1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.471 OF 2002 Satish Ramchandra Bavbande Appellant Vs. The State of Maharashtra Respondent Mr.S.V.Kotwal with Mr.A.R. Kapadnis i/b. Mr.M.S.Mohite for appellant. Ms.S.V. Gajare, APP for State. CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ. Reserved on : April 7, 2010. Pronounced on: April 28, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This Criminal Appeal filed under Section 374 of Cr.P.C. arises from the order of conviction and sentence passed by the learned Additional Sessions Judge, Pune on 2nd April 2002 in 2 Sessions Case No.536 of 1999 and the accused has been convicted for the offence punishable under Section 302 of IPC and sentenced to suffer life imprisonment. He has been acquitted of the charges punishable under Sections 363 and 366 of IPC. He is presently undergoing the sentence. 2. As per the prosecution case, briefly stated, the accused and deceased Neeta, daughter of PW 1 – Sham Murlidhar Hendre as well as PW 2 – Leena Gokhale and PW 26 – Ashish Patankar were the residents of Rakshalekha Society in Dattawadi area of Pune city and all of them were known to each other. The deceased Neeta was aged about 16 years and was a student of Garware College in 11th standard in the academic year 1999-2000. She had joined Dake Coaching Classes which she used to attend along with PW 2- Leena Gokhale. The accused was in love with deceased Neeta and he had proposed to marry her. On 23/9/1999 the deceased and PW 2 left Rakshalekha society at about 5.15 p.m. so as to go for the tuition classes which were to start at 5.30 p.m. and after the class was over at 6.30 p.m. the accused along with PW 26 reached the premises of the tuition class on his scooter. The accused and the deceased went together as was demanded by 3 the accused and PW 2 and PW 26 waited in the premises of the tuition classes. When the deceased did not return for about one hour, PW 2 returned home at about 7.45 p.m. and met the father of the deceased who was waiting and informed him that the deceased went in the company of the accused at about 6.30 p.m. and did not return. PW 1 fainted and fell down. PW 26 – Ashish searched for the accused on the scooter and could not locate him and, therefore, returned to Rakshalekha Society at about 9.15 p.m. on the scooter of the accused. He saw that some persons had gathered in the society and they enquired with him. He informed them that the accused and the deceased after the coaching class was over at about 6.30 p.m. went together and did not return. Some members of the society, therefore, approached the Dattawadi Police chowki at about 9.30 p.m. where PW 13 – Ajit Joshi was the PSI and they informed him that the deceased was taken away by the accused and both were the residents of Rakshlekha society. Though they did not file any written complaint, PW 13 swung in action for tracing the deceased and the accused. He also asked the police teams to visit the residence of the accused and keep a watch on his whereabouts. Between 11 to 11.30 p.m. he got a report from the police that the accused was not found. At about 11.30 4 p.m. PW 1 reached the police chowki and lodged his FIR (Exhibit 28) under C.R.No.294 of 1999. A morcha was taken on 24/9/1999 to the Dattawadi Police Chowki condemning the incident and urging the police to arrest the accused at the earliest. On 24/9/1999 at about 6.15 p.m. the Swargate Police Station received a telephonic message from the Khadak Police Station that a dead body of a girl was lying in the lane behind the Ration office in Swargate area and, therefore, PW 15 – Dilip Jagdale went to the spot with Police Personnel and in the lane between the compound wall of police line and ration shop he saw the dead body of a female aged about 16 to 18 years and with injuries on her person. He also noticed that her mouth was gagged and was facing the sky and she was half naked. Two panchas were called along with the photographer and spot panchanama at Exhibit 57 was drawn. Then the dead body was taken to the hospital where inquest panchanama at Exhibit 46 was drawn. After the dead body was sent for post mortem, some articles scattered around the dead body were seized under panchanama Exhibit 59. On the same day i.e. on 24/9/1999 a copy of the FIR was sent to the Judicial Magistrate 5 First Class through the Police Constable PW 22 – Balu Shnde. P.M. was conducted by Dr. Milind Wable and P.M. Report at Exhibit 104 was received by the Swargate Police Station. The dead body was identified by the complainant and it was handed over to him after the post mortem for cremation. On 26/9/1999 the accused was located by PW 19 - Atmacharan Shinde, Police Inspector of Talegaon Dabhade Police Station at about 5.45 p.m. while he was on patrolling duty along with his staff and on that day the local newspapers had already carried the news of Neeta being kidnapped and killed by the accused. As soon as the accused had seen the police jeep near the IBP Petrol Pump on Mumbai – Pune highway, he had started running and, therefore, the police chased him and took him in custody. PW 19 recalled the newspaper report and suspected that the boy taken in custody was involved in crime No.294 of 1999 registered with the Swargate police station. PW 24 – Nandkumar Suryavanshi was the PSI attached to the Swargate Police Station who received a message from PW 19 and, therefore, he reached Talegaon Dabhade police station and took the accused in custody along with the articles which were recovered from his person. He was brought to the Swargate 6 Police Station and was arrested under arrest panchanama (Exhibit 88). The clothes of the accused along with the articles received from the spot of the incident were sent for C.A. and the C.A. Reports were received at Exhibits 110 to 113. On 25/9/1999 the investigation was taken over by PW 27 Baburao Patil, Police Inspector of Swargate Police Station from PW 13 – Ajit Joshi. 3. On completion of investigation charge-sheet came to be filed for the offences punishable under Sections 363, 364, 302 and 404 of IPC and as the case being triable exclusively by the Sessions Court, it was committed. Charge was framed on 11/7/2000. 4. The prosecution examined in all 28 witnesses which included three doctors. PW 23 – Dr. Mukund Paranjape was examined to prove that the deceased was born on 20/10/1983 in his hospital, PW 25 – Dr. Milind Wable had conducted the post mortem of the dead body and PW 28 – Dr. Narayan Kamble who was attached to the Sassoon Hospital as Casualty Medical Officer had examined the accused on 28/9/1999 and issued injury certificate at Exhibit 124. He had noticed the following 7 three injuries on the person of the accused: 1. Linear abrasion on left hand dorsal 2x1/2 cms. with chocolate colour scab. 2. Abrasion on left elbow 2x1/2 cms. 3. Abrasion on left scapula ½ x ½ cm. 5. There was no eye witness to the incident and the prosecution case was entirely based on the circumstantial evidence. The learned Additional Sessions Judge had noted the following circumstances on the basis of the prosecution case: (A) The accused was in love with Neeta and he had threatened her if she did not marry. (B) In the evening of 23/9/1999 he took Neeta with him from Dake classes and she did not return. (C) Complaint of kidnapping was filed against him. (D) He was seen coming out of a lane behind a ration shop at about 10-30 p.m. by PW – Gajanan Mulgund. 8 (E) In that night at about 11 p.m. he told PW-Raju to read next day’s newspaper. (F) On 24/9/1999 at 6.30 p.m. dead-body of Neeta was found in the lane near ration shop. (G) Neeta died homicidal death. (H) He pledged gold chain with PW – Baby Jadhav in the night of 24/9/99. (I) Gold chain belonged to the deceased. (J) He was absconding upto 26th and was apprehended by the police wandering on the highway. (K) He was found in possession of I-card of the deceased. (L) Clothes were found stained with blood. (M) Recovery of gold chain at his instance. (N) Recovery of hexa-blade and ear ornament at his instance. (O) He was having injuries on his person. (P) Soil on his clothes and shoes tallied with the soil 9 on the spot. (Q) No explanation / false explanation of the circumstances. 6. The learned Additional Sessions Judge on sifting the evidence held that the prosecution could not prove the circumstances at E, L. N, O and P. However, the learned Additional Sessions Judge held that on the circumstances proved by the prosecution the chain of circumstances was complete so as to leave no doubt that it was the accused alone who had committed the murder of Neeta in the night of 23/9/1999 by strangulation and inflicting incised wounds on her wrists which had resulted in heavy bleeding. 7. PW 25 – Dr. Milind Wable, who had conducted the autopsy on the dead body of Neeta, was attached to the Sassoon Hospital at Pune at the relevant time as professor in Forensic Medicine, D.J. Medical College. He stated before the trial court that on 25/9/1999 at about 1.30 a.m. dead body of Neeta was brought to Sassoon Hospital by the Khadak Police Station for post mortem examination 10 and he conducted the same between 6.15 a.m. to 7.30 a.m. on the same day. He noted the following external injuries on the dead body: (1) Left black eye. (2) Horizontal linear abrasion 3/4’th inch below left eye, measruing 1 1/2” x 1/4th inch. (3) Ligature mark on neck above thyroid cartiledge horizontal incomplete, measuring 8 x 2” absent for 3” on posterior aspect underline skin brown and parchment like. (4) Ligature mark starting from Inj. No. 3 in the middle running obliquely upwards upto level of ears, 1 1/2” below Rt. Ear and 2” below Lt. Ear, underline skin brown and parchment like size 5x1/2”. (5) 7 incised wounds, superficial on the middle of neck, 5 horizontal and parallel to each other measuring 2x1/2”, 2-3/4x3/4”, 1x1/4th” and 1 1/4”, one verticle intersecting above injuries perpendicuraly size 1x1/4” and one obliquely size 1 1/2”x1/4”, muscle deep. (6) 4 horizontal incised wounds on Rt. Writs anteriorely and parallel to each other size varying from 1 1/2” to 2-3/4 x 1/2” separated by a distance of 1/3” from each other, tailing bone deep. (7) Horizontal incised woulds on Lt. Writs size 3x3/4” bone 11 deep tailing medically. (8) Horizontal incised wounds 3” above and parallel to Inj. 7, size 2 1/2x1/4” tailing medically, bone deep. (9) Linear abrasion, lower margin of Rt. Buttuck size-1x1” 1/4”. (10) Linear abrasion lower margin of Ltd. Buttuck 3/4” long. (11) Contusion of inner aspect of lower lip against incisers, size – 1 1/2x 1/4”. (12) Ants bites over face and chin. He noted the following internal injuries: (1) Corresponding to Ext. Inj. No.3 – Minute subtutanious, harammrgesgin neck tissues, peritracheal, haematoma, anteriorly, 2 1/2x 1 1/2”. (2) Corresponding to Ext. Inj. No. 6 – tendons of underlying muscles, vessels including radial, ulnar and median vessles and nerves served. (3) Corresponding to Ext. Inj. No.7 – tendons of underlying muscles, vessles including raidla, ulnar and median vessles and nerves severed. (4) Corresponding to Ext. Inj. No. 8 – tendons of u nderlying muscles, vessles including radial, ulnar and median vessles and nerves severed. 12 As per him all the above mentioned injuries, except injury of ants bites were ante mortem and injury no.12 of ants bites was post mortem. External Injury Nos. 3, 6 to 8 and corresponding internal injuries were sufficient to cause death in the ordinary course of nature, individually and collectively. In his opinion, the cause of death of Neeta was due to asphyxia as a result of strangulation associated with haemmorohagic shock as a result of incised wounds of wrists. He had preserved the blood for grouping, nails from both hands, pubic hair and vaginal swab as per police request. He verified the contents of post mortem report at Exh.104 and the advance certificate at Exh.105 regarding the cause of death. He also stated that the ligature marks were possible due to strangulation and injuries to the wrists (Injury Nos.5 to 10) were possible with Muddemal Article 24 collectively. In his opinion, the cause of death of Neeta was due to asphyxia as a result of strangulation associated with haemmorohagic shock as a result of incised wounds of wrists. He had preserved the blood for grouping, nails from both hands, pubic hair and vaginal swab as per police request. He 13 verified the contents of post mortem report at Exh.104 and the advance certificate at Exh.105 regarding the cause of death. He also stated that the ligature marks were possible due to strangulation and injuries to the wrists (Injury Nos.5 to 10) were possible with Muddemal Article 24 exhau-blade shown to him. In his cross- examination he clarified that Injury Nos.5 to 10 were possible by a sharp edged weapon as well, as they would be caused necessarily by sharp weapon. He admitted that Article 24 shown to him, at that time, could not be termed as a sharp weapon. The evidence of this witness clearly established that Neeta died a homicidal death. 8. We have, therefore, to examine whether the prosecution proved, beyond a reasonable doubt, that the homicidal death of Neeta was caused by the accused alone on re-appreciation of the evidence adduced before the trial court. 9. It was submitted by Mr. Kotwal the learned counsel for the appellant that the accused was falsely implicated and the 14 prosecution case implicating the accused was based on suspicions. Vital missing links were not noticed by the trial court and it could not be proved beyond reasonable doubts that the accused had done Neeta to death. He submitted that the registration of FIR at 11.30 p.m. on 23/9/1999 was itself doubtful and in all probabilities the FIR was recorded belatedly but was shown to have been registered at 11.30 p.m. on 23/9/1999. It was unnatural and, therefore, unbelievable that PW 1 would wait for about four hours to register the FIR even if it is accepted that it was registered at 11.30 p.m. on the date of the incident. The prosecution could not prove that the accused was in love with Neeta, he had proposed to marry her and she had turned down the said offer. The evidence of P 2 – Leena and PW 26- Ashish did not inspire confidence on material circumstances and even if their testimony is accepted, it could not be held that the deceased was reluctant to go in the company of the accused after the tuition class was over at about 6.30 p.m. and she had willingly gone with him. Her dead body was located after 24 hours and, therefore, the theory last seen together advanced by the prosecution could not have been accepted by the trial court, in view 15 of the time gap and the failure of the prosecution to explain the same. As per the learned counsel, it could not be ruled out that the deceased was in love with someone else and her death was caused by some third person. The police fabricated the evidence and produced got up witnesses like PW 3 – Gajanan Mulgund, PW 7 – Raje Ingale and PW 4 – Ganesh Kamble, PW 5 – Ganesh Salunkhe and PW 6 – Babi Jadhav. The alleged recovery of golden chain from PW 6 – Babi Jahdav could not support the prosecution case in as much as the chain did not have any specific feature so as to held that it was the very same golden chain which was on the person of the deceased and purchased by her father from the shop of PW 12 – Ashok Ranka. In short, the prosecution could not place before the trial court any reliable evidence to connect the accused with the crime of causing homicidal death of Neeta. He also submitted that in all probabilities Neeta did not attend the tuition class on 23/9/1999 and she bunked the class and went in the company of some third person who was her lover. The injuries noticed on the dead body of Neeta could not be connected or attributed to the accused. The accused was not absconding and either PW 23 – Dr. 16 Mukund Paranjape or PW 27 – Baburao Patil could not prove the said circumstance. The evidence of PW 18 – Ulhas Dake did not establish that Neeta was present in the tuition class between 5.30 to 6.15 p.m. He relied upon the decisions in the case of Matru alias Girish Chandra vs. State of Uttar Pradesh [AIR 1971 SC 1050] and State of Maharashtra vs. Annappa Bandu Kavatage [AIR 1979 SC 1410]. It was urged by Mr. Kotwal that the facts in the instant case are similar to the facts of Annappa’s case (Supra) and mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The following observations in the case of Matru (Supra) were relied upon: “15. ........Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of sell-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value 17 would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.” Mr. Kotwal also relied on the following observations made in the case of Annappa: “2. ........It appears from the circumstances proved by the prosecution that the respondent had taken away Dhanpal with him and hired a cycle and then had gone to a grocer’s shop and bought some sweets for the boy. Thereafter, the boy was found missing. The respondent appears to have taken away the ear-rings from the boy and they were sold in the market to P.W. Shaha for a 18 sum of Rupees 35. On a search of the person of the accused Rs.34.50 were recovered from him. The body of the deceased was recovered next day from a well situated in the field of PW Kalo. This was the evidence led against the respondent. The High Court found that although the circumstances proved against the respondent created a good deal of suspicion against the respondent, it was unable to find that the circumstances were of such a conclusive nature so as to exclude every possible hypothesis of innocence in so far as the death of the boy was concerned. It is well settled that before a court can act on circumstantial evidence the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused. It was pointed out by learned counsel for the respondent before us that even accepting all the circumstances, the possibility that after having 19 snatched the ear-rings the respondent may have left the boy near the field, cannot be excluded. In our opinion, the contention is well founded and must prevail. As there was sufficient interval between the death of the boy and the recovery of the body, the link in the chain of the circumstantial evidence does not appear to be fully complete...” 10. Lastly, it was contended by Mr. Kotwal that the investigation was faulty and some of the major witnesses like police constable Shinde from the Khadak Police Station, who was the person who come to know about the dead body lying in the lane behind the rationing office, was not examined. The recovery of identity card Exh. 85 from the person of the accused on his arrest was a very weak circumstance. It was pointed out that when the charge-sheet was submitted, this Article Exh. 85 was not placed before the trial court and it was produced only during the trial. The violate, in which the said identity card was found did not come before the trial 20 court and with the time gap it was possible for the prosecution to introduce such an identity card by way of an after thought. Mr. Kotwal, therefore, urged that the impugned order of conviction and sentence is required to be quashed and set aside and the appellant deserves to be acquitted of the offence punishable under Section 302 of IPC. 11. Ms. Gajare the learned APP has supported the order of conviction and sentence on all counts. She urged that the allegation of faulty investigation by itself cannot be a reason for acquittal. If the chain of circumstances was fully established by the evidence of the prosecution, the defective investigation, if any, would not come in the way to uphold the order of conviction. She submitted that in the case of alleged defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective [AIR 1995 SC 2472]. As per Ms. Gajare, the prosecution placed before the trial 21 court cogent, reliable evidence of material witnesses who were known to the accused and the deceased and the prosecution case did not suffer from any exaggeration or concealment of material evidence. There was no missing link in the chain of circumstances in the prosecution case. She submitted that the lane from where the dead body was recovered on 24/9/1999 was an isolated place and 24/9/1999 was a public holiday on account of Anant Chaturthi, on account of which the PWD Office and Rationing Office in the neighbourhood were closed and, therefore, there was hardly any possibility of a human being getting into the said lane in normal course. The delay caused in recovering the dead body by itself would not be fatal to the prosecution case based on last seen together. She also pointed out that in addition to the theory of last seen, the prosecution has established some other material circumstances which would connect the accused to the death of Neeta and it was the accused alone who murdered her. 12. Having considered the rival submissions made by the defence, the prosecution as well as the reasoning set out by the trial Court in support of the order of conviction impugned in this 22 appeal, the following circumstances are re-framed in support of the prosecution case: A) The accused, deceased, PW 2 – Leena Gokhale and PW 26 – Ashish are the residents of the same Co-operative Housing Society viz. Rakshlekha Housing Society and known to each other for quite some time. The deceased and PW 2 were friends and similarly the accused and PW 26 were also friends. B) The deceased and PW 2 had joined Dake coaching classes where they used to go together in the evening (between 5.15 p.m. to 6.30 p.m.)