1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 1339 OF 2002 Shivaji Pandurang Chikane ) Age 22 years, r/o Chikane vasti, Dahigaon ) Tal. Malshiras, Dist. Solapur )... Appellant (Orig.Accused No.1) versus The State of Maharashtra .....Respondent Mr. R.V. Bansode for the appellant. Smt. P.P. Shinde, Additional Public Prosecutor, for the State. CORAM: P.B.MAJMUDAR & R.G.KETKAR, JJ. DATED: 2 nd February, 2010 . ORAL JUDGMENT : (PER R.G.KETKAR, J.) 1. This appeal is preferred by the original accused No.1 challenging the judgment and order dated November 25, 2002, passed by the learned II Additional Sessions Judge, Satara, in Sessions case no. 30 of 2001. By that judgment, the learned Sessions Judge held him guilty and convicted for the offences punishable under Section 302 Indian Penal Code (for short “IPC”) and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- (Five thousand only). In default of fine, he was to undergo one month further rigorous imprisonment. The appellant who was also found guilty under Section 201 IPC was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/-(Five 2 thousand only). In default of fine, he was to undergo 15 days further rigorous imprisonment. The appellant was also held guilty under Section 364 IPC and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/- (Five thousand only). In default of fine, he was to undergo 15 days further rigorous imprisonment. The learned Sessions Judge ordered the substantive sentences to run concurrently. 2. The learned Sessions Judge acquitted accused No.2, Deepak Gajanan Mangrule, as he was not found guilty under Sections 302, 201 and 364 IPC. In the present appeal, we are concerned only with original accused No.1. The case of the prosecution is as under. 3. Malan Damodar Jadhav (hereinafter referred to as the “Victim”) was a resident of Rajuri (Jadhav Vasti), Tal. Phaltan, Dist. Satara. One of the daughters of the victim, PW 4- Jayashri, was married to one Ankush Chikane, brother of the appellant. After the marriage, PW 4- Jayashri went to her matrimonial home situate at Dahigaon, Tal. Malshiras, Dist. Solapur. The husband of the victim died in a motor accident some time in the year 1995. The victim received an amount of Rs. One lakh as a compensation on account of the accident caused to her husband. The appellant requested the victim for hand loan of Rs. 50,000/- for purchasing a motor jeep. It is the case of the prosecution that the victim gave loan of Rs. 50,000/- to the appellant for 3 purchasing the jeep one year prior to the incident in question. The appellant agreed to repay the amount within a period of five to six months. 4. The appellant purchased a second hand jeep and started transport business. The appellant, however, did not repay the amount within six months time as agreed. Even after the expiry of 7-8 months from the date of taking loan, the appellant did not repay the amount. The victim and her son PW 3-Dattoba used to visit the house of the appellant for repayment of the amount. However, the appellant on one pretext or the other avoided to repay the amount. The victim and PW 3-Dattoba were persistently demanding the amount from the appellant. On account of these persistent demands, the appellant was disgusted and he handed over the custody of the jeep to the victim and the same was parked in front of the house of the victim. The jeep was parked for about eight days. The victim, with a view to getting some income to the appellant, handed over the custody of the jeep to him. It is the case of the prosecution that the appellant assured that he would return the amount as and when the jeep was sold by him. 5. It is the case of the prosecution that on the day of the incident i.e. October 12, 1999, at about 11.30 a.m., the appellant went to the village Rajuri on motor cycle bearing registration No. MH/13-3135. At that time, the victim and her daughter PW 5-Bayadabai were working 4 in the field. The appellant asked the victim to accompany him to the house. In the presence of PW 5, the appellant took the victim with him on his motor cycle and both went towards the house of the victim. PW 5 immediately followed the appellant and when she reached the house, she found that the motor cycle was parked below the bor tree and her mother was sitting on the motor cycle as a pillion rider. According to PW 5, her mother was wearing saree of rose colour and matching blouse and the petty coat yellow colour. She was also wearing kudke (ear tops) in the ear and kalipot (sort of necklace) having gold bids in the neck. 6. It is the case of the prosecution that on October 12, 1999, PW 4- Jayashri intended to visit the victim as the victim used to keep fast on the eve of Navratri festival. Before starting to her mother’s village at 9.30 a.m., the appellant had come to the house on Yamaha motor cycle. She asked him whether he wants to pay the amount and if he is ready to pay the amount he should take her to her mother’s house. The appellant, however, declined and went back on motor cycle. PW 4- Jayashri went to her mother’s house. She did not find her mother. She enquired from PW 5- Bayadabai about the whereabouts of the mother whereupon PW 5 informed her that the victim was taken by the appellant on his motor cycle. After some time PW 3-Dattoba returned from the College and he also did not find his mother. On enquiry, he came to know from PW 5-Bayadabai that his mother left 5 the village in the company of the appellant on the motor cycle. They waited upto 5 p.m. but the victim did not return home. On the same day, PW 4- Jayashri left village Rajuri for Dahigaon and she reached there at about 7 p.m. On the same day at about 8.30 p.m. the appellant returned to village Dahigaon on motor cycle. PW 4- Jayashri asked the appellant where he left her mother. Thereupon the appellant told her that he had given a sum of Rs. 35,000/- and left her mother near the temple of Sadhubuwa at about 2.30 p.m. Upon this, PW 4- Jayashri told the appellant that she waited for her mother upto 6 p.m. and still by that time since the victim did not return she asked the appellant why her mother did not return to the house when, according to him, he left her at 2.30 p.m. Upon this, the appellant told her that he had left her mother at Phaltan. 7. The victim did not return home on October 12, 1999 and on October 13, 1999, PW 3-Dattoba went to the house of the appellant. He asked PW4 Jayashri about his mother. PW 4- Jayashri informed PW 3- Dattoba that the appellant disclosed her that he had left his mother near Sadhubuwa temple after paying sum of Rs. 35,000/-. PW 4- Jayashri asked her brother Dattoba to take search of the mother in nearbout village i.e. Zirapwadi. Dattoba returned to his village Rajuri. He, however, did not find his mother in the house. Thereafter, he went to the house of his uncle and narrated that the appellant took his mother on motor cycle on October 12, 1999 and since then his 6 mother did not return home. In view of this, the uncle of PW 3- Dattoba accompanied with him and thereafter visited the places of relatives at village Pimprad and they came to know that the victim had not visited the said village. In view of this, PW 3-Dattoba went to Phaltan Police Station and gave a missing report which was reduced into writing vide Exh. 20 on October 14, 1999. On the basis of this report, an offence came to be registered initially under Section 363 IPC vide Crime No. 283/99 at Phaltan Police Station. After lodging the report, the search for the victim was continued by PW 3-Dattoba and his other relatives. 8. It is the case of prosecution that on October 16, 1999, the complainant PW 3-Dattoba and his uncle again went in search for the victim and when they were taking search, they found a dead body floating in a canal under the kanher bridge. They stopped the jeep and got down from the jeep and after observing the body, they could identify the dead body of the victim. As PW 3 came to know about the dead body lying below the bridge, he immediately returned to Phaltan Police Station. However, Phaltan Police Station asked the complainant to go to Malshiras Police Station because the dead body was found within the jurisdiction of Malshiras Police Station. Accordingly, he went to Malshiras Police Station and gave oral report which was reduced in writting as per Exh. 21 on October 16, 1999. 7 9. After receipt of the report, police attached to Malshiras visited the place where the dead body was lying. Police could not make inquest panchanama nor the dead body was taken from the canal. On the next day morning i.e. October 17, 1999, the dead body was taken out from the canal. As the dead body was in a highly decomposed state, PW 6- Dr.Dhananjay Danave was called on the spot. The inquest panchanama was prepared and PW 6-Dr. Dhananjay carried out the post mortem on the spot. As dead body was in a decomposed state, PW 6 found it impossible to certify the cause of death. Number of photographs of the dead body were taken and the dead body was identified by the Complainant PW 3-Dattoba and other relatives. An offence under Section 364 IPC was registered vide Crime No. 285 of 1999. PW 7-Bajirao Patil, PSI attached to Phaltan Police Station visited the spot of incident. During the course of investigation, PW 5- Bayadabai pointed out the spot wherefrom the victim was taken on motor cycle. The spot panchanama was prepared in the presence of panchas at Exh. 18. PW 7- Bajirao Patil recorded the statement of 13 witnesses. 10.PW 7 took search of the appellant in village Rajuri on October 14, 1999, he was not found in the said village. Thereafter he went to village Dahigaon in search of the appellant. There also he came to know that the appellant had left for Phaltan. As per the evidence of PW 7, on October 15, 1999 a police constable of Crime Branch 8 produced the appellant and accordingly the appellant was arrested in Phaltan Police Station on October 15, 1999. One Suresh Shankar Jadhav has produced the Yamaha motor cycle which was used while committing the offence. Seizure panchanama was drawn on October 15, 1999 at Exh. 9. After receipt of the papers from Malshiras Police Station, PSI Patil added Section 302 IPC. During the course of investigation, it transpired that the original accused No.2 was also involved and, therefore, he was arrested on October 18, 1999. On December 1, 1999, viscera was sent to Chemical Analyser through Police Constable. While in custody, appellant expressed his desire to point out the spot where he had actually committed the murder of the victim and threw the dead body in the canal. Accordingly a memorandum was prepared and the appellant pointed out the place. However, nothing was recovered from the said place. It, however, appears from the panchanama that the place is just nearby the canal and it was covered by Nilgiri trees. After the investigation was over, charge-sheet was submitted in the Court of learned Judicial Magistrate, Phaltan. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of Session for trial. 11.The learned Sessions Judge framed the charges against the appellant for an offence punishable under Section 302, 201 and 364, read with 34 IPC. Both the accused pleaded not guilty and claimed to be tried. 9 12.In support of the case of the prosecution, it had examined seven witnesses viz. (1) PW 1-Dashrath Ramchandra Ghadage at Exh. 15, who acted as panch witness to inquest panchanama dated October 17, 1999 at Exh. 16. (2) PW 2-Popat Dattuba Salunkhe, who acted as panch witness to the spot panchanama dated October 14, 1999, (3) PW 3- Dattoba Damodar Jadhav, son of the victim at Exh. 19, who had made missing complaint on October 14,1999 at Exh. 20 and thereafter lodged report at Malshiras on October 16, 199 at Exh. 21. (4) PW 4- Jayashri Ankush Chikane at Exh. 22, one of the daughters of the victim and sister-in-law of the appellant, (5) PW 5-Bayadabai Anil Balgude at Exh. 23 the other daughter of the victim, (6) PW 6- Dr. Dhananjay Shrikrishna Danave at Exh. 26 who carried out the post mortem, and (7) PW 7 Investigating Officer Bajirao Patil at Exh. 29. The statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) was recorded. On the basis of material on record, as indicated earlier, the appellant was convicted under Sections 302, 201 and 364 IPC. As far as original accused No.2 is concerned, he was not found guilty of any of the offences punishable under Sections 302, 201 and 364 IPC and he was accordingly acquitted. 13.In support of this appeal, we have heard at length Shri Bansode, learned counsel for the appellant and Mrs. Shinde, learned Additional 10 Public Prosecutor, for the State. With the assistance of the learned counsel, we have gone through the evidence on record. 14. The learned Counsel for the appellant submitted that this is a case of circumstantial evidence. The prosecution has not proved its case beyond reasonable doubt. He submitted that where the case is based on circumstantial evidence of last seen, inference of guilt can justifiably be drawn only when all incriminating circumstances are found incompatible with innocence of accused. The guilt of the accused has to be proved beyond reasonable doubt and should be shown closely connected to principal fact sought to be proved. He relied upon several judgments in support of this submission. 15.He further submitted that the prosecution has not established the motive. If at all the appellant intended to commit murder of the victim, he would not have surrendered the jeep to the victim. It is his defence that he had paid an amount of Rs. 35,000/- to the victim and thereafter he left her at Phaltan. It was submitted on behalf of the appellant that thereafter he had no concern whatsoever and he is not aware as to what happened to the victim thereafter. It was further submitted that 11 the alleged incident in question took place on October 12, 1999 and the dead body of the victim was found on October 16, 1999. As the prosecution is relying upon the last seen theory, the prosecution has to establish that nobody else met the victim between October 12, 1999 and October 16, 1999. In that behalf, the prosecution has not led any satisfactory evidence to substantiate that it was the appellant alone who was lastly seen with the victim before her death. In support of this submission, the learned counsel for the appellant has relied upon several judgments. 16. On the other hand, Mrs.Shinde, learned Additional Public Prosecutor, supported the impugned judgment. She submitted that the prosecution has proved the motive as also has established the entire chain which points towards the guilt of the appellant alone. 17.She further submitted that there was fairly strong motive for the appellant to commit murder in question. He took charge of the victim in the morning of October 12, 1999 by taking her on motorcycle from village Rajuri. The appellant though claimed to have repaid the amount of Rs.35,000/- on October 12, 1999 he 12 failed to establish the said fact. In fact the appellant took the victim alongwith him on motorcycle on the pretext of payment of Rs.35,000/-. The prior and subsequent conduct of the appellant was very unnatural. The prosecution has relied upon following circumstances to establish the guilt of the appellant: (1) Motive, (2) Last seen, (3) Conduct of the appellant, (4) Post crime conduct of the appellant. 18. 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 13 Punjab MANU/SC/0160/1986. 19.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 the accused. 20. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are (SCC pp.185, para 153): i)the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; ii)the facts so established should be consistent only with the 14 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; iii)the circumstances should be of a conclusive nature and tendency; iv)they should exclude every possible hypothesis except the one to be proved; and v) 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 possibility the act must have been done by the accused. 21.We may also make a reference to a decision of Apex Court in C. Chenga Reddy v. State of A.P. MANU/SC/0928/1996, wherein it has been observed thus: (SCC pp.206-207, para 21) 21.In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 22. In Sashi Jena and Ors. v. Khadal Swain and Anr. MANU/SC/0106/2004, the Apex Court again reiterated the well- settled principle of law on circumstantial evidence. 23. Bearing the above principles of law enunciated by Apex Court, we have scrutinized scrupulously and examined carefully the 15 circumstances appearing in this case against Appellant. 24. The case of the prosecution is that the appellant committed murder of the victim as she was persistently demanding him to repay the loan amount. Though the appellant had assured repayment of loan amount within six months, he did not repay the amount. On one occasion the appellant handed over custody of the vehicle and parked the vehicle near the house of the victim for seven days. However, considering the relations the vehicle was handed over to the appellant so that he would be in a position to carry on the transport business. Even despite this, the appellant did not discharge the debt. According to the appellant he had sold the vehicle and that he paid the amount of Rs.35,000/- on October 12, 1999 and left the victim at Phaltan. The appellant however has not established the fact that he had actually paid the amount of Rs.35,000/- to the victim on October 12, 1999. The prosecution has come with the case that the motive behind the commission of the offence was that the appellant never intended to repay the loan amount and in order to dupe the victim, he committed the offence in question. 25. The first circumstance relied by the prosecution is motive. In order to establish the motive the prosecution has examined PW3 16 Dattoba Damodar Jadhav at Exh.19. He is the son of victim. He deposed that his father died in an accident. After the death of his father, the victim got the amount of Rs.1 lakh from the Insurance Company. The appellant demanded the sum of Rs. 50,000/- as hand loan from the victim for purchasing the jeep. The amount of Rs.50,000/- was given by the victim sometime two years prior to the incident. The victim started demanding the amount six months after it was given to the appellant. PW6 had given missing report on October 14, 1999 at Exh.20, wherein these facts have been set out. PW4 Jayashree Ankush Chikane was examined at Exh.22. She is one of the daughters of the victim. She also reiterated that on account of accidental death of her father, the victim received Rs.1 lakh from the Insjurance Company towards the compensation. The appellant demanded a sum of Rs.50,000/- from the victim as hand loand for purchasing jeep. The victim gave Rs.50,000/- to the appellant for purchasing the jeep. 26. In this regard the statement of the appellant u/s.313 of the Cr.P.C. is also relevant. The question Nos.5, 6, 7, 8 and 9 and the answers given by the appellant to these questions are relevant and they read as under:- 17 Q.5: It is in their evidence that their mother Malan gave Rs. 50,000/- to you accused No.1 and you assured to return the same within six months. What you have to say about this? Ans.: It is false. Q.6: It is in their evidence that accordingly you accused No.1 purchased a second hand jeep. What you have to say about this? Ans.: It is true Q.7: It is in their evidence that their mother Malan many times demanded you accused No.1 a sum of Rs.50,000/- but you avoided to return the same on one or the other pretext. What you have to say about this? Ans.: It is true. Q.8: