Cr. Appeal No. 595/2009 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.595 OF 2009 Dnyaneshwar Vishwanath Tekale Age 27 years, Occ. Agriculture, R/o Aland, Post Pedgaon, Taluka and District Parbhani. ..Appellant Versus The State of Maharashtra ..Respondent ... Shri S.S.Panhale, Advocate (amicus curiae) for the appellant and Shri N.H.Borade, Additional Public Prosecutor for the respondent ... CORAM : P.V.HARDAS & A.V.POTDAR, JJ. Dated : February 11, 2011 ORAL JUDGMENT : (Per HARDAS, J.) :- 1. The appellant/accused No.3, who stands convicted for an offence punishable under Section 302 of Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months, by the learned Additional Sessions Judge, Parbhani by the judgment dated 2.1.2009 in Sessions Trial No.123 of 2007, by this appeal, questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for decision of this appeal may briefly be stated thus :- Cr. Appeal No. 595/2009 2 PW 6 Ansari, who was attached to Daithana Police Station, had accompanied PW 14 PSI Jaitapurkar to village Aland. It appears that PW 14 PSI Jaitapurkar recorded the report of PW 10 Manikrao and directed PW 6 Ansari to register the offence. Accordingly, an offence, vide Crime No.40 of 2007 came to be registered for the offences punishable under Sections 498-A and 302 read with 34 of the Indian Penal Code. PW 14 PSI Jaitapurkar, who was on duty at Daithana Police Station, on 2.5.2007 had proceeded to the scene of offence, accompanied by PW 6 Ansari, Head Constable and had recorded the first information report of PW 10 Manikrao at Exhibit 43 and had directed the registration of the offence. PW 14 PSI Jaitapurkar then drew the scene of the offence panchanama in the presence of the panchas at Exhibit 25 and from the scene of offence, he seized broken pieces of bangles, one ladies chappal, one iron pot, ordinary mud and blood stained mud. From the scene of offence, one full sleeves while shirt also came to be seized. The inquest panchanama of the dead body of deceased Daivshala, wife of the present appellant, came to be drawn at Exhibit 11. The dead body was, thereafter, referred for post mortem examination and post mortem came to be conducted by PW 9 Dr. Kankute. PW 9 Dr. Kankute noticed the following external injuries:- " (1) Fracture of frontal skull on lateral side 8 x 12 cms. Brain came out of skull. (2) Injury on throat 4 x 1 cms. It was incised wound. " Cr. Appeal No. 595/2009 3 He opined that the cause of death was due to severe head injury and fracture of skull. The post mortem report is at Exhibit 29. Statements of witnesses came to be recorded and accused came to be arrested vide arrest panchanama at Exhibit 53/A, B and C. Clothes on the person of the accused came to be seized. During custodial interrogation, accused No.3/appellant expressed his willingness to point out the place where the blood stained axe was hidden. Accordingly, memorandum of the accused at Exhibit 35 came to be recorded in the presence of PW 12 Sudam. The accused led the police and the panch to the bushes of Besharam plant and after removing the dry leaves, produced an axe, which was found to be stained with blood, which came to be seized in the presence of PW 12 Sudam, vide panchanama at Exhibit 36. The statements of other witnesses came to be recorded and the seized property came to be referred to the Chemical Analyser for examination along with requisition at Exhibit 23. The Chemical Analyser's reports are at Exhibits 46 and 47. As per the Chemical Analyser's report at Exhibit 46, clothes on the person of deceased Daivashala were stained with blood of group "AB" and the axe, which is alleged to have been discovered at the behest of the appellant was also found stained with blood of "AB" group. Vide Chemical Analyser's report at Exhibit 47, the blood group of deceased Daivashala was determined as "AB". 3. Further to the completion of the investigation, charge sheet Cr. Appeal No. 595/2009 4 against the appellant and others came to be filed. On committal of the case to the Court of Sessions, the trial Court vide Exhibit 6, framed charge against the appellant and his parents for the offences punishable under Sections 498-A and 302 read with 120-B of the Indian Penal Code. The accused pleaded their innocence and claimed to be tried. 4. The prosecution, in support of its case, examined 14 witnesses. Out of them, PW 1 Tukaram, PW 2 Vasant, PW 3 Pratap, PW 4 Kausabai, PW 5 Ashrubai, PW 8 Dnyanoba, PW 10 Manikrao, PW 11 Ram, PW 12 Sudam and PW 13 Baburao did not support the prosecution. The trial Court accepted the evidence of PW 1 Tukaram and PW 4 Kausabai in respect of deceased Daivashala being last seen alive in the company of the accused and also relied upon the discovery memo of the axe and accordingly convicted and sentenced the appellant. 5. Before we advert to the submissions advanced before us by Shri Panhale, learned Advocate appointed for the accused, it would be useful, at this juncture, to refer to the evidence of the prosecution witnesses. PW 1 Tukaram, who claimed to have seen deceased Daivashala alive in the company of the accused on the day of the incident states that original accused No.1 is his paternal uncle while accused No.3 is his cousin. He states that on the day of the incident i.e. on 2.5.2007, he had gone to his agricultural land to feed the cattle at about 4.30 to 5.00 Cr. Appeal No. 595/2009 5 pm and had noticed deceased Daivashala lying unconscious under the tamarind tree. He also noticed that she had sustained injury on her head, which was bleeding. He further states that earlier on that day, he had gone to the field from 9.00 am to 2.00 pm and thereafter, he had returned home. At that time he had noticed the appellant and his wife deceased Daivashala working in their agricultural field. He further states that neighbouring farmer PW 2 Vasant was present in his field and therefore, PW 1 Tukaram informed him that he had noticed deceased Daivashala lying unconscious in her field. He then states that PW 2 Vasant had gone to the village and had informed other villagers about the said fact. In the cross examination, on behalf of the appellant / accused, he has admitted that his house is adjacent to the house of the accused. He has also admitted that a day prior to the incident, accused Nos.1 and 2 had gone to village Mande-Wadgaon in their bullock-cart for attending a religious function. He had also admitted that on the day of the incident in the morning, there was a programme of religious discourse in the village and thereafter, in the afternoon, lunch was hosted from 11.00 am to 4.00 pm. He has admitted that he had participated in the function as well as he had served food when the lunch was held. He has admitted that he had gone to his land at 9.00 am and had tethered the cattle and returned back to the village at 11.00 am. At that time, he had not seen accused No.3 and his wife in the agricultural field. He further states that at 4.00 pm he had gone to the agricultural land and has Cr. Appeal No. 595/2009 6 loosened the cattle and was taking them for grazing near the well and while passing by the boundary of the agricultural field, he had noticed deceased Daivashala lying injured in the pool of blood under the tamarind tree. He has further stated as correct that he had not seen accused No.3 in his land on that day and at the scene of the offence, he had seen the broken pieces of bangles, chappal and one axe and one iron basket lying near deceased Daivashala. Learned APP sought permission to declare the witness hostile and cross examine him. In the cross examination on behalf of the prosecution, he had admitted that the police had recorded his statement. He had admitted that at about 2.00 pm he had gone to his land to feed the cattle and at that time he had seen accused No.3 and his wife in the land. He had admitted that mistakenly, he had stated in the cross examination on behalf of the accused that he had not seen accused No.3 and his wife for the whole day. In further cross examination on behalf of the accused, he had admitted that the police had recorded his statement eight days after the incident. He had further admitted as correct that from the well, a person standing under the tamarind tree is not visible. He claims to be present when the police came to the village for drawing the panchanama. The criticism of the learned counsel for the appellant that no reliance at all can be placed on the testimony of this witness in the light of the vacillating stands of this witness, seems to be justified. In the examination in chief, PW 1 Tukaram has admitted that he had seen the accused at 2.00 pm in his agricultural land. In the cross examination on Cr. Appeal No. 595/2009 7 behalf of the accused, he has admitted that he had not seen the accused/ appellant at all on the day of the incident. In the cross examination on behalf of the prosecution, he has admitted that he had seen the accused at 2.00 pm. According to us, no reliance can be placed on the testimony of this witness. The evidence of this witness does not at all inspire confidence of the Court for accepting such kind of testimony. This witness has been changing his version from time to time and therefore, according to us, it is extremely doubtful as to whether this witness had really gone to his field and had seen accused No.3 and his wife working in the agricultural field. Additionally, we find that the statement of this witness came to be recorded after eight days, despite the fact that he was available and was present at the scene of offence, when the scene of offence panchanama came to be drawn. 6. Another witness examined by the prosecution in respect of seeing the accused and deceased together is PW 4 Kausabai. PW 4 Kausabai was also declared hostile by the prosecution and was cross- examined. During the cross-examination on behalf of the prosecution, she has admitted as correct that she had seen accused No.3 and his wife walking towards their land at about 11.00 am. Unfortunately, the evidence of this witness that she had seen the accused and deceased Daivashala at about 11.00 am walking towards their field is not put to the accused in their statements under Section 313 of the Code of Criminal Procedure. Since this part of the evidence is not put to the accused in the Cr. Appeal No. 595/2009 8 statements under Section 313 of the Code of Criminal Procedure, according to us, this circumstance cannot be used by the prosecution as a circumstance to forge the chain of circumstances against the accused. A reference in this behalf may usefully be made to the judgment of the Supreme Court in the case of Sharad Biradhichand Sarda Vs. State of Maharashtra [AIR 1984 SC 1622]. 7. The prosecution has further relied on the testimony of PW 2 Vasant in respect of the disclosure memorandum. PW 12 Sudam did not support the prosecution and declared hostile. Though he was cross examined on behalf of the prosecution, nothing of substance was elicited in his cross-examination to support the case of the prosecution that the accused had made the disclosure statement. 8. In order to prove the disclosure statement, the prosecution has examined PW 14 PSI Jaitapurkar. PW 14 PSI Jaitapurkar has stated that during custodial interrogation he learnt from the accused that the accused had concealed the axe used in the commission of crime. He accordingly had called the panchas before whom the disclosure statement of the accused came to be recorded. We find from the evidence of PW 14 PSI Jaitapurkar that he had prior knowledge about the concealment of the axe and therefore, the memorandum alleged to have been made by the accused in the presence of the panch witnesses cannot certainly be said to be leading to discovery of the axe at the behest of the appellant. Further, Cr. Appeal No. 595/2009 9 we find that PW 1 has admitted in his cross examination that near the dead body of deceased Daivashala he had noticed an axe along with other articles. If the axe was lying near the dead body of deceased Daivashala, the subsequent disclosure at the behest of the appellant/accused would loose all its importance. In such circumstances, according to us, the prosecution can not derive any support for forging the chain of circumstances against the accused by relying upon the disclosure memorandum at Exhibit 35 and the subsequent recovery of an axe at Exhibit 36. 9. The evidence against the accused does not establish the offence against the accused beyond reasonable doubt. In the case resting on circumstantial evidence, the prosecution has to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of conclusive nature and the circumstances together should form a complete chain which would exclude every hypothesis of the innocence of the accused and should unerringly point the guilt of the accused. In the present case, the prosecution falls short of establishing the chain of circumstantial evidence and therefore, according to us, the appellant/accused is entitled to be given benefit of doubt. 10. For these reasons, the Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged Cr. Appeal No. 595/2009 10 and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. Fees, payable to the learned counsel appointed on behalf of the appellant is quantified at Rs.5,000/- (Rs. Five Thousand only/-). (A.V.POTDAR,J.) (P.V.HARDAS, J.) ... akl