cria458.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.458 OF 2010 1) Ramkishan @ Pintya s/o Asaram Kayande, Age-23 years, Occu:Agri., 2) Ramprasad @ Nana Dattatraya Janjal, Age-25 years, Occu:Agri., Both R/o-Borgaon, Tq. & Dist-Jalna. ...APPELLANTS. VERSUS 1) The State of Maharashtra ...RESPONDENT. ... Shri.Satej S. Jadhav Advocate h/f. Smt. Sadhana S. Jadhav Advocate for Appellants. Shri.K.G. Patil, A.P.P. for Respondent State. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 3RD MAY, 2011 JUDGMENT [PER NARESH H. PATIL, J.] : 1. The Appellants have challenged the Judgment and order of conviction and sentence for cria458.10 2 an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and for an offence punishable under Section 448 read with Section 34 of the Indian Penal Code, passed by the Additional Sessions Judge-2, Jalna in Sessions Case No.56 of 2010. 2. The prosecution case, in brief, is that Pushpabai Eknath Palve, complainant in this case and prosecution witness No.1, are resident of village Borgaon, Taluka and District-Jalna. She was residing with her husband, deceased Eknath Palve and children at village Borgaon. It is alleged that on 12th October, 2009, at about 11.00 p.m. after the family members had meals, the complainant, her son and daughter slept in the inner room of the house. Deceased Eknath Palve slept in living room of his mansion (Wada). The door of the mansion was closed. It is alleged that in the intervening night of 12th October, 2009 and 13th October, 2009, at about 00.45 hours, somebody cria458.10 3 entered the mansion by climbing compound wall and tried to push the door forcibly. The complainant opened the door. She noticed two persons. Their faces were covered. The complainant described one of them to be a slim person. She closed the door and raised shout, on that her children got up. They came out of their house from another door. One Vishnu Kayande, Kailas Shelke and Deorao Ghuge came to the spot. It is alleged that Kailas Shelke informed her that somebody ran away from her house by jumping compound wall. Thereafter complainant noticed that her husband was lying in pool of blood. Deceased Eknath had sustained stab wound on his chest, right ribs and sustained injuries on his head. It is alleged that Chappal of assailant was found lying on the spot. 3. The complainant filed report to police outpost Shevli. The police registered an offence and started investigation. The police prepared spot panchnama, inquest panchnama, the dead body cria458.10 4 was sent for conducting autopsy. The investigation officer recorded statements of witnesses. He seized Chappal from the spot. The police claimed that they received secret information that original accused No.1 (acquitted) Pandurang returned to the village after 3-4 days, having injuries to his hand. The police arrested him and seized his clothes. Pandurang was sent for medical examination. On 20th October, 2009, the investigation officer arrested original accused Ramkishan, Ramprasad and Ambadas and seized their clothes from their person. Ambadas Kayande was acquitted by the trial Court. A knife was recovered at the instance of Ramkishan on 21st October, 2009 and at the instance of Ramprasad, an axe was recovered. Post mortem report was received. Seized articles were sent for chemical analyser's report. The charge-sheet came to be filed. Charge was framed against four accused persons, at Exhibit 18. They denied the charge and claimed to be tried. The prosecution examined 12 cria458.10 5 witnesses. The most material witnesses in this case are PW-1 complainant Pushpabai, wife of deceased Eknath and PW-4 Seema, daughter of deceased, PW-12 medical officer, Dr. Sujit Naikal. 4. The complainant Pushpabai Palve deposed in her examination-in-chief that when they went to sleep at about 12.30 p.m., after 45 minutes somebody knocked the door of the house. She opened the door. She was two persons near the door. She shouted loudly, therefore her husband woke up. Then she immediately closed the door. Neighbourers gathered there and asked her why she raised shout. She told them that thieves had came to their house. Thereafter she entered the house and found that her husband was lying in a pool of blood in front of the door which she had opened. In the Court she identified original Accused Nos.2 and 4, namely, Ramkishan and Ramprasad, to whom she had seen in front of door of her house on the said date. cria458.10 6 . During her cross-examination, PW-1 deposed that village Shevli is at a distance of 10 k.m. from her house. She narrated to police that three unknown persons had assaulted her husband. She knew all the accused persons since their childhood but she could not identify their voice. Initially she did not disclose their names to the police while she lodged complaint, to which her explanation was that if police had asked her, she would have disclosed their names to the police. She further deposed that the accused knocked the door three times and she asked whether they require glass of water, thereafter they did not knock the door. To a question, she answered that she heard the sound of knocking the door and replied from her bed that she will not open the door. In the next breath, she stated that after knocking the door she opened the door of the house, was a correct statement made by her. Chappal was found at the spot. She admitted that cria458.10 7 after the incident, for the first time she identified accused Nos. 2 and 4 in the Court. 5. Evidence of the present witness PW-1 is very crucial for the case. Her evidence is not trustworthy because she has not adopted a consistent stand in respect of the persons who knocked the door and her opening the door thereafter. She had made two conflicting statements in one breath. She even stated that she knew the accused persons since long. 6. In the evidence of PW-4 Seema, she deposed before the Court in her examination-in- chief that she heard the sound of knocking of door. Her mother felt that said sound was due to moving of cat and when somebody knocked the door again, her mother opened the door. She also woke up and saw that her mother and two persons were standing at the door and they raised their hands at her mother. Thereafter her mother closed the cria458.10 8 door and shouted that thieves had came. Her brother also woke up. They all came out of the house through inner door. Neighbouring persons also gathered. The witness asked her mother where is her father, to which her mother replied that he might be in the house. They entered in the house and found that her father was lying near bath room in a pool of blood. A Doctor was called, who declared that her father was dead. The witness identified the present Appellants, original accused Nos.2 and 4, before the Court to be the same persons. . In cross-examination, this witness PW-4 stated that she did not accompany her mother to police station for lodging complaint. She stated that her father was sleeping at a distance of 2-3 feet from the room where they all were sleeping. 7. The medical officer Dr. Sujit Naikal is PW-12. He stated that deceased has suffered cria458.10 9 following injuries: "(I) Stab wound over right axilla, lower aspect in region of 6th intercostal space, penetrating forward and inward direction of size 5.5 X 1.0 c.m. within 12 hours, caused by sharp pointed object. (II) Incised wound of size 4 X 1 c.m. over vertex with sharp margin within 12 hours duration, caused by sharp object. These injuries were ante mortem." . The doctor opined that the injuries are sufficient to cause death in ordinary course of nature and the injuries were possible due to blow by knife and axe. The doctor was not shown the weapons which were seized by the police. 8. PW-2 Namdeo Kayande was examined as a cria458.10 10 panch of seizure of Chappal and blood lying on the spot. PW-3 Shankar Kale was also examined as a panch. PW-5 Kailas Shelke is a neighbour of deceased Eknath. He reached the spot after hearing the shout. PW-6 is Kashinath Bhagwayan, who treated original accused Pandurang Doke and applied ointment and bandage to the injuries. 9. PW-7 is Anna Kayande, who proved memorandum in respect of statement made by accused Ramkishan that he would point out knife which was used by him for commission of offence. Memorandum is at Exhibit 42. This witness also proved memorandum in respect of accused Ramprasad who allegedly stated that he will point out axe which was kept on the roof of his house. The said memorandum is at Exhibit 43. 10. PW-8 Raju Rana is a police constable. PW-9 Subhash Kurewar is A.S.I. who received report lodged by the complainant and on the basis of oral cria458.10 11 report, a crime was registered at Crime No.121 of 2009, under Section 448, 302 read with 34 of the Indian Penal Code. PW-10 Baburao Shinde is P.S.I. who conducted some investigation and recorded statements of witnesses. 11. PW-11 Pratap Shikare is police inspector, who also conducted investigation in the matter. He stated before the Court that during interrogation of accused Pandurang on 19th October, 2009, he disclosed names of his associates, therefore on 20th October, 2009 the witness took custody of Ramkishan Kayande, Ramprasad Janjal and Ambadas Kayande and seized clothes from their persons. He claims to have recovered weapons at the instance of the accused persons. . This witness deposed in cross-examination that test identification parade was not conducted during course of investigation. According to the investigation officer, if the witnesses had stated cria458.10 12 that they would identify the culprits then he would have held identification parade of the culprits. In respect of secret information, he did not obtain source of information. 12. Shri. Jadhav, learned counsel appearing for the Appellants submitted that on the same evidence, the trial Court acquitted two accused out of four accused persons. Present Appellants were convicted mainly on the basis that knife and axe, respectively, were recovered from them. It was submitted that there was no identification parade held in respect of the present Appellants. The complainant though claims to have known the Appellants since their childhood and had seen them after opening door of her house, did not disclose their names to the police. The Appellants were apprehended on the basis of information given by co-accused Pandurang, which itself is a weak evidence. The recoveries are not relevant and will not stand the test as the Appellants had no cria458.10 13 knowledge of the weapons being kept at a particular spot. Even otherwise no conviction could be sustained on the basis of mere recovery at the instance of the accused. The weapons were not shown to medical officer. The counsel submitted that homicidal death of deceased Eknath is not disputed, neither cause of death. The question is, who is the author of the same. Another vital question according to the counsel is that motive behind the crime is absent in the present case. In the case based on circumstantial evidence, motive plays vital role. Material links in the chain are missing and therefore the trial Court ought to have acquitted the accused as the prosecution failed to establish the case beyond reasonable doubt against the Appellants. 13. Shri. Patil, learned A.P.P. submitted that complainant and her daughter Seema identified the Appellants in the Court. The accused are resident of same village. They are known to the cria458.10 14 complainant. The blood group of deceased was "O". Axe had human blood, therefore, recovery of weapons at the instance of the Appellants is a relevant circumstance, which goes against the Appellants. The learned A.P.P. submitted that there were strong circumstances against the Appellants. They were present in the house when the offence was committed. They are resident of same village. Dangerous weapons were recovered from them and therefore order of conviction passed by the trial Court shall be confirmed. 14. From the evidence on record, we unhesitantly record our displeasure in the manner in which the investigation was conducted by the police. The investigation could have been focused, subtle, and clear. The investigation officer could have collected more better evidence in respect of the concerned incident, so as to throw light on the incident, but unfortunately that has not happened. cria458.10 15 15. The crucial evidence in this case is of PW-1 Pushpabai, complainant, wife of deceased. It is a strange case where in the mid-night 2-3 persons knocked the door, which is opened by the complainant and after they leave the house, the family members including the complainant wife, found that her husband was brutally assaulted and murdered just at 2-3 feet distance of a room where the family members, including complainant, were sleeping. There is no evidence that anybody had heard shouts of the deceased, any scuffle, altercation etc. It is a quiet assault though brutal in nature, where head of the family dies who was sleeping at a very close distance from the room where his wife and grown up children were sleeping. 16. The evidence of the complainant before the Court, is not inspiring. She has not come out with a clear version as to what happened when door cria458.10 16 of her house was knocked and she opened the door. Whether the persons were identified or their faces were covered, is a question which the prosecution was unable to establish clearly. The complainant deposed that she knew the present Appellants since their childhood. It was submitted by the counsel that they are resident of the same village. Inspite of this and more precisely, when the complainant had alleged against the Appellants, she failed to disclose their names before the police at the very first instance when she approached police for filing complaint. This conduct of the complainant has caused serious damage to the prosecution case. The conduct of the complainant is not natural and is highly suspicious in nature. It has come on record that on disclosure of Pandurang, original acquitted accused, present Appellants were arrested and involved in the crime. The complainant and her daughter PW-4 Seema, identified the present Appellants in the Court. But there is long time cria458.10 17 gap between the incident in question and the Appellants being identified in the Court. 17. The prosecution also failed to conduct identification parade, for the reasons best known to them. It is disturbing statement of the investigation officer PW-11 Pratap Shikare, who stated before the Court that if the witnesses had stated that they would identify the culprits, then he would have held identification parade of the culprits. This amounts to shirking responsibility by the investigation officer. It is negligent approach in investigating a serious crime like murder. It raises question about the competency of the investigation officer to conduct investigation of a serious crime of this nature. It is a case where a person is brutally assaulted and murdered in the house when the other family members were sleeping in the room just at a distance of 2-3 feet where the deceased was sleeping. But still the investigation proceeded in direction-less cria458.10 18 manner, resulting in clueless investigation. 18. Though the investigation officer claimed to have recovered knife and axe at the instance of the Appellants Ramkishan and Ramprasad respectively, but the same will not inspire confidence in the prosecution story, inspite of the fact that axe had human blood, according to the C.A. report, and knife had blood stains of "O" group and blood group of deceased was "O". In the facts of the case, the prosecution cannot solely rely on the recoveries and appearance of blood stains on the weapons recovered. The defence raised genuine concern and objection in respect of the manner in which the recoveries were made. The submissions advanced in that regard cannot be rejected. 19. The present case is based on the circumstantial evidence. The principles in this regard are very well settled. The prosecution is cria458.10 19 required to complete the chain of circumstances and every link in the chain must be material one. The circumstances must be inspiring confidence in the prosecution case. They must be material circumstances and not merely irrelevant instances clubbed together to make out a case based on circumstantial evidence. Another vital weakness in the prosecution case, is absence of motive for committing crime. There is absolutely no evidence on record to suggest any motive for the Appellants to commit crime. In the matters of this nature, where the case is based on circumstantial evidence, motive plays vital role. In absence of any explanation from the prosecution on this aspect, it will be very difficult to accept the prosecution theory that the Appellants must be the culprits. It is one thing to say that the Appellants may have committed murder than to say that the Appellants must have committed murder. The gap between "may and must" is much wider than what prosecution has perceived in this case. cria458.10 20 20. The prosecution suggested that the complainant shouted that thieves had come, after closing the door. But prosecution failed to establish that any valuable articles were stolen from the house. Even on this count the prosecution has failed to establish motive for commission of crime. 21. In the light of evidence described above, we find that important witness like PW-1, complainant, failed to identify the Appellants, when according to complainant, she saw them in the night after she opened the door of her house. The complainant failed to disclose their names to police when she lodged complaint, but preferred to identify them in the Court while she was in the witness box. The police failed to hold identification parade. There was absence of motive. The conduct of the prosecution witnesses, more precisely, PW-1 complainant and PW-4 Seema, cria458.10 21 daughter of complainant, is not inspiring confidence. They are not coming out with the truth. The only circumstance on which prosecution relies upon, is recovery of weapons at the instance of the Appellants. In its entirety, we are of the view that prosecution could not succeed to establish charges against the Appellants. The prosecution case is wanting in corroboration of the vital links, which is absent in this case. In the light of the evidence on record, we hold that the prosecution has failed to establish its case beyond reasonable doubt. The Appeal therefore, deserves to be allowed. Hence we pass following order: O R D E R 1) The Criminal Appeal is allowed. cria458.10 22 2) The Judgment and order dated 28/10/2010 passed by Additional Sessions Judge-2, Jalna in Sessions Case No. 56/2010 convicting the Appellant No.1 [original accused No.2] Ramkishan @ Pintya s/o Asaram Kayande and Appellant No.2 [original accused No.4] Ramprasad @ Nana Dattatraya Janjal for an offence punishable u/s 448 r.w. Section 34 of I.P.C. and sentencing each one of them to suffer rigorous imprisonment for two months and to pay fine of Rs.500/- each, in default, to suffer further rigorous imprisonment for 15 days, and also convicting them for an offence punishable under cria458.10 23 Section 302 r.w. Section 34 of I.P.C. and sentencing each one of them to suffer rigorous imprisonment for life and to pay fine of Rs.1000/- each, in default to suffer further rigorous imprisonment for one month, is quashed and set aside. The Appellant No.1 [original accused No.2] Ramkishan @ Pintya s/o Asaram Kayande and Appellant No.2 (original accused No.4] Ramprasad @ Nana Dattatraya Janjal are acquitted of the offences for which they were charged. Both these Appellants be released forthwith, if not required in any other case. Fine amount, if paid, be refunded to the Appellants. cria458.10 24 . We find it appropriate to forward copy of this Judgment to the Superintendent of Police, Jalna, who is directed to peruse the Judgment and take note of our observations in respect of the manner in which investigation was conducted in this case. The Registry to forward copy of this Judgment to the Superintendent of Police, Jalna. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/MAY11/cria458.10