1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 968 OF 2006 1. Geeta Keshav Shankar @ ) Geeta Mukesh Kharwa, ) 2. Gauri Manga Kharwa @ Wagheri ).. Appellants (Org. Accused Nos. 1 and 2) Versus The State of Maharashtra, ) through Dr. D.B. Marg Police Station. ).. Respondent -- ALONG WITH CRIMINAL APPEAL NO. 443 OF 2007 Shri Santosh Kanti Kharwa, ) age __ years, Occ. ) Ashirwad Committee Chawl, ) Gundwadi Gaothan, Judani Mandir, ) Andheri (East), Mumbai – 400 069. ).. Appellant (Org. Accused No.3) Versus The State of Maharashtra, ) (At the instance of Dr. D.B. Marg ) Police Station vide C.R. No.32/2002) ).. Respondent (Org. Complainant) -- 2 Shri Arfan Sait for the Appellants. Ms. M.M. Deshmukh, Additional Public Prosecutor for State. -- CORAM : SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. JUDGMENT RESERVED ON : 3RD FEBRUARY, 2009. JUDGMENT PRONOUNCED ON : 12TH FEBRUARY, 2009. JUDMGNET : ( PER SWATANTER KUMAR, C.J. ) Additional Sessions Judge, Greater Mumbai, by his judgment dated 25/26/27th October, 2004 has convicted three accused viz. (i) Geeta Keshav Shankar @ Geeta Mukesh Kharwa, (ii) Gauri Manga Kharwa @ Wagheri, and (iii) Santosh Kanti Kharwa for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay fine of Rs.1,000/- each and in default to undergo simple imprisonment for a period of six months. 2. Aggrieved from the finding of guilt and sentence awarded to the respective accused, Geeta Mukesh Kharwa, 3 Accused No.1 and Gauri Manga Kharwa, Accused No.2 have filed Criminal Appeal No.968 of 2006, while accused No.3 Santosh Kanti Kharwa, has filed Criminal Appeal No.443 of 2006 before this Court, inter alia, claiming acquittal, but primarily on the following grounds:- (a) There is undesirable and unexplained delay of one month in registering the FIR; (b) The judgment of the Trial Court is not based upon cogent, proper and admissible evidence. The Trial Court has opted to supply gaps in the prosecution case by surmises and conjectures. Accused Santosh was neither named in the FIR nor in the Application Exhibit-19 made by PW 4 on 30th January, 2002 and none of the 4 prosecution witnesses have connected him with the occurrence of crime, thus he has been falsely implicated; ( c) There are serious material contradictions in the statements of PW 3 Pallavi and PW 4, Nirmala. The statements of the child witness (PW 3) is a version given by a tutored witness keeping in view the fact that the statement itself was recorded after lapse of a long period. Statement of the child witness (PW 3) thus cannot be the foundation for recording of finding of guilt against any of the accused; (d) Neither other evidence led by the prosecution nor the Post-mortem Report Exhibit-29 records, much less 5 proves, that there was any injury on the body of the deceased which resulted in his death. On the contrary, the cause of death stated in the Post-mortem Report does not even support the case of the prosecution; (e) Recovery of rope vide Exhibit-26 has not been proved in accordance with law and is a result of police influence upon the Accused as he was arrested on 15th February, 2002 while the recovery was effected on 22nd February, 2002. Thus, the rope (Article 1) has just been planted upon the accused and in any case the statements recorded vide Exhibit – 26 are not admissible in evidence and of course that the Accused have been falsely implicated 6 as they have no intention or motive to kill the deceased, as alleged. (f) Material evidence which has been relied upon by the Trial Court while convicting the accused is not put to the accused in a statement under Section 313 of the Code of Criminal Procedure thus causing serious prejudice to the rights of the accused. 3. Now we may refer to the story of the prosecution which is the premise for guilt and conviction of the appellants. Gauri, Accused No.2 was married to Mohan Chiku Kharwa. Their relations were strained as Mohan had suspected character of Gauri and divorced her. Gauri had developed intimacy with Santosh Kharwa, Accused No.3. Santosh had love affair with sister of Gauri by name Ratan and married to her, therefore, Gauri had again tried to establish relations to cohabit with Mohan but Mohan was not 7 accepting her. Geeta, accused No.1, is stated to be the wife of Mukesh Kharwa, who was brother of the deceased Mohan Kharwa. Mukesh is also stated to have given divorce to Geeta and therefore, Geeta had enmical terms and grudge with family of Mohan. On 14th January, 2002 Geeta, Gauri and Santosh had gone to Girgaon Chowpati along with Dinesh Suma Wagheri, Ruksana Sona Wagheri and others. Deceased Mohan also attended Chowpati. Nirmala Chiku Kharwa (PW-4), mother of the deceased also attended Girgaon Chowpati along with her grand daughters. Mohan was flying kite. Gauri started teasing and jesting Mohan. Gauri took a pinch on the thigh of Mohan and took up a quarrel. Mohan is stated to have told to his mother Nirmala that he is going to pass urine and he will come back. He went there but he did not return. Attempt has been made on behalf of the prosecution to show that Mohan, Nirmala, Geeta and Gauri had consumed liquor at the Chowpati and then Mohan left for passing urine. Mohan was followed by Geeta, Gauri and Santosh. Santosh gave push to Mohan. Mohan fell down. Santosh then put a rope around the neck of Mohan and then Geeta pressed mouth 8 and Gauri caught hold of legs of Mohan. They pressed neck of Mohan in the sea water and drowned him till death. They dragged body of Mohan in the deep sea and threw it in the sea water. Nirmala, mother of Mohan, went for a search of her son till late night at Girgaon Chowpati along with others. Mother of Mohan visited Gaondevi Police Station next day and lodged a missing complaint of her son which was recorded and registered by the police vide S.D. E. No.2 of 2002 on 16th January, 2002, Exhibit -12A. On 30th January, 2002 mother of Mohan (PW 4) visited Gaondevi Police Station and reported her complaint in writing by filing an application Exhibit-19 that her son Mohan died due to drowning and his dead body was found at the sea shore within the jurisdiction of Cuffe Parade Police Station. In the application Exhibit-19, she also stated that she suspected Geeta (Accused No.1), Gauri (Accused No.2), Dinesh Wagheri and Ruksana Wagheri, for having killed her son Mohan. On the basis of the application Exhibit-19, it appears that no First Information Report (FIR) was registered but after few days and supposedly on the basis of interrogation made, FIR was registered being FIR 9 No.00/02 on 15th February, 2009 for an offence under Section 302 read with Section 34 of the Indian Penal Code that Geeta, Gauri and Santosh caused death of Mohan while he was under the influence of liquor by throttling and drowning him in the sea water. This led to the arrest of the accused Santosh. 4. On 16th February, 2002, a panchanama of dead body was drawn which is at Exhibit-27. As there were high tides on the night of 15th February, 2002, panchanama of the place of incident Exhibit-33 was prepared on 16th February, 2002. During the period when Santosh remained in police custody till 22nd February, 2002, he is claimed to have made a voluntary statement Exhibit-26, leading to recovery of a nylon rope (Article-1). Thereafter, the statement of the child witness (PW 3) Pallavi Kharwa (Exhibit-31) was recorded, who is the eye witness to the incident as per prosecution case. After the body was found on 16th January, 2002, the same was subjected to post mortem, report of which is at Exhibit-29. To support this case, the prosecution examined in all nine witnesses including the complainant, API Patil (PW 1), the 10 alleged eye witness Pallavi Kharwa (PW 3), Nirmala Chiku Kharwa (PW 4), mother of the deceased Mohan, Shri Rakesh Singh (PW 8) Special Executive Officer who recorded statement of Pallavi (PW 3), and P.I. Dhanwade (PW 9) the Investigating Officer. The statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the Court, after putting the questions and material evidence to the Accused. Upon conclusion of the trial, the accused were found guilty of the offence charged and were sentenced accordingly. 5. To sum up the case of the prosecution, the suspects, the deceased and his family members had gone to Girgaon Chowpati in the afternoon of 14th January, 2002, where Mohan is supposed to have consumed liquor with accused and others. Even his coming to Chowpati was objected to by his mother Nirmala, PW 4. Later on, he went to urinate and informed his mother that he will come back. The role attributed to the respective accused is that Geeta, Gauri and Santosh followed deceased Mohan and pushed him. The deceased fell down. Accused 11 Santosh put a rope around the neck of the deceased and Geeta pressed mouth and Gauri caught hold of legs of the deceased and they pressed neck of the deceased in the sea water and drowned him till death, whereafter his body was drowned into the deep sea water. 6. The learned Trial Court, while recording reasons for conviction of the accused, noticed that the accused admitted the panchanama Exhibit-27 dated 16th January, 2002, post-mortem report Exhibit-29 and the death certificate Exhibit – 28, in terms of Section 294 of the Code of Criminal Procedure. The cause of death shown in the certificate was Asphyxia due to drowning. The Court further heavily relied upon the statements of PW 4 Nirmala, mother of deceased Mohan and PW 3 Pallavi, niece of the deceased, who was 9 or 10 years old girl at the time of the incident. Her statement was recorded by the Special Executive Officer on 20th February, 2002. According to Pallavi, PW 3, she saw her uncle Mohan, the deceased, going for passing urine. He was followed by Geeta, Gauri and Santosh. Accused Santosh 12 gave push to her uncle who fell in the sea water and Gauri pushed mouth of deceased Mohan in the water, and Geeta held legs of the deceased, which ultimately caused death of Mohan. The child witness thought that all the three accused were enjoying, joking and jesting. After the incident she started playing and forgot to tell about it to her grandmother. While referring to the evidence, the learned Trial Court made the following observations which have considerable bearing on the case of the prosecution. “25. .......... I am of the opinion that the witness P.W. No.4 have signed on the reverse of her complaint and there is mention of annexure in the application itself. I am of the opinion that the non signing of the annexures do not go to the root of case. Non placing of the documents before the Superiors is at the most can be termed as procedural lapse or irregularity and cannot be held as fatal to the prosecution case. 26. XX XX XX XX 27. .......... P.W. No.4 Nirmala further deposed that Mohan came there and threatened Geeta to leave the said place immediately and that Geeta assaulted Mohan by her hands on his thigh and took a pinch and that Mohan got wild and 13 questioned her as to why she was teasing him all the time. ...................... 28. .......... The evidence is complete cogent which is incompatible with any other hypothesis except that of the guilt of the accused. The circumstances brought on record have conclusive tendency. I have discussed few circumstances in forgoing paragraph and I am of the opinion that the conduct of Geeta and Gauri on the fateful night of the incident has been established beyond reasonable doubt .............................................................. .............. 29. The next circumstances which is reflecting from testimony of P.W. No.4 is that P.W. No.4 Nirmala and others started searching Mohan, they searched him for about one hour and then saw Geeta. She came towards them laughing. P.W. No.4 categorically stated that Geeta was laughing loudly. She questioned her as to why she was laughing to which Geeta answered that she was laughing because they were searching Mohan and that they could not locate Mohan. This circumstance points figure at the conduct of Geeta. .................... P.W. No.4 deposed in her ocular testimony that she requested Geeta to help her to search Mohan and that Geeta took them towards some building opposite chowpaty. ...................................................... .................... 14 30. I must observe that the testimony of P.W. No.3 Pallavi sufficiently corroborated by P.W. No.4 Nirmala in establishing guilt of the accused. P.W. No.4 deposed that she had searched Mohan up to 1.00 pm. She again came to chowpaty and waited up to 12.30. However they could not see Mohan......” xxxxx xxxxx xxxxx 35. ..... P.W. No.4 lent external corroboration to the testimony of P.W. No.3 Pallavi Kharwa. I must record that I found child witness Pallavi as competent. ......” 36. ..... In the instant case child witness Pallavi had disclosed the incidents to his grandmother P.W. No.4 Nirmala, after a month and the prosecution has brought on record that accused No.1 Geeta threatened child to kill her if she tells the incidents to anybody else. From these set of facts the authority will not be applicable to the instant case.” 7. Thus, it is evident that treating PWs 3 and 4 as the eye witnesses coupled with the circumstance that PW 4 had searched for her deceased son while Geeta had come towards them laughing was the conclusive circumstances and there was complete cogent evidence which is compatible with only hypothesis 15 that of the guilt of the accused, the learned Trial Court had proceeded to convict the accused. 8. It is a settled principle of law that the prosecution should establish its case beyond reasonable doubt and should prove the chain of events which undoubtedly leads towards only one conclusion that is the guilt of the accused. While the Court has to appreciate the evidence led by the prosecution and defence, if any, the circumstances alleged by the prosecution should be fully established. The presumption that accused is not guilty unless proved and the burden of proof to establish guilt of accused is on the prosecution, are principles of law which have remained unchanged in the criminal jurisprudence since times immemorable. 9. In the case of Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343 ), the Supreme Court stated that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all 16 the facts so established should be consistent only with the hypothesis of the guilt of the accused. This principle has remained undisturbed and even in a very recent judgment in the case of State of Goa v. Sanjay Thakran & Anr., (2007)3 SCC 755, the Supreme Court reiterated this principle and held as under:- “13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt 17 of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See State of U.P. V Satish, (2005) 3 SCC 114, Padala Veera Reddy v State of A.P., 1989 Supp (2) SCC 706, Sharad Birdhichand Sarda v State of Maharashtra, (1984) 4 SCC 116, Gambhir v State of Maharashtra, (1982) 2 SCC 351 (para 9) and Hanumant Govind Nargundkar v State of M.P., AIR 1952 SC 343)”. 10. Principles governing administration of criminal justice are stated by the Supreme Court in Harijana Thirupala & Ors. v. Public Prosecutor, High Court of A.P., Hyderabad, (2002)6 SCC 470), observing that : “11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit 18 of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in evidence case depends upon the facts of each case.” 11. The Court has to examine and keep in mind that the accused “must be” and not merely “may be” guilty of an offence. The mental distance between ` may be' and ` must be' is long and divides vague conjectures from sure conclusions. ( Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622). 19 12. These are some stated principles which have stood the test of time without variations and are applicable to the facts and circumstances of given case. It is necessary for the prosecution to prove the chain of events which leads to guilt of the accused. This chain of events must be proved by direct and substantive evidence and some times may also permitted to be proved by the circumstantial evidence but in that event the circumstances forming part of chain must be established fully and must be compatible to the story of the prosecution. 13. The first and foremost event in a criminal trial is registration of the FIR. In the present case, the prosecution story began with the incident of 14th January, 2002 when the accused, the deceased and other witnesses are stated to have visited Girgaon Chowpaty. There are contradictory versions as to at which point of time and how Mohan, the deceased, met the accused persons? Did they come together or came separately? who saw them following the deceased and then committing the crime in question? All these versions need proper consideration. But 20 whatever be the versions, the conduct of both the eye witnesses and for that matter persons accompanying them are very unnatural. It is the case of prosecution that the witness PW 3 and PW 4 Nirmala went to Girgaon Chowpaty at 1.00 p.m. and returned therefrom late in the night. Obviously, they spent considerable time at Girgaon Chowpaty. Once Mohan was found missing, in the backdrop of the statement of PWs 3 and 4, it is not only improbable but is opposed to any normal human conduct that they did not get in touch with the police and intimate to them about missing or drowning of Mohan. Be that as it may, they claim to have come back home late in the night and even in the morning of 15th January, 2002, neither PW 4 who is eldest member in the family and with whom PW 3 is residing for years together nor PW 3 Pallavi indicate the story to the police and even on 16th January, 2002 when PW 4 Nirmala lodged a missing report vide Exhibit 12-A which was recorded by PW 1 Maruti Patil details were not stated. This missing report obviously must have been lodged by PW 4 after proper thinking and examining the events that admittedly happened in her presence at Girgaon Chowpaty. The lodging of a 21 missing report thus was a result of proper thinking and is not a report which was instantaneously lodged in a hurry. After lodging the missing report, there is no explanation on record as to what was done by PWs 3 and 4 or their relations in that behalf. It appears that they were contended with the report of missing despite the conduct of accused Geeta, Gauri and Santosh. The matter remains unpursued and unaltered even after the body of the deceased was recovered from the sea near Nariman Point on 16th January, 2002. Though the body was recovered on 16th January, 2002, vide Panchanama Exhibit-27, PW 4 Nirmala claims that she came to know about the recovery of the body of her son on 18th January, 2002, when the body of the deceased was handed over to her after the post mortem. Despite this, nothing happened till 30th January, 2002 when PW 4 files an application Exhibit-19 which is again received by the same witness PW 1 Maruti Patil who had recorded the missing report. In that application she names six persons including accused Geeta and Gauri but does not mention the name of accused Santosh. No role was attributed in that application to Santosh, though other four suspects viz. Dinesh 22 Suma Wagheri, Ruksana Sona Wagheri were specifically named in the report. It does not stand to reason why she does not name Santosh in this report when admittedly she had seen him at the place of occurrence. 14. The matter is investigated and looked into, still no FIR is registered. It is only on 15th February, 2002 when the FIR is registered and the accused are arrested. Strangely, the Investigating Officer himself registered an FIR Exhibit 15 mentioning suspicion indicated in the application Exhibit-19 by referring to a story of killing of Mohan but again with some variance. It was required from the prosecution to explain why there was such an inordinate delay in registering the FIR when according to the prosecution, the incident occurred in the presence of two eye witnesses i.e. PWs 3 and 4. The FIR is primarily registered after the so called interrogation of suspects/accused but the FIR still does not refer to statement of PW 3 Pallavi. None of the family members came forward to lodge a report except a missing report dated 16th January, 2002, and the application 23 Exhibit-19 even after the death under suspicion circumstances. There is no reasonable cause which even stand true to the probabilities of normal human conduct to justify such inordinate delay in lodging of the FIR i.e. From 14th January, 2002 to 15th February, 2002. 15. Normally the delay in lodging the FIR by itself may not be sufficient to bring the case of the prosecution under suspicion. Mere delay in