1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 456 OF 2008 Munga S/o.Babubhai Gavit Age-44 years, Occu-Labourer, R/o.Devalikachfall, Lakkadkot, Tq.Nawapur, Dist. Nandurbad APPELLANT VERSUS State of Maharashtra, RESPONDENT Mr.B.R.Jaibhai, learned counsel for the appellant (Appointed) Mr.B.V.Wagh, learned A.P.P. for State. WITH CRIMINAL APPEAL NO. 457 OF 2008 Sega S/o.Nandadya Gavit, Age-23 years, Occu-Labourer, R/o.Devalikachfall, Lakkadkot, Tq.Nawapur, Dist. Nandurbad APPELLANT VERSUS State of Maharashtra, RESPONDENT Mr.B.R.Jaibhai, learned counsel for the appellant (Appointed) Mr.B.V.Wagh, learned A.P.P. for State. WITH CRIMINAL APPEAL NO. 17 OF 2009 Komibai Sega Gavit Age-46 years, R/o.Devalikachfali, Lakkadkot, Tq.Nawapur, Dist. Nandurbad APPELLANT 2 VERSUS State of Maharashtra, RESPONDENT Ms.Rebacca Gonsalvez, learned counsel for the appellant. Mr.B.V.Wagh, learned A.P.P. for State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 25/08/2010 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. Since all these appeals are filed by the accused who have been convicted in the same sessions case, all the 3 appeals are being decided by us by this common judgment. 2. The appellants in all the 3 appeals stand convicted for an offence punishable u/s. 302, 201 r/w. 34 of The I.P.C. and sentenced to imprisonment for life and to pay fine of Rs.5,000/- with the default sentence of undergoing further rigorous imprisonment for 2 years in the event of non payment of fine and rigorous imprisonment for 5 years and to pay fine of Rs.2,000/- with the default sentence of undergoing further rigorous imprisonment for 6 months in the event of non payment of fine, respectively, by the Additional Sessions Judge, Nandurbar, by judgment dated 25/07/2008, in Sessions Case No.11/2007, by these appeals, question the correctness of their conviction and sentence. 3. Such of the facts which are necessary for the decision of these 3 appeals may briefly be stated thus. 4. P.W.No.1 Raman Chhagan Gavit, nephew of deceased Jargabai, submitted information at Exh.21 to Nawapur Police station in respect of the death of his aunt Jargabai. The aforesaid information is at Exh.21, which came to be filed on 16/01/2007. On the basis of the aforesaid information, accidental death vide AD No.4/2007 came to be registered and the inquiry in respect of accidental death came to be entrusted to P.W.No.2 P.S.I. Najmoddin Samsoddin Sayyad. Accordingly, P.W.No.2 Najmoddin proceeded to the spot and drew the inquest panchnama of the dead body in the presence of panchas at Exh.23. He also drew the panchnama of scene of offence in the presence of panchas at Exh.24. From the scene of the offence, he seized sample of ordinary mud, blood stained mud and blood and kerosene mixed mud. He also noticed the plastic bottle at the scene of the offence containing some kerosene, which also came to be seized. The aforesaid articles came to be seized under the scene of the offence panchnama at Exh.24. The Medical Officer was summoned at the scene of the offence and the post mortem examination came to be conducted by the Medical Officer at the scene of the offence. Post mortem came to be conducted by P.W.No. 15 Dr.Anil Kishor Gavit. P.W.No.15 Gavit noticed that deceased had sustained about 88% burns. He noticed that the dead body was fragmented in two parts. On internal examination, he did not find any soot particles in the larynx trachea and bronchi. He also noticed that the heart and lungs were partially burnt and the heart 4 chamber was empty. He, therefore, opined that the 88% burns were post mortem injuries and the deceased had died on account of Asphyxia due to throttling. The P.M. report is at Exh.46. P.W.No.2, on the basis of the findings of the Medical Officer, lodged a complaint on behalf of the State at Exh.25. An offence punishable u/s. 302 and 201 r/w. 34 of The PC came to be registered. 5. Further to the completion of the investigation, a charge sheet against the accused came to be filed. 6. On committal of the case to the Court of Sessions, trial Court vide Exh.13 framed charge against the appellants for offence punishable u/s. 302 and 201 r/w. 34 of The IPC. All the accused abjured their guilt and claimed to be tried. Prosecution in support of its case examined 23 witnesses. The entire case of the prosecution is based on circumstantial evidence as there is no direct witness to the incident. The Trial Court accepted the evidence of the prosecution and found that the prosecution had been successful in establishing the offence against the accused beyond reasonable doubt and accordingly convicted and sentenced the accused. 7. The pivot of the prosecution case revolves around the testimony of P.W.No.12 Mamta Ajit Gavit, sister of deceased, P.W.No.14 Dinesh Gavit, cousin of deceased, P.W.No.16 Arun Darji Gavit, an owner of the shop from where it is alleged that accused no.1 had purchased kerosene and P.W.No. 21 Divalya Navlya Gavit who had heard the 5 quarrel between accused no.1 and deceased on the fateful night. The prosecution also placed reliance on the evidence of the P.W.No.18 Guruji Navlya Gavit who too is alleged to have heard the quarrel. 8. In order to appreciate if the prosecution has been able to establish offence against the accused beyond reasonable doubt, it would be useful to refer to the judgment of the Supreme Court in Sharad Sarda Versus State of Maharashtra, reported in AIR 1984 SC 1622. In the aforesaid judgment, the Supreme Court has held that in cases resting on circumstantial evidence, it was incumbent for the prosecution to prove each and every circumstance on which the prosecution chose to rely. The circumstances so proved should be of conclusive nature. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point the guilt of the accused. In this behalf it would be useful also to refer to the judgment of Supreme Court in Hanumant versus State of Madhya Pradesh, reported in AIR 1952, SC 343, particularly to para no.10. In the said judgment, the Supreme Court has relied upon the judgment of Privy Counsel in Reg. V. Hodge, (1838) 2 Lewin 227. The Supreme Court at para no.10 had observed thus : Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and 6 by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex.P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1838) 2 Lewin 227) where he said : "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 mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." 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 7 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. In spite of the forceful arguments addressed to us by the learned Advocate- General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exh.P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case. 9. As pointed out to us, prosecution has mainly relied upon the evidence of certain witnesses. P.W.No.12 Mamta, sister of deceased states that deceased Jargabai was married to accused no.1 Moonga and both of them were residing at Lakkadkot. She states that she had gone to the agricultural field and in the meantime a message had been received in the village that her sister Jargabai had expired. P.W.No.12 Mamta accordingly proceeded to village Lakkadkot and noticed the dead body of Jargabai lying behind the house of accused no.1. On account of fear, she stood at some distance from the dead body. She further stated that her sister Jargabai had died on account of burn injuries but candidly stated that she did not know as to who had set her ablaze. Rightly the accused chose not to cross examine this witness. The evidence of this witness according to us is innocuous and does not advance the prosecution case much less is useful in establishing in any of the circumstance on which the 8 prosecution relies. 10. Prosecution has also examined P.W.No. 14 Dinesh. P.W.No.14 Dinesh is the maternal cousin of deceased Jargabai. He claims that he had illicit relations for the last 14 years with deceased Jargabai, knowing that she was married to accused no.1 Moonga. He states that on account of the illicit relations between him and deceased Jargabai, accused no.1 Moonga was annoyed as Dinesh had expressed his willingness to keep Jargabai at his house. In cross examination, he has admitted as to true as he had not seen the incident personally. 11. The next witness on which prosecution relies is P.W.No.16 who is alleged to have sold kerosene to accused no.1. P.W.No. 16 Arun Gavit states that he knew deceased Jargabai as wife of accused no.1. He claims to be running a fair price shop in village Lakkadkot and was selling cereals, sugar and kerosene. He further states that he had sold kerosene to one Babu Pashya, father of accused no.1, six days prior to the incident. He further states that the receipt etc. were handed over to the Police. The same alongwith the register came to be seized by the Police. The panch witness to the aforesaid seizure had been examined by the prosecution. In any event, this witness was not declared hostile by prosecution nor was he cross examined in order to establish that kerosene was in fact sold by this witness to accused no.1. This witness has categorically admitted that kerosene was sold to the father of accused no.1. In cross examination, he has 9 further nailed the prosecution case by admitting as correct that accused no.1 had never come to his shop for purchasing kerosene. According to us, the evidence of this witness does not advance the prosecution case at all. The prosecution had alleged that accused no.1 had purchased the kerosene and accordingly the same kerosene was used by accused no.1 for causing post mortem burns on the dead body of deceased Jargabai. Prosecution claims to have seized a plastic bottle containing kerosene from the house of the accused. In the absence of any link evidence to establish that the kerosene which was found in the house of the accused, was the same kerosene, which was used for causing the post mortem burns to the dead body of deceased Jargabai, according to us, the mere circumstance of seizure of kerosene from the house of accused no.1, does not establish the case of the prosecution against the accused. 12. Proseuction has then relied upon the evidence of P.W.No.18 Guruji Navlya Gavit, a neighbourer, who claims to have heard the sound of quarrel between the deceased and accused no.1. He states that he was at his house and was sleeping and around 12.00 mid night, he was awakened by shouts. He claims that he had heard the voice of Jargabai. He further states that he has no personal knowledge as to how she died. In cross examination, he has re- enforced what he had stated in the examination in chief by admitting that he has no personal knowledge as to how Jargabai died. On similar lines, P.W.No. 21 Divalya Navlya Gavit also deposes. In the examination in chief, he has stated that deceased Jargabai had illicit 10 relations with one Dinesh. He states that the relationship was existing since last 15 years. He further states that Dinesh was intending to maintain Jargabai as his mistress. He further states that a day prior to the incident he had been admitted in the hospital and therefore he did not know as to how Jargabai had died. He was accordingly declared hostile by the prosecution who sought permission from the Court for cross examining him. In the cross examination, he has admitted as correct that he had stated to the Police that on 15/01/2007 he had gone to bed after his dinner and was awakened on account of hearing the noise of quarrel between Jargabai and her husband. He has further admitted that on the next day at about 7.00 a.m., he was awakened and learnt that Jargabai had died due to burns. In cross examination he has further admitted that he does not know anything about the case and has also stated that the Police did not record his statement. In any event, this witness has somer-salted from the original position in the examination in chief and has admitted to have stated certain aspects to the Police. Prosecution has not been able to establish the facts stated by this witness but had only asked him if he had stated so to the Police. Statement made to the Police during investigation is wholly inadmissible in evidence and what the prosecution is required to establish are the events stated by him to the Police and that they had in fact occurred. Prosecution falls short of establishing that and established only that he had stated certain facts to the Police when his statement came to be recorded. In any event, the aforesaid evidence of this witness also falls miserably short of establishing the 11 chain of circumstantial evidence against the accused. 13. Prosecution has relied upon the evidence of P.W.No.22 Dr.Himanshu Jaiswal. He states that he had not noticed any injuries on the person of the accused no.1, but had noticed certain abrasions on accused no.2 and 3. In cross examination he has admitted that the aforesaid abrasions/injuries could have been caused on account of collecting fuel wood from the forest. He has also admitted that the abrasions are possible because of the thorny bushes in the forest. Curiously, P.W.No.22 Jaiswal in the certificates at Exh.71 and 72 does not refer to the age of the injuries. Existence of minor injuries establishing abrasions simplicitor would not establish that it was the accused and the accused alone who had committed the crime or had participated in the crime. In the absence of any evidence in relation to the age of the injuries, the existence of injuries by themselves do not establish anything. 14. Prosecution has been able to establish circumstance of motive against the accused no.1. Dinesh, P.W.No.14 clearly admits that he had illicit relations with deceased Jargabai, on account of which accused no.1 was annoyed. Beyond establishing that the accused may have had motive for committing the crime, prosecution is not been able to establish anything against any of the accused. Dead body of deceased was found outside the house. There is no evidence to show that anyone had seen the accused near the scene of the offence just prior to the time when the incident is alleged to have 12 occurred. Beyond establishing the circumstance of motive, the prosecution has not been able to establish any of the circumstances alleged against the accused. Motive by itself may raise suspicion against the accused but suspicion howsoever strong can not displace proof, which is lacking in the present case. 15. Thus, according to us, prosecution has utterly failed in establishing the offence against the accused beyond reasonable doubt and the accused are entitled to be given the benefit of doubt and acquitted. 16. Accordingly, these 3 appeals are allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith, if not wanted in any other crime. 17. We wish to place on record our appreciation for the assistance rendered by Shri.B.R.Jaibhai, learned counsel appointed on behalf of the appellants in Cri.Appeal No.456/2008 and Cri.Appeal No. 457/2008. We accordingly quantify the fees payable to the learned counsel for the appellants in these 2 appeals at Rs.5,000/- (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2010/cri.appeal 456-08