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CASE NO.: Appeal (crl.)  372 of 2006

PETITIONER: Shantabai & Ors

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 03/03/2008

BENCH: P. P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 372 OF 2006

Lokeshwar Singh Panta, J.

1.      The appellants Shantabai (A-1), Sajan (A-2) and Govind  (A-3) have filed this appeal against the judgment and order  dated 27.06.2005 passed by the Division Bench of the High  Court of Judicature at Bombay, Bench at Aurangabad, in  Criminal Appeal No.58 of 1995 confirming the conviction and  sentence for life in respect of the offence punishable under  Section 302 of the Indian Penal Code read with Section 34 of  the Indian Penal Code [for short "the IPC"] and a fine of Rs.  2,000/- each with default clause to undergo R.I. for six  months awarded by the learned Additional Sessions Judge,  Biloli, in Sessions Case No. 160/1993. 2.      In all five accused persons were tried by the learned  Additional Sessions Judge, Biloli, under Sections 147, 148  and 302, IPC, read with Section 149, IPC.  A-1, A-2 and A-3  were found guilty of the murder of Gunwant Nivrati Dhumale,  while Venkar (A-4) and Anshabai (A-5) were acquitted of the  charges framed against them. 3.      Briefly stated, the case of the prosecution against the  accused persons was that A-1, A-2 and A-3 are residents of  village Loni and A-4 and A-5 are residents of village Shilvani.   A-1 is the wife of A-2 and A-3 is their son.  A-5 is daughter of  A-1 and A-2 and A-4 is the husband of A-5.  Gunwant Nivrati  Dhumale was the brother of complainant Tanaji Nivrati  Dhumale.  Gunwant Nivrati Dhumale had been living with his  brothers, namely, Tanaji (PW-1); Shivaji; his parents; his wife  Mathurabai (PW-4), and two daughters and one son.  The  prosecution alleged that Gunwant had illicit relations with A-1  since last so many years and this fact was known to all the  village people.  Gunwant occasionally used to reside in the  house of A-1, A-2 and A-3.  A-1 requested Gunwant to stop  visiting her house because her daughter (A-5) has now been  married to Venkar (A-4) and her son (A-3) has also become  major, but Gunwant continued to visit the house of A-1. 4.      On the day of the incident, i.e. on 14.08.1993, Gunwant  left his house in the morning and did not return till late  evening.  Mathurabai (PW-4), wife of Gunwant, informed her  parents-in-law about this fact.  They asked PW-1 to make  search for Gunwant.  PW-1 made inquiry about his brother’s  whereabouts from Namdev (PW-5) at about 6.00 p.m., who at  the relevant time was working as a servant in Flour Mill near

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the bus stand.  PW-5 informed PW-1 that he saw A-1, A-2 and  A-3 along with A-5 hurriedly going towards the Bus Stand.   Thereafter, PW-1 and some other village people went to the  house of A-1.  They found the doors of the house lying open  and the house was empty. They noticed the dead body of  Gunwant lying just in the compound of the house of A-1, A-2  and A-3.  On visual examination of the dead body of Gunwant,  PW-1 and other village people noticed head injury and many  other injuries on various parts of his body.  On 15.08.1993,  PW-1 lodged the report on the basis of which first information  report (Ext.38) was registered by the Police Head Constable,  Ganesh (PW-10) naming A-1, A-2, A-3, A-4 and A-5, as  culprits for the murder of Gunwant. 5.      The Head Constable (PW-10), on the next day of  occurrence, went to the spot of the incident and collected  stones, axe and soil, etc. from the spot vide Spot Panchnama  (Ext.44).  He also prepared inquest report of dead body of  Gunwant (Ext.43).  The dead body of Gunwant was sent for  post mortem examination to Primary Health Centre, Hanegaon.   PW-2, Dr. Hanumant, conducted autopsy on the dead body of  Gunwant.  He noticed about 13 injuries on his dead body.  All  the injuries were ante-mortem.  The post mortem report placed  on record is marked as Ext.41.  In the opinion of the Doctor,  the death of Gunwant occurred because of shock due to cardio  respiratory failure, caused by injury to brain and brain  hemorrhage.  PW-10 seized the blood-stained clothes of the  deceased.  He handed over further investigation to PSI Mirza  Rahematulla Baig (PW-11).  PW-11 recorded supplementary  statements of PW-1 and other witnesses.  He made search of  the accused persons in and around village Loni, but they  could not be located.  On 17.08.1993, he arrested A-1, A-2  and A-3 near village Degloor.  On 18.08.1993, he arrested A-4  and A-5 at Markhei.  On 31.08.1993, he recorded statements  of Hariba (PW-6) and Eknath (PW-7).  On 22.08.1993, A-1,  while in police custody, made statement (Ext.63) on the basis  of which she recovered her clothes and clothes of her husband  and son from her house, which were taken into possession  vide Panchnama (Ext.64).  On 29.08.1993, five prosecution  witnesses were produced before Shri Nivrati (PW-13), the  Special Judicial Magistrate, for recording their statements  under Section 164 of the Code of Criminal Procedure (for short  ’Cr.P.C.).  The clothes of A-1, A-2 and A-3 and the deceased  and other articles found on the spot were sent to the Chemical  Analyser.  The report of the Chemical Analyser (Ext.70) reveals  that ethyl alcohol was detected in the viscera contents of the  deceased.  The Chemical Analyser’s report (Ext.72) reveals that  human blood was detected on the clothes worn by the  deceased and the clothes worn by A-1, A-2 and A-3.   6.        After completion of the investigation and after receipt of  the post mortem report and reports of the Chemical Analyser,  charge sheet was filed against A-1, A-2, A-3, A-4 and A-5 for  the commission of the crime.  The learned Judicial Magistrate  committed the trial to the learned Additional Sessions Judge,  who framed the charges against them for the offence under  Sections 147, 148 and 302, IPC, read with Section 149, IPC.   The prosecution examined as many as 13 witnesses in support  of its case.  In their statements recorded under Section 313 of  Cr.P.C., all the accused persons denied their involvement in  the crime and pleaded false implication on suspicion.   7.      The case of the prosecution rests on circumstantial  evidence. The prosecution relied upon the following  circumstances: (i) Illicit relations of the deceased Gunwant with  Smt. Shantabai (A-1) since last 10 to 15 years;

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(ii) The dead body of Gunwant was found in the  courtyard of the house of A-1, A-2 and A-3 at  village Loni;

(iii) A-1, A-2 and A-3 were not found present at  their house on 14.08.1993, the day of  occurrence, when PW-1 along with other  villagers went to their house in search of  Gunwant;

(iv) PW-5, Namdev, had seen A-1, A-2, A-3, A-4  and A-5 going towards the Bus Stand on the  evening of 14.08.1993;

(v) Medical evidence;

(vi) Recovery of the clothes of A-1, A-2 and A-3  from their house; and

(vii) The clothes of A-1, A-2 and A-3 recovered  by the Police at the instance of A-1 from their  house, were found blood-stained of human  blood of Group ’O’ in the Chemical Analyser’s  report (Ext.71).    

8.        The Trial Court, on appreciation of evidence, held A-1,  A-2 and A-3 guilty of the offence, therefore, they are convicted  and sentenced as aforesaid, for the offence under Section 302,  IPC, read with Section 34, IPC.  However, on the same set of  evidence A-4 and A-5 have been acquitted of the charges.   Being aggrieved, A-1, A-2 and A-3 preferred an appeal under  Section 374(2) of Cr.P.C. before the High Court and the High  Court as stated above, confirmed the conviction and sentence  imposed upon them by the Trial Court.  Hence, A-1, A-2 and  A-3 have filed this appeal by special leave. 9.        Mr. Sudhanshu S. Choudhari, learned counsel  appearing on behalf of A-1, A-2 and A-3, assailed the  judgment of the High Court inter alia contending:    (i)     that there was no direct evidence against the  appellants and the Trial Court as well as the High  Court have committed gross error in convicting  the appellants on the basis of highly  unbelievable, insufficient and unconvincing  evidence led by the prosecution; (ii)    that there is not an iota of evidence on record to  prove that on the day of occurrence, Gunwant  had visited the house of A-1, A-2 and A-3 nor the  prosecution has proved beyond reasonable doubt  that A-1 had illicit relations with the deceased  Gunwant for the last 10 to 15 years; (iii)   that no motive whatsoever has been proved by  the prosecution from the evidence on record  against A-1, A-2 and A-3; and (iv)    that the findings of both the courts below that no  explanation has been given by A-1, A-2 and A-3  in regard to their absence from their house on  the day of incident when PW-1 and other villagers  found the dead body of Gunwant in the courtyard  of their house, are based upon surmises and  conjectures which cannot be taken as  incriminating circumstance holding A-1, A-2 and  A-3 guilty of the murder of Gunwant.    10.       Mr. Manish Pitale, learned counsel for the respondent- State, on the other hand, submitted that the reasons given by  the Trial Court as well as by the High Court for recording the

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order of conviction of the appellants are based upon proper  appreciation of evidence led by the prosecution in the case.   According to him, the evidence of Namdev (PW-5) that on the  day of the occurrence he saw the accused hurriedly going to  the Bus Stand and thereafter they were not found in their  house where the dead body of Gunwant was lying, would  suggest that the appellants had left their house after having  committed the murder of Gunwant.  He submitted that the  evidence of the prosecution witnesses is cogent, clear and  satisfactory with the hypothesis of the guilt of the appellants  and this Court shall be slow to interfere in the well-reasoned  and well-merited judgments of the courts below. 11.        Before adverting to the arguments advanced by the  learned counsel, we shall at the threshold point out that in the  present case there is no direct evidence to connect A-1, A-2  and A-3 with the commission of the offence and the  prosecution rests its case solely on circumstantial evidence.   This Court in a series of decisions has consistently held that  when a case rests upon circumstantial evidence, such  evidence must satisfy the following tests:- (i)     the circumstances from which an inference of guilt  is sought to be drawn, must be cogently and firmly  established; (ii)    those circumstances should be of definite tendency  unerringly pointing towards guilt of the accused; (iii)   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 (iv)    the circumstantial evidence in order to sustain  conviction must be complete and incapable of  explanation of any other hypothesis than that of the  guilt 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  Gambhir v. State of Maharashtra (1982) 2 SCC  351 : (AIR 1982 SC 1157)]  See also Rama Nand v. State of Himachal  Pradesh (1981) 1 SCC 511 : (AIR 1981 SC 738),  Prem Thakur v. State of Punjab, (1982) 3 SCC  462 : (AIR 1983 SC 61), Earabhadrappa v. State  of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC  446), Gian Singh v. State of Punjab, 1986 Suppl.  SCC 676 : (AIR 1987 SC 1921),  Balvinder Singh v.  State of Punjab (1987) 1 SCC 1 : (AIR 1987 SC  350).   12.      As far back as in 1952 in Hanumant Govind  Nargundkar v. State of M.P. [AIR 1952 SC 3443], it was  observed thus: "It is well to remember 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 the facts so established should  be consistent only with the hypothesis of the guilt of  the accused.  Again, the circumstances should be of  a conclusive nature and tendency and they should  be such as to exclude every hypothesis but the one  proposed to be proved.  In other words, there must  be a chain of evidence so far complete as not to  leave any reasonable ground for a conclusion  consistent with the innocence of the accused and it  must be such as to show that within all human  probability the act must have been done by the

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accused."

13.     A reference may be made to a later decision in Sharad  Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC  116 : (AIR 1984 SC 1622).  Therein, while dealing with  circumstantial evidence, it has been held that the onus was on  the prosecution to prove that the chain is complete and the  infirmity of lacuna in prosecution cannot be cured by false  defence or plea.  The conditions precedent in the words of this  Court, before conviction could be based on circumstantial  evidence, must be fully established.  They are (SCC pp. 185,  para 153) : (i)     the circumstances from which the conclusion of  guilt is to be drawn should be fully established.  The  circumstances concerned must or should and not  may be established; (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. 14.    We may also make a reference to a decision of this Court  in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193,  wherein it has been observed thus: (SCC pp.206-207, para 21)  "21.  In a case based on circumstantial evidence,  the settled law is that the circumstances from  which the conclusion of guilt is drawn should be  fully proved and such circumstances must be  conclusive in nature.  Moreover, all the  circumstances should be complete and there  should be no gap left in the chain of evidence.   Further, the proved circumstances must be  consistent only with the hypothesis of the guilt of  the accused and totally inconsistent with his  innocence."                                15.       In Sashi Jena & Ors. v. Khadal Swain & Anr. [(2004)  4 SCC 236], this Court again reiterated the well-settled  principle of law on circumstantial evidence. 16.    Bearing the above principles of law enunciated by this  Court, we have scrutinized scrupulously and examined  carefully the circumstances appearing in this case against A-1,  A-2 and A-3. Circumstance No. I 17.       So far as the first circumstance is concerned, the  prosecution has adduced the evidence of PW-1, brother and  PW-4, wife respectively of the deceased.  Both these witnesses  have made a bald and sweeping statement that A-1 had illicit  relations with the deceased for the last about 10 to 15 years  before the day of the incident.  PW-5, a co-villager of the  deceased, stated that he heard some village people talking  about the illicit relations of the deceased with A-1.  The  evidence of PW-5 is hearsay version and it cannot be accepted  without corroboration from the person who told this fact to  PW-5.  PW-1, brother, and PW-4, wife of the deceased, have  categorically stated that the deceased was maternal uncle of

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A-1 and he occasionally used to visit the house of A-1, A-2 and  A-3.  It has come in the evidence of PW-1 that the deceased  was living in his house with his wife (PW-4) along with one son  aged about 20 to 22 years and two daughters, out of whom  one is aged about 30 years and the second is about 14 to 15  years respectively.  It is his evidence that A-5 (acquitted  accused), daughter of A-1 and A-2, was married to A-4  (acquitted accused) about 5 to 7 years prior to the day of the  incident.  A-3 is also a major son of A-1 and A-2.  The  testimony of these witnesses in regard to the illicit relations of  A-1 with the deceased for the last many years is wholly  unbelievable and unconvincing in view of the fact that A-1 has  been living with her husband (A-2), her major son (A-3) and  daughter (A-5) (acquitted) in the same village in which PW-1,  brother of the deceased, his parents and PW-4 (wife) were  residing along with her son and two daughters.  Had there  been any such illicit relations, the entire village people would  have come to know about this fact and the parents of the  deceased would have never tolerated him to do so, more so  when it has come in the evidence of these witnesses that the  deceased was maternal uncle of A-1.  The prosecution has not  examined the parents of the deceased and some other village  people in support of this circumstance.  The prosecution has  also not led any evidence to establish that on the day of  occurrence the deceased had visited the house of A-1, A-2 and  A-3.  This circumstance cannot be said to be of a conclusive  nature and tendency to prove that A-1, A-2 and A-3 had  murdered Gunwant on the day of occurrence because he  allegedly had illicit relations with A-1 for the past over many  years.  In view of this fact, it is not possible to place implicit  reliance upon the evidence of PW-1 and PW-4, the selective  and interrogated witnesses.  PW-5, PW-6 and PW-7 are  residents of the same village to which A-1, A-2 and A-3 and  the deceased do belong, but they have not uttered a word in  regard to factum of the illicit relations of the deceased with A- 1.  PW-4 has deposed that the dead body of her husband was  lying in the ’Wada’, whereas PW-1, PW-4, PW-5, PW-6, PW-7  and PW-8 stated that the dead body was placed in the open  place outside the house of the appellants. Circumstance No. II    18.       In support of the second circumstance, the prosecution  has brought on record the evidence of PW-3, who is one of the  Panchas of Spot Panchnama and Inquest Panchnama.  The  other witnesses, who saw the dead body of the deceased in the  courtyard, are PW-1, PW-4, PW-5, PW-6, PW-7 and PW-8.  The  evidence of all these witnesses would suggest that when they  went on the spot of incident, the doors of the house of A-1, A-2  and A-3 were found left open.  It has come in the evidence of  PW-1 that there is a public way on the southern side of the  house of A-1, A-2 and A-3 and there is one Wada by the  northern side of their house and the owner of the said Wada is  Ram Sawakar.  In cross-examination, he stated that there is  one open space in between the house of the appellants and  Wada of Ram Sawakar and the dead body of his brother- Gunwant was lying in open space near the Wada.  He also  stated that there are some Kirana Shops in the eastern side of  the open space of the house of A-1, A-2 and A-3.  This being  the position, it is not safe to connect A-1, A-2 and A-3 with the  commission of the death of Gunwant merely because the dead  body of the deceased was found in an open space in front of  their house, which is a public road.   Circumstances Nos. III and IV 19.       In support of the third and fourth circumstances, the  prosecution has led the evidence of PW-1 and Namdev (PW-5).   It is the version of PW-1 that in the evening on 14.08.1993, he

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along with Police Patil and other villagers went in search of his  brother-Gunwant in the village and they found the dead body  of Gunwant in front of the house of A-1, A-2 and A-3 in an  open place with multiple injuries on his body.  They found that  A-1, A-2 and A-3 were not present in their house and the  doors of their house were left open.  PW-5, who at the relevant  time was serving at the flour mill situated near the Bus Stand,  stated that at about 6.00 p.m. on the day of incident when he  came out of the flour mill and was going to toilet, he saw A-1,  A-2, A-3 and A-5 going hurriedly towards the Bus Stand.  On  the basis of this evidence, the accused persons are suspected  to be the authors of the crime who, according to the  prosecution version, had left their house after committing the  murder of Gunwant.  We are afraid to hold A-1, A-2 and A-3  guilty of the murder of Gunwant and throwing his dead body  in front of their house in the open place and then hurriedly left  their house open in order to escape their arrest and final  punishment in relation to the commission of heinous offence  of murder.  PW-5 in his deposition stated that PW-1, brother  of the deceased, came to him on the day of occurrence at  about 6.00 p.m. and enquired from him about the  whereabouts of his brother-Gunwant to which he replied that  he did not see Gunwant on the day of occurrence.  This  witness also stated that after some time PW-1 again came to  the flour mill and enquired second time from him whether he  had seen Gunwant to which he replied that he did not meet  Gunwant on that day, but he disclosed to PW-1 that he had  seen A-1, A-2, A-3 and A-5 going hurriedly towards the nearby  bus stand.  On examination of the evidence of this witness, we  have noticed that he has named A-5, who was also  accompanying A-1, A-2 and A-3 when they were going to the  bus stand on the day of occurrence.  The testimony of this  witness appears to be wholly inconsistent and unbelievable to  hold that he, in fact, had seen the appellants and A-5 going to  the bus stand in the evening of 14.08.1993.  If he had seen the  appellants along with A-5 going to bus stand, he could have  disclosed this fact to PW-1 at the earliest occasion at about  6.00 p.m. when he, for the first time, was asked by PW-1 in  regard to the whereabouts of his brother-Gunwant.  It has  come on record that there were many other employees present  in the Mill when PW-1 met PW-5 on both occasions in the  evening of 14.08.1993.  If the version of this witness has been  discarded and disbelieved by the Trial Court in regard to A-5  having accompanied the appellants when they were stated to  be going to bus stand in the evening, the same set of  reasoning will apply to A-1, A-2 and A-3 and, therefore, the  testimony of this witness is not free from doubt and he does  not appear to be a truthful witness to connect A-1, A-2 and A- 3 with the commission of the crime.  Thus, these  circumstances too have not been proved by the prosecution  beyond reasonable doubt against the appellants.

Circumstance No. V        20.       In support of the fifth circumstance, the prosecution  has examined Dr. Hanumant, who performed post mortem on  the dead body of the deceased-Gunwant on 15.08.1993.   Doctor noticed as many as 13 injuries on the body of the  deceased as described in the post mortem report (Ext. 41).   According to the opinion of the Doctor, the cause of death was  because of shock due to cardio respiratory failure caused by  injury to brain and brain hemorrhage.  The Chemical  Analyser’s report would reveal that ethyl alcohol was found in  the viscera contents of the deceased.  We may point out that  the Investigating Officer has not cared to collect the finger  prints appeared on the stones and axe, the alleged weapons of

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offence, at the time of seizure of the articles nor he had taken  the finger prints of the appellants for comparison with the  finger prints, if any, detected on the alleged weapons of  offence.  The articles collected by the Investigating Officer from  the spot were found lying in the open place which was  accessible to all and sundry.  The prosecution has not led any  evidence to prove that axe, which was the alleged weapon of  offence, found on spot in the open place belonged to A-1, A-2  and A-3.  Thus, the prosecution has not established beyond  reasonable doubt that A-1, A-2 and A-3 had used the  recovered weapons of offence in the commission of the crime.   Circumstances Nos. VI and VII  21.       In support of the sixth and seventh circumstances, the  prosecution has relied upon the evidence of PW-9, Ram  Woglaji, a panch witness of seizure panchanama of the clothes.   In his presence the Police recorded the statement of A-1 in  Police Station on 21.08.1993 disclosing the concealment of the  clothes of the accused persons in her house.  It is the evidence  of this witness that A-1, besides handing over one saree and  blouse, she also produced one dhoti and one baniyan of A-2  (her husband), one saree and one blouse of her daughter (A-5),  one lungi and one sando baniyan of A-3 (son) and one pant  and one bushirt of A-4 (her son-in-law).  The evidence of this  witness has to be discarded and straightaway rejected from  consideration simply on the ground that he is not an  independent witness, but a stock witness of the Police.  In his  cross-examination, he admitted that there are about 2 to 4  criminal cases pending against him.  He stated that there was  no door to the Madi from where the clothes were recovered at  the instance of A-1.  The Trial Court has disbelieved the  evidence of this witness to the extent of the recovery of the  clothes of A-4 and A-5 (acquitted) from the open Madi.   The  Chemical Analyser’s report (Ext.72) reveals that human blood  of Group ’B’ was detected on the clothes, which were seized by  the Police, allegedly belonging to the appellants.  The blood  group on those clothes did not tally with the blood of Group  ’O’, which was found on the clothes of the deceased and on the  sample of soil, axe, stones, handles. etc which were taken from  the spot by the Investigating Officer.  The Investigating Officer  has categorically stated that when he along with A-1 and  panch witnesses had gone in search of the clothes of the  appellants, the lock to the door of the house of the appellants  was kept with Police Patil which was opened by them later on.   In this view of the matter, the prosecution has not proved that  the clothes, which were allegedly seized by the Police at the  instance of A-1 and lying in the open place, were stained with  blood group ’O’ of the deceased found on deceased’s clothes  and on the articles which were seized by the Investigating  Officer from the place of occurrence.  These circumstances are  not proved by the prosecution by lending cogent, satisfactory  and convincing evidence to hold A-1, A-2 and A-3 guilty of the  offence.     

22.       In view of the foregoing discussions, we are of the view  that the prosecution has failed to complete the chain of  circumstances holding A-1, A-2 and A-3 guilty of the crime  beyond reasonable doubt and the High Court was not justified  in upholding the conviction of A-1, A-2 and A-3 on surmises  and hypothesis.

23.       In the result, the appeal is allowed.  The conviction and  sentence of A-1, A-2 and A-3 is set aside and they are  acquitted of the charges framed against them.  Shantabai (A- 1), Sajan (A-2) and Govind (A-3), who are in custody, are  directed to be released forthwith, if not required in any other

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case.