1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.354 OF 2003 Chandubhai Chaganbhai Siddhapur .. Appellant V/s The State of Maharashtra .. Respondent Mr.Vijay Hiremath i/by R.Gonsalves for Appellant. Ms.U.V.Kejriwal, APP for the State. CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 10.11.2009 JUDGMENT: (Per R.G.Ketkar, J.) 1. The original accused has preferred this appeal challenging the judgment and order dated July 8, 2002 passed by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No.678 of 2000. The appellant was charged for having committed the offence of murder of one Gita Parshuram Patil, punishable u/s.302 Indian Penal Code (for short IPC), as also for other offences u/s.201 and 404 IPC. The Appellant was convicted for the offence punishable u/s.302 IPC and was sentenced to suffer Life Imprisonment and was ordered to pay fine of Rs.5000/-, I/d.further Rigorous Imprisonment for six months. The appellant was also found guilty of the offence punishable 2 u/s.201 IPC and was convicted and sentenced to suffer Rigorous Imprisonment for two years and to pay a fine of Rs.2000/-, I/d.to undergo further Rigorous Imprisonment for three months. The Appellant was also found guilty of the offence punishable u/s.404 IPC and was convicted and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.1000/-, I/d.to undergo Rigorous Imprisonment for two months. The substantive sentences were ordered to run concurrently. 2. The case of the prosecution is that one Gita Parshuram Patil, since deceased, was residing with her family in Sai Prasad Chawl in the area known as Raidongri in Borivali (E), Mumbai. She was carrying on business of money lending by charging interest at the rate of 5% p.m. The Appellant is the resident of same locality and is also residing in the same chawl. He is a carpenter and had made certain furniture and door in the house of said deceased Gita in Diwali of 1999. It is the case of the prosecution that in January 2000 the Appellant borrowed Rs.20,000/- from deceased Gita. However, he could not repay the borrowed amount, as also the interest thereon. On March 10, 2000 PW-6 Amit, son of deceased Gita had last seen her at 9.45 a.m.when she left the house. On March 10, 2000 PW-4 Manisha Haridas Dabholkar, working as health worker in Bharat Population Project No. 5 launched by Health Department of Mumbai Municipal Corporation, was about to leave her house at about 10 am for going to work. At 3 that time she saw said Gita coming out of her house, and when PW-4 asked her whether she would accompany her, the said Gita answered that she was going to the place of Appellant for collecting the money as it was 10th day of the month. PW-4 saw Gita going towards the direction of the house of the Appellant. At about 10.15 am on March 10, 2000, PW-5 Nitin Desai residing in the same chawl was proceeding to his work place. He met said Gita on the road and asked her where she was going. At that time Gita replied that she was going to the place of appellant for recovering the interest on the amount of Rs. 20,000/- lent by her to the appellant. It is the case of the prosecution that though said Gita left her house at around 10 am she did not return home. She was neither seen by anybody. In view of this her husband PW-11 Parshuram lodged missing complaint with the Kasturba Marg Police Station, Borivli, Mumbai on the midnight of March 10, 2000 and March 11, 2000. 3. PW-2 Pralhad Ramu Pukale, Police Constable attached to Kasturba Marg Police Station was assigned duty as a bodyguard of one social worker Mangesh Sawant PW-3. He resumed duty at 7.30 pm on March 10, 2000. He was informed by PW-3 Mangesh Sawant that his foster sister Gita had left her residence at 10 am and till 8 pm she did not return. At around 3.45 am on March 11, 2000 when PW-2 Pralhad Pukale went towards Western Express Highway to answer the nature’s call, after crossing Saibaba Temple on the slope he saw one body in 4 two gunny bags. He could not make out whether it was a dead body of a male or female as it was covered in gunny bags. He immediately telephoned to Kasturba Marg Police Station and the said phone call was received by PW-13 Jitendra Vishnu Pawar, P.I.attached to Kasturba Marg Police Station. PW-13 made entry No.10 in the station diary and left alongwith PI Mr.Chavan to the spot. When he reached the spot he saw one dead body lying in front of Room No.22 of Sai Prasad Chawl. The body was covered in two separate gunny bags. At around 5 am on March 11, 2000 the police called husband of deceased Gita, PW-11 Parshuram Patil. He came alongwith his son Amit PW-6 and other relatives and saw the body of his wife wrapped in two gunny bags. He identified the body of deceased Gita. She was having injury on her forehead and head. No ornaments, according to PW-11 were found on her body. His statement was recorded by police after 2/3 days.He started recording Inquest Panchanama. Mrs.Pushpa Shankar Kharvi PW-1, who acted as Panch for Inquest Panchanama at Exh.10, stated that the body was facing towards the sky. On examination she saw injuries on the forehead and on the back of the head of the body. The blood was coming out of those injuries. She noticed earrings and ear tops and silver anklets. The police took out those ornaments on the body of Gita and gave it to her husband Parshuram. In her presence the police collected blood in two bottles and she signed the Inquest Panchanama. She also described the clothes that were on the body of deceased Gita. 5 4. PW-13 seized two gunny bags and also sent the dead body of Gita for post mortem to Cooper Hospital. He recorded first information report of PW-2 Pralhad at 6.35 am on March 11, 2000. He registered the offence at C.R.No.52 of 2000 u/s.302, 201 IPC. While drawing Inquest Panchanama he collected blood samples and the samples of blood mixed soil for the purpose of sending these articles to the Chemical Analyser. On March 11, 2000 he recorded statements of Tarabai Khot and four other female members. On March 15, 2000 he made panchanama of clothes of deceased Gita at the police station which is at Exhibit 11. 5. On March 16, 2000 PW-14 Krishna Tukaram Chavan, PI attached to Kasturba Marg Police Station took over the charge of further investigation. He arrested the appellant at around 12.45 p.m.on March 16, 2000. He drew panchanama of the clothes on the person of the Appellant which is at Exhibit 16. He noticed blood stains on the back of the shirt and the blood stains on the inner pocket of the trouser of the appellant. Under the seal and labels of panchas he seized those articles at the time of panchanama. 6. Appellant made statement in the presence of two panchas that he would show the place where he had kept gold ornaments of deceased Gita. He recorded the memo in the presence of panchas. The appellant 6 led them to Room No.1 in Sai Prasad Chawl and opened the house. The Appellant took out the plastic bag consisting of gold ornaments from the water pipe situate in Varanda. The plastic bag contained one mangalsutra, four bangles and one finger ring with red stone. Four bangles and finger ring were cut in between. He prepared panchanama of all these articles in the presence of panchas and sealed those ornaments with labels of panchas. 7. PW-14 PI Mr.Krishna Chavan noticed one blood stain on the wall of the bathroom while preparing recovery panchanama. He took the scrap. He also noticed one spot on the wall of the bathroom which was scrapped. He also seized one hacksaw and scissor which were kept under the otla of the kitchen. He found one purse which was also seized uner the panchanama. PW-14 also found one gunny bag outside the bathroom having one blood stain. He seized that gunny bag under the seal and label of the panchas and prepared memo and recovery panchanama at Exh.17A. 8. On March 18, 2000 appellant showed his willingness to make a statement. PW-14 PI Mr.Krishna Chavan called two panchas and took down the statement made by the appellant. He made a statement that he would show the place where he had kept solid iron rod (batta). Thereafter PW-14 alongwith panchas and the appellant went towards Dahisar Mumbai Highway as per the directions given by the appellant. 7 He asked them to halt the vehicle at Mallagiri building and near tourbo sign board. Appellant got down from the police jeep and showed one gutter and took out one plastic bag. In that bag, drying flowers offered to god, one iron rod were found. PW-14 PI Mr.Krishna Chavan seized iron rod, drying flowers and the plastic bag in the presence of panchas. He noticed that some portion of the iron rod was blood stained. He called the photographer and the photographs were taken. He seized all these articles under the seal and label of panchas. 9. The case of the prosecution is that when the deceased Gita went to collect interest on the money borrowed by the appellant to his house, the appellant by using solid iron rod as weapon hit that rod on the head of deceased Gita when she was unattentive. Thereafter he kept body of Gita in the bathroom of the house. He removed the gold ornaments i.e.mangalsutra, bangles and one finger ring from the body of the deceased Gita. While removing those ornaments, he cut those ornaments with hacksaw and scissor and kept those ornaments in the water pipe of the bathroom which came in the varanda of his house. Appellant kept body of deceased Gita in his house whole day and thereafter in the night he threw that body in front of Room No.22 of Sai Prasad Chawl near Saibaba Temple. Body was put in two gunny bags. 10.On March 19, 2000, PW-14 also seized one notebook produced by 8 PW-11 Parshuram Patil. The said notebook recorded the account of hand loan given by Gita. PW-14 sent those articles to Chemical Analyser. After receipt of the report of the Chemical Analyser in respect of these articles, the PW-14 also recorded the statement of witnesses and after completing the investigation, filed chargesheet on June 13, 2000. The learned Metropolitan Magistrate, 26th Court, Borivli committed the case to the court of sessions on June 23, 2000. The sessions court framed charge on April 6, 2002 for the offences punishable u/s.302, 201, 404 IPC at Exh.2. Appellant accused pleaded not guilty to the charge and plea was recorded at Exh.3. Appellant accused pleaded that he was falsely implicated in the case and that he is innocent. In support of the prosecution case, the prosecution examined as many as 14 witnesses which included panchas to various panchanamas, medical evidence, and the witnesses who claimed to have lastly seen deceased Gita. The prosecution also relied upon various panchanamas to establish the guilt of the appellant. 11.We have heard learned counsel Mr.Vijay Hiremath on behalf of the appellant and Ms.U.V.Kejriwal, learned APP for the State. Mr.Hiremath, learned counsel for the appellant submitted that the death of deceased Gita was not homicidal, but accidental. He submitted that deceased Gita was not murdered but she had met with an accident. He invited our attention to the suggestions given to 9 Dr.Vasant Naiku Vanmare, PW-15 in respect of causing various injuries due to accidental impact on deceased Gita. 12.Mr.Hiremath, learned counsel for the appellant submitted that PW-4 Manisha Dabholkar, PW-5 Nitin Desai cannot be treated as witnesses who had lastly seen the deceased Gita. In so far as evidence of PW-1 Pushpa Kharvi is concerned, he submitted that she is interested witness as she is resident of the same locality where deceased Gita was staying. Though this witness deposed that blood was coming out from the injuries, timing was not recorded. According to him it is highly improbable that though the people were moving around at the relevant time the police did not examine anyone who actually saw any person while bringing the dead body. At any rate, police should not have returned the jewellery to the husband of the deceased. As far as evidence of PW-2 Pralhad Pukale is concerned, he criticized his evidence on the ground that the conduct of the said witness was not natural. In fact the case deposed by PW-2 that he reached the spot where the dead body was lying, itself was unnatural. This is more so because though he claimed to have made the telephone call to Kasturba Marg Police Station from one of the residents of the said chawl he could not disclose surname of that resident.. He further criticised the conduct of PW-2 on the ground that if at all the said witness knew that Gita was foster sister of PW-3 Mangesh Sawant, he would have first contacted PW-3 Mangesh Sawant and not the police 10 station. 13.As far as evidence of PW-3 Mangesh Sawant is concerned, Mr.Hiremath, learned counsel for the appellant heavily criticised the said evidence on various grounds. In the first place, he submitted that PW-3 Mangesh Sawant acted as panch to three panchanamas; (1)Panchanama of arrest dated March 16, 2000 (2) Panchanama of recovery of articles dated March 16, 2000 and (3) Panchanama of recovery of iron rod/bar dated March 18, 2000. Secondly, he submitted that when PW-3 claimed that deceased Gita was his foster sister then naturally he is a interested witness. According to him, the police should not have accepted him as panch witness and that too for other three panchanamas. According to Mr.Hiremath, PW-3 Mangesh Sawant was the first person who identified the body and not PW-11 Parshuram Patil, husband of the deceased Gita. Thirdly, Mr.Hiremath, learned counsel for the appellant submitted that since the statement of PW-3 Mangesh Sawant was recorded on March 11, 2000 he should not have acted as panch in respect of aforesaid three panchanamas which were made on March 16, 2000 and March 18, 2000. Learned counsel further submitted that no reliance can be placed on the testimony of PW-3. According to him, though the PW-3 claims to have been residing in the same locality for the last 30/40 years, he did not know the person in front of whose house dead body of Gita was found. 11 14.In so far as recovery of articles from the house of appellant is concerned, he submitted that the house of the appellant was not locked and nobody was in the house. The house was bolted from outside and the PW-14 alongwith panchas entered the house and purportedly effected the recovery of gold ornaments, hacksaw and scissor. He submitted that anybody could have planted these articles in the house of the appellant. He also attacked the fact that no label was fixed on the iron rod and hence at the time of seizure on March 18, 2000 it was not properly sealed. As far as recovery of solid iron is concerned, he submitted that it was recovered from open nalla which was accessible to public at large. On these among other grounds, he submitted that the evidence of PW-3 as regards recovery deserves to be discarded. 15.Mr.Hiremath, learned counsel for the appellant also pointed out omissions in the evidence of PW-6 Amit to the effect that when PW-6 Amit went to police station for giving missing report, he did not tell police at that time what PW-5 Nitin Desai had told him. PW-6 in the evidence had claimed that he met Nitin Desai at 9.45 p.m.on March 10, 2000 when PW-5 Nitin Desai informed him about the conversation that took place between his mother and said Nitin. After that PW-6 claims to have gone to the house of appellant alongwith Nitin Desai. However, the house of the appellant was closed. He further criticised 12 evidence of PW-6 on the ground that there was delay of 3 / 4 days in recording statement of PW-6. 16.As far as oral evidence of PW-11 Parshuram Patil is concerned, learned counsel for the appellant submitted that there was delay of 2/3 days in recording his statement. In his evidence, PW-11 deposed that no ornaments were found on the body of deceased Gita. As against this, PW-1 Pushpa Kharvi deposed that the ornaments were handed over by Police to PW-11 Parshuram Patil. This, according to learned counsel for the appellant is the contradiction between the evidence of PW-1 and PW-11. Learned counsel for the appellant strenuously submitted that there was tampering with the articles. The articles were lying with the Investigating Officer from March 16, 2000 to April 4, 2000. They were not kept in the safe custody. It has come on record that the seal on the articles that was earlier put was removed for the purpose of valuation and these articles were resealed. However, no panchanama was made at the time of resealing. At any rate assuming that the valuation was made from some jeweller, the said jeweller was not examined. Mr.Hiremath, learned counsel for the appellant also criticised the evidence of PW-13 Jitendra Pawar on the point that though PW-11 Parshuram Patil claimed to have identified dead body of deceased Gita, PW-13 did not record his statement immediately. He however recorded statement of Tarabai Khot and four other ladies. The statement of PW-11 Parshuram Patil was 13 recorded after 2/3 days. He further submitted that admittedly there is no eye witness and the entire case of the prosecution is based on circumstantial evidence. The chain is not complete. In support of his submission, Mr.Hiremath, learned counsel for the appellant relied upon several judgments to which reference will be made at an appropriate place. 17.On the other hand, Ms.Kejriwal, learned APP for the State submitted that the prosecution has established that PW-4 Manisha Dabholkar and PW-5 Nitin Desai lastly saw deceased Gita at around 10 am on March 10, 2000. Deceased Gita was not found by the family members. There are clinching circumstances viz. Recovery of weapon, iron rod. Ornaments were found in the house of the appellant. Appellant showed place of incident and in the panchanama of the house of the appellant blood stains were found. According to learned APP the Chemical Analyser’s report indicates that it was human blood. From the notebook which was produced by PW-11 Parshuram Patil it is evident that the appellant had borrowed Rs. 20,000/- and that he was not in a position to repay the principal amount as also the interest thereon, and therefore the motive behind the crime is established by the prosecution. 18.Ms.Kejriwal, learned APP submitted that the body of deceased Gita was put in two gunny bags and this is evident from the photographs 14 alongwith the negatives that were produced on record. The finding of the body in two gunny bags rules out the possibility of accidental death of deceased Gita. On the point of homicidal death, the prosecution relied upon the evidence of Dr.Vanmare PW-15 and the post mortem notes. Dr.Vanmare deposed that five external injuries on the head of the body of deceased Gita were observed by him while carrying out post mortem. In Col.17 of the post mortem notes (which is at Exh.64) he gives details of the injuries. He deposed that all these injuries were bone deep and some were scalp deep. He further deposed that in the internal examination he found injury to the skull and brain. Internal injuries were consistent with the external injuries which he had mentioned in Col.17 of the post mortem notes. He also deposed that these injuries were sufficient in ordinary course of nature to cause death. 19.Ms.Kejriwal, learned APP while countering the submission made on behalf of the appellant that invariably there was delay of 2/3 days in recording statements of various witnesses and in so far as PW4 and PW5 there was delay of two months after the incident, submitted that during the evidence of the Investigating Officer and other witnesses, no suggestions were put to them on behalf of the appellant. If the suggestions were put to the Investigating Officer and other witnesses during the course of their evidence, they could have explained the circumstances for not recording the statements earlier. She also 15 submitted that in the bathroom of the house of the appellant blood stains were found. While dealing with the submissions made on behalf of the appellant that PW3- Mangesh Sawant acted as panch witness to three panchanamas, she relied upon the judgment of the Apex Court in the case of Limbaji V/s.State of Maharashtra, (2001) 10 SCC 340 and submitted that the evidence on record clearly establish the genuineness of discovery and the mere fact that the PW3-Mangesh Sawant acted as panch cannot be suspicious feature in discarding the recoveries made at the behest of the appellant. Ms.Kejriwal also relied upon several judgments in support of her submissions that the prosecution has established the guilt of the appellant. 20.In this case there is no eye witness. The case of the prosecution rests on circumstantial evidence. The prosecution relied upon following circumstances:- (1) Deceased Gita was last seen by PW4-Manisha Dabholkar and PW5-Nitin Desai. (2) Gold ornaments were found in the house of the appellant. (3) Recovery panchanama of gold ornaments dated March 16, 2000 and Recovery panchanama of weapons used in the offence i.e.iron rod dated March 18, 2000. 16 (4) Notebook produced by PW-11 Parshuram Patil, husband of deceased Gita, which not only established that the appellant borrowed Rs.20,000/- from deceased Gita, but also established the motive behind the commission of offence. (5) Appellant was familiar with deceased Gita as also her family members. 21.When the case rests upon the circumstantial evidence, such evidence must satisfy the following tests:- i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir v. State of Maharashtra MANU/SC/0067/1982] See also Rama Nand v. State of Himachal Pradesh MANU/SC/0209/1981, Prem Thakur v. State of Punjab MANU/SC/0097/1982, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330: AIR 1983 SC 446, Gian Singh v. State of Punjab MANU/SC/0173/1986, Balvinder Singh v. State of Punjab 17 MANU/SC/0160/1986. 22.As far back as in 1952 in Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 3443, it was observed thus: It is well to remember that in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by