1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1126 OF 2004 Shivanna Bhimsen Lokhande Convict No.C-13291 Yeravada Central Prison 411 006. ..Appellant. Vs. The State of Maharashtra ..Respondent. .... Ms. Revati Mohite-Dere (amicus curiae ) for the Appellant. Dr. F.R. Shaikh, APP for the State. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. April 16, 2009. JUDGMENT (PER DR. D.Y.CHANDRACHUD , J.) : 1. The Appellant stands convicted for the murder of his wife Sakhubai. Sakhubai and the Appellant were labourers. Their worldly belongings were housed in a shed made from tin sheets. The shed was home. Typical of life in urban India, their tin shed lay in close proximity to a building by the name of Amit Apartments at Kondhwa, a 2 Suburb of Pune. The couple had a child who was barely three. Sakhubai had worked as a maid with Pramila and Charles Pillai for seven or eight months. The prosecution alleges that on 3rd May, 2002 Sakhubai had reported for work with the Pillais and was present until nine in the night. She was addicted to alcohol. That evening was no exception. The Appellant was summoned by the Pillais to their residence and was asked to take away his wife. The next morning between seven thirty and eight, the Appellant came to the Pillai home in Amit Apartments for a morning snack. Upon being asked about the whereabouts of his wife he stated that she had left to meet her sister that morning. The Appellant is alleged to have left the temporary shed in which he lived with his family and to have shifted to another construction site at Nanapeth in Pune. Netaji Shinde was on duty as a Senior Police Inspector at the Sahakarnagar Police Station. At eight thirty in the morning, he received a wireless message of a dead body being found near the Suryamukhi Ganesh Temple. Upon reaching the spot he found the dead body of a woman lying on an open ground in a pool of blood. Her face was crushed. A large stone 3 was found lying by the side of the body. P.I. Shinde who deposed at the trial lodged a complaint, at Exh. 33. A crime, C.R. 87/2002 was registered. P.I. Shinde prepared a Panchanama of the scene of offence in the presence of two panch witnesses (Exh. 18). The dead body was transmitted for postmortem analysis. The investigation led to Charles and Pramila Pillai who resided in Amit Apartments and at whose house Sakhubai had been employed. Pramila Pillai informed the police that a woman of a similar description had resided in a hut in front of the apartment complex, but had not reported for work with them for the previous four or five days. Mr. and Mrs. Pillai were taken to the Sassoon Hospital where the body was stored in the morgue. The morgue has been euphemistically referred to at the trial as a dead house. The Pillais identified the body. They informed the Investigating Officer that the brother and sister of Sakhubai resided at village Dhanori. The trail led to the brother and sister who in turn are alleged to have identified the body of the deceased. The Appellant was arrested on 10th May, 2002. It has been alleged that in pursuance of a statement made by the Appellant in the presence of 4 panch witnesses the Appellant led the police to the tin shed in front of Amit Apartments where a bloodstained shirt and pant belonging to him came to be recovered from a gap in the tin sheets. 2. The Appellant was charged under Section 302 of the Penal Code of the murder of Sakhubai and was committed to trial before the Additional Sessions Judge, Pune. The prosecution examined ten witnesses. P. Ws.1, 2 and 3 were panch witnesses – P.W. 3 to the discovery Panchanama. P.W. 4 and P.W 7 were respectively the employers at whose house the deceased had worked as a maid. P.W. 4 was, however, declared hostile. P.W. 5 was the doctor who had conducted the postmortem. P.W. 6 and P.W. 9 were the Investigating Officers. P.W. 8 Devidas was the brother of the deceased. The Additional Sessions Judge at Pune by his judgment dated 26th December, 2002 convicted the Appellant of an offence under Section 302 of the Penal Code and sentenced him to suffer imprisonment for life. The judgment of conviction has been called into question in these proceedings. 5 3. On behalf of the Appellant reliance has been placed on the evidence of P.W. 9 Sunil Korde who was the Investigating Officer. P.W. 9 deposed that the clothes of the deceased were shown to Mr. and Mrs. Pillai at the police station. Those clothes were seized under a Panchanama, but the clothes were not sealed. P.W. 9 deposed that the clothes could not be sealed because the dead body was unknown and the victim could be identified on the basis of the clothes. Similarly, P.W. 7 stated that she was shown the clothes of the deceased at the police station. Reliance was sought to be placed on the following judgments in order to support the submission that when the bloodstained clothes of the victim have not been kept sealed till the time that they were sent to the Chemical Analyst, this would affect the probative value of the findings of the Chemical Analyser: (i) The State V. Motia1; (ii) Dasu V. State of Maharashtra2 ; and (iii) State of Maharashtra V. Prabhu Barku Gade3. The learned counsel submitted that the opening of the packet containing the clothes at the 1 AIR 1955 Rajasthan 82. 2 1995 Cri.L.J. 1933. 3 1995 Cri. L. J. 1432. 6 police station on 10th May, 2007 seriously affects the probative value of the evidence of the Chemical Analyser. Moreover, learned counsel submitted that the prosecution has failed to examine the carrier. Finally, it was urged that the identification of the dead body of the deceased has not been proper and it is impossible to infer that the body which was recovered was the body of the wife of the Appellant. These submissions would now fall for consideration. 4. At the outset, it would be necessary to advert to the question as to whether there was a proper identification of the body of the deceased. The deceased, it is an admitted position, was in the employment of Charles and Pramila Pillai who resided in an apartment complex called Amit Apartments at Kondwa. Sakhubai had been working with them as a maid and resided together with the Appellant in a temporary structure built from tin sheets. Both P.W. 4 Charles Pillai and P.W. 7 Pramila Pillai knew the deceased who had worked with them for over seven months as well as the Appellant who was the spouse of the deceased. Sakhubai was given to alcohol. 7 On the night of 3rd May, 2002 when she was under the influence of liquor, the Appellant was summoned by the Pillais for taking away his wife. The dead body of Sakhubai was found at about 8.30 the following morning. The postmortem report records that the following injuries were found externally on the body of the victim : “1. Left shoulder abrasion dimension 1 x 1 cm. 2. Crush injury involving whole head and face. All bones of cranium crushed along with corresponding soft tissue. 3. Sunburns at both arms, forearm and both lower limbs.” P.W. 5 Dr. Narkhede who was a lecturer at the Sassoon Hospital in the Department of Forensic Science conducted the postmortem examination. Apart from the aforesaid external injuries, he also found the following internal injuries : “1. All bones of cranium crushed along with corresponding soft tissue meanings lacerated. Brain also lacerated at many places. Base of skull fractured.” 8 P.W. 5 opined that these were sufficient to cause death and had been the result of an assault with a hard, blunt and heavy object. The sunburns (item No.3 of the external injuries) were post-mortem while the first and the second of the external injuries were found to be fresh in nature. 5. P.W. 7 in the course of her deposition stated that she had identified the victim on the basis of her hands and legs since her face was totally crushed and could not be identified. P.W. 8 Devidas was the brother of the victim. He deposed that though the forehead of the victim was crushed, the side of the face was in a position to be identified. P.W. 8 and his sister Ambubai identified the body on the basis of the features of both the hands and legs and some portion of the face. According to him the nose and mouth were intact and there was no injury thereon. The upper portion including the eyes were crushed. There is no infirmity in the appreciation of the evidence of P.W. 7 and P.W. 8 in respect of the identification of the dead body. 9 The identification of the dead body was by a near relative, and evidently on the basis of the limbs and other features. Though the face had been crushed as a result of the severe blow dealt with by the stone used as a weapon of offence, it cannot be said that the identification of the body was rendered impossible. P.W. 8 in particular as the brother of the deceased was in a position to identify her body on the basis of his perception of her features. P.W. 7 was the employer with whom the deceased had worked for several months. There was no reason for P.W. 7 to depose falsely nor is any such suggestion put to the witness. The prosecution has established that the dead body was of Sakhubai and that the death was homicidal. 6. The principal submission that has been urged on behalf of the Appellant is that the clothes of the deceased were not sealed and that as a result the probative value of the report of the Chemical Analyser is substantially diluted. Now P.W. 9 who was the Investigating Officer deposed that the clothes of the deceased were 10 shown to Mr. and Mrs. Pillai at the police station. According to him, though the clothes were seized under a Panchanama, they were not sealed and could not be sealed because the dead body was unknown and the victim could be identified on the basis of the clothes. In the State V. Motia (AIR 1955 Rajasthan 82) a Division Bench of the Rajasthan High Court held thus : “Whenever it is desired by the prosecution that certain articles, which have been recovered from accused persons are to be identified, or are to be sent to the Chemical Examiner for analysis, it is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the identification is over, or till the articles are sent to the Chemical Examiner for analysis. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused. It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate or for examination to the Chemical Examiner the seals remained intact. This evidence is missing in this case. It is, of course, not difficult to sprinkle a few human blood stains on articles recovered if somebody wants to do so. We do not say that this was done in the present case; but as precautions were not taken, the argument raised on behalf of the accused that this might have been done remains unrefuted. Under these circumstances, we find 11 that we cannot place the same reliance on the discovery of blood stains on these various articles as we would have done if necessary precautions had been taken.” The same view was reiterated by a Division Bench of this Court in Dasu v. State of Maharashtra (1985 Cri. L.J. 1933) : “In order that there should not be any tampering with the articles which are said to be stained with blood the investigating officers are expected to put them in a proper cover and to seal them in the presence of the panchas and to forward them to the chemical analyser with proper seals. The forwarding letter issued by the Investigating Officer to the Chemical Analyser in this case is at Ex. 26. In that letter it is mentioned that all those articles were wrapped in brown papers and were duly sealed, but there is no evidence as to when they were wrapped and sealed. The non-sealing of the articles immediately after the seizure in the presence of the panchas is bound to affect the probative value of the findings of the Chemical Analyser.” This was reiterated by another Division Bench of this Court in State of Maharashtra V. Prabhu Barku Gade (1995 Cri. L. J. 1432) where the judgment of the Rajasthan High Court was followed. It was urged that the probative value of the recovery of the bloodstained clothes of the deceased would be substantially diluted if not obliterated as a result of 12 the failure of the investigating officer to seal them. In Khet Singh vs Union of India, (2002) 4 SCC 380, the law on the subject was revisited by the Supreme Court and the following principles have been enunciated: “Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” In the present case, the defence has been unable to establish any prejudice, much less a serious prejudice as enunciated by the Supreme Court in Khet Singh's case. There is no material on the record to indicate the possibility or likelihood of the evidence collected to have been tampered with or interpolated. No such suggestion has been put to the Investigating Officer during the course 13 of cross examination. The judgments which have been relied upon by the Counsel for the Appellant must now be read in conjunction with the principle laid down by the Supreme Court in Khet Singh's case (supra). No prejudice is established or shown. 7. The issue that merits consideration then is as to whether the circumstantial evidence on the record is sufficient to bring home the guilt of the Appellant beyond reasonable doubt. It is well settled that in a case which rests on circumstantial evidence the prosecution must establish all the necessary links in the case and the evidence must be consistent only with the guilt of the accused. The first aspect of the case that merits attention is the evidence of P.W. 4 Charles Pillai and his spouse Pramila Pillai, P.W. 7. They are witnesses to what had happened on the night of 3rd May, 2002. P.W. 4, it must be noted was declared hostile but the law does not mandate that the entirety of his testimony should be discarded. P.W. 4 deposed that he knew the Appellant whose wife Sakhubai was working with him and P.W. 7 as their maid. Sakhubai was addicted to liquor. 14 Whenever she consumed liquor, she would sleep in the parking space of the apartment belonging to P.W. 4 and P.W. 7 out of fear for the Appellant. The flat adjoining the home of P.W. 4 and 7 was empty and the keys to the flat had been kept by a builder with P.W. 4 with a view to show the flat to prospective customers. On 3rd May, 2002 when he returned between 9 and 9.30 p.m., P.W. 4 was informed by P.W. 7 that Sakhubai had consumed liquor and had slept in the adjoining flat. The Appellant was sitting behind the compound wall. P.W. 4 deposed that he called the Appellant and informed him that his wife had consumed alcohol and was sleeping in the adjoining flat. Thereafter the Appellant took Sakhubai away with him. To the same effect is the deposition of P.W. 7, Pramila Pillai who stated that at about 9.00 p.m. the accused was called to her house and was told to take Sakhubai away with him. The Appellant was last seen by P.W. 4 and P.W. 7 when he left their flat at about 9.00 p.m. on 3rd May, 2002. The body of Sakhubai was found the next morning at 8.30 a.m. The only person who could have furnished a cogent explanation of what transpired in the meantime after Sakhubai left the house of P.W. 4 15 and P.W. 7 is furnished by the Appellant. P.W. 4 deposed that at about 8 or 8.30 a.m. on 4th May, 2002 the Appellant met him when he came to the flat along with his son and told him that his wife had run away as usual. P.W. 7 stated that on the morning of 4th May, 2002 when the Appellant came to the flat, he requested her for breakfast and upon being questioned about where Sakhubai was, the Appellant replied that she had gone to visit her sister. Thereafter, as P.W. 4 deposed, the Appellant shifted to Nanapeth on 5th May, 2002 together with his belongings and articles and left the place where he had originally resided. No suggestion was made in the cross-examination to P.W.8 Devidas who resided at village Dhanori together with his sister to the effect that Sakhubai had visited him or the sister. In fact, it would appear that when confronted with a question about the whereabouts of his wife the Appellant chose to give inconsistent explanations to P.W. 4 and P.W.7. 8. Apart from this aspect of the circumstantial evidence the prosecution established at the trial that on a statement made by the 16 Appellant the Investigating Officer, P.W. 9 was led together with the panchas to a place where the Appellant had hidden the blood stained clothes worn by him. The Appellant led the police and the panch witnesses to a shed situated in front of Amit Apartments at Kondwa and took out a plastic bag containing the clothes which were kept beneath the tin sheets. P.W. 9 deposed that there were bloodstains on the sleeves of the shirt and on the pant. The Panchanama was proved in evidence and marked as Exhibit 24. Articles 12 and 13 were the clothes worn by the Appellant. All the seized articles were forwarded to the Chemical Analyser in a sealed condition. The blood on the shirt was found to be of blood group A while the blood group for the stains on the trouser was inconclusive. The trouser was stained with blood at places and the report of the Chemical Analyser was that it appeared to have been washed. In his statement under Section 313 the Appellant totally denied the recovery of his clothes. There was therefore no explanation by the Appellant of the circumstances in which the bloodstains had appeared on his shirt and the trouser. 17 9. Insofar as the aspect of motive is concerned P.W. 8 Devidas who was the brother of the deceased deposed that about one month prior to the date of the incident the Appellant and Sakhubai had come to his village and prior to the visit a quarrel had taken place between them. Sakhubai was addicted to liquor and used to go to drink liquor even together with strangers. There used to be frequent quarrels between the accused and the victim and P.W. 8 deposed that both of them had quarreled when they had come to his house. P.W. 8 deposed that at that time the Appellant had brought a sickle along with him and threatened the deceased that he would finish her “very soon”. Thereafter P.W. 8 persuaded both of them to go back to their home. During the course of the cross examination of the witness a question was asked to him as to whether he had lodged a complaint following the threat administered by the Appellant, but P.W. 8 answered in the negative. It was most unnatural to expect that P.W. 8 should lodge a complaint on a quarrel between his sister and her husband. The evidence of P.W. 8, as indeed the evidence of P.W. 4 18 and 7, shows that Sakhubai was addicted to liquor. P.W. 4 in fact deposed that when she consumed liquor Sakhubai would not go back to her matrimonial home but would sleep in the parking space because of the fear of the Appellant. The night of May 3, 2002 was no exception insofar as he consumption of liquor by Sakhubai was concerned. The prosecution has established a motive on the part of the Appellant. 10. The medical evidence shows that Sakhubai was done to death by a heavy, hard and blunt object. The severity of the injuries is evident from the fact that her head and face were crushed; all the bones of the Cranium were crushed along with the corresponding soft tissue. The brain was lacerated at many places and the base of the skull was fractured. The circumstantial evidence relied upon by the prosecution provides all the necessary links which bring home the guilt of the Appellant beyond reasonable doubt. The subsequent conduct of the Appellant in furnishing a false explanation in regard to the whereabouts of his wife immediately after the crime and in shifting his place of residence in order to conceal his identity lend support to 19 the case of the prosecution. The Appellant failed to lodge any missing report in regard to the absence of his wife. The fact that in his statement under Section 313 of the Cr. P.C., he furnished no explanation of what happened when he left the Pillai home on the night of 3rd May 2002 with his wife furnishes an additional piece of supporting material. That was a fact which was peculiarly within his own knowledge. The cumulative effect of the circumstantial evidence is to establish the guilt of the Appellant beyond reasonable doubt. 11. In these circumstances, the judgment of the Additional Sessions Judge convicting the Appellant of an offence under Section 302 of the Penal Code and sentencing him to imprisonment for life is correct. There is no merit in the Appeal. The Appeal shall accordingly stand dismissed. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J. 20