Case: Shivnarayan Shamlal Kahar @ Gauda Vs. State of Maharashtra

hostile. In the cross-examination the prosecution has elicited that on 23/5/1999 at 6 a.m. when P.W. 13 woke up, Shivnarayan was sleeping by his side. P.W. 13 has denied having stated before the police that Shivnarayan suddenly got up in the morning and told him that we have to leave for village. He has further stated before the Court that he was detained for two days at the police station. After his brother was taken away, he was released by the police.17. P.W.14 Murlidhar Bhoj was attached as PSI to Borivali Police Station. On 23/5/1999 at about 9.15 a.m. M. Chelladurai had come to the police station and lodged the report that on the east side of Chandrakant Marble Company a dead body of a lady was found in the marble. P.W. 14 recorded the complaint and registered crime No.187/99 under Section 302 and Section 376 of Indian Penal Code. He has admitted in the cross-examination that he left Borivali Station at about 10.05 a.m. and reached the scene of offence at 10.15 a.m. He had drawn the panchanama at 10.20 a.m. Kadappa stone was removed with the help of police constables and workers. It is pertinent to note that he had not seen any blood stains on the Kadappa stone and therefore he had not seized the Kadappa stone.18. P.W. 15 Vasantrao Jadhav is the investigating officer of the said crime. He has deposed before the Court that he had prepared the panchanama of the nearest hut from the Marble company and the hut belongs to deceased Laxmi. From the hut he had seized one album of different photographs. He has identified the album in the court. He has also seized one copy of ration card and a blue packet containing photograph of the deceased. He had also recovered one condom, under garments, salwar, kurta, one piece of earing, blue colour bed sheet. On the next day on the basis of reliable information, he had nabbed the accused who according to him was to flee from Mumbai. P.W. 15 had filed charge-sheet against the accused. In the cross-examination P.W. 15 has stated that there were blood-stains on the Kadappa stone but he had not collected the blood samples. There were blood-stains on the ground. However, he had not taken the mud sample. This version is contradictory to the version of P.W. 14. P.W. 15 has further stated that the distance between the hut of deceased and the place where the body was lying is about 100 ft. There is a small way for access from the hut to the marble company. There were blood stains on the ground in the hut. There was a liquor bottle in the hut. The hut is made up of a plastic sheet. The door was open and anyone could have access. Upon enquiry P.W. 2 had disclosed to P.W. 15 that one Gotya Seth was the owner of that hut. P.W. 15 had feigned ignorance about Gotyasheth. It is pertinent to note that according to P.W. 15, the clothes which were seized under the panchanama were sent for chemical analysis after 5 to 6 days and during that period they were lying in the police station. P.W. 15 has further stated that the dead body was handed over to the husband of the deceased on 25/5/1999.19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in the south-east corner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticed blood-stains in the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, the blood-stains, liquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. It is a case of circumstantial evidence. It is incumbent upon the prosecution to prove every incriminating circumstance against the accused to the hilt. It is also incumbent upon the prosecution to establish the link in the chain of evidence to eliminate any and every possibility of the innocence of the accused. In the present case, the prosecution has proved the following circumstances :(i) That Shivnarayan and his brother were residing in Chandrakant Marbles Company;(ii) Shivnarayan was working as a labour in the said company.(iii) On 23/5/1999 the accused had left the premises of the company and was apprehended by the police from the house of his cousin.(iv) That the deceased Laxmi is the wife of Laxman Acche.(v) That she was residing at a distance of 100 ft. from the company.(vi) That she had been ravished and died a homicidal death.(vii) The dead body was found in thecorner of Chandrakant Marble Company.(viii) According to investigating officer he had conducted a detail enquiry and in the course of enquiry he had noticedin the hut as also liquor bottle in the hut. The investigating officer had seized ration card and photographs of the deceased.20. The prosecution has failed to establish the scene of offence. Although the dead body was found in the Chandrakant Marble Company, theliquor bottle and a packet of condom were seized from the hut of the deceased. Upon perusal of evidence it appears that in fact no incident had taken place in the hut and therefore, the prosecution has failed to establish as to where exactly the incident had occurred. The prosecution is unable to answer as to where the act of ravishing or causing the death had occurred in the premises of the company or the hut. The fact that the accused was handcuffed would again create the doubt in respect of recovery of the ornaments which were seized. In fact, the police had found the articles of its own and there was no memorandum to that effect. Hence, the evidence in respect of recovery of incriminating articles cannot be considered in the absence of substantive evidence to that effect. The accused was arrested from the house of his cousin. There is nothing on record to indicate that the accused was ever seen in the company of the deceased. Much less to say that he was seen with the deceased in close proximity to the incident. The only circumstance is the act of the accused leaving the company in the morning. The said circumstance by itself is not sufficient to prove the guilt of the accused beyond reasonable doubt and hence, the accused is entitled to benefit of doubt.