Bombay High Court
Pradeep Manik Kanse vs The State Of Maharashtra on 7 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:17418-DB
Cri.Appeal No.653/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.653 OF 2020
Pradeep s/o Manik Kanse
Age 25 years, Occ. Agri.
R/o Talni, Tq. Renapur,
District Latur ... APPELLANT
VERSUS
The State of Maharashtra
through Kotwali Police Station
Ahmednagar, Taluka and
District Ahmednagar
(Copy to be served on
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad) ... RESPONDENT
.......
Mrs. S.G. Chincholkar, Advocate for appellant
Mr. V.K. Kotecha, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 25th July, 2024
Date of pronouncing judgment : 7th August, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
The challenge in this appeal is to a judgment and
order of conviction and consequential sentence dated
27/10/2020, passed by learned Sessions Judge, Ahmednagar
in Sessions Case, No.279/2016. Vide impugned judgment and
order, the appellant was convicted for offence punishable
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under Section 302 of the Indian Penal Code and under Section
12 of the Protection of Children from Sexual Offences Act,
2012 (POCSO Act for short). He has been sentenced to suffer
imprisonment for life and to pay a fine of Rs.500/- with default
stipulation for the offence punishable under Section 302 of the
Indian Penal Code with further direction that the appellant shall
not be released from the captivation until his life. No separate
sentence has been awarded for the offence punishable under
the POCSO Act. He was acquitted of the offence punishable
under Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and under Sections
4/25 of the Arms Act.
2. Facts giving rise to the present appeal are as
follows :-
P.W.1 Tirthaprasad was resident of Ahmednagar.
He would reside along with his wife and their son. He would
serve with a private Company at MIDC, Ahmednagar. His wife
was serving as a Conductor with Maharashtra State Road
Transport Corporation (MSRTC) at Shirur. One Tanaji
Suryawanshi, resident of village Hadgaon, Taluka Nilanga,
District Latur was P.W.1's co-brother. Kum. Mohini (deceased)
was Tanaji's daughter. She had appeared for 10 th Standard
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examination in 2016 at her grand parent's place at village
Talni. For Summer Vacation she had come to the house of
P.W.1 Tirthaprasad at Ahmednagar.
3. On the fateful day i.e. 27/5/2016, both P.W.1
Tirthaprasad and his wife had left the house for their respective
work place/s. Their son had gone to his grand parent's house.
As such, Mohini was alone at home. By 11.00 in the morning
on the fateful day, the appellant went to the house of P.W.1
Tirthaprasad. It appears that, both the appellant and Mohini
(deceased) were emotionally involved. They had even married
in a temple at Ahmednagar. What went wrong between the
two is not known. Mohini had not completed 18 years of age.
The appellant, by going to the house of P.W.1 Tirthaprasad,
assaulted Mohini with sharp sickle. He gave her number of
blows with the sickle. He then left the house of P.W.1
Tirthaprasad and directly went to Kotwali Police Station,
Ahmednagar. He reported to the Police Station Officer to have
killed his wife. A Station Diary entry was made to that effect.
Services of employees of Municipal Corporation were availed
for acting as panchas. In their presence, the sickle and blood
stained clothes on the person of the appellant were seized.
The Police Station Officer informed his higher-ups. The police
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officials went to the crime scene. Dead body of Mohini was
found lying in a pool of blood. A crime scene panchanama was
drawn. Her dead body was shifted to Civil Hospital,
Ahmednagar. Inquest panchanama (Exh.38) and autopsy
(Exh.51) were conducted on her mortal remains on 27/5/2016.
The landlady in whose premises P.W.1 Tirthaprasad was
residing, informed P.W.1 Tirthaprasad on phone. He
immediately came. He even informed his wife. She too
arrived. He then lodged First Information Report (F.I.R.-
Exh.16) with Kotwali Police Station, Ahmednagar. The
appellant was arrested. He was medically examined before
arrest. Statements of persons acquainted with the facts and
circumstances of the case were recorded. All the seized
articles were sent to Forensic Science Laboratory, Nasik for
chemical analysis and report. During interrogation, the
appellant made disclosure statement. He led the police to the
shop wherefrom he purchased the sickle. Then he took the
police to a shop whereat he got it sharpened. Thereafter he
took the police to a shop wherefrom he bought a cloth bag to
keep the sickle therein. It was also found that the appellant
along with his friend had come to Ahmednagar on the previous
day. They had stayed in a hotel, "Chetana" at Maliwada
overnight. Upon completion of the investigation, a charge
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sheet was filed.
4. The Sessions Court (Trial Court) framed the
Charge (Exh.5). The appellant pleaded not guilty. His defence
was of false implication. He put on record his side of the story
in writing. According to him, he was in love with Mohini
(deceased). Both of them had even got married with each
other in a temple at Ahmednagar. The parents of Mohini were
opposed to the relationship. They were persuading her to
disassociate from the appellant. She did not listen. With a
view to teach him (appellant) a lesson, P.W.1 Tirthaprasad
asked Mohini to call the appellant to his residence for talks
relating to their marriage. On his arrival, P.W.1 Tirthaprasad
got killed Mohini through his men only with a view to falsely
implicate the appellant. Even the appellant was assaulted on
his head with an iron rod. He became unconscious. He was
kept confined in the house of P.W.1 Tirthaprasad and then
brought to the police station. According to the appellant, he is
from a different district. Nobody was there to speak on his
side. He was alone all along.
5. To bring home the charge, the prosecution
examined 19 witnesses and produced in evidence certain
documents. On appreciation of the same, the Trial Court
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convicted the appellant and consequently sentenced as stated
above.
6. Heard. Learned counsel for the appellant would
submit that, the case was based on circumstantial evidence.
She, therefore, relied on the judgment of the Apex Court in
case of Sharad Birdichand Sarda Vs. State of Maharashtra
(1984 CJ (SC) 262), to submit that the circumstances relied on
have not been conclusively proved. The chain of
circumstances relied on has not been complete. When the
incident took place in a broad daylight that too in a populated
area, how there was no hue and cry. No independent
witnesses have been examined. Construction work was going
on by the side of the premises in which the incident took place.
She further relied on the following authorities :
(1) Anant Dyaneshwar Jadhav Vs. The State of Maharashtra
2017 ALL MR (Cri) 4820
(2) Arjun Panditrao Khotkar Vs. Kailash Kushanrao
Gorantyal & ors. [ 2020 (3) SCC 216 ]
(3) P. Yuvaprakash Vs. State represented by Inspector
of Police [ 2023 AIR (SC) 3525 ]
(4) Gireesan Nair & ors. Vs. State of Kerala
2022 DGLS (SC) 1503 : 2022 K.L.T. 357
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7. Turning to the medical evidence, she would submit
that, the Medical Officer Dr. Manoj (P.W.11) did not give size
and deepness of the injuries suffered by the victim. According
to her, 4-5 witnesses who had claimed to have seen the
appellant armed with blood stained sickle, did not stand by the
prosecution. None of those witnesses could identify the
appellant before the Court. The investigating officer had taken
the appellant to the shop wherefrom he allegedly purchased
the sickle and sharpened it, and then purchased a cloth bag for
keeping it therein. The test identification parade lost its
efficacy. Had the appellant really been at the Police Station at
11.30 in the morning, there is no explanation as to why he was
arrested by 7.30 in the evening. According to learned
Advocate, the prosecution miserably failed to bring home the
charge beyond reasonable doubt. She, therefore, urged for
allowing the appeal.
8. Learned A.P.P. would, on the other hand, submit it
to be an open and shut case. The cross-examination of
various witnesses would indicate that, the defence was not
firm. At one time the appellant admitted his presence at the
crime scene. It was suggested that, P.W.1 and his wife were
home and Mohini (deceased) was made to call the appellant to
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their residence. While it was suggested to one of the
witnesses that the P.W.1 Tirthaprasad returned home in the
evening from his workplace. No sooner the appellant reached
the Police Station, the sickle and blood stained clothes on his
person were seized in the presence of panchas. A suggestion
was given to the investigating officer and other witnesses that
these articles were smeared with the blood of the deceased by
the police officials. The same suggests the appellant to have
admitted the sickle and the clothes on his person borne the
blood of the deceased. It was the appellant and none else
who had a motive to commit murder of Mohini. The learned
A.P.P. would ultimately submit that no interference is warranted
with the impugned order of conviction and consequential
sentence in the facts and circumstances of the case. Learned
A.P.P. ultimately urged for dismissal of the appeal.
9. Considered the submissions advanced. Perused
the evidence on record. Let us advert thereto and appreciate
the same.
10. In case of in case of Sharad Sarda (supra), the
Apex Court observed :-
"152. A close analysis of the decision would show
that the following conditions must be fulfilled
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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 Sahebrao
Bobade v. State of Maharashtra, (1973) 2 SCC
793, 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 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."
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11. The following can be the circumstances said to
have been relied on by the prosecution.
(1) The acquaintance and emotional relationship between
the appellant and the deceased.
(2) Presence of the appellant at the crime scene.
(3) He was seen by number of witnesses running away
from the premises of Athare.
(4) He was carrying a blood stained sickle and clothes on
his person were stained with blood.
(5) Appellant himself visited the Police Station and
reported the matter
(6) Blood stained sickle was seized from him.
(7) Clothes on his person stained with blood, too were
seized.
(8) Dead body.
EVIDENCE IN THE CASE : -
12. P.W.1 Tirthaprasad was the co-brother of the father
of Mohini (deceased). He was resident of Ahmednagar.
Mohini's parents would reside at Hadgaon, Taluka Nilanga.
Mohini was staying with her grand-parents at village Talni,
Taluka Renapur, District Latur for her education. In the year
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2016, she had appeared for 10 th Standard examination. She
had been to the house of P.W.1 Tirthaprasad for Summer
Vacation.
13. It is in the evidence of P.W.1 Tirthaprasad that, on
the given day i.e. on 27/5/2016, he left for his work place in the
early morning. Since his wife was serving as a Conductor with
MSRTC at Shirur, she too had left earlier to him. Their son
had gone to the house of his grand-parents. As such, Mohini
was alone home. It is further in his evidence that, he received
a phone call of landlord Athare. He was informed that, Mohini
was assaulted. He took a leave and returned to his house. He
noticed Mohini lying in a pool of blood on the terrace of the
second floor. She had suffered multiple injuries. He then
contacted his wife Jayshree. She too came. Both of them
went to Kotwali Police Station. Then he came to know the
appellant to have assaulted Mohini. He was present at the
Police Station. A sickle was in his hand. Clothes on his
person were stained with blood. He, therefore, lodged the
F.I.R. (Exh.16).
14. P.W.1 Tirthaprasad was subjected to a searching
cross-examination. It is in his evidence that, it was a three
storey building owned by Shri Athare. He was staying on the
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ground floor. There were shop blocks on the ground floor. The
construction work of a two storey building was in progress by
the side of the premises of Shri Athare. Here, the learned
counsel for the appellant would submit that, when the victim
was assaulted with number of blows, how could there be no
hue and cry. It is further in his evidence that, he received a
phone call by 12.15 p.m. On having seen Mohini in a pool of
blood, he became numb. His wife too returned in response to
his call. Then both of them went to the Police Station. It was
suggested to him that, when he reached his house from his
workplace, the police had already been present there. He
denied to have known the appellant since before the incident.
He admitted the appellant to have been resident of village
Talni. He was shown a photograph. He admitted that the
persons in the photograph were the appellant and Mohini. He,
however, denied that, Mohini was seen in the photograph to
have sported a Mangalsutra of his wife. It was also suggested
to him that, a year before the incident, the appellant had been
to his house and stayed overnight when he and his wife were
not there. He denied to have secured a job for appellant, but
the appellant left the same. He also denied that there was
emotional relationship between the appellant and the
deceased. It was also suggested to him that, whenever he
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would visit Talni, his mother-in-law would inform him that
Mohini would wander with boys and her behaviour made them
difficult to stay in the village. He denied that he, therefore,
brought her to his residence. He denied to have made Mohini
to call the appellant to his house and got her killed through his
men. He denied that he smeared clothes on the person of the
appellant at the relevant time and sickle (Koyta) with blood of
the deceased. He was confronted with his F.I.R. which is silent
to state therein that when he had been to police station to
lodge F.I.R., he saw the appellant present there armed with
sickle and the clothes on his person to have been stained with
blood.
15. P.W.2 Mahadev was an employee of Municipal
Corporation, Ahmednagar. The police authorities availed his
services to act as panch witness to various panchanamas.
First of such panchanamas is relating to seizure of blood
stained sickle and clothes on the person of the appellant by
12.45 p.m. on 25/7/2016. It is in his evidence that, pursuant to
the directions of the Deputy Commissioner of Municipal
Corporation, Ahmednagar, he went to Kotwali Police Station.
In his presence a blood stained sickle was seized from the
appellant. Clothes on the person of the appellant were stained
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with blood. Those too were taken charge of. Those clothes
were - shirt, banian and Jeans Trouser. It is further in his
evidence that, P.S.I. Karhewad wrapped these articles and
placed them under seal. He referred to the panchanama
(Exh.23) in that regard.
16. Then, he is a witness to the crime scene
panchanama (Exh.24) and sketch thereof (Exh.25). According
to him, hair clip, a pair of ladies chappal, blood stained soil, a
mobile handset, a saffron colour cloth bag etc. were taken
charge of from the crime scene. According to him, those
articles were packed and sealed on the spot.
It is further in his evidence that, on the same day,
by 5.30 p.m., the clothes on the person of the deceased were
seized under panchanama (Exh.26) drawn by P.S.I. Chavan.
The seized clothes were white top, black scarf, legging and
knicker of the deceased. It is further in his evidence that, the
appellant was then personally searched. Articles like mobile
handset, 4 GB Micro Card, 2 SIM Cards, PAN Card, Aadhar
Card etc. were seized besides admission card of Mohini
(deceased) of examination for 10 th Standard. It was vide
panchanama (Exh.27).
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17. It is further in his evidence that, on the same day
the appellant was arrested in his presence. A panchanama to
that effect (Exh.28) was drawn.
18. We do not propose to refer to his further evidence
which pertains to the disclosure statement made by appellant,
disclosing the shop wherefrom he purchased sickle, shop
whereat he sharpened it and another shop wherefrom he
purchased a cloth bag to keep the sickle therein. The police
officer recorded such statements given by the appellant and
drew the panchanama of the places (shops) to which the
appellant took them. There is nothing to indicate that the
seized sickle was the one which was allegedly purchased by
the appellant from the shop of P.W.6 Husen and sharpened it
at the shop of P.W.7 Mustafa and the shop owned by P.W.8
Sahil from whom he purchased the cloth bag.
19. P.W.3 and P.W.4 were the owner and Manager
respectively of Hotel Chetana, Ahmednagar wherein the
appellant had stayed overnight on 26/5/2016. An extract from
the Check-in Register was placed on record vide Exh.34. The
said extract indicates the appellant had stayed in the said hotel
along with his friend.
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Learned Advocate for the appellant brought to our
notice that the extract contained 12 entries of the customers
who had checked in. As against the 4 entries only, there were
signatures of the customers. According to the learned
Advocate the witnesses have admitted to have not obtained
any document in proof of identification of customers and not
explained why there were no signatures of customers whose
names are there at Sr.No.5 onwards.
We do not propose to give much credence to the
submissions made by learned Advocate for the appellant and
even evidence as regards the appellant to have stayed
overnight at Hotel Chetana since he himself has admitted his
presence at the crime scene by 11.00 in the morning on 27
May (fateful day).
20. P.W.5 Raju is proprietor of a shop Srichand
Electronics. He produced in evidence receipt (Exh.40) in the
name of person - Kanse Pradeep (appellant), suggesting the
appellant to have purchased a cell phone worth Rs.1300/- on
23/5/2016. No office copy or the original receipt book was
placed before the Court. The receipt does not bear appellant's
signature. The prosecution proposes to rely on his evidence to
make out a case that the cell phone seized from the crime
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scene was one gifted by the appellant to deceased as a
birthday gift on 23/5/2016.
21. P.W.6 Husen was proprietor of a Hardware Shop,
"Ajij Tools". It is in his evidence that, police had come to his
shop along with one person, (appellant), who had purchased a
sickle for Rs.100/-. He delivered the police a CCTV footage in
that regard in one pen drive after obtaining it in one CD.
22. For want of there being any receipt of the appellant
to have purchased a sickle from him, we do not propose to
give much credence to his evidence. The CCTV footage
tendered by him was in the nature of "secondary of secondary
evidence". The same too, therefore, is not relied on.
23. P.W.7 Mustafa would run a shop by name "Poona
Machine Dhar Kendra". It is in his evidence that, one person
had been to his shop by 10.45 a.m. on 27 May and got one
sickle sharpened. The appellant had taken the police to his
shop pursuant to a disclosure statement made by him. As
already observed above, there being no further evidence to
indicate the very sickle to have been sharpened by this
witness, his evidence too is not given much credence.
24. P.W.8 Sahil was serving as a Salesman in a shop
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of one Rohit Lodha. The appellant had taken the investigating
officer to his shop. According to this witness, the appellant had
purchased a saffron colour bag from his shop for Rs.10/-. For
the reason that there being no earmark on the cloth bag seized
from the crime scene to identify it to have been purchased by
the appellant from the said shop, the evidence of this witness
too is given little importance.
25. Then there is evidence of P.W.9 Nanda. It is in her
evidence that, she was residing at Burudgaon Road,
Ahmednagar. Athare Niwas was adjacent to her premises. It
is further in her evidence that, it was 11.35 a.m. of 27/5/2016.
She left the house for collecting scrap. She saw one person
came running from opposite side. He was armed with a sickle.
Clothes on his person were stained with blood. The said
person was clad in a white shirt and blue Jeans. She heard
noise from the premises of Athare house.
She, however, could not identify the appellant
before the Court since according to her, about three years
were passed post she had seen that person.
26. During her cross-examination, it was suggested to
her that said person ran away within a fraction of seconds.
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This suggestion goes a long way to indicate the appellant to
have admitted P.W.9 Nanda to have witnessed one person
running away and he was having a blood stained sickle and
clothes on his person were stained with blood. Further
questions put to her during her cross-examination would,
therefore, be of little consequence.
27. P.W.10 Ravindra was a rickshaw driver by
profession. According to him, he was present at Chanakya
Chowk. Little past 11.30 a.m., one person came running from
Bhosle Akhada. He was armed with sickle. The person was
clad in white shirt and blue Jeans. The clothes on his person
and the sickle were stained with blood. On his request, he
took that person to Kotwali Police Station. That person gave
him Rs.500/- as fare. During interaction, he told a quarrel
between two brothers to have ensued.
This witness too could not identify the appellant
before the Court only on account of gap of three years
between he carried that person as passenger in his auto and
gave evidence before the Court.
28. P.W.11 Dr. Manoj conducted autopsy on the mortal
remains. His evidence would be referred to a little later.
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P.W.12 Sadashiv was the Naib Tahsildar-cum-Executive
Magistrate. He conducted test identification parade. In our
view, his evidence too is of little consequence since the
witness who identified the appellant in test identification parade
were the shop owners to whom the appellant had taken the
police pointing out the places wherefrom he purchased sickle,
sharpened it and then purchased a cloth bag. Meaning
thereby, the witnesses who identified him in test identification
parade had already seen him a few days before the test
identification parade was held.
29. P.W.13 Vaishali was the landlady, owner of Athare
Niwas. P.W.1 Tirthaprasad was residing as a tenant in the
said premises. It is in her evidence that, on 27/5/2016, it was
11.30 a.m., she was serving meal to her husband. She heard
hue and cry. She, therefore, went close to the entry gate of
her house. Outside, people told her that something was going
on the terrace of her house. She, therefore, entered the
premises and while climbing the staircace, she saw a boy
coming down the staircase. He was in the age group of 25-30
years. He was clad in white shirt and blue Jeans. A sickle was
in his hand. Both the sickle and clothes on his person were
stained with blood. She went upstairs and noticed a girl lying
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in a pool of blood. She was none other than Mohini, who had
come for Summer Vacation to the house of P.W.1 Tirthaprasad.
She informed the incident to her husband, who in turn
contacted P.W.1 Tirthaprasad on phone.
During her cross-examination, it was suggested to
her that after arrival of police to the crime scene, P.W.1
Tirthaprasad arrived. He then called his wife by making a
phone call. She too came. Thereafter both of them went to
the police station. These suggestions are implied admissions
given on behalf of the appellant.
30. P.W.14 Dattatraya was Station House Officer,
Kotwali Police Station on 25/5/2016. It is in his evidence that,
by 11.30 a.m., the appellant came to the Police Station and
disclosed him to have beaten up his wife Mohini on account of
domestic quarrel at Athare Niwas, Near Jakat Naka,
Burudgaon Road, Ahmednagar. He narrated the said fact to
his superior - Malkar. On the directions of his superior, he
deputed police staff to the crime scene. They were, A.P.I.
Chavan, Patil, Head Constable Musale. It is further in his
evidence that, he made a station diary entry, as to what was
disclosed by the appellant. He referred to the station diary
entry (Exh.65) (Sr.No.26). It is further in his evidence that,
:: 22 ::
while appellant appeared in the police station, he was armed
with a sickle stained with blood. Clothes on his person also
borne blood stains. He identified the appellant as the person
who had come to the police station and based on his
disclosure, made station diary entry (Exh.65).
During cross-examination, he admitted that, station
diary entry is silent to record therein that the appellant was
armed with a sickle stained with blood and clothes on his
person too borne blood stains. He, however, denied the
appellant to have had not come to the police station. He also
could not state as to why did he not record appellant's
statement.
31. P.W.15 Gajanan was P.S.I. attached to Kotwali
Police Station. It is in his evidence that, he was present at the
police station while appellant came there. It is further in his
evidence, after a while, P.W.1 Tirthaprasad appeared in the
police station and lodged F.I.R. (Exh.16). He registered the
crime based on the said F.I.R.
It is further in his evidence that, he seized the
clothes on the person of the appellant and the sickle as well,
under panchanama (Exh.23). He then handed over those
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articles to the Muddemal Clerk. It is further in his evidence
that, during personal search of the appellant, certain articles
like deceased Mohini's admission card, handset, SIM Card etc.
were seized and handed over to Muddemal Clerk. He referred
to the Muddemal Receipt (Exh.71).
During his cross-examination, he testified that, the
appellant was given old clothes to put on his person while
blood stained clothes were taken charge of. He could not offer
any reason as to why panchanama (Exh.23) is silent to state
seizure of admission card of Mohini, wallet, mobile handset
etc. He denied that, P.W.1 Tirthaprasad and parents of
deceased Mohini had brought the appellant to the police
station by little past 5.00 in the evening. It was suggested to
him that, he applied blood of Mohini on the sickle seized from
the appellant and then sprinkled the same on the appellant's
clothes.
32. P.W.16 Vinod was the investigating officer. He
referred to all the panchanamas which have already been
referred to hereinabove during evidence of the panch witness.
His evidence is consistent with the evidence of the prosecution
witnesses namely P.W.2. According to him, the appellant had
made disclosure statement. He referred thereto. He being
:: 24 ::
investigating officer, what he did as part of investigation has
already been referred to hereinabove as evidence of the
prosecution witnesses. We do not propose to refer to his
evidence in extenso.
33. P.W.17 was Dr. Kaustubh, who examined the
appellant before his arrest. The medical examination report
(Exh.76) of the appellant indicates that there was abrasion
over clavicular area of approximately 5 cms.
34. P.W.18 Bajrang was Sub-Divisional Police Officer,
Ahmednagar. Since provisions of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 were
invoked, further investigation was entrusted with him. His
evidence is of little relevance. His evidence indicates that, he
obtained caste certificate of the victim. Got test identification
parade held etc.
35. P.W.19 Laxmi was mother of the deceased. It is in
her evidence that, she was resident of village Talni, Taluka
Renapur. Mohini (deceased) had told her that the appellant
was insisting her to marry him. He would also abuse Mohini.
She tried to reason with the appellant not to be after her
daughter since she was minor and belonged to Scheduled
:: 25 ::
Caste. According to her, appellant still did not listen. The
appellant had even threatened them if they did not allow him to
marry her daughter. According to her, after 10 th Standard
examination, Mohini had been staying at the house of P.W.1
Tirthaprasad since it being Summer Vacation.
36. Exh.104 is the C.A. report of the articles seized
during investigation and chemically analysed at Forensic
Science Laboratory, Nasik. While Exh.106 is the written
statement given by the appellant in addition to his replies to the
questions put to him under his examination under Section 313
of the Cr.P.C.
Aforestated was the evidence adduced before the
Trial Court and was relied on before us in this appeal.
APPRECIATION :
37. Kum. Mohini (deceased) died of haemorrhagic
shock due to multiple injuries is not in dispute. P.W.11 Dr.
Manoj conducted autopsy on her mortal remains. He found 17
external injuries, almost all of them were in the nature of
incised wounds. P.W.11 did not describe size and dimensions
of injuries noticed on the person of Kum. Mohini. The post
mortem report is also silent to state time by which Mohini died.
:: 26 ::
The same, however, in our view, is of little consequence. The
appellant in his examination under Section 313 of the Cr.P.C.
and written submissions, admitted his presence by little past
11.00 a.m. at the crime scene i.e. terrace of second floor of a
three storey building of one Shri Athare, Burudgaon Road,
Ahmednagar. Mohini met with homicidal death is also
undisputed since it was suggested to P.W.1 in his cross-
examination that he got her killed through his men. Except the
bare suggestion, nothing was there to substantiate the said
suggestion even on preponderance of probabilities. True, the
burden of proof rests on the prosecution.
38. The question is, whether the appellant has
committed murder of Mohini. Admittedly, the appellant was
resident of village Talni, Taluka Renapur while Kum. Mohini's
parental house is at village Hadgaon. Mohini was, however,
staying at her grand-parent's house at Talni for education. She
had appeared for 10th Standard examination in March 2016.
There is evidence to indicate that, both, appellant and Mohini
were emotionally involved. A photograph (Exh.100) has been
admitted in evidence. The same indicates both, the appellant
and Mohini posed themselves as husband and wife. Mohini
was even sporting Mangalsutra. It was even suggested to
:: 27 ::
P.W.1 Tirthaprasad in his cross-examination that, the appellant
and Mohini got married in a temple at Ahmednagar. He,
however, denied the suggestion that he secured a job for
appellant in M.I.D.C., Ahmednagar and the appellant then left
the job.
39. The crime scene is a terrace of a second floor of a
premises, on the ground floor of which P.W.1 Tirthaprasad
would reside. His evidence indicates that, he left the house on
27/5/2016 in the early morning for his work place. His wife too
left the house as she was serving as Conductor in MSRTC at
Shirur. Their son was away at his grand-parent's house. His
evidence would further indicate that he returned to his house
little past 12.00 noon in response to a phone call made by his
landlord. On his return, he saw Mohini lying in a pool of blood.
He, therefore, immediately contacted his wife on phone. She
too arrived. The case of the prosecution is that, the appellant,
after having committed murder of Mohini, himself surrendered
at Kotwali Police Station.
40. P.W.14 Dattatraya was discharging duty as Station
House Officer at Kotwali Police Station on 27/5/2016. His
evidence is to the effect that the appellant came to the Police
Station by 11.30 a.m. The appellant disclosed him to have
:: 28 ::
beaten up his wife Mohini on account of domestic reason at
Athare Niwas, near Jakat Naka, Burudgaon Road,
Ahmednagar. He informed the said fact to his superior. Made
a Station Diary Entry (Exh.65) to that effect. True, the Station
Diary Entry was made at 12.30 p.m. It is but natural that after
the appellant reached police station by 11.30 in the morning, it
must have taken time for him to intimate his official. Moreover,
the evidence of this witness was recorded about three years
after the incident. A little difference in timing here and there is,
therefore, bound to occur. The extract of Station Diary has
been placed on record. The same indicates the entries therein
to have been made in the official course of business. There is
nothing to indicate the entries to have been manipulated.
True, the entry is silent to record therein that the appellant was
armed with sickle, and clothes on his person were stained with
blood. It is also true that, no statement of the appellant was
recorded nor, based on what has been reported by him a crime
was registered. After all, P.W.14 was an officer in the rank of
Police Constable.
41. P.W.2 Mahadev was an employee of the Municipal
Corporation, Ahmednagar. On the directions of the Deputy
Commissioner of the Corporation, he along with another
:: 29 ::
employee reached Kotwali Police Station by 11.30 a.m. on
27/5/2021. In his presence a panchanama (Exh.23) was
drawn. The same is on record to indicate a blood stained
sickle and blood stained clothes on appellant's person were
seized under the said panchanama. True, there is some
variance between his evidence and the evidence of P.W.16 as
to whether old or new clothes were provided to the appellant to
put on immediately after the clothes on his person were taken
charge of. The same too makes little difference. Although the
witness stated that those were old clothes, while the
panchanama indicates new clothes were provided. This
inconsistency in the evidence is also of not much assistance to
the appellant since it was suggested to the investigating officer
and even P.W.1 as well that they smeared the clothes on the
person of the appellant and the sickle with the blood of the
deceased. This suggestion too goes a long way to indicate the
appellant to have admitted that the sickle and the clothes on
his person borne the blood of the deceased - Mohini.
42. The Station Diary Entry was made by 12.30 p.m.
regarding the appellant's appearance at the Police Station and
reporting to have assaulted his wife. P.W.14 Dattatray testified
that, after having made a Station Diary Entry and with the
:: 30 ::
directions of his officer Shri Malkar, police officials namely
A.P.I. Chavan, A.P.I. Patil and Head Constable Musale went to
the crime scene. It was specifically suggested to the landlady
Vaishali (P.W.13) in her cross-examination that P.W.1
Tirthaprasad (informant) reached his house while the police
officials had already been present on the crime scene. The
same suggests that, pursuant to the statement made by the
appellant to the Station House Officer, it was disclosed/
discovered that Mohini was lying in a pool of blood at the place
stated by him to P.W.14 Dattatray. Although he had not
accompanied the police to the crime scene, the said statement
of the appellant would very much be relevant under Section 27
of the Evidence Act. It is true that, in the crime scene
panchanama the C.R. Number has been mentioned. The
evidence of P.W.1 Tirthaprasad (informant), however, indicates
that he immediately rushed to the Police Station and lodged
the report. A Station Diary Entry of registration of crime based
on his statement was made by 12.40 noon. The fact remains
that, the conduct of the appellant in visiting the Police Station
in the condition of having the clothes on his person stained
with blood and sickle in his hand too bearing blood stains that
too with the blood of the deceased is a fact to have been duly
proved. The C.A. report (Exh.104) reinforces the said fact.
:: 31 ::
The clothes of the deceased namely leggings and Dupatta
borne blood stains of blood group "A". While the sickle too
was found to have stained with the very blood (Group 'A'). It is
reiterated that, the appellant, during cross-examination of the
witnesses, has admitted the said fact. True, whatever he has
stated to the police about having assaulted his wife would be
inadmissible, being confession to police.
43. Kum. Mohini (deceased) belonged to lower caste.
Her parents were opposed to relationship between the
appellant and her. She, therefore, appears to have been
staying at her maternal aunt's house at Ahmednagar during
Summer Vacation. Even both, the appellant and Mohini got
married with each other clandestinely. It was, however,
suggested to P.W.1 Tirthaprasad in his cross-examination that
behaviour of Mohini was not good. She had many boy friends.
Even her grand-parents had expressed to P.W.1 Tirthaprasad
that her conduct made them difficult to stay in the village with
honour. This fact, coupled with the opposition of the parents
and the relations of deceased Mohini, the relationship with the
appellant appear to be a motive for the appellant to eliminate
her.
44. True, the appellant was arrested at 7.30 p.m. on
:: 32 ::
the fateful day. Before his arrest, he was medically screened
by P.W.17 Dr. Kaustubh. The appellant's injury certificate is on
record. There is nothing to indicate him to have suffered any
head injury with an assault with wooden log. It was the case of
the appellant that, P.W.1 Tirthaprasad had asked Kum. Mohini
to call him to his residence under the pretext of negotiations of
marriage. He, therefore, arrived at the house of P.W.1
Tirthaprasad. When he was there, he was assaulted on his
head. He became unconscious and post 4.30 p.m., he was
brought to the police station by P.W.1 Tirthaprasad. At the
cost of repetition, there is nothing to infer the defence version
to be true. Lapse in/ or incorrect investigation that does not go
to the root of the matter would be of no assistance to the
culprit. Delay in arresting the concerned would, therefore, be
of little consequence. There is a difference between "arrest"
and "detaining a person at the Police Station". More so, when
there is voluminous evidence to indicate that the appellant with
blood stained sickle in his hand and clothes on his person with
blood stains appeared in the police station by 11.30 in the
morning and those articles wee seized under panchanama
(Exh.23) in the presence of panch witness P.W.2 Mahadev.
The said exercise was done by police officer, P.W.15 Gajanan.
:: 33 ::
45. Then there is evidence of P.W.9 Nanda and P.W.13
Vaishali, landlady, indicating them to have had seen a person
clad in white shirt and Jeans pant. The person was appearing
with a sickle, stained with blood. Clothes on his person too
were stained with blood. These witnesses cannot be termed to
have been won over merely because they did not identify the
appellant before the Court as the very person whom they had
seen. Both these witnesses offered explanation that it was
after a gap of little over three years they gave evidence in the
Court and therefore, could not identify him as the very person.
Same is the case about the evidence of P.W.10 Ravi, an
autorickshaw driver. His evidence too is consistent with
evidence of P.W.9 Nanda and the landlady Vaishali (P.W.13). It
is in his evidence that, he reached one person at Kotwali
Police Station in his auto. The said person was armed with a
blood stained sickle and clothes on his person were also
stained with blood.
46. As stated above, we do not propose to refer to and
rely on the evidence of P.W. 3 Rameshwar and P.W.4 Saukat
in relation to the fact of the appellant had stayed overnight in
Hotel Chetana since the appellant himself admitted his
presence at the crime scene at the relevant time. We also do
:: 34 ::
not propose to give much credence to the evidence of P.W.6 to
P.W.8 i.e. sickle vendor, the person who sharpened the sickle
and the vendor of the cloth bag respectively, since their
evidence could not be said to have proved the sickle that was
seized from the appellant was the one which was sold by
P.W.6 Husen and sharpened by P.W.7 Mustafa. As already
observed above that evidence of P.W.5 Raju from whom the
appellant admittedly purchased a cell phone to give it to Mohini
as a birthday gift is also not relied on for cogent and reliable
evidence. Since the appellant accompanied the police
pursuant to his disclosure statement, to the shops of P.W.6 to
P.W.8, the fact that they identified him in the test identification
parade held by P.W.12 Sadashiv, Executive Magistrate lost its
efficacy. Moreover, these witnesses namely P.W.6 to P.W.10
failed to identify the appellant before the Court.
47. True, some articles namely cell phone, SIM Card,
Kum. Mohini's examination admit card were seized from the
person of the appellant under the panchanama (Exh.28) drawn
by P.W.15 Gajanan. There would be a question as to why,
when sickle and blood stained clothes were seized, those
articles were not found on his person. However, no question in
that regard were also put to the police officials who seized
:: 35 ::
those articles. Over zealousness of the Police Officer in this
act in the facts and circumstances of the case would be of no
assistance to the appellant.
48. In our considered view, the facts that the appellant
was in relationship with the deceased Mohini, her parents were
opposed to their relationship and her behaviour, according to
the appellant himself was not good, is a motive for the
appellant to commit her murder. Both of them appear in a
photograph as husband and wife. Mohini was sporting
Mangalsutra. It was suggested to P.W.1 Tirthaprasad that
Mohini's marriage was being settled with someone else, but
could not take place. In the case based on circumstantial
evidence, motive plays an important role. The fact that the
prosecution even assumed to have failed to make out a motive
itself would not be a ground of acquittal when other
circumstances conclusively establish the crime. At the cost of
repetition, it is observed by us that, the appellant had
admittedly been on the terrace of the second floor whereat the
crime took place. The landlady had seen a person climbing
down the staircase. A person was armed with a sickle.
Clothes on his person were blood stained. Nanda (P.W.9) had
also seen a person in similar condition by same time. P.W.10
:: 36 ::
Ravindra reached the very person to Kotwali Police Station. It
was necessarily little past 11.30 in the morning. P.W.14
Dattatray was Station House Officer. The appellant entered
the Kotwali Police Station and informed the matter which is not
admissible in evidence, being confession to police. However,
a Station Diary Entry (Exh.26) was immediately made to that
effect. Services of panchas were availed immediately. By
12.30 noon, blood stained clothes and blood stained sickle
were seized from the appellant under panchanama. The
appellant himself admitted the clothes on his person and sickle
borne blood of the deceased. It was his case that, the same
was smeared on those articles by police authorities and P.W.1
Tirthaprasad. He could not make out his case even based on
preponderance of probabilities. It was suggested to P.W.1
Tirthaprasad that, he reached his house after the police had
already arrived at the crime scene. It was also suggested to
him that, seeing the body of Mohini, he became insensitive
(numb). It was also suggested to him that he made Mohini to
call the appellant to his house under the pretext of holding
talks of settlement of marriage with her.
49. On appreciation of overall evidence in the case, we
find the appellant to have had every motive to eliminate
:: 37 ::
Mohini. He came to Ahmednagar, was there at the crime
scene by 11.00 in the morning on the fateful day. By that time,
the informant P.W.1 Tirthaprasad was at his work place. Before
that, the appellant, armed with a blood stained sickle and the
clothes on his person also stained with blood of Mohini,
appeared in the Police Station. A person in the very condition
climbing down the premises wherein the crime took place, was
seen by the landlady. The same person was seen by P.W.9
Nanda and then the very person went to the Kotwali Police
Station in autorickshaw of P.W.10 Ravindra go long way to
infer that it was the appellant and none else who brutally killed
Mohini. Pursuant to his statement made to the Police Station
Officer, the police reached the crime scene first and noticed
the dead body of Mohini. This too would be a discovery
relevant under Section 27 of the Evidence Act although C.R.
Number is recorded in the crime scene panchanama since the
time gap between the two was not of more than 10 minutes.
The appellant himself had suggested to the landlady that P.W.1
Tirthaprasad reached the crime scene post the police had
arrived there. The Medical Officer ruled out the injuries on the
person of the deceased to have been caused by a fall on
building material like iron rods etc. For all the above reasons,
we reach the conclusion that it was the appellant and none
:: 38 ::
else who has committed murder of Mohini.
50. Since both, the appellant and Mohini were
emotionally involved and there is nothing in the evidence to
suggest the appellant to have made any sexual overt act
towards her, the conviction of the appellant for the offence
punishable under Section 12 of the Protection of Children from
Sexual Offences Act must fail. The offence punishable under
Section 302 of the Indian Penal Code is punishable with
imprisonment for life or death, and with fine. The Trial Court,
while sentencing the appellant to imprisonment for life,
appears to have exceeded its jurisdiction while adding clause
(2) of the impugned order - "(2) Accused Pradip Manik Kanse
shall not be released from the captivation until his life." This
clause (2) of the impugned order, therefore, needs to be
withdrawn. The same is accordingly withdrawn.
51. Thus, the appeal partly succeeds. Hence the
order:-
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) The order dated 27/10/2020, passed by learned
:: 39 ::
Sessions Judge, Ahmednagar in Sessions Case No.279/2016
convicting the appellant for the offence under Section 302 of
the Indian Penal Code and sentencing him to suffer
imprisonment for life and to pay fine of Rs.500/-, in default, to
undergo rigorous imprisonment for six months is maintained.
However, clause (2) of the operative order i.e. "(2) Accused
Pradip Manik Kanse shall not be released from the captivation
until his life" is hereby withdrawn.
(iii) The conviction of the appellant for offence under Section
12 of the Protection of Children from Sexual Offences Act is
hereby set aside. The appellant is acquitted of the same.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
