ssp 1 APEAL 355 of 1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.355 OF 1991 The State of Maharashtra .....Appellant versus Sidram Chandrashekar Karanje, Aged 23, r/o Aherwadi, Taluka South Solapur, Dist. Solapur. ..... Respondents Mrs.M.M.Deshmukh, APP, for the appellant. Mr.M.R.Deshpande (appointed) for the respondent. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 08th SEPTEMBER, 2011 ORAL JUDGMENT : (PER R.M.SAVANT, J.) :- 1. The above appeal is directed against the judgment and order dated 07-02-1991 passed by the 3rd Additional Sessions Judge, Solapur, by which the accused was acquitted of the offences punishable under Section 302 of Indian Penal Code and 37(1) punishable under Section 135 of the Bombay Police Act. 2. The prosecution story in brief, is that there was a marriage of the daughter of one Nandlal Champalal Dhoot in Mahavir Mangal Karyalaya between 06-12-1989 to 08-12-1989. The catering contract of the said marriage was given to one Jugalkishor Vyas, who is the ssp 2 APEAL 355 of 1991 complainant. The marriage ceremony was over on 07-12-1989. However, on 08-12-1989, there was a lunch for the near relatives which is called “Aher ceremony”. The deceased one Prabhuling Birajdar was one of the persons working with the complainant. It is the case of the prosecution that on 08-12-1989 at about 4.00 p.m., when the meals were over and the complainant was winding up the articles on the ground floor, the deceased Prabhuling told him that he was not feeling well and therefore, would like to take rest on the first floor and accordingly, went to the first floor of the Mangal Karyalaya. After some time, at about 4.30 p.m., it is the case of the prosecution that the complainant heard shouts “save save (okpok okpok)” from the first floor. The accused came running from the stair case from the first floor with a knife and went out of the gate of the Mangalkrayalaya. The accused was chased by the complainant and others. However, the complainant returned back to the Mangalkaryalaya. One Sidhlingayya Swami, one of the workers of the complainant, caught hold of the accused, who was wearing blood stained clothes and brought him in the mangalkaryalaya. On being inquired by the said Sidhlingayya Swami as to why he had assaulted Prabhuling. The accused told him that he was taking revenge of the murder of his sister. Prabhuling followed the accused from the stair case and had sat on the last step of the stair case. It is the prosecution story that Jugalkishor, the complainant, was present ssp 3 APEAL 355 of 1991 there, to whom the deceased told that “Sidhu had stabbed him by knife”. The deceased was rushed to the Civil Hospital, Solapur. Thereafter, police came in the hospital and PSI Pawar recorded the FIR at the behest of Jugalkishor Vyas under C.R.No.249 of 1989 at 9.55 p.m. The accused was thereafter, arrested at 10.35 p.m. and was at the time of arrest, according to the prosecution, was wearing blood stained clothes. The blood stained clothes i.e trouser and shirt, were attached under the panchanama by PSI Pawar of Foujdar Chabadi Police Station. On the next date, panchanama of scene of offence was drawn by PSI Pawar. Recovery of the knife was made at the behest of the accused and the memorandum to that effect was prepared. The clothes attached from the person of the accused and the blood samples were sent to the Chemical Analyzer, Pune. The police thereafter, submitted a chargesheet in the Court of Chief Judicial Magistrate, who committed the case to the Court of Sessions for trial, as it involved an offence punishable under section 302 of IPC. 3. The defence taken by the accused in his statement recorded under Section 313 of Code of Criminal Procedure, was one of total denial. The prosecution has examined as many as 13 witnesses, which include Jugalkishor Vyas, the complainant and the said Sidhlingayya Swami. Since there was no eye witness to the said incident, the prosecution sought to bring home the charge against the accused on the basis of ssp 4 APEAL 355 of 1991 circumstantial evidence, the extra-judicial confession made by the accused and the dying declaration made by the said Prabhuling. In so far as the prosecution case is concerned, the star witnesses as it were are the complainant and the said Sidhlingayya Swami, who is alleged to have caught hold the accused after he was fleeing away from the scene of offence and brought back to the mangal karyalaya. 4. In so far as the evidence of the complainant Jugalkishor Vyas is concerned, it has come in his evidence that he is a catering contractor, who accepts contracts for catering at marriages etc. It is his evidence that the deceased Prabhuling and his son were employed at the relevant time with him for the purpose of catering in the marriage of the daughter of Nandalal Champalal Dhoot. It has further come in his evidence that while he was winding up the things after the meals were over, he heard shouts “save save” from the first floor and at the same time, the accused came running from the stair case with a knife in his hand and went out of the gate. Pertinently, in his statement to the police, the complainant has stated that he saw one person running away and thereafter, some persons had brought one person to the mangalkaryalaya and on enquiry, he gave his name as Sidhram Karanje. It is further pertinent to note that the complainant is not aware of any motive for the alleged assault, as he has stated in his evidence that he was not aware as ssp 5 APEAL 355 of 1991 to why Prabhuling (deceased) was assaulted by the accused. It has further come in the evidence of the complainant that later on, he came to know that Sidhram Karanje suspected that the deceased Prabhuling must have murdered his sister. However, significantly he has not mentioned the source of his information. He has further stated that Prabhuling came from the first floor and sat on the last stair of the stair case on the ground floor, stating that “Sidhu has stabbed him by knife”. 5. The next star witness is one Sidhlingayya Swami (P.W.6), who allegedly caught hold of the accused while the latter was running away from the mangalkaryalaya after assaulting the deceased and brought him back to the mangalkaryalaya. It is in his evidence that he was loading the food articles in the tempo after the meals were over and he also heard the shouts “save save” and that the accused ran away by holding knife by his side and that the accused was wearing blood stained cloths at the said time. It is his evidence that he chased the accused and caught him in a by-lane and brought him in the hall and inquired as to why he had assaulted the deceased. It is his evidence that the accused at that moment told him that he had taken revenge of the murder of his sister. 6. Pertinently, the said witness has not stated in his statement recorded by the police that the accused was running away wearing blood ssp 6 APEAL 355 of 1991 stained clothes and a knife in hand, but has stated that one person was running away wearing blood stained clothes and knife in hand. It has come in the evidence of the said witness that he was knowing Prabhuling prior to the said incident. If the said witness is knowing the accused prior to the incident and had seen him running out of the Mangalkaryalaya, then he ought to have been stated to the police that the accused was the person who was running away from the hall. He has also not stated in his statement before the police that the accused was caught in a by-lane. 7. Next comes the evidence of the wife of the deceased Sulochana Prabhuling Birajdar (P.W.3). The evidence of the said witness is relevant from the point of view of the motive in respect of the said offence. The said witness has stated that she was informed at her residence by Sidhlingayya Swami (P.W.6) that the accused Sidhram Karanje had assaulted her husband and he was admitted in the civil hospital. She has further stated that she had been to the hospital and there was no talk between the Sidhlingayya and her husband and that her husband died at 3.00 a.m. on 09-12-1989. She has further stated that the sister of the accused died by falling in the well at Kumbhari and it was the say of the accused that her husband has killed the sister of the accused. She has further stated that she and her husband were at Solapur at the time of death of the sister of the accused. In the cross-examination, she ssp 7 APEAL 355 of 1991 has stated that the sister of the accused died 7 to 8 years prior to the date of the incident and that no complaint was lodged against her husband or anybody in respect of the death of the sister of the accused. She has further stated that the accused has not stated in her presence that her husband had killed his sister. This is the testimony in so far as the wife of the deceased is concerned. 8. Now the next material evidence is that of one Nivrutti D. Pawar, PSI (P.W.13). It has come in his evidence that on 08-12-1989, he was present in Kasba Police Chowky at about 7.00 p.m. He received Yadi from Foujdar Chavadi Police Station to investigate into the offence under Diary No.343. Accordingly, he had been to the Civil Hospital and had seen the injured. He has stated that the injured was not in a position to talk. He has further stated that he has recorded the complaint of Jugalkishor Vyas in the Civil Hospital and sent the said complaint for registration with the Yadi. He has further stated that he has inquired with the Medical Officer about the condition of the deceased to give statement. He has further stated that he has given Yadi to Special Executive Magistrate to record the dying declaration. 9. In his cross-examination, he has stated Sidhlingayya Swami has not given the description of the assailant, including the clothes and his physical attributes. He has further deposed that Sidhlingayya Swami did ssp 8 APEAL 355 of 1991 not state that the assailant was caught in a by-lane and that Sidhlingayya Swami has not stated to him that the accused told him that he had taken revenge for the death of his sister. 10. As indicated above, the prosecution case is solely based on circumstantial evidence, as is well settled by a catena of judgments of the Apex Court that the chain of events should be complete and the circumstances should be such that they only lead to the guilt of the accused and against his innocence. It is in the said context, it would have to be seen whether the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole; any missing link would be fatal to the prosecution case. 11. The first aspect is as regards the recovery of the weapon i.e. knife, allegedly used in the offence. The recovery of the knife was made at the behest of the accused Sidhram Karanje. As can be seen, it is the prosecution case that Sidhram Karanje volunterred to show the spot where the knife was allegedly hidden. The accused was taken to the said spot by the police and the knife was allegedly recovered from the heap of stones. The prosecution case does not seem to be probable in view of the fact that it is Sidhlingayya Swami, who had caught the accused after the assault and had brought him back to the mangalkaryalaya, the said prosecution case is inconsistent with the story of Sidhlingayya Swami, ssp 9 APEAL 355 of 1991 having caught the accused and brought him back to the mangalkaryalaya. Thereafter, it is pertinent to note that the FIR was registered at 9.55 p.m. and the accused was arrested at 10.30 p.m. The aforesaid facts make a dent in the prosecution story, as regards the recovery of the weapon allegedly used in the alleged offence, from the site and from a pile of stones, as is the case of the prosecution. The Trial Court as therefore, rightly held that the prosecution story as regards the recovery, cannot be accepted. 12. Another circumstance is the extra-judicial confession made by the accused. It is the prosecution case based on the statement of the said Sidhlingayya Swami (P.W.6) that the accused assaulted Prabhuling to avenge the death of his sister. Apart from the said statement, there is no other corroborative evidence to prove the said alleged extra-judicial confession. Admittedly, there were many other persons in the Mangal Karyalaya, who were present at the time when the said statement was allegedly made by the accused to the said Sidhlingayya Swami. However, no independent evidence has been brought on record to prove the said extra-judicial confession. The Trial Court was in our view, therefore right in holding that the said extra-judicial confession has not been proved. 13. The next is the dying declaration allegedly made by the ssp 10 APEAL 355 of 1991 deceased Prabhuling. The said dying declaration has allegedly been made by the deceased in front of about 10 to 12 people, who were admittedly present at the time when the dying declaration was made. Though, it is the prosecution case that the said dying declaration was made in the presence of the complainant Jugalkishor Vyas, admittedly there were other persons present at the time when the said dying declaration was made by the deceased. However, no other witness has been examined to prove the said dying declaration. 14. It is also pertinent to note that the son of the deceased, who was also employed at the same time, for catering in the marriage of the said Nandalal Dhoot, was not examined by the prosecution, being the son of the deceased and being present at the relevant time, he would have been the best witness. However, he has not been examined for the reasons best known to the prosecution. In the said circumstances, the Trial Court was right in holding that the said dying declaration could not be relied upon and the accused could not be convicted on the said basis. 15. In that respect, it is also relevant to note the evidence of PSI Pawar (P.W.13). He has stated in his cross-examination that the injured i.e. deceased was not in a position to speak and that the Medical Officer had reported that the patient was not in a position to give statement. Hence, the aforesaid facts create doubt about the dying ssp 11 APEAL 355 of 1991 declaration and therefore, the finding of the Trial Court as regards the dying declaration cannot be faulted with. In so far as the motive is concerned, there is no cogent, credible evidence to prove the same. The Trial Court was therefore, right in coming to the conclusion that the motive has not been proved. 16. It is required to be borne in mind that the present appeal is one directed against the judgment and order of acquittal. As indicated above, in so far as circumstantial evidence is concerned, the same has to be cogent and clinching which only point towards the guilt of the accused, than towards his innocence. In the instant case, on the basis of material evidence on record, it cannot be said that the prosecution has proved the chain of events and when so considered as an integrated whole, leads to the conclusion of the guilt of the accused. In an appeal against the acquittal, even if two views are possible, it is trite that this Court would not upset the finding of acquittal rendered in favour of the accused. In that view of the matter, there is no merit in the above appeal, which is accordingly dismissed. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )