{1} Cri. Appeal No.637/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.637 OF 2009 Wasim Manwar Pinjari APPELLANT Age-20 years, Occ-Labour R/o Dondaicha, Tq-Shindkheda Dist-Dhule VERSUS The State of Maharashtra, RESPONDENT Through PI Post Station Dondaicha, Tq-Shindkheda, Dist-Dhule ....... Mr.S.M.Godsay, Advocate for the appellant Mr.D.V.Tele, APP for respondent State ....... CORAM : NARESH H. PATIL AND A.V.POTDAR, J.J. DATE : 9 th March 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2000/-, with default stipulation of undergoing further RI for six {2} Cri. Appeal No.637/2009 months and RI for one year and to pay fine of Rs.500/- with default stipulation of undergoing SI for one month, respectively, by the Additional Sessions Judge, Dhule vide judgment and order dated 28.10.2009, in Sessions Case No.63/2008, has questioned the correctness of his conviction and sentence by the present criminal appeal. 2. The case of the prosecution, as unfolded during the trial, is as follows : a) PW-1 Chotulal Ramprasad Gupta, had lodged a complaint (Exhibit-34) on 19.08.2007 against the appellant and others, with Dondaicha police station at Crime No.122/2007. Investigation of the said offence was entrusted to Police Inspector Mukund Mahajan (PW-14). b) Thereafter, Spot Panchanama (Exhibit-41) was drawn in presence of the witnesses. Pieces of gunny bag, blood mixed soil and plain soil and pieces of plastic carpet stained with blood were collected from the spot. Thereafter, Inquest Panchanama (Exhibit-40) was drawn on the dead body of Mohan, which was identified by his relatives. After drawing of the Inquest Panchanama, the dead body was sent for postmortem examination. c) Dr.Dilip Patil (PW-11) conducted postmortem on the dead body on 19.08.2007. During the autopsy in all 13 injuries {3} Cri. Appeal No.637/2009 were noticed on the person of the deceased, which were in the nature of contused lacerated wounds and fracture. The medical officer has opined that all the injuries were antemortem and the age of the same was within 24 hours. During the internal examination of the dead body, it was noticed that there was internal bleeding and continuity of scalp was not intact, haematoma was present over frontal and left temporo parietal region and occipital region of scalp. Frontal bone and nozal bone were fractured. Brain was congested and subdural haematoma was present. The internal injuries were also ante mortem and age of the said injuries was within 24 hours. Probable cause of death, according to the medical officer, was due to head injuries. Accordingly, Postmortem report (Exhibit-61) was prepared. d) Clothes on the person of the deceased were seized vide seizure Panchanama (Exhibit-38). On the same day appellant and another accused were arrested. After arrest, at about 4.30 p.m. the appellant had made voluntary disclosure statement (Exhibit-52), which lead to the recovery of one iron rod and one torn baniyan, which were thrown in a pit near river bridge. The said articles were seized under seizure memorandum (Exhibit-53). On 20.08.2007, again the appellant made voluntary disclosure statement (Exhibit-54), which lead to the recovery of clothes from his house, which were seized under recovery Panchanama (Exhibit-55). Again on 21.08.2007, the appellant made disclosure statement (Exhibit-36) leading to the recovery of one mobile handset, which {4} Cri. Appeal No.637/2009 was concealed below firewood kept outside the house of the appellant and one gold ring (Article 4) from the Roshan Photo Studio, which were seized under recovery Panchanama (Exhibit-37). e) During the further investigation, on 22.08.2007, another accused came to be arrested in connection with the said offence. Thereafter, statements of certain witnesses were recorded by the police. Circle Officer Madhukar Marsale (PW-9) had prepared sketch map (Exhibit-58) of the scene of offence. Thereafter, certain other accused persons were arrested on 29.08.2007 and 26.09.2007. Blood samples of all the accused were collected. On 01.11.2007 all the seized property was sent to Chemical Analyzer along with requisition letter (Exhibit-64) for chemical examination. In Due course reports from Chemical Analyzer (Exhibit-65) were received. Thereafter, on completion of the investigation, charge sheet was filed against the accused persons. f) On committal of the trial to the court of Sessions, trial court framed charge (Exhibit-15) against all the accused persons for an offence punishable u/s 302 r/w 34 of the Indian Penal Code, 302, 120 B r/w 34 of the Indian Penal Code and u/s 201 of the Indian Penal Code. The accused had abjured their guilt and claimed to be tried. {5} Cri. Appeal No.637/2009 g) Prosecution, to substantiate the charges leveled against the accused persons, had examined in all 14 witnesses. Defence of the appellant was of total denial. One Suresh Jain was examined on behalf of the defence in support of their case. On appreciation of the evidence on record, the trial court convicted the appellant for an offence punishable u/s 302 and 201 of the Indian Penal Code and sentenced him accordingly while acquitted the other accused No.1 and 3 to 8 of all the charges. Admittedly, the State has not preferred any appeal against the order of acquittal of the other accused and hence the order of acquittal has attained finality. 3. In order to appreciate the submissions advanced by learned counsel for the appellant and that of learned APP for respondent State, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. It transpired from the evidence of Complainant Chotulal Ramprasad Gupta (PW-1) that deceased Mohan was his son and was residing with him at Dondaicha. Deceased used to remain in the company of the appellant and others and he was in a habit of playing cards. Mohan (deceased) was staying with his sister at Agra and had been to Dondaicha one month prior to the incident. Deceased had brought some cash from his sister, which he had distributed to the appellant and others as hand loan. Some quarrel had taken place between the deceased, appellant and {6} Cri. Appeal No.637/2009 others on account of repayment of the said loan. The deceased used to demand the money given by him to the appellants and others and the accused persons, including appellant, only gave assurances, however did not repay the same. Deceased Mohan used to remain outside the house till late nights. On 18.08.2007, at about 12.00 noon, the appellant came on his motorbike and took Mohan (deceased) with him by saying he would repay the amount of hand loan. Deceased had accompanied the appellant and had told his father that he would return after some time. This witness has stated in his evidence that he was doing the business of selling eatables on a hand cart with the help of his sons. At about 3.00 p.m. he along with his two other sons had been to Shivaji Statue at that time accused Moinoddin had met him and had enquired about the deceased to which he has told the accused that he was not aware of the whereabouts of the deceased and he had requested accused Moinoddin to contact the deceased and accordingly Moinoddin had contacted the deceased on his cell phone, however the call was not responded. Thereafter, he went to his shop and returned in the night at about 11.00 p.m. On the next morning Aashish (PW-6) saw that some people had gathered at Roshan Photo Studio and when he went there he saw that dead body of Mohan was wrapped in a gunny bag, which he informed to this witness and thereafter all of the family members had rushed to the spot and saw the dead body of Mohan. This witness had noticed that deceased had sustained bleeding injuries on various parts of his body including head and hands. Thereafter he lodged the {7} Cri. Appeal No.637/2009 complaint (Exhibit-34) in Dondaicha police station. He identified the clothes of the deceased as well as the gold ring (Article-4) before the Court. 5. In his cross examination, PW-1 has admitted that the deceased had advanced hand loan to number of villagers, however he had no personal knowledge about the same. He used to park his hand cart in front of the post office, which is adjacent to Shivaji Statue. Roshan Photo studio is situated at a distance of about 100 to 150 feet from the spot, where he used to park his hand cart. Roshan photo studio is situated on main road adjoining to Ginwala shopping complex and the same is surrounded by 15/20 shops. He has further admitted that personally he had never been to the Roshan Photo Studio. Omission is proved in his cross examination that he had not stated in the statement before police that the deceased had brought some cash from his sister. He had also not stated in the statement before police that the appellant had told the deceased to accompany him to collect the money (omission is in respect of “to collect money”). He has admitted that the deceased and the appellant were close friends till the date of the incident. He denied that the deceased was doing money lending business and on that count his relations were strained with the villagers as he used to charge exorbitant interest on the loan. He has further admitted that the appellant was already in police custody when he lodged the complaint (Exhibit-34) on 19.08.2007 at 9.00 a.m. {8} Cri. Appeal No.637/2009 6. It transpired in the evidence of Bunty (PW-4), cousin brother of the deceased, that on 16.08.2007, he along with the deceased Mohan had went to the photo studio of the appellant. The appellant owed some amount to the deceased. Thereafter deceased accompanied the appellant to collect money and the deceased had requested this witness to wait in the studio and they had returned after an hour. Thereafter, they met Moinoddin near Shivaji Statue and deceased had demanded repayment of loan from said Moinoddin to which said Moinoddin had replied that he would pay the amount within a day or two. On the next day, around 12.00 noon, he accompanied the deceased to market, where they met some accused persons and the deceased had snatched the cell phone from Haji and had asked him for repayment of the loan. Thereupon, Haji had told the deceased that the deceased had defamed him by snatching his mobile in market place and he would ‘see’ the deceased. A day thereafter, the appellant had been to the house of the deceased at about 12.00 noon and on his request the deceased had accompanied him on the motorcycle of the appellant. The deceased had told this witness that he was accompanying the appellant for collecting money advanced by him to the appellant. The deceased did not return till late night. On the next day morning, PW-6 Aashish returned home weeping and informed that the dead body of Mohan was lying in front of the Roshan Photo Studio. He has further stated that he accompanied others to the place where the dead body was lying. He was present during the visit of police to the photo studio where Chappal of {9} Cri. Appeal No.637/2009 deceased was found. He has stated in his cross examination that the other accused were friends of the deceased so also they were friends of himself. He has admitted that the incident of mobile snatching had taken place about 15 to 20 days prior to the incident in question and he had not witnessed the said incident. He has further admitted in his cross examination that he had not informed the police that the Chappal found in the photo studio was of Mohan (deceased). In his further cross examination, he has admitted, in no uncertain terms, that the deceased and the appellant were close friends, they used to recover loan amounts together and their relations were cordial till 18.08.2007. Omission is proved in his cross examination that he has not stated in the statement before police that on 16.08.2007 he had accompanied the deceased to the photo studio of the appellant. He has also admitted that the police had taken minute search of the studio and he was present during the said search. 7. Evidence of PW-6 Aashish, brother of the deceased, is on the similar lines with that of his father (PW-1) Chotulal. Additionally, he has stated that some quarrel had taken place between the deceased, appellant and others, 3/4 days prior to the incident, at Ambedkar Chowk on account of repayment of loan. He has further stated that on 19.08.2007, at about 7.30 a.m. while he was proceeding to a temple, he saw that people were gathered near Roshan Photo Studio and hence he went there and had noticed dead body of Mohan in a gunny bag. He had noticed bleeding {10} Cri. Appeal No.637/2009 injuries over eyebrows, nose and head of the deceased. He had informed the incident to his parents and along with his parents and two brothers had came to the spot at that time PW-4 Bunty was also present there. He was present when the police had visited the photo studio. Some blood was noticed on the carpet inside the photo studio. Contradictions are proved in his statement that he had not stated in the statement before police about the incident of quarrel between appellant-deceased and some others. He had also not stated in the statement before police that the other accused had been to their house so also that the deceased had snatched cell phone of Haji and that Haji had threatened the deceased of dire consequences. 8. Prosecution also relied on the evidence of PW-2 Prashant Jain, who has stated before the court that on 21.08.2007, the appellant had made a disclosure statement (Exhibit-36) in his presence, which has resulted in recovery of mobile phone so also a gold ring, which were seized under seizure Panchanama (Exhibit-37). He has categorically admitted that the recovery memorandum was not prepared at the spot where the articles were found and seized. His evidence in respect of recovery of gold ring, is not shattered even in his cross examination. Surprisingly, the cell phone, which was recovered under recovery Memorandum (Exhibit-37) was not identified by any of the witnesses as to whom it belonged, nor any relevant record was produced to establish the ownership of the same. {11} Cri. Appeal No.637/2009 9. The prosecution has further relied on the evidence of PW-3 Sandeep, who had acted as Panch witness to Inquest Panchanama (Exhibit-40) and Spot Panchana (Exhibit-41). In his evidence, he was unable to identify the cut pieces of plastic mat, allegedly seized under Spot Panchanama (Exhibit-41). He has admitted in his cross examination that the mattress was clean and the gunny bag was outside the photo studio. Though he has stated in his examination chief that some blood was found on the mattress yet in the cross examination he resiled from his earlier statement. Further, though he has stated in his evidence that pieces of gunny bag were found inside the photo studio, yet in his cross examination he resiled by stating that the same were found outside the photo studio. Moreover, no explanation was sought by the prosecution in respect of these contradictions, by reexamining the witness or by cross examining him by declaring him hostile. It is also to be noted that the gold ring recovered during the investigation on 21.08.2007 was not noticed during the earlier inspection of the photo studio by the police on 19.08.2007. 10. The prosecution has further relied on the evidence of PW-8 Ghanshyam. It transpired from his evidence that on 19.08.2007 the appellant made disclosure statement (Exhibit-52) in his presence, which lead to the recovery of clothes, photographs and one iron rod in two bags in a pond below the bridge, which were seized under seizure Panchanama (Exhibit-53). It is to be {12} Cri. Appeal No.637/2009 noted that in his cross examination he has specifically admitted that the iron rod shown to him in the Court, was not seized under seizure Panchanama (Exhibit-53). Even, he did not identify the cloths and photographs allegedly recovered under Recovery Panchanama (Exhibit-53). He has further stated that on 20.08.2007, again the appellant made a disclosure statement (Exhibit-54) in his presence, which lead to the recovery of clothes at the instance of the appellant, which were seized under Recovery Panchanama (Exhibit-55). He has admitted that both the Panchanamas (Exhibit-53 and Exhibit-55) were prepared in the police station and the police had already informed him about the places where they had to visit. He has admitted that no talk had taken place between the appellant and the police, in his presence. Surprisingly, inspite of these admissions, neither was he was declared hostile by the prosecution nor was re-examined. 11. In the light of this evidence, before the trial court, heard Mr.S.M.Godsay, learned counsel for the appellant and Mr.D.V.Tele, learned APP for the respondent State. 12. Learned counsel for the appellant has urged that though the appellant has not disputed that the death of Mohan is a homicidal one, yet the exact time of death is not established from the evidence of PW-11 Dr.Dilip Patil, who had conducted postmortem on the dead body of Mohan. It is also urged that considering the nature of the injuries found on the person of the {13} Cri. Appeal No.637/2009 deceased and as alleged by the prosecution that the murder of Mohan was committed in Roshan Photo Studio, which is situated in commercial area, surrounded by many shops, yet surprisingly, none had witnessed the same nor had any one heard any noise of resistance, which is highly improbable and creates doubt about the prosecution version. It is further urged that considering the injuries found on the person of Mohan, it is highly improbable to infer that the same can be caused by a single person without assistance from anybody and hence, it cannot be inferred that the appellant is the author of the injuries found on the person of the deceased Mohan. It is also urged that as per the evidence of the prosecution, the incriminating articles, allegedly recovered at the instance of the appellant, were found at the distance of about 1 and ½ km from the place of offence and hence it creates doubt and the dead body was found outside the studio of the appellant, which is against the prudent human nature. It is further urged that the recitals of recovery Memo (Exhibit-53), in respect of recovery of iron rod, do not indicate that any blood was notice on the said iron rod at the time of its seizure then how it comes that the Chemical Analyzer detected blood of “B” group on the said iron rod. Even the evidence of Pancha witnesses, to the recovery of gold ring, iron rod and clothes, does not whisper that the said articles were properly sealed and labeled in their presence. In view of these aspects, according to learned counsel for the appellant, the case of prosecution, of circumstantial evidence, is not established and the chain of circumstances does not point out guilt of the appellant {14} Cri. Appeal No.637/2009 beyond reasonable doubt. Learned counsel for the appellant further pointed out to us that no witness is coming forth to state that after 12.00 noon till the death of Mohan, the appellant was in continuous company of the deceased. It is also urged that as the case of the prosecution rests on circumstantial evidence, the prosecution has to establish the motive behind the crime, which is not established by the prosecution. In such circumstances, it is urged that as the chain of circumstances is not complete, benefit of doubt be given to the appellant and he be acquitted of the charges with which he is charged, convicted and sentenced. 13. Per contra, learned APP has supported the judgment of conviction and sentence recorded by the trial court. It is urged that the evidence of the prosecution witness No.1 Chotulal, PW-4 Bunty, PW-6 Aashish is corroborating with each other on the point that the appellant was last seen in the company of the deceased. It is further urged that recovery of gold ring of the deceased is supported by the evidence of the Investigating Officer and the said gold ring was identified by the father of the deceased, which is an incriminating circumstance proved against the appellant. It is further urged that the medical evidence of PW-11 Dr.Dilip Patil, who has opined that the injuries found on the person of the deceased can be possible by the iron rod shown to him, has to be accepted. Even the CA reports (Exhibit-65), clearly establish that the blood found on the iron rod, carpet as well as clothes of the deceased was of “B” group, which was the blood group of the {15} Cri. Appeal No.637/2009 deceased and hence it connects the appellant with the commission of offence. Therefore, it is urged to dismiss the appeal by confirming the judgment of conviction and sentence. 14. From the rival submissions it is clear that the prosecution case rests on circumstantial evidence. At this juncture, it may be useful to refer the observations of the Supreme Court in respect of circumstantial evidence, in the matter of “K.T.Palanisamy V/s State of Tamil Nadu” 2008 Crimes (SC) 1 page 256. The Supreme Court has observed thus - “12. It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in “Sharad Birdhichand Sarda V/s State of Maharashtra” AIR 1984 SC 1622, in the following terms: “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: “(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but legal distinction between ‘may be p roved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade V. State of Maharashtra where the following observations were made: {16} Cri. Appeal No.637/2009 Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” These five golden principles, if we may say so, constitute the panchasheel of the proof of a case based on circumstantial evidence” 15. The circumstances, on which the prosecution case rests, can be formulated thus - i) In the afternoon of 18.08.2007, deceased Mohan had left his house along with the appellant. ii) Dead body of Mohan was found concealed in a {17} Cri. Appeal No.637/2009 sack outside the photo studio owned by the appellant. iii) There is recovery of gold ring and cell phone of the deceased at the instance of the appellant. iv) There is also recovery of iron rod and blood stained clothes at the instance of the appellant. v) The blood found on the iron