1 (APEAL 326.04) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.326 OF 2004 Sadanand Kashiram Salvi ) Age – 34, Occupation – Nil ) R/o Patgaon, Kumbharwada, ) Tal – Sangmeshwar, ) District – Ratnagiri ) ..... Appellant. (Original Accused) V/s The State of Maharashtra ) (At the instace of Deorukkh ) Police Station, ) District – Ratnagiri ) ....Respondent (Original Complainant) Mr. Rakesh R. Bhatkar & Adesh Chavande, for the Appellant. Mrs. S.D. Shinde, APP for the Respondent. CORAM: V. M. KANADE & M.L. TAHALIYANI, JJ DATE : 8th November, 2011 ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Appellant has filed this appeal against the judgment and order passed by the Additional Sessions Judge, Ratnagiri whereby the Trial Court was pleased to convict the appellant for the offence punishable under section 302 of 2 (APEAL 326.04) the Indian Penal Code and sentenced him to suffer imprisonment for life. 2. Prosecution case is that the appellant committed murder of his wife since he suspected that she was having an affair with one Sameer Salvi. According to the prosecution, on 22/02/2003, deceased Sangeeta had gone to the house of her mother who lived in the same building at about 11 O’clock and, after some time, she went back to her house and promised to return back after serving meals to her husband. At about 12.30 in the afternoon, her son Ajay went to her mother’s house and informed her that Sangeeta was lying in a pool of blood in the bath-room. When Shardabai, mother of Sangeeta, went to the house of Sangeeta, she also found that Sangeeta was lying in a pool of blood. Ajay, thereafter, went to his grandfather Sakharam Patil and informed him about the incident, who also came to the house of Sangeeta. Thereafter, Sangeeta was taken to the hospital. However, she was declared dead. A complaint was filed by Sakharam Patil against the accused, appellant herein who was then arrested. Investigating Officer recorded the statements of witnesses. The spot panchanama and inquest panchanama was prepared and three days after the incident, recovery of knife was made at the instance of the appellant. Blood stained clothes of the accused were also sent to the Chemical Analyser. Charge- sheet was filed. 3 (APEAL 326.04) 3. Prosecution examined in all six witnesses. The defence was of denial. In his 313 statement, accused has stated that on the date of the incident, at about 9.00 a.m., he left the house for seeing the cricket match which was played near his house and claimed to have met Ajay and his two nephews at about 11 O’clock and from there he went to his office and came to know at about 1.00 p.m. about the incident and he, therefore, came back to his house. 4. Mr. Bhatkar, the learned Counsel appearing on behalf of the appellant submitted that the case of the prosecution was based entirely on circumstantial evidence. He submitted that it was not established by the prosecution beyond the reasonable doubt that the appellant had committed murder of his wife Sangeeta. He submitted that the prosecution had not examined Ajay, son of the appellant and deceased Sangeeta though he was a crucial witness since he was the first person who had seen the deceased Sangeeta in an injured condition and, thereafter, had informed his grand parents. He submitted that adverse inference ought to have been drawn by the Trial Court against the prosecution for not examining Ajay since he could have thrown some light about the presence of the accused at the cricket match. He submitted that recovery of knife also was not trustworthy since the accused was handcuffed when the recovery was made and the key of the house was with the police. He also submitted that recovery was made almost three days after the arrest of the accused. It is further submitted that 4 (APEAL 326.04) Chemical Analyser also did not support the case of the prosecution because the blood which was found on the clothes of the deceased did not match since the blood group of the deceased was different from the blood which was found on the clothes of the accused. 5. On the other hand, the learned APP appearing on behalf of the State submitted that the accused used to suspect the character of the deceased and had assaulted her for that reason on number of occasions. However, no complaint was filed on account of the intervention of the deceased. It is further submitted that there was recovery of knife from his own house. It is submitted that circumstantial evidence clearly and unerringly points out the guilt of the accused in commission of the offence. 6. We have heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the Respondent – State. They have taken us through the judgment and Order of the Trial Court and also the evidence which is brought on record. 7. Prosecution has established that the death of Sangeeta was homicidal. Dr. Pralhad Narayan Deokar (P.W.5) who conducted the postmortem has stated that he noticed 9 incised wounds on the chest of Sangeeta and over wrist and between fingers of the left hand. He also noticed that there was a fracture of the first rib and that the left lung was 5 (APEAL 326.04) punctured and the large vessel was found torn. In his opinion, therefore, he has stated that the cause of death was because of hypovoluminic shock due to injury to great vessel and vital organs. He has also stated that these injuries could be caused by Article 19 which is a knife and which was recovered at the instance of the accused. 8. The crucial question which needs to be decided is : whether the prosecution has proved beyond the reasonable doubt that the appellant had committed murder of his wife Sangeeta? 9. Prosecution has examined in all six witnesses. P.W. 1 – Sakharam Patil is a father of the deceased Sangeeta. P.W. 2 – Sharada Patil is a mother of the deceased. P.W. 3 – Dilip Salvi and P.W. 4 - Mahaveer Mangale are panch witnesses. P.W. 5 is Dr. Pralhad Narayan Deokar who has performed postmortem and P.W. 6 – Pramod Nalavade is the Investigating Officer who was attached to Deorukh Police Station at the relevant time. P.W. 1 – Sakharam Patil has stated that accused and his daughter got married about 11 years before the incident and she was residing at the distance of about 25 feet from their house. According to him, two year before the incident, the accused had started ill-treating his daughter since he suspected that she was having an illicit affair with one Sameer Salvi. He further stated that eight days before the 6 (APEAL 326.04) incident, accused had assaulted his daughter and she had to be admitted in the hospital. According to him, no complaint was filed against the appellant since his daughter had restrained him from filing the complaint. He has further stated that his daughter had told him that the accused had threatened to kill her. He has stated that, at 1.00 p.m., his grandson Ajay came to him and told him about the incident and, thereafter, he filed the complaint against the accused. P.W. 2 - Sharada Patil is the mother of the deceased. She has also stated that the accused used to ill-treat her daughter since he suspected her character. She has stated that on account of quarrels between the accused and her daughter, she had brought her daughter and two grandsons to her house and her daughter was staying with her. However, since the accused was unwell, Sangeeta used to go and take care of the accused. She has also stated that on the date of the incident, Sangeeta had left her house at about 11.30 a.m and, at about 12.00 and 12.30, her grandson Ajay came and told her that his mother was lying in the bath-room. P.W. 3 – Dilip Salvi is the panch who had prepared the spot panchanama at Exhibit-12. P.W. 4 – Mahaveer Mangale is another panch who prepared the inquest panchanama. He also prepared the panchanama of attachment of clothes of the accused which 7 (APEAL 326.04) is at Exhibit-16 and the panchanama of recovery of knife at the instance of the accused. In the cross-examination, however, he has admitted that he was called at the Police Station on 24/2/2003 for recording the statement of the accused about production of the knife. He has stated that the accused was handcuffed when he was taken to his house and the house of the accused was locked and the key was with the police. The police opened the lock and, thereafter, they all entered the house. P.W. 5 is Dr. Pralhad Deokar, who performed the postmortem of deceased Sangeeta. P.W.6 - Pramod Nalavade is an Investigating Officer, who was attached to Deorukh Police Station. In his cross- examination, he has admitted that in the arrest panchanama it is not stated from where the accused was arrested and taken in custody. He has further stated that he has recorded the statement of Ajay Salvi, the son of the accused since he was an important witness. He has also admitted that during the course of investigation, it was revealed that the accused and his son had been to see the matches at Patgaon on the date of the incident and when Ajay had returned to the house from Patgaon, he had seen his mother lying in injured condition. He also admitted that Sameer Salvi had seen the deceased at the back side of her house at about 11.00 a.m and that he was the last person who had seen the deceased alive. 8 (APEAL 326.04) 10. Trial Court, after going through the evidence which is brought on record, has observed as under in para 28 of its judgment:- “28. From the entire evidence it doesn’t appear that any other person other than accused has any intention to kill Sangeeta. It is tried to be argued that Sameer Salvi was arrested in this case. May it be a fact Sameer Salvi as it appears from the evidence might have came in contact with Sangeeta since before 2 years of this incident. If really he was having relation with Sangeeta there was no reason for him to done away with the life of Sangeeta because he was very well aware that Sangeeta was wife of the accused and has got two sons. Neither the accused nor sons of Sangeeta would be an obstacle in his relation with Sangeeta. He, therefore, cannot be set to have any grudge against Sangeeta.” In our view, Trial Court clearly has committed a grave error in coming to the said conclusion. Trial Court has obviously lost sight of the fact that the crucial issue is whether the 9 (APEAL 326.04) prosecution has produced sufficient evidence on record to establish that the accused had committed murder of his wife. Trial Court, instead of addressing itself to this question, has, on the basis of suspicion and surmises, come to the conclusion that since no other person other than the accused had an intention to kill Sangeeta, he was guilty for committing the said offence. 11. In our considered view, the evidence which is brought on record is not sufficient for establishing the fact that the accused was responsible for commission of the said offence. 12. In the present case, there is no direct evidence and the prosecution has relied on circumstantial evidence. It is quite well settled that when the prosecution relies on circumstantial evidence, burden is on the prosecution to prove the chain of circumstances which should unerringly point to the guilt of the accused and, secondly, prosecution has to establish beyond the reasonable doubt each and every chain of circumstances and if there is a missing link in the said chain of circumstances then, in that case, benefit of doubt should go to the accused. In the present case, there is no material on record to establish the presence of the accused at the time of commission of the said offence. None of the prosecution witnesses has stated that they have seen the accused in his house at that time. Another crucial aspect which has been ignored by the Trial Court is that the prosecution has not examined Ajay who was the first person 10 (APEAL 326.04) who had seen the deceased lying in an injured condition. No explanation has been given as to why the prosecution has not examined Ajay. It is the duty of the prosecution to bring on record evidence which could throw light on the circumstances under which the offence had taken place in order to enable the court to come to a proper conclusion. If, however, prosecution fails to examine the crucial witness, then, in such cases, the Court is entitled to draw adverse inference. In the present case, the accused in his statement under section 313 has categorically stated that he had gone to see cricket match at Patgaon and that he had met his son and two nephews at the cricket match. If the prosecution had examined Ajay, he would have been in a position to not only state the circumstances under which he found his mother lying in an injured condition but he also would have been in a position to state whether, in fact, accused had met him at the cricket match at Patgaon. An adverse inference, therefore, will have to be drawn against the prosecution that the prosecution did not examine Ajay because had he been examined, his evidence would have supported the case of the accused. 13. Another important fact which has been brought on record by the defence in the cross-examination of Investigating Officer – P.W. 6 is that the prosecution had also arrested Sameer Salvi who was the last person who had seen the deceased alive in the morning at about 11.00 a.m behind her house. Prosecution has not given any 11 (APEAL 326.04) explanation as to why he was released. The evidence which has been brought on record by the prosecution, at the best, would raise a suspicion against the accused. It is quite well settled that suspicion, however, strong it may be cannot take the place of proof. In the present case, P.W. 1 and 2 have stated that two years prior to the incident accused was suspecting chastity of his wife and had also on one or two occasions assaulted her on that ground. This may create a suspicion that the accused was responsible for inflicting vital injuries on Sangeeta. However, that does not establish beyond the reasonable doubt that he alone could have caused these injuries to the deceased. Accused in his statement under section 313 had given an explanation about his whereabouts at the said time. He has stated that he had gone to see cricket match at Patgaon and he had met his son and two nephews and offered them ice cream after the match. He has also stated that the parents of the deceased namely P.W. 1 and P.W. 2 had a grudge against him since the marriage between the accused and the deceased was an intercaste marriage and they had not approved of his marriage with the deceased. Prosecution could have very well established that this version which was given by the accused was not correct by examining Ajay. However, the prosecution, curiously, failed to examine Ajay, though his statement was recorded by P.W. 6 and though he has admitted in his cross-examination that Ajay was a crucial witness in the case. 12 (APEAL 326.04) 14. Prosecution has also relied upon the recovery of knife at the instance of the accused. It is a matter of record that the said recovery was made almost after three days after the arrest of the accused. It has also come on record that the spot panchanama and the panchanama of the seizure of the clothes of the deceased was made immediately by the police. The police, therefore, had an ample opportunity to take search of the house of the accused on the same day of the incident and thereafter. It is difficult to accept the prosecution case that almost three days after the date of arrest that the weapon with which the murder was committed could be found at the instance of the accused from the same house. The another circumstance which creates doubt regarding recovery of the weapon at the instance of the accused is that the panch witness P.W.4 – Mahaveer Mangale has admitted that the accused was handcuffed when he was taken to his house and he has further stated that house of the accused was locked and it was opened with the key which was with the police and that the police opened the lock and they all entered the house. It is, therefore, difficult to rely on the said recovery which has been made at the instance of the accused. 15. In dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases there is always danger that conjecture or suspicion may take the place of legal proof and, therefore, one has to remind oneself about the warning addressed by 13 (APEAL 326.04) Baron Alderson to the jury in Reg vs. Hodge1 where he states that “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and misled itself, to supply some little link that wanting to take for granted some fact inconsistent with its previous theories and necessary to render them complete.” 16. The Apex Court in Padala Veera Reddy vs. State of Andhra Pradesh and others2 has observed in paras 19, 20, 21 and 22 as under:- “19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point.” “20. This Court in Palvinder Kaur v. The State of Punjab MANU/SC/0038/1952 : 1953 CriLJ 154 has pointed out that in cases dening on circumstantial evidence courts should safeguard 1 (1838) 2 Lew, 227 2 AIR 1990 SC 79 14 (APEAL 326.04) themselves against the danger of basing their conclusions on suspicions how so ever strong.” “21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra MANU/SC/0117/1974 : 1974 CriLJ 1044, it has been observed : It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety.” “22. In Sharad Birdhichand Sarda vs. State of Maharashtra MANU/SC/0111/1984 : 1984 CriLJ 1738, this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that “fouler the crime higher the proof”. In this view of the matter, it is difficult to rely on the recovery of knife at the instance of the accused. 15 (APEAL 326.04) 17. So far as the recovery of blood stained clothes is concerned, there is much substance in the submission made by the learned Counsel appearing on behalf of the appellant. The learned Counsel has submitted that the blood on the clothes of the deceased has been explained by the very fact that he had returned home at 1.00 p.m. and had seen P.W.1 and P.W.2 in the house and their clothes were blood stained and, at that time, it was possible that he might have received blood stains while handling the body of the deceased. 18. In our view, therefore, the appellant is entitled to the benefit of doubt since the prosecution has not proved its case beyond the reasonable doubt. Trial Court, in our view, has not properly appreciated the evidence on record and has proceeded on conjectures and surmises. 19 In the result the following order is passed:- ORDER I. Criminal Appeal is allowed. II. The judgment and order of the trial Court is set aside and accused is acquitted of the offence punishable under Section 302 of the Indian Penal 16 (APEAL 326.04) Code. III.The appellant/accused be released forthwith unless he is otherwise required in any other case. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)