Case: Pankaj @ Pawan Sureshrao Solanke (Deshmukh) Vs. State of Maharashtra

In short, the facts leading to the institution of the Appeal can be stated as follows :The deceased Vijay Pande was the husband of Smt.Mangala. Their marriage took place in the year 1998. After marriage, they cohabited at various places like Shegaon, Aagra, Jalgaon etc. In the year 1999, a daughter was born to Mangala out of this marriage. In the year 2003, they finally shifted to Shegaon, District Buldana and they started living there as a tenant in the house of Gram Sevak Vijay Adham.3.Accused Pankaj @ Pawan used to visit house of deceased at Jalgaon and other places where Mangala was living with the deceased. Accused remained in contact with the deceased even after shifting of deceased finally to Shegaon. Deceased used to say to Mangala that he was in the business of selling mats. Mangala knew that the deceased, accused and one Waman Shinde were thieves.4.On 12/12/2003, at about 3.45 p.m. deceased and accused left house of deceased from Shegaon. While leaving, the deceased informed to Mangala that they were going out of station and they would return at about 12 Noon of the next day. On 13/12/03, the accused alone came to the house of deceased at about 10.30 a.m. Accused informed to Mangala that 2 persons had committed murder of Vijay at Jalgaon. Mangala informed about this incident to parents and to other relatives. She collected some amount from her landlord by giving reason that her father was sick and she left with accused. Accused took Mangala and her daughter towards Jalgaon and on the way, they alighted at village Khedi from the bus. From there, accused took Mangala to a field situated by the side of a stream which is known as Khedi Nala. Accused showed a heap of stems of Jawar which was present in the field and he informed to Mangala that he had kept the dead body of deceased in that heap in concealed condition. Accused advised Mangala not to go near the heap to see dead body as there was possibility of taking suspicion against accused and Mangala in respect of the murder. From there, they went to Jalgaon. In Jalgaon, Mangala attempted to approach one Advocate Shri Naik at Jalgaon but the Advocate was not available.5.In Jalgaon, accused informed to Mangala that on the precious night he and deceased had visited the house of Ishwar Patil who was previous landlord of deceased at Jalgaon. Mangala made a phone call to Ishwar Patil to confirm as to whether deceased had visited his house and Ishwar Patil informed that the deceased had visited the house on the previous night. When Mangala and the accused were at railway station, Jalgaon, brother in law of Ishwar Patil came there and he took Mangala to the house of Ishwar Patil. Mother and brother of Mangala also came there. Mangala stayed in the house of Ishwar Patil on the night between 13th and 14th December 2003. She left for Jalgaon railway station in the morning of 14th December 2003 and she saw accused on the platform of the railway station. On the platform, in the presence of mother and brother of Mangala, the accused narrated the remaining part of the incident. He informed that at Bhusawal, 2 persons had met the deceased and they were insisting the deceased that deceased should come with them for committing theft. Accused informed that when they reached Jalgaon, they together went to the field from Khedi. He informed that after reaching the field, the 2 persons asked him to leave the field and due to the threats given by them, he left their company. Accused informed that though he left the company of deceased and accused, he kept watch on them from distance and he noticed that these 2 persons killed deceased and they went away. Accused further informed that he then removed the clothes of deceased and concealed the dead body in the heap of stems of Jawar.6.From Jalgaon, Mangala and accused returned to Shegaon on 14/12/03. On the same day, accused left the company of Mangala. On 15/12/03, Mangala shifted all her household articles from Shegaon to Amarawati, as she wanted to stay with her brother.7.P.S.I. Khairnar who was attached to M.I.D.C. Police station, took over the investigation of the case. On 14/12/03, he prepared inquest panchanama of the dead body in the presence of panch witness. Nobody was available to identify the deceased person. Police flashed the news in news paper about the finding of dead body. Panchanama of spot of offence was prepared by police. Some blood was found at the distance of about 25 ft. from the heap of stems. Police took earth sample mixed with blood from that place. The dead body came to be referred for post mortem examination. The doctor who conducted post mortem examination gave opinion that the death had taken place due to injuries found on the head. Viscera was preserved and in due course it was forwarded to Chemical Analyser.9.On 18/12/03, Mangala approached police and she informed about the incident. Her statement came to be recorded. Then police recorded the statements of other persons who were named by Mangala as witnesses. Mangala identified the dead body on the basis of photograph shown to her by police. Mangala expressed suspicion against accused. Police also suspected the accused as the deceased was last seen alive by Mangala in the company of accused on 12th December 2003 and thereafter, Mangala had not seen her husband alive.10. The accused was absconding for some time. In January 2004, police took one Ganajan Thakur in custody as during investigation of other crime by Nandura police (Buldana District), this person admitted his involvement in the murder of the deceased. Two more persons like Ratan and Rashid who were also arrested by Nandura police made similarly disclosures and so they also came to be arrested in the present case. They were arrested by Nandura police for offences punishable under Sections 392 and 458 of I.P.C. They were taken in custody by MIDC Jalgaon police after obtaining transfer warrant from concerned J.M.F.C. The accused came to be arrested by Shegaon police (Dist.Buldana) for similar offences subsequently and transfer warrant was obtained in respect of present accused also. The accused came to be arrested in the present crime on 12/2/04 and police custody remand came to be obtained.11. On 13/12/04, while in police custody, in the presence of panch witnesses, the accused gave statement to Khairnar, P.S.I. that the clothes of the deceased were concealed by him by side of Khedi Nala. Khairnar prepared memorandum of statement of the accused in the presence of panch witness. Accused then took police and panchas to the spot and he produced few clothes and shoes of the deceased which were kept underneath a big stone. The accused also showed belt of wrist watch of the deceased which was lying in the vicinity of this spot. Both these spots are situated in the vicinity of heap of Jawar stems where the dead body was concealed. Police arranged for taking photographs of this incident of discovery. These articles came to be seized under panchanama.12. The aforesaid articles came to be shown to Mangala and she identified the articles as the articles of deceased. Supplementary statement of Mangala came to be recorded. These articles came to be forwarded to C.A. office. Blood of deceased also came to be forwarded to C.A. office alongwith viscera. Blood of group "B" was detected on the belt of wrist watch recovered by police. The deceased was having the same blood group. Khairnar collected post mortem report and after completion of the investigation, Khairnar filed charge sheet against appellant accused for aforesaid offences in the Court of C.J.M. Jalgaon. Report under Section 169 of Cr.P.C. came to be filed in respect of other 3 persons who were arrested during the course of investigation.13. The case against the present appellant came to be committed to the Court of Sessions. Additional Sessions Judge framed the charge for aforesaid offences. The accused pleaded not guilty. The prosecution examined in all 4 witnesses like Mangala, the panch witness on the discovery of clothes and belt of wrist watch, a doctor who conducted post mortem examination and investigating officer Shri Khairnar. Statement of the accused came to be recorded under Section 313 of Cr.P.C. The accused took defence of total denial. No defence evidence is given by the accused.14. The trial Court has held accused guilty for both the offences on the basis of the evidence of discovery of the articles of deceased which was made on the basis of statement given by accused under Section 27 of Evidence Act. The conduct of the accused is also taken into consideration on the basis of evidence given by Mangala. The trial Court has further held that the accused had virtually confessed the crime to Mangala by taking her to the spot of offence and by showing her the place where dead body was concealed.

Reasoning:
21. In cross examination, Mangala has admitted that her husband never used to tell her where he was going. According to her, this was true in respect of the last occasion also. She has admitted that she cannot say as to whether the accused had remained in the company of deceased after the bus stop of Shegaon. This shows that she is not certain as to whether the accused was in the company of deceased throughout. She has admitted in the cross examination that her husband always used to roam from one station to other. In the chief examination itself, she had admitted that on 13/12/03, after visiting Khed, she had contacted Ishwar Patil on phone and Ishwar Patil had informed that the deceased alone had come to his house on the previous night. In view of these circumstances, it was necessary for prosecution to examine Ishwar Patil. No explanation is given in respect of this lacuna. If on the night between 12th and 13th, deceased was seen alone in the house of Ishwar Patil, this circumstance breaks the chain of circumstances. It was necessary for prosecution to establish that after 3.45 p.m. on 12/12/03, nobody had seen deceased alive. It was also open for prosecution to show that even after 3.45 p.m. deceased was seen in the company of accused. This evidence of Mangala and aforesaid lacuna have made case of prosecution doubtful. It is needless to say that the circumstance of last seen must be shown to be in proximity to the time and place. The aforesaid evidence and the medical evidence do not satisfy this test.22. Mangala has deposed that right from 10.30 a.m. of 13/12/03, till the night of 13/12/03, she was in the company of accused and she went to other stations with accused. As per the evidence of Mangala, Ishwar Patil had opportunity to see accused in the company of Mangala on that day. In view of this evidence also it was necessary for prosecution to examine Ishwar Patil. Such evidence could have given corroboration to the version of Mangala.23. The defence has admitted report which was given by Pralhad the owner of field from Khedi. It is not disputed that the dead body was found after 10 a.m. on 14th and it was in naked condition. In view of this circumstance, it was easy for Mangala and police to create story given by Mangala in the Court. The conduct of Mangala of not attempting to see the dead body of her husband, not approaching police after learning about the murder, going with the accused to Jalgaon and to other places and shifting household articles from Shegaon to Amravati on 15/12/03, creates doubt about her story. The conduct was not at all natural and due to aforesaid circumstances, she does not appear to be a trustworthy witness. In such serious case, the evidence of a witness like Mangala cannot be used to base conviction.24. Remaining part of prosecution case also does not appear to be probable in nature. If the accused had disclosed to Mangala that on the spot of the offence, he had removed the clothes and other articles of the deceased and he had concealed the dead body in heap of stems of Jawar, in the ordinary course, Mangala must have asked the accused about these articles. It can be said that Mangala could have given information to police about these articles prior to the arrest of the accused. Khairnar (P.W.4) has deposed that Nandura Police had seized weapon Tommy from the accused when Nandura police station was making investigation of C.R.No.117/04. If during investigation of other crime, some information was given regarding the weapon of the present case, in ordinary course, other information would have been collected by police. Prosecution has not given evidence on the discovery of Tommy at the instance of accused in the present case by saying that no blood was detected on that weapon. Further, if the weapon was recovered from different place, there was no reason for culprit to keep the clothes near the place of the offence. The evidence on the spot panchanama shows that police had searched the place in the vicinity as heap of stems of Jawar and police had noticed some blood stains at the distance of 25 ft from that spot. It can be said that during the preparation of the spot panchanama, police must have searched the vicinity of the spot to trace out other articles as the dead body was in naked condition. In view of these circumstances, the case of prosecution that only after arrest of the accused, the clothes came to be recovered, does not appear to be probable in nature.25. Pitroda (P.W.2) a panch witness on the discovery of the articles has given evidence that on 13/2/04, accused gave statement to police and showed willingness to produce clothes, shoes, wrist watch and belt of the deceased. At Exh.25 there is a memorandum of the statement of the accused. The panch witness has deposed that he also acted as a photographer and he took photographs of the incident of discovery. He has deposed that after recording statement, they went to Khedi village and from there, the accused produced clothes and shoes which were found to be kept beneath a stone. The panch witness has given evidence that the accused also showed a place where belt of the wrist watch was lying and the place where the dead body was concealed. It is already observed that all these places are situated near the place where the dead body was found. The panchanama also shows the same thing. Exh. 33 shows that 3 shirts were recovered. This circumstance is not consistent with the case of the prosecution that the accused had removed the clothes from the person of the deceased and these clothes were concealed. There is no explanation from Mangala on the circumstance.26. The cross examination of the panch witness shows that he is a stock witness of police. There is one more circumstance, like the absence of wrist watch with the belt. The wrist watch of the deceased is described by Mangala but the wrist watch is not traced. Only belt of the wrist watch was sent to C.A. and blood was found on this belt. This belt was lying in open condition as per the evidence of spot panchanama and it was near the place where dead body was found. The clothes were not sent to the C.A. and no reason is given for the same. Blood of group "B" was detected on the belt of wrist watch and the deceased was having similar blood group as per the case of the prosecution. In view of these circumstances, and discrepancies, it is not possible to rely on the evidence ofstatement given by accused to police anddiscovery of aforesaid articles made on the basis of the statement of accused.The evidence of investigating officer and the police papers which include remand reports show that 3 more persons were arrested as suspects by police. This circumstance shows that either police believed in the story given by Mangala that some persons had taken away the deceased with them and they had committed the murder of husband of Mangala or police did not believe Mangala and they were in search of real culprits. This circumstance also creates doubt about the story given by Mangala.28. It is already observed that it was necessary for prosecution to examine the landlord from Shegaon and the landlord from Jalgaon. In absence of the evidence of these 2 persons, the evidence of Mangala has become very weak and it is highly doubtful in nature. From such evidence, inference cannot be drawn that only the accused had the opportunity to finish deceased. It is already observed that there is no convincing evidence on motive. When case rests on circumstantial evidence, motive becomes one link in the chain of circumstances. Such link is missing in the present case.29. The defence has admitted post mortem report. The cause of death is recorded as "Coma due to head injury". The dead body was found on 14/12/03 but p.m. was conducted on 15/12/03 between 11.30 a.m. and 1.30 p.m. There is a mention about rigarmortis and decomposition. The doctor who conducted post mortem examination has however, not given approximate time of the death. In such a case, it is always necessary to fix approximate time of death and so it is again one more lacuna in the case of the prosecution. The medical evidence and the C.A. report in respect of viscera shows that substantial quantity of alcohol was detected in the viscera. No investigation was made by police to find out as to where and when liquor was consumed by deceased. This is again a lacuna in the case of prosecution and it creates more doubt about the case of the prosecution.30. Even if the story given by Mangala is believed, thedisclosure of accused does not lead to only one inference of guilt. If the conduct or action of accused is open to two constructions like the accused saw the murder committed by others or he is guilty of murder, the Court cannot assume that the action of accused was criminal. In any case, from the aforesaid circumstances, the Court can come to only one conclusion that the testimony of Mangala (P.W.1) is tainted to the core and it needs to be discarded. In view of the possibility that Ishwar Patil had seen the deceased alone at Jalgaon in his house on the night between 12th and 13th December 2003, the circumstance that the deceased was seen alive in the company of accused at 3.45 p.m. on 12th December, 2003, ceased to be a circumstance of incriminating character. Due to all these circumstances, and lacunae, this Court has no alternative than to hold that the accused is entitled to benefit of doubt. The aforesaid circumstances are not considered in proper perspective by the trial Court and that is why the trial Court has come to other conclusion. The judgment and order of the trial Court needs to be set aside.