1 Cri.Appeal No. 58/91. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 58 OF 1991 The State of Maharashtra. ... Appellant. vs. 1. Bajirao Malhari Honmukhe, age 24 years, R/o Vikramnagar, Tal. Ichalkaranji, District-Kolhapur. 2. Kashiram Malhari Honmukhe, age 18 years. R/o Vikramnagar, Tal. Ichalkaranji, District-Kolhapur. Both R/o. Ward No. 9, in the House of Vishnu Machare, near Old Shahapur Naka, R/o Vikramnagar, Tal. Ichalkaranji, District-Kolhapur. ..... Respondents. (Orig. Accused) Mrs. Usha V. Kejriwal, APP for the State (Appellant). Mr. M.R. Katikar for Respondents. CORAM : D.B. BHOSALE & RAJESH G. KETKAR, JJ. DATE : 26th AUGUST, 2010. 2 Cri.Appeal No. 58/91. ORAL JUDGMENT (Per D.B. BHOSALE, J.) : This appeal is directed against the judgment and order dated 19.9.1990 passed by the IIIrd Additional Sessions Judge, Kolhapur, in Sessions Case No. 96 of 1989 by which both the respondents-accused have been acquitted. They were charged and tried for the offence punishable under Sections 302 and 201 read with 34 of IPC. 2. The prosecution case as culled out from the evidence in brief is that the deceased Sindhu was wife of accused no. 1 - Bajirao. She was murdred on 7.2.1989 in the house of one Tulsabai Parshram Sutar at Ichalkaranji by strangulation. After Sindhu was killed the accused put her dead body in a wooden box and loaded the box on the carrier of S.T. bus No. MWQ 565 at Ichalkaranji bus stand. The said bus was on its way to Sangli and then to Karad via Islampur. The box, containing the dead body of Sindhu, was carried upto Ichalkaranji S.T. Stand with the help of one Maruti Rayappa Nagarale P.W.5. It was carried to the S.T. Stand in bullock cart by P.W.5 along with other household articles. The accused also accompanied PW-5 along with these these articles upto S.T. Stand. There is no evidence on record as to 3 Cri.Appeal No. 58/91. who loaded the box on the carrier of the S.T. bus. Ashok Sadhu Wagh-P.W.1 was conductor of the bus. He had joined the duty at Islampur S.T. Stand at 1.15 p.m. on 7.2.1989. From Islampur the bus was taken to Karad. At Karad the wooden box was noticed by PW-1 and since none of the passengers in the bus claimed the said box, it was sent back to Islampur. At Islampur PW-1 Ashok informed the Controller - Uttam Yashwant Patil-PW-2 about the unclaimed box. Then the box was taken down and kept in the control rook. PW-2 Controller and Ranjit Suryawanshi were on duty at the relevant time. On the next day, Uttam Patil-PW-2 joined the duty at about 6.00 a.m. He found that blood was oozing from the said box. Ranjit Suryawanshi, therefore, informed about the box to the police station Islampur. The police accordingly visited the control room at S.T. Stand, Islampur. The box was opened in the presence of panchas and the police found a dead body of a female therein. The PSI conducted inquest panchanama and sent the dead body for post-mortem to the general hospital, Sangli. He then lodged an FIR and set the investigation in motion. Since the box was brought to Islampur from Karad, he transferred further investigation to Karad Police Station. While conducting the inquest panchanama, the police found that the name Sindhu Bajirao Hanmukhe was tatooed on the hand of the dead body. On the basis of the name tatooed on her hand, accused no. 1 4 Cri.Appeal No. 58/91. came to be arrested on 16.3.1989. Thereafter the investigation was transferred to Police Inspector, Ichalkaranji Police Station on 17.3.1989. 3. Further, the case of the prosecution is that accused no. 1 made disclosure statement to show the place of incident and on the basis thereof panchanama of the scene of offence was drawn. Then the accused also made disclosure statement and produced keys of the lock which was fixed to the wooden box under panchanamas (Exh. 21, 21-A). The investigation was completed and the charge-sheet was submitted on 14.6.1989 before the Judicial Magistrate First Class, Ichalkaranji. The case was thereafter committed to the Sessions vide order dated 6.7.1989. The charge was framed against the accused on 19.6.1990. The defence of the accused was of total denial. In the statement under Section 313 of the Code of Criminal Procedure, accused no. 1 has taken a stand that the deceased was not his wife and both the accused are falsely implicated in the present case. 4. The facts, as culled out from the evidence, would show that the prosecution case is based on circumstantial evidence. The prosecution in order to bring home the guilt of the accused, examined 20 witnesses. The trial Court after considering the evidence of all the witnesses so also the other 5 Cri.Appeal No. 58/91. evidence in the form of documents, including panchanamas, held that the guilt of the accused has not been cogently and firmly established. In other words, it was observed that the circumstances, taken cumulatively, do not form a chain so as to unerringly point towards the guilt of the accused. 5. There is no eye-witness to the incident nor is there any witness who claims that he had seen the accused loading the box on the carrier of the S.T. Bus or connecting the accused with the box. It is well settled position of law that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered inconsistent with the innocence of the accused. In such cases, Court is required to bear in mind the cumulative effect of all the circumstances and weigh them as an integral whole. Any missing link may be fatal to the prosecution case. Moreover, the principles governing appreciation of evidence in a case dependent upon the circumstantial evidence are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence. The circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the 6 Cri.Appeal No. 58/91. circumstance must be of incriminating character. All the proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. Keeping in view the well settled principles of law enunciated by the Apex Court in various judgments in criminal cases of circumstantial evidence, we proceed to consider the instant appeal. 6. The prosecution, in the present case has relied upon the following circumstances, to bring home the guilt of the accused: (i) Actual killing of Sindhu in the house of Tulsabai Parshram Sutar; (ii) procuring the box in which her dead body was concealed; (iii) carrying of the box, containing the dead body, upto S.T. Stand; (iv) loading of the box on the carrier of the S.T. bus, which was on its way to Sangli and then to Karad via Islampur; (v) finding of the dead body and identification thereof; (vi) the evidence to connect the accused with the homicidal death of Sindhu; and (vii) Extra Judicial confession. In order to prove the first and last circumstance, the prosecution seems to have produced on record disclosure statements made by accused no. 1 showing the scene of offence, recovery of keys of the lock, the person who manufactured the box, etc. 7 Cri.Appeal No. 58/91. 7. In so far as the first circumstance is concerned, the prosecution has not brought any evidence on record to show that the deceased was killed in the house of Tulsabai Sutar. The prosecution has neither examined Tulsabai nor has brought any other material on record to show her connection with the accused or with the deceased. Except the disclosure statements, there is nothing on record to prove the first circumstance or to connect accused with the alleged crime. To prove the circumstance as to who manufactured the box, the prosecution examined Mahadev Gundu Almalkar PW-4. We have perused the evidence of this witness. In our opinion, he does not support the prosecution case at all. He has simply sated that he manufactured wooden boxes and he had been in this business since about 30 years. Then, he has specifically stated that he was not in a position to identify the person who purchased the box or the box which was allegedly used by the accused for carrying the dead body. He has further stated that there is no identification mark on the box so as to state that it was manufactured by him. In the cross, he has admitted that wooden boxes like the one which was allegedly used by accused in the present case are also manufactured by other persons in Ichalkaranji. Thus, in our opinion, this circumstance would not help the prosecution to connect the 8 Cri.Appeal No. 58/91. accused with the crime. Then, the prosecution examined one Maruti Rayappa Nagarale-PW-5 in order to prove that the box was carried by the accused to Ichalkaranji S.T. Stand. This witness has stated that he carried the box at the request of the accused to the S.T. Stand along with other household articles. He identified the box so also the accused in the Court. This witness was working as a coolie at the relevant time. In the cross, he has admitted that he had not seen the accused persons early. He has also admitted that it would not be possible for him to state as to whom he rendered service as a coolie. In so far as this witness and the circumstance is concerned, even if it is assumed that it stands proved that the box was carried by the accused to Ichalkaranji S.T. Stand with the help of PW-5, that by itself, in our opinion, would not be sufficient to connect the accused with the alleged crime. This witness has not stated as to who loaded the box on the carrier of the S.T. Bus. There is no evidence on record to show that the very same box which was carried by PW-5 upto Ichalkaranji S.T. Stand was ultimately loaded in the said bus. Thereafter the prosecution has examined PW-1, conductor, PW-2 Controller and PW-3 who, at the relevant time, were attached to Ichalkaranji S.T. bus depot. Their 9 Cri.Appeal No. 58/91. evidence would at the most establish that the wooden box was noticed by PW-1 at Karad S.T. Stand and since it was not claimed by any passengers in the bus, he brought it back to the Islampur and in Islampur it was opened by the police and the dead body of a female was found therein. It is pertinent to note that except the fact that the name was tatooed on the hand of the deceased, the prosecution has not examined any witness who could identify that the dead body was that of Sindhu. Similarly the evidence of P.W.2 and P.W.3 also would not help the prosecution to connect the accused with the crime. Then the prosecution has examined panch witnesses. We would like to make specific reference to Zakirhusen Allabaksha Nadaf-PW-6. In his presence the accused allegedly made disclosure statement and showed his willingness to produce keys of the lock. We have perused his evidence. It is interesting to note that this witness has not stated that the key produced by the accused was tried to be applied to the lock and the lock was opened in his presence. Further, it is pertinent to note that Bhimrao Ningappa Gaikwad-PW-20 who carried out the investigation, in respect of this panchanama (Exh.21-A), has stated that the accused led the panchas and the police to his house and produced "keys and lock" and it was attached under panchanama. We 10 Cri.Appeal No. 58/91. fail to understand as to how he could produce lock. The lock was with the box. This, in our opinion, falsifies the prosecution case completely. Then the prosecution examined Devidas Shankar Bhise-PW-8 and Somaling Annappa-PW-9 to prove that the accused had made extrajudicial confession before them. These two witnesses, however, did not support the prosecution case at all and, therefore, they were declared hostile. Thus, in our opinion, the learned Sessions Judge, after scrutinizing the entire evidence of the prosecution, has rightly held that the circumstances relied upon by the prosecution do not inevitably and exclusively point to the guilt of the accused. The circumstances relied upon by the prosecution, in our opinion, are not of incriminating character. They do not provide a chane, no link of which is missing, and they cannot be stated to have unequivocally point to the guilt of the accused and exclude any hypothesis consistent with their innocence. 8. In such state of affairs, we confirm the judgment of the trial Court. In our opinion, the conclusions recorded by the trial Court are not perverse. We do not find strong and compelling reason to interfere with the order of acquittal made on proper appreciation of the evidence on record. We, 11 Cri.Appeal No. 58/91. therefore, dismiss the appeal and confirm the order of acquittal. The bail bonds, if any, stand cancelled. (D.B. BHOSALE,J.) (RAJESH G. KETKAR, J.)