she had given to her 100 notes of Rs.20

and Rs.1/- denomination. This has all come in the supplementary

statement recorded on 14.0.2011. There is no mention of these

currency notes in the FIR. As per PW-1's claim if she had given the

currency notes to Bharti on 08.09.2011 i.e. just 3 days before the

incident, then there is no question of her forgetting the same and she

could have stated that in the FIR. However, when these notes were

allegedly recovered from the accused she has identified them and that

identification is on the basis of serial number of the currency notes

written in her diary, which is marked Article-P. She claims that she

has written all numbers in her diary.

12. It is seen that in respect of the stolen dollars, PW-1 does not

make any reference about them in the FIR, but maintaining that she

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had written the number of the dollars in her diary as well. One

important point here is that as far as the second recovery of property is

concerned i.e. there is no identification by PW-1 of the dollars and 100

notes of Rs.1/- though she claims she has identified them. PW-15

pancha witness in his deposition states that the dollars and currency

notes were produced from different packets, whereas the panchanama

shows that they were put together in a single packet. This is clearly

suggestive of tampering with the evidence.

PW-1 further in the FIR mentions only about one chain and

two bangles worn by Bharti, but in her supplementary statement

before PW-21 on 14.09.2011 she produces photographs of the

ornaments i.e. the chain and two diamond rings. However, she has

produced only photographs of these ornaments and Bharti is not seen

wearing them on her.

13. Prosecution has heavily relied upon the last seen together

theory in the present case. Prosecution has relied upon the deposition

of PW-6 neighbour of Bharti in the chain of circumstances. It is

pertinent to note that PW-6 has given the same time i.e. 10:30 p.m. for

the Appellant and other servants entering the house of Bharti and

leaving her house. This itself is an inherent fallacy on the face of

record. In this context, it is pertinent to note that PW-1 had given a

phone call to Bharti at 9:30 p.m. and when it went unanswered she

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once again called at 12:30 a.m. in the midnight. This leads to the

assumption that at both times Bharti was already dead. Hence, if

Bharti was dead at 9:30 p.m., then the perpetrator of the crime would

not remain at the scene of crime upto 10:30 p.m. i.e. when PW-6 had

seen the three persons. It is pertinent to note that the spot

panchanama reveals that dead body of Bharti was found in the

sleeping position on her bed with quilt pulled over her body, which

clearly suggests that she was fast asleep. Medical evidence in this

regards to the time of death of Bharti assumes significance. PW-12 has

stated that the time of her death is between 4 to 6 hours from the last

meal taken by Bharti. There is no evidence on record to suggest

whether Bharti had taken dinner and at what time. Hence, this could

be related to the afternoon lunch which was taken by Bharti which

possibility cannot be ruled out. This theory assumes importance

because of the two specific phone calls made by PW-1 to Bharti on the

date of incident in the evening at 9:30 p.m. and when she did not

answer, at 12:30 a.m. This clearly reveals and suggests that Bharti

was in all probability murdered much prior to 9:30 p.m. PW-6 in her

deposition has stated thta the duty time of the Appellant and other

servants during night time was from 9:00 p.m. to 10:30 p.m. and she

has stated that she saw them entering and leaving Bharti's flat at the

same time i.e. 10:30 p.m. The fact that PW-6 saw Appellant entering

and leaving at the same time gives rise to a situation whether they

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must have found Bharti murdered when they entered her flat and

thereafter immediately left from there. This theory or probability

cannot be ruled out. Hence, if the evidence given by PW-6 that she

saw the Appellant and other servants entering and leaving at the same

time is to be believed, then this could be the only possible theory. In

this context, the diary which was maintained, recovered and seized

from the scene of crime shows that Bharti had registered the presence

of Radhe i.e. the Appellant on the date on which he had attended work

i.e. on 08.09.2011.

14. Perusal of Exhibit 21 clearly shows that Radhe's presence on

work on 08.09.2011 was noted and written in English language by

Bharti with a tick mark. Thereafter his name was written on

11.09.2011 with the tick mark. This Exhibit clearly documents to fact

that Radhe i.e. Appellant attended and started work on 08.09.2011

but did not attend on 09.09.2011 and 10.09.2011 and the entry made

on 11.09.2011 was written to indicate his absence and to keep a

record of the same. This is so because PW-2 the employer of Appellant

where he was working as a milk delivery boy has categorically stated

in his evidence that he did not come on duty for delivery of milk on

11.09.2011. Hence, the deposition of PW-6 which states that she had

last seen Appellant alongwith other servants on 11.09.2011 is not

proved beyond all reasonable doubts. On careful reading of the

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evidence and cross-examination of PW-6, it is seen that the same is

inconsistent and there are several discrepancies and contradictions of

material facts which are not supported or corroborated by the

evidence of other witnesses on record.

15. It is seen that the statement of PW-6 was recorded on

13.09.2011 i.e. two days after the date of incident and it has come on

record that she attended the police station on 12.09.2011 and had

interacted closely with the police officers on that date.

16. It is further pertinent to note that Appellant was arrested in

Bihar and in this respect the prosecution has led evidence of PW-5, the

arrest pancha. Arrest panchanama clearly reveals that though

Appellant was arrested in Bihar, the said arrest panchanama is

prepared in Mumbai which appears to be a mere formality on the face

on record. This clearly shows that the Appellant was not arrested in

Bihar. If this be true, in that case it cannot be stated that on arresting

the Appellant, the seized articles were found by the police and were

seized from his custody. In this respect, Exh.54 which is the seizure

panchanama therefore becomes relevant. PW-18 - API has claimed to

have gone to Bihar to arrest Appellant and seized the articles from

him. It is pertinent to note that Exh.54, the seizure panchanama has

been written in Marathi language. There is no remark to indicate that

the said seizure panchanama was read over and explained to the

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Appellant in Hindi language as understood by him. Appellant has not

signed this seizure panchanama nor the pancha witness who have

signed it have been examined by the prosecution to identify the

Appellant as the accused arrested by PW-12. The most pertinent

aspect is that this arrest cum seizure panchanama does not bear the

signature of any police officer from Bihar. Hence, this seizure cum

arrest panchanama (Exh.54) becomes doubtful. Two senior police

officers' signatures appears on the panchanama, viz; Mr. Dhivar and

Mr. Bhagat and both are from Mumbai and significantly both these

police officers never visited Bihar to apprehend the Appellant. This

clearly shows that the arrest panchanama was in fact prepared in

Mumbai and there is no explanation offered in re-examination by PW-

18 - API when he was extensively cross-examined on the said arrest

panchanama. As per the prosecution case when the Appellant was

apprehended in Bihar he was found in possession of the alleged stolen

property viz: 2 diamond rings, 100 notes of 20 denomination, brown

pouch containing foreign and Indian coins. That is the first recovery.

The second recovery is in Mumbai of Rs.50/- and 1 dollar note and

100 notes of Rs.1/- denomination. As far as the second recovery is

concerned, one roommate was found to have been staying alongwith

the Appellant which shows that the room was in their joint possession.

The prosecution case is that Appellant had committed robbery and

murder of the deceased. Further PW-1, PW-2 and PW-6 all knew

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Appellant by his name and recognized him, then there was no reason

for him to conceal his identity by killing Bharti. Further in the spot

panchanama a knife was recovered from the scene of crime, but as per

the prosecution case Bharti was strangulated with a table cloth.

Hence, if the knife belonged to Appellant, then there was no reason for

him to have left it at the scene of crime, when he had not used it for

killing Bharti.

17. In view of the above discussion and findings, it is clearly

discernible that the investigation done by the police authorities on the

basis of the entries made in Bharti's diary has not been made in its

proper perspective. The entries made in the diary between 08.09.2011

and 11.09.2011 are produced on record and the absence of red

marking or circles against those dates create a doubt on the existence

of the name Radhe in the said diary. In this aspect it is pertinent to

note that PW-6 had complete access to enter Bharti's flat as she had a

duplicate key with her. Police have not investigated in this regard.

They have also not effected the recovery of the duplicate key from PW-

6. The fact that the dead body of Bharti was found lying on the bed in

a straight sleeping position with quilt pulled over her is suggestive of

the fact that someone might had entered the flat when she was fast

asleep. This theory or possibility cannot be ruled out.

18. In view of the above reliability of the evidence of

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prosecution witness PW-6 appears to be doubtful and ambiguous.

Prosecution has not proved the entire chain of circumstances so as to

link and suggest that the murder of Bharti was committed by the

Appellant beyond all reasonable doubts. In that view of the matter, the

case of prosecution fails and Appellant deserves to be given the benefit

of doubt.

19. Prosecution has heavily relied on the evidence of PW-6 the

neighbour who saw Appellant and two other persons entering in

Bharti's flat at around 10:30 p.m., but thereafter she did not hear any

screams. The Appellant was working as a servant in the house of

Bharti, and PW-6 was the neighbour next door, so merely identifying

Appellant in the T.I. conducted by PW-12 by itself cannot lead to any

conclusion consistent with the hypotheses of guilt of the Appellant.

20. It is seen that there is no ocular witness to the incident and

prosecution has only relied on the last seen together theory and

recovery evidence of articles which were seized from Appellant by PW-

21. It is well settled position in law that prosecution while relying

upon the confessional statement given by the accused leading to the

discovery of articles under Section 27 of the Evidence Act, has to prove

through cogent evidence that the statement was made voluntarily and

lead to the discovery of the relevant articles. The above circumstance

of PW-6 seeing the Appellant and two others entering the premises of

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Bharti coupled with the recovery of the stolen articles from Appellant's

possession, at the most creates a highly suspicious situation; but

beyond a strong suspicion nothing else would follow in the absence of

any other strong circumstance which would suggest the involvement of

Appellant in the alleged offence of murder of Bharti. Even with the aid

of presumption under Section 114 of the Indian Evidence Act, the

offence of murder cannot be proved against Appellant unless there is

evidence to show that the murder happened at the same time i.e.

while committing the robbery. However, no such evidence is

forthcoming.

21. The question which confronts the Court is that whether on

the basis of the single circumstance i.e. recovery evidence by PW-21

which was duly identified by PW-1 and PW-6, can the Court come to

the conclusion that Appellant and no other person is the author of the

crime and has committed the murder of the Bharti. As noted above the

evidence of PW-6 is unreliable. After perusing the evidence on record

we are of the considered opinion that, law is well settled that when

prosecution relies on circumstantial evidence, all links in the chain of

circumstances must be complete and proved through cogent evidence.

In the present case prosecution has failed to prove its case beyond all

reasonable doubts to prove the crime of murder and robbery against

the Appellant. It would not be within the perview of law to arrive at

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the presumption that Appellant is the only author of crime when the

chain of circumstances is not complete and is doubtful.

22. In view of the above discussion and observations, we are of

the considered opinion that offence under Section 302 IPC is not

proved against the Appellant and Appellant is entitled to be given

benefit of doubt.

23. Hence, the following Order:

(i) Criminal Appeal is allowed.

(ii) Judgment and Order 23.09.2014 passed by the learned

Additional Sessions Judge, Greater Bombay in Sessions

Case No.34 of 2012 is hereby quashed and set aside.

(iii) The Appellant stands acquitted of the offence

punishable under Sections 302 read with Section 34,

Section 392 read with Section 397 read with Section 34

of IPC by extending benefit of doubt to him.

(iv) The Appellant is ordered to be set at liberty forthwith if

not required in any other case/cases. Fine, if any, paid

by Appellant, shall be returned to Appellant.

24. In view of disposal of the Appeal, Interim Application does

not survive and is accordingly disposed of.

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25. Before parting with the Judgment, we would like to

appreciate the efforts put in by Mr. Murtaza N. Najmi, Advocate

appointed by High Court Legal Services Committee, Mumbai for

espousing the cause of Appellant. He was thoroughly prepared in the

matter and rendered proper and able assistance to the Court.

       [ MILIND N. JADHAV, J.]                 [ A.S. GADKARI, J.]



               Digitally signed by
 AJAY       AJAY TRAMBAK
 TRAMBAK    UGALMUGALE
 UGALMUGALE Date: 2022.10.21
               13:37:43 +0530