1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.853 OF 2002 Satrik Alias Rony Rozario Menezes, Age : 31 years, Room No. 202, Lok Nayak Nagar, Kapaswadi Hutment, Juhu Versova Link Road, Andheri (W), Mumbai – 400 053. .... Appellant. V/s. The State of maharashtra. ... Respondent. ..... Ms. Latika Nevrekar for the Appellant. Ms. Poornima Kantharia, A.P.P. for the State. ..... CORAM : F.I. REBELLO AND K.U. CHANDIWAL, JJ. DATE : 13TH JUNE 2008. ORAL JUDGMENT (PER F.I. REBELLO, J.) :- The Appellant has been convicted by the learned Sessions Judge in Sessions Case No.56 of 1999 by Judgment dated 2.5.2002 for the offence punishable under Section 302 of I.P.C. for committing intentionally or knowingly the murder of Smt. Florin Joseph Menezis on 14.10.1998 between 7.30 hours to 17.30 hours. The accused is 2 the brother in law of the deceased. The deceased was the wife of his brother with whom he was admittedly staying at the time of the offence. 2. There are no eye witnesses and the case is based purely on circumstantial evidence. There was a recovery made at the instance of the accused of a blood stained knife. The knife was sent for chemical analysis. The Chemical Analyser, in his report, has opined that the blood found on the knife was human and of 'A' group. The blood group of the deceased was of 'A' group. The kurta, pillow, blanket and chadder shows human blood of 'A' group. The learned Judge from the evidence which has come on record was of the opinion that the chain of circumstantial evidence had been established and which unerringly pointed out to the guilt of the Appellant herein and consequently convicted the Appellant of the charge under Section 302 of the I.P.C. and sentenced him to imprisonment for life. 3 3. At the hearing of this appeal on behalf of he Appellant, the learned Counsel submits that the chain of circumstantial evidence to link the accused with the incident has not been established. There is no eye witness to the incident. Motive has also not been established which is important in the case of circumstantial evidence. The recovery of the knife is from a open place and after 13 days. According to the prosecution, this knife was found wrapped in the polythene bag. Considering the site from which the knife was recovered, which was near a nala, it is impossible to believe that the accused would wrap the knife in the polythene bag and keep it there to be recovered. Once the chain has not been established, the accused must be given the benefit of doubt. It is therefore submitted that accused be set forth at liberty. On the other hand, on behalf of the prosecution, the learned A.P.P. points out that the learned Judge has correctly considered the evidence on record which points to the guilt of the accused and under these circumstances, this Court ought not to interfere with the Judgment of the learned Court. 4 4. We have heard learned Counsel. Dr. Vithal Hasha Vihurkar (PW-5) who conducted the autopsy of the deceased has been examined as PW-7. In his evidence he has deposed that there were two incised wounds on the neck of the deceased just at the upper end of thyroid cartilage tailing that is ending on left side of the neck. He has given the description of the wound. He gave the cause of death as haemorrhage and shock due to incised wounds on the neck. He has further deposed that the injury mentioned in columns 17, 20 and 21 of the post mortem notes where on the vital part of the body i.e neck and were possible by a sharp weapon like knife. He was shown a knife (article-1). He has opined that the injuries are possible by that knife. From this evidence it is clear that prosecution has established that death was homicidal. 5. The investigation commenced on the complaint being filed by PW-2 Ramprasad Sablal Suryavanshi. According to this witness the accused was a resident in his locality and in 1998 was residing with his brother, sister-in-law and the small daughter. He was on 5 leave on 14.10.1998 and was at home. At 5.30 p.m. he noticed some people gathered outside the house of the accused. Out of curiosity he also went there to see as to what had happened. He heard the cries of a small girl from the house of the accused. The accused in the meantime reached there. The door of the house of the accused was closed from inside. The accused put his hands inside from the gap which was beside the door, unbolted the door and opened it. He alongwith the accused enter inside the house where they found the deceased lying on the bed facing the sky with injuries on her neck. He as also others realised that the deceased was killed and he proceeded to the police station to lodge a complaint. In cross examination it has come in evidence that the accused did not accompany him to the Police Station. It has also come in the evidence that the child was aged about 6 months and was lying in the cradle made up of cloth and she was crying. 6. PW-1 Joseph H. Menezes is the brother of the accused and the husband of the deceased. He admits that the accused was 6 staying with them. According to him 3 days before the incident the accused was attending work and he used to leave the house at about 8.30 a.m. and return late. On that day the witness had been to work as usual and left at 7.00 a.m. When he had left, his deceased wife and daughter were at home. He proceeded home at about 7.00 p.m. and when he reached Kapsewadi, he came to know that his wife was killed. He has emphatically stated the relations between his wife and the accused were cordial. He has further stated that there were no objectionable relationship between the accused and his wife and he never suspected any illicit relationship between the accused and the deceased when he reached home the police had already taken the accused to the police station. The witness was declared hostile and cross examined by the Public Prosecutor. 7. PW-3 is Merunisa Abubakkar Khoya, a neighbour who knew PW-1, deceased as also the accused. According to her she came to know that the accused was having illicit relations with the deceased through the talk of some women and that the deceased is 7 used to say to the accused should not get married and should not go to his native place. According to her, there used to be quarrels between the accused and the deceased. When PW-1 used to go to work, the deceased and the accused used to remain in the house. This witness confirms that the accused opened the door of the house by putting his hands inside from the gap and the door was bolted from inside. In cross she has stated that she had no personal knowledge about the illicit relationship between the accused and the deceased. 8. Vijaykumar Shankar Majge is PW-4 who was one of the panchas to the recovery of the knife at instance of the accused. In his evidence he has stated that on 29.10.1998 at about 7.00 p.m. he was called to the Police Station to act as a panch where the accused was present and has showed his willingness to point out the place where he had kept the knife used in the offence. The voluntary statement of the accused was recorded by the police and the signature was obtained on the memorandum. The accused took them to Versova Link Road where the accused pointed out to one public toilet and from 8 there he took them near one motor garage. He went near some bushes situated by the side of one nala and took out one polythene bag from behind the bushes. He opened the polythene bag and showed the knife which was 6 to 7 inches in length. The blade was about 4 to 5 inches in length and the handle was about 2 to 3 inches in length. The Police took charge of the knife wrapped it by means of paper and affixed the label bearing the signature of the panchas on the said wrapper. He deposed that he noticed the blood stains on the knife. He identified the signature on the label. In cross examination it has come on record that there is a hutment area near the bushes and the public are passing by from the road at the side of nala and bushes and the main road is of 15-20 ft. away from the bushes. He answered that in the Court he had not seen the knife in the plastic bag and the police did not affix the label of the signature of the panchas on the knife directly. 9. Dr. Jiten Bhavsar as PW-6 has deposed that on 17.10.1998 one person by name Satrik Menezes was brought for examination 9 and in examination he found bruising over middle third of right arm. He opined that injury can be caused by use of blunt force and if any struggle took between two persons. He could not state the age of the injury except to state that the injury was not fresh within 24 hours. In cross examination he has stated that the injury is possible if a person falls on a hard and blunt substance and also if the person is beaten by a belt. 10. Budhan Pandurang Sawant is the Investigating Officer who conducted the investigation. He has deposed to carrying out the spot panchanamas and the recording of the statement of the accused. According to him the accused was absconding between 14.10.1998 to 16.10.1998. In so far as the polythene bag in which the knife was found, he was not able to say what had happened to it. He admitted that in the arrest panchanama there is no mention of blood stains on the clothes of the accused. 11. From this evidence on record what emerges is that the 10 prosecution has been unable to show any motive nor has the prosecution has been able to prove any illicit relationship between the deceased and the accused. PW-3 in cross examination admitted that she had no personal knowledge about any illicit relationship. Motive therefore has not been established by the prosecution, which is an important chain in the case of circumstantial evidence. 12. The only evidence if at all against the accused is the recovery of knife and the blood spot on the shirt. The knife was recovered after 13 days from the date of the incident. According to the Investigating Officer, the accused was absconding between 14.10.1998 and 16.10.1998 when he was arrested. PW-2 Ramprasad Suryavanshi as also PW-3 Merunisa Khoya have deposed to the accused being present when the dead body was found. PW-1 has stated that the accused was taken to the Police Station when he reached over there. The prosecution did not challenge their testimony This evidence of PW-1, PW-2 and PW-3 is inconsistent with the case of the Investigating Officer PW-7 of the 11 accused absolutely. It is therefore not possible to accept the case of the prosecution that the accused was absconding. 13. In so far as the knife is concerned, it is clear that it had human blood of 'A' group. It was however recovered from an open place and after about 13 days from the date of the incident. The polythene bag in which knife was purportedly wrapped was not available. It is, therefore, not possible to accept the evidence led by the prosecution. No attempt was made to find if there were finger prints of the deceased on the knife which if done could have been used against the accused to show that the knife was used by him. In so far as the blood stains on the shirt, the blood grouping of the accused has not come on record. The blood group of the deceased no doubt is 'A' as can be seen from the Chemical Analyser's report. Though the blood group of the deceased was sent for chemical analysis, the C.A. report only is that there was no ethyl alcohol found and that C.A. does not give positive results of blood grouping. Even otherwise, it would be difficult considering the case of the 12 circumstantial evidence to convict the accused solely on a blood stain on the shirt which he was wearing when the body was found in the presence of a large number of persons. As pointed out time and again in the case of the circumstantial evidence, motive is important which has not been established and further the chain of circumstances which could have resulted in arriving at the conclusion that the appellant was guilty of the offence has not been establish. 14. In so far as the injuries on the accused are concerned, as noted, the incident is of 14.10.1998 and the accused was sent for examination on 17.10.1998. According to the Doctor, injury could be caused by various reasons and also if the person was beaten by a belt. The accused was in police custody. The prosecution therefore has not been able to establish that the injury on the accused was on account are of any resistance put by the deceased at the time she was attacked. 15. For the aforesaid reasons, we are of the opinion that the 13 prosecution has not established the case beyond reasonable doubt. Hence, conviction and sentence imposed on the Appellant is set aside. The Appellant be released forthwith if not required in any other case. (F.I. REBELLO, J.) (K.U. CHANDIWAL,J.)