-[1]- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION. APPELLATE JURISDICTION. APPELLATE JURISDICTION. CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 895 OF 2002 APPEAL NO. 895 OF 2002 APPEAL NO. 895 OF 2002 Vikas Ramdas Khairnar Patil ) Age 26 years, Student ) Residing at Popular Nagar ) D-7 Flat No.16, Warje Malwadi) Pune. ) ....... Appellant. versus The State of Maharashtra ..... Respondents. ..... Shri V.R.Manohar Senior counsel with M.S.Mohite & Mrs. Chandana Radia for the appellant. Mrs. P.H. Kantharia APP for the State. ..... CORAM CORAM CORAM ; V.G.PALSHIKAR ; V.G.PALSHIKAR ; V.G.PALSHIKAR & SMT. SMT. SMT. NISHITA MHATRE, JJ. NISHITA MHATRE, JJ. NISHITA MHATRE, JJ. DATED; DATED; DATED; 13TH JUNE, 13TH JUNE, 13TH JUNE, 2005 2005 2005 ORAL ORAL ORAL JUDGMENT ( PER PALSHIKAR, J.); JUDGMENT ( PER PALSHIKAR, J.); JUDGMENT ( PER PALSHIKAR, J.); 1. Being aggrieved by the judgment dated 17-06-2002 passed by the Additional Sessions Judge, Pune in Sessions Case No. 491 of 1998, the appellant has preferred this appeal on the grounds mentioned in the memo of appeal as also canvassed before us. 2. With the assistance of the learned advocate appearing on behalf of the appellant and the learned -[2]- APP, we have scrutinised the entire record, and re-appreciated the evidence both oral and documentary as is led on the record before the Additional Sessions Judge. 3. The prosecution story stated briefly is that the accused no.1 Sunil was married to victim Nisha on 26th May 1997 at Jalgaon. After marriage the couple lived in flat which was on the 4th floor at D-7, bearing No.16, Warje Malwadi, Pune. The brother of the husband Sunil by name Vikas was also staying with them at Pune in the same flat. Sunil and Vikas are sons of Ramdas Patil who is in service and is resident of Jalgaon. The relations of Vikas and his sister-in-law Nisha were not very cordial and they used to quarrel on petty matters. It is also alleged by the prosecution that Sunil was harrasasing Nisha for money. 4. On 6th June 1998 between 8 and 8.30 p.m. Sunil came home and knocked the door of the flat as Nisha was supposed to be in the house. Since persistent knocking did not get any response Sunil opened the door of the flat by his latch key and entered the flat to find that the house was in disarray and Nisha lay on the floor in severely injured condition and immobile state. Sunil therefore shouted. Neighbours gathered. It was -[3]- revealed that Nisha died and therefore Sunil filed a complaint in the police-station, informing police about the manner in which he discovered the dead body and expressing suspicion that the assault may have been committed by his brother Vikas. On the basis of this information, investigation was carried out and accused Vikas who is present appellant along with Sunil the complainant and husband of the deceased Nisha, and the father and mother of Vikas and Sunil were prosecuted for causing murder of Nisha in the evening of 6th June 1998 in flat No.16 between 7.30 and 8 p.m. 5. The prosecution examined 22 witnesses to prove its case. The defence examined 3 witnesses claiming that the accused were not responsible for the death. The learned trial Judge on appreciation of the evidence on record came to the conclusion that the murder was committed by Vikas the present appellant. The learned Judge accordingly convicted the present appellant to suffer imprisonment for life and acquitted the husband Sunil and the parents-in-law i.e. parents of Sunil and Vikas of all the charges. The above appeal is directed against the order of conviction recorded by the learned trial Judge convicting Vilas for murder of Nisha. As already observed above, we have reappreciated the entire evidence, we have scrutinised the entire -[4]- records. The contentions raised on behalf of the appellants stated briefly are that: 1. The entire case is based on circumstantial evidence and the chain of circumstances is not complete at all and therefore the order of conviction is unsustainable in law. 2. The evidence of handwriting expert is very weak evidence, which is required to be corroborated for acceptance by a court of law and therefore in the evidence as it stands on record conviction based solely on that opinion is unsustainable in law. 3. The prosecution has failed to prove the presence of the accused Vikas in Pune in the vicinity of their house where the murder as is alleged to have taken place particularly when there is evidence on record to point out that accused Vikas left Pune around noon on 6th June 1998. 4. Without prejudice to several other contentions raised, even if the prosecution -[5]- evidence in its entirety is accepted, it does not prove the complicity of Vikas in the death of Nisha and therefore the judgment of conviction of Vikas alone is unsustainable in law. 5. Without prejudice to these contentions, it was observed further that even if the entire prosecution evidence is accepted, then it becomes probable that homicidal death of Nisha was caused either by Sunil or by Vikas as according to the prosecution both were in the town and both had access to the house and consequently having chosen to acquit Sunil on the said set of circumstances, the learned Judge committed error of law in convicting accused Vikas alone for murder. 6. These contentions raised by Shri V.R.Manohar the learned Senior Advocate for the appellant were strongly contested by the learned A.P.P. appearing on behalf of the State, who pointed out from the evidence, the circumstances, which according to her proved the complicity of Vikas alone in the murder and therefore claimed that the order of conviction was liable to be sustained. According to the learned A.P.P. appearing -[6]- for the prosecution, the prosecution has successfully proved beyond doubt that the homicidal death of Nisha was caused by Vikas only. According to her the circumstantial evidence was complete, Vikas had the motive and therefore availed of the opportunity and killed Nisha in the evening of 6th June 1998. We have to appreciate these rival contentions in the light of the evidence as we have reappreciated with the able assistance of both the prosecutor and the defence advocate. 7. The prosecution has examined as many as 22 witnesses to prove its case. PWs 1 to 3 are relations of the victim who speak of cruelty and dowry demands by the accused persons. None of them was eye witness. Their evidence is therefore restricted to previous demands and certain facts and circumstances noticed by them after the knowledge of death was acquired. 8. PW 4 is the witness to the seizure of clothes of the deceased. PW 5 is the panch witness to the seizure of knives and other articles from the scene of offence. P.w.6 is the witness to the arrest panchanama. P.w.7 is the panch in whose presence specimen handwriting of accused Vikas was taken. -[7]- 9. P.w.8 is the panch witness in whose presence clothes of the accused were seized. P.w.9 is Surekha mother of deceased Nisha who speaks of illtreatment by both Sunil and Vikas to her daughter Nisha. P.w.10 Anthony is a bank employee has proved payment of certain money to Nisha. P.w.11 Dr. Raj is the doctor who conducted post mortem on the dead body of Nisha and has reported that the death was caused because of several stab injuries. 10. P.w.12 Kumar Damodar Deshmukh is an employee of Pune Telephone Exchange. He has deposed that as per the records of the department two telephone calls from the house of victim were made at 7.35 in the evening and immediately thereafter to Jalgaon and Bhusaval. The numbers to which the telephone calls were made are also stated. He has also deposed that in view of the call at Bhusaval at 19.40 hours the telephone was working till then. The call at Jalgaon having been and at 19.35 hours the call at Jalgaon according him, therefore was prior in time. His evidence goes to show that after that call to Jalgaon was terminated, fresh call to Bhusaval was made. 11. P.w.13 Bhalchandra is the Assistant State Examiner of Documents being handwriting and finger print expert. -[8]- He has deposed that the handwriting in the red diary in Hindi is of accused Vikas. It is basically on the testimony of this witness the conviction is ordered by the learned trial Judge. We will advert to his evidence in detail at a later stage. 12. P.w.14 Balasaheb is the witness who states that on 6th june 1998 at about 8.30 p.m. his wife received a telephone call from complainant Gajanan P.w.1 from Jalgaon expressing some danger to the life of Nisha. This witness resides in Pune. He was told to go to the house of victim and verify the factual position. He accordingly reached there and informed P.w.1 regarding the injuries caused to Nisha and her hospitalisation. 13. P.w.15 is one Pramod Patil who has deposed that accused Ramdas, father of accused Vikas is his maternal uncle (mama). He has deposed that on 8th June 1998 his parents had gone to Bhusaval as they had received a call regarding critical condition of Nisha and while giving the message they told the witness that accused Vikas had been to their house in the morning of 8th June. P.w.16 is Sudhir brother of accused Sunil and Vikas. He was declared hostile. However at the cross examination by the prosecution, he deposed that the impugned handwriting in Hindi i.e. "mai Vikas khoon -[9]- karke bhag reha hum" was not of Vikas. P.w.17 is Dr. Shabana who is also declared hostile who probably was examined for certain treatment taken by the accused Vikas. P.w.18 Ranjeet is administrative officer of the A.I.S.S.P.M.S. Engineering College, Pune, who on 6th June 1998 issued a certificate to Vikas, being a bonafide student of college to enable Vikas to obtain admission in the hostel. He has deposed that the certificate was given around 11.30 in the morning of 6th June 1998. 14. P.w.19 Yatin is a news paper distributing boy. He has stated that on 6th June around 7.15 p.m. he went to the building where these accused were residing to collect the bill and rang the door bell of the house of Sunil when it was opened by a male person and he was told that Sunil was not at home. He therefore returned back. P.w.20 P.I. Vishwas Chougule is the investigation officer who conducted the investigation in crime No.257/98 and has deposed about the entire investigation as conducted by him. P.w.21 Sarjerao is a police officer, who was witness to the alleged statement by the accused that he would show the place where he has thrown the clothes at Nashik. Then police accordingly went there but no clothes were noticed. -[10]- 15. P.w.22 is Ashok Rinagi who was PSI at the relevant time and he accompanied Sunil to his flat when he came to know the fact that Nisha is in an injured condition and is admitted in the hospital. He has deposed as to how he went to the flat, how the lock of the house was opened by accused Sunil, how he had seen the diary in the hall. He posted a police guard at the place, he recorded complaint of Sunil and has proved it in the court. 16. Then there is evidence of the defence witnesses, who says that they knew the accused and accused Vikas had come to the witness and had received a telephone call at 2 p.m. informing him that he was likely to shift. He has also deposed that around 7.30 he received a call from Nisha informing him that she was assaulted by armed persons and witness should inform her father-in-law. He also deposed that he was told by Nisha that the accused Sunil and Vikas were not at home at that time. This witness lives in Bhusaval and accused 3 and 4 live in Bhusaval and the claim of this witness is that around 7.40 on 6th June, he received a call from Nisha requiring him to inform the parents-in-law i.e. accused 3 and 4 regarding the assault on her by some armed persons. The 2nd witness examined by the defence is Chandrakant who saw accused -[11]- Sunil and Vikas leaving the house around 9.30 in the morning of 6th June 1998. The third witness is Vidya who deposed that she saw the accused Sunil leaving along with Vikas on the stair case. The 4th witness is employer of accused Sunil. This therefore is the entire evidence on appreciation of which the learned trial Judge found the accused Vikas alone guilty. Having found that there was no evidence against accused 1,3 and 4 they came to be acquitted. It is this order, which is impugned in this appeal on the ground as mentioned above by us. 17. It will thus be seen that the entire case rests on circumstantial evidence only. There are no eye witnesses and the conviction rests solely on the testimony of P.w.13 the handwriting expert and the learned trial Judge has on the same set of evidence acquitted accused no.1 Sunil and accused nos.3 and 4 parents of Sunil and Vikas. The conviction of Vikas is thus based basically on the evidence of P.w.13 and other circumstantial evidence as is accepted by the learned trial Judge. It will therefore be necessary to note what can easily be termed as settled law on appreciation of evidence for recording conviction for an offence based solely on circumstantial evidence. -[12]- 18. The Supreme Court has observed in AIR 1952 S.C. AIR 1952 S.C. AIR 1952 S.C. 343 343 343 in relation to appreciaiton of circumstantial evidence as under: (b) (b) (b) Criminal P.C. (1898), S. 367 - Criminal P.C. (1898), S. 367 - Criminal P.C. (1898), S. 367 - Appreciation Appreciation Appreciation of evidence - Circumstantial of evidence - Circumstantial of evidence - Circumstantial evidence evidence evidence - Duty of Court. - Duty of Court. - Duty of Court. In In In dealing with circumstantial evidence the dealing with circumstantial evidence the dealing with circumstantial evidence the rules rules rules specially applicable to such evidence specially applicable to such evidence specially applicable to such evidence must must must be borne in mind. In such cases there be borne in mind. In such cases there be borne in mind. In such cases there isisis always the danger that conjecture or always the danger that conjecture or always the danger that conjecture or suspicion suspicion suspicion may take the place of legal proof. may take the place of legal proof. may take the place of legal proof. In In In cases where the evidence is of a cases where the evidence is of a cases where the evidence is of a circumstantial circumstantial circumstantial nature, nature, nature, the circumstances from the circumstances from the circumstances from which which which the conclusion of guilt is to be drawn the conclusion of guilt is to be drawn the conclusion of guilt is to be drawn should should should in the first instance be fully in the first instance be fully in the first instance be fully established, established, established, and and and all the facts so established all the facts so established all the facts so established should should should be be be consistent only with the hypothesis consistent only with the hypothesis consistent only with the hypothesis of of of the guilt of the accused. Again the the guilt of the accused. Again the the guilt of the accused. Again the circumstances circumstances circumstances should be of a conclusive should be of a conclusive should be of a conclusive nature nature nature and tendency and they should be such and tendency and they should be such and tendency and they should be such as as as to exclude every hypothesis but the one to exclude every hypothesis but the one to exclude every hypothesis but the one proposed proposed proposed to to to be proved. In other words, there be proved. In other words, there be proved. In other words, there must must must be a chain of evidence so far complete be a chain of evidence so far complete be a chain of evidence so far complete as as as not to leave any reasonable ground for a not to leave any reasonable ground for a not to leave any reasonable ground for a conclusion conclusion conclusion consistent with the innocence of consistent with the innocence of consistent with the innocence of the the the accused and it must be such as to show accused and it must be such as to show accused and it must be such as to show that that that within all human probability the act within all human probability the act within all human probability the act must must must have have have been done by the accused. been done by the accused. been done by the accused. 19. It will thus be seen that right since independence the Supreme Court has laid emphasis on the fact that 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 the circumstantial evidence must be satisfied as to show that within all human probability the act must have been done by the accused. -[13]- 20. Then following the judgment in AIR 1952 S.C. 343 AIR 1952 S.C. 343 AIR 1952 S.C. 343 quoted above, another constitutional Bench of the Supreme Court of India held in relation to circumstantial evidence as under: Evidence Evidence Evidence Act (1872) S.3 - Circumstantial Act (1872) S.3 - Circumstantial Act (1872) S.3 - Circumstantial evidence evidence evidence - Facts established should be - Facts established should be - Facts established should be consistent consistent consistent only with hypothesis of guilt- only with hypothesis of guilt- only with hypothesis of guilt- Hypothesis Hypothesis Hypothesis must be reasonable - (Criminal must be reasonable - (Criminal must be reasonable - (Criminal P.C. P.C. P.C. (1898) S. 367) (1898) S. 367) (1898) S. 367) In In In cases where the evidence is of a cases where the evidence is of a cases where the evidence is of a circumstantial circumstantial circumstantial nature, nature, nature, the circumstances from the circumstances from the circumstances from which which which the conclusion of guilt is to be drawn the conclusion of guilt is to be drawn the conclusion of guilt is to be drawn should should should in the first instance be fully in the first instance be fully in the first instance be fully established, established, established, and and and all the facts so established all the facts so established all the facts so established should should should be be be consistent only with the hypothesis consistent only with the hypothesis consistent only with the hypothesis of of of the guilt of the accused. Again, the the guilt of the accused. Again, the the guilt of the accused. Again, the circumstances circumstances circumstances should be of a conclusive should be of a conclusive should be of a conclusive nature nature nature and tendency and they should be such and tendency and they should be such and tendency and they should be such as as as to exclude every hypothesis but the one to exclude every hypothesis but the one to exclude every hypothesis but the one proposed proposed proposed to to to be proved. In other words, there be proved. In other words, there be proved. In other words, there must must must be a chain of evidence so far complete be a chain of evidence so far complete be a chain of evidence so far complete as as as not to leave any reasonable ground for a not to leave any reasonable ground for a not to leave any reasonable ground for a conclusion conclusion conclusion consistent with the innocence of consistent with the innocence of consistent with the innocence of the the the accused and it must be such as to show accused and it must be such as to show accused and it must be such as to show that that that within all human probability the act within all human probability the act within all human probability the act must must must have have have been done by the accused. AIR 1952 been done by the accused. AIR 1952 been done by the accused. AIR 1952 SC SC SC 343 followed. 343 followed. 343 followed. The The The principle that the inculpatory fact must principle that the inculpatory fact must principle that the inculpatory fact must be be be inconsistent with the innocence of the inconsistent with the innocence of the inconsistent with the innocence of the accused accused accused and incapable of explanation on any and incapable of explanation on any and incapable of explanation on any other other other hypothesis than that of guilt does not hypothesis than that of guilt does not hypothesis than that of guilt does not mean mean mean that any extravagant hypothesis would be that any extravagant hypothesis would be that any extravagant hypothesis would be sufficient sufficient sufficient to sustain the principle, but that to sustain the principle, but that to sustain the principle, but that the the the hypothesis suggested must be reasonable. hypothesis suggested must be reasonable. hypothesis suggested must be reasonable. 21. The Supreme Court has in the abovequoted case has re-iterated in 1960 the principle that the chain of evidence must be so 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 -[14]- that within all human probability the act must have been done by the accused. 22. We need not note each judgment of the Supreme Court of India where these principles have been meticulously folowed as will be evident from a judgment of the Division Bench of the Supreme Court of India reported in AIR 1979 SC page 826 AIR 1979 SC page 826 AIR 1979 SC page 826 where the Dviision Bench observed thus: (B) (B) (B) Evidence (1 of 1872) S.3-Circulantial Evidence (1 of 1872) S.3-Circulantial Evidence (1 of 1872) S.3-Circulantial evidence evidence evidence -Sufficiency of to prove guilt - -Sufficiency of to prove guilt - -Sufficiency of to prove guilt - (Criminal (Criminal (Criminal P.C. 2 of 1974) S.354). P.C. 2 of 1974) S.354). P.C. 2 of 1974) S.354). In In In cases depending on circumstantial cases depending on circumstantial cases depending on circumstantial evidence, evidence, evidence, there is always the danger that there is always the danger that there is always the danger that conjecture conjecture conjecture or or or suspicion may take the place of suspicion may take the place of suspicion may take the place of legal legal legal proof. proof. proof. The The The circumstances from which the conclusion circumstances from which the conclusion circumstances from which the conclusion of of of guilt is to be drawn should in the first guilt is to be drawn should in the first guilt is to be drawn should in the first instance instance instance be fully established, and all the be fully established, and all the be fully established, and all the facts facts facts so established should be consistent so established should be consistent so established should be consistent only only only with the hypothesis of the guilt of the with the hypothesis of the guilt of the with the hypothesis of the guilt of the accused. accused. accused. Again, the circumstances should be Again, the circumstances should be Again, the circumstances should be of of of a conclusive nature and tendency and they a conclusive nature and tendency and