http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SHANKAR GAJANAN KALAN

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       20/09/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) MUKHERJEE M.K. (J) MUKHERJEE M.K. (J) KURDUKAR S.P. (J) RAMASWAMY, K.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      The appellant  before us  was  tried  by  the  Sessions Judge, Thane  for offences punishable under Sections 302 and 201 IPC.   The  allegation against  him was that on June 24, 1984 he  committed the  murder of  Tulsibai, wife  of Vishnu Shankar, and  threw her  dead body  near a creek.  The trial Judge acquitted  the appellant  and  aggrieved  thereby  the respondent-State of  Maharashtra filed an appeal in the High Court.   The High  Court reversed the order of acquittal and convicted and sentenced the appellant for both the offences. Hence this statutory appeal at his instance. 2.  Bereft of details the prosecution case is as under: (a)   Vishnu Shankar  (P.W.7) and  his family comprising his wife Tulsibai (the deceased) and two brothers Maruti Shankar (P.W.1) and  Sommwar  Shankar  (P.W.4),  were  residents  of village Goa  in the district of Thane whereas the appellant, who happens  to be  their cousin  (mother’s  sister’s  son), lived in  the nearby  village Kon,  with his mistress Kamala (P.W.3).   The appellant  used to  earn his  livelihood from sorcery and prophesy and the family of Vishnu had full faith in his eerie expertise. (b)   A few days before her death Tulsibai had complained of some stomach  ailments and  had approached  the appellant to cure her.   The  appellant  promised  to  cure  her  through sorcery within  a day  provided he was paid Rs. 800/-.  Even though the  amount was  readily paid the appellant could not keep his  promise.  He however asked Tulsibai to come to his but a few days later. (c)   Accordingly on  June 24,  1984 Tulsibai left her house telling her  husband that she was going to the appellant for treatment.   At that  time she  was wearing  a pair  of gold earrings and  a mangalsutra  with four  gold beads  and  two pendants.   When, till  evening, Tulsibai  did not come back

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

home, Vishnu  went in  search of  her to  the house  of  the appellant only  to be  told that  she had  not come  to  his place.  On the following day i.e. June 25, 1984 Vishnu along with his two brothers searched for Tulsibai at various other places but  could not  trace her  out. Thereafter  when they again went  to  the  appellant  to  enquire  about  her,  he demanded a  sum of  Rs. 751/ for prophesying the whereabouts of Tulsibai but the demand was not met.  However on June 27, 1904, the appellant himself went to the house of Vishnu and, on being  paid the  demanded amount, told that the dead body of Tulsibai  would be  found near the creek on the following day i.e. June 28, 1984.  The above prophesy of the appellant came true  for on  June 28,  1984 the  highly mutilated dead body of Tulsibai was, indeed, found near the creek by Vishnu and his brothers. (d)   Maruti then  went to  the Police  Station and lodged a report alleging  that the appellant had committed the murder of his  sister in law.  On that report a case was registered and the  appellant was  arrested.  Pursuant to the statement made by  the appellant the two ear rings and the mangalsutra of  Tulsibai   were  recovered  from  Hajarabi  (P.W.5)  and Sakharchand (P.W.2) respectively.  The appellant also made a statement before  the Investigating  Officer (10)  and other witnesses  that  he  would  show  the  place  where  he  had initially buried  the dead  body of  Tulsibai.  He then took them to  his hut.   On  digging the  earth there  some human hair, pieces  of human  skin and  flesh and  a  hammer  were found.   Besides a  rank odour was emanating therefrom.  The 10 seized  all the  articles found  there and along with the clothes of  the deceased  and of  the appellant,  which were earlier seized,  sent them  to Forensic  Science  Laboratory (FSL) for  examination and  analysis.   On  receipt  of  the reports of  FSL and after completion of investigation the 10 submitted chargesheet  against  the  appellant  and  in  due course the case was committed to the Court of Session 3.  The appellant pleaded pot guilty to the charges levelled against him  and his  defence was  that he  had been falsely implicated. 4.  To prove its case the prosecution relied upon the ocular version of Kamala and the following circumstances:- (i)   Tulsibai left  her house  on  June  24,  1984  with  a mangalsutra and earrings on her person; (ii) Before  leaving the house she had told her husband that she would  be visiting  the appellant  for  getting  herself treated; (iii) In  that  evening  she  did  not  come  back  home  as expected; (iv) On  June 27,  1904 the  appellant went  to the house of Vishnu and made a prophesy that her body would be found near the creek on the next day; (v) The  above prophesy  of the appellant came true when her dead body was found near the creek on June 20, 1984; (vi) The  ornaments which  she was wearing when she left the house on June 24,1984 were missing from the dead body; (vii) Soon  after her  disappearance the  appellant had sold those ornaments to P.Ws. 2 and 5; (viii) On June 29, 1984 when, pursuant to the statement made by the  appellant earth  was dug in his hut, it was found to emanate a  foul smell  and to  contain  articles,  including hair, which could be only of the dead body of a human being, and a hammer; and (ix) Human  blood  was  found  on  the  bush  shirt  of  the appellant and on the human hair. (5)  The trial  Judge disbelieved  the  ocular  evidence  of Kamala and  the evidence  led by the prosecution in proof of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

circumstance  No.  (vii),while  accepting  the  evidence  in support of  the other  circumstances. According to the trial Judge,  the   proved  circumstances   only  raised  a  grave suspicion against the appellant but did not unerringly point to his  guilt and,  hence, he acquitted him.  In appeal, the High Court  concurred with  the finding  of the  trial Judge that Kamala  was not  a truthful  witness but found that all the circumstances alleged against the appellant stood firmly established and they formed a complete chain to conclusively prove the guilt of the appellant. 6.   We have  carefully  considered  the  judgments  of  the learned Courts  below in  the light  of the evidence adduced during trial.   On  such consideration  we do  not  see  any reason whatsoever  to disturb the concurrent findings of the learned Courts  below that  Kamala is not a truthful witness and that  circumstance Nos.  (i) to (vi) and (viii) and (ix) stand established,  more so  when the  findings are based on proper   consideration    and   appraisal    of    evidence. Resultantly,  the   next  question   that  falls   for   our determination is whether the finding of the trial Court that the prosecution  failed to  prove circumstance  No. (vii) is patently wrong  as held  by the  High Court.  In our opinion the answer to the above question will decide the fate of the appellant for  we find that in the facts of the instant case the circumstance  No. (vii)  incriminates the  appellant the most  and   therefore  only   on  proof   thereof  that  the prosecution can  legitimately claim-after  having proved the other  circumstances  detailed  earlier-that  the  chain  is complete.   In other words, if the prosecution has failed to prove the above circumstance, a link in the above chain will be missing.  We, therefore, proceed to appraise and evaluate the evidence  on  record  to  ascertain  whether  the  above circumstance has been proved or not. 7.  Since   the  prosecution  has  been  able  to  establish circumstances No.  (i) and  (vi) it  is evidently clear that the ornaments  that the  deceased was  wearing were  removed after she  had left  her house on June 24, 1984 for going to the house  of the  appellant.  To  prove  that  none  except appellant  could   have   removed   those   ornaments,   the prosecution relied  upon the  evidence of Sakharchand (PW 2) and Hajarabi  (PW 5).   In  his evidence  Sakharchand stated that on June 25, 1984 at or about to A.M. when he was in his shop the appellant came along with a woman and told him that his  wife  was  sick  and  he  needed  some  money  for  her treatment.   He then offered six golden beads (Ext. 22) of a mangalsutra  for   sale  of  him  (P.W.5)  stated  that  the appellant had earlier taken a loan of Rs. 300/- from her and on her  persistent demands  he gave  here one  pair of  gold earrings (Ext.21)  in liquidation  of her  debt.   The above ornaments (Exs.  21 and  22) were  identified by  Vishnu  as belonging to  his wife and he testified that she was wearing them at the time of her departure from his house on June 24, 1984. Having  carefully gone  through the  evidence  of  the above witnesses  we find  no reason to disbelieve them, more so, when  nothing was  brought out  in cross  examination to indicate  why   they  would   depose  falsely   against  the appellant.   Though P.W.  5 could not give the date when the earrings were  handed over  to  her,  P.W.  2  categorically stated that  the beads  were sold  to him  on June 25, 1984. The only  irresistible conclusion that can be drawn from the above evidence is that the appellant came into possession of those ornaments  of the  deceased only  after she  left  her house on  June 24, 1984 and not earlier and disposed of them on the following day.  This discussion of ours is sufficient to hold  that  the  prosecution  has  succeeded  in  proving

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

circumstance No.  (vii) but  to appreciate  the reasoning of the trial Judge, who held otherwise, it will be necessary to detail and  discuss the  evidence adduced by the prosecution relating to  the recovery of the ornaments from P.Ws 2 and 5 pursuant to the statement of the appellant. 8.   Shivaji Vishnu  (P.W. 9)  deposed that on June 30, 1984 when he  was going  along the road by the side of the Police Station he was called by the Police and going there he found the accused  (appellant) detained  there.  In his presence a police  officer  interrogated  the  appellant  and  he  (the appellant) told  that he  had  kept  the  ornaments  of  the deceased at  Kalyan and  he would  produce them.  The police thereafter prepared a panchnama of the statement (Ext.19) so made and  he signed  the same.  Thereafter he along with the police officer,  the appellant and another witness left in a jeep.   Near Lal Chowki the jeep stopped as asked for by the appellant.  Then he took them to a shawl and called Hajarabi (P.W. 5).   On  being  asked  by  him  (the  appellant)  she produced the  earrings (Ext.21).  Thereafter  the  appellant book them  to the  shop of Sakharchand (P.W.2). and told him (P.W.2) to  produce the  beads.   After the  beads (Ext. 22) were produced  the  police  officer  seized  them  in  their presence.   The 10  (P.W.19) fully  corroborated  the  above testimony of P.W.9. 9.   The trial  Judge  disbelieved  the  panchnama  (Ext.19) prepared in  respect of  the statement made by the appellant and the  evidence of  PWs 9  and 19  on the  ground that the appellant had  only disclosed that he had kept the ornaments at Kalyan  but did not disclose that he had sold the same to PWs 2 and 5.  According to the learned Judge, there was also a lot  of difference  between "keeping  the ornaments  at  a place" and  "selling the ornaments to some persons" and that such discrepancy  raised a  serious doubt  as to whether the appellant had furnished the information to the police at all pursuant to  which the ornaments were recovered.  To say the least the  above reasoning of the trial Judge is absurd, for once it  is established  that the ornaments were handed over by the appellant to P.Ws. 2 and 5 the question whether those ornaments were recovered from them pursuant to the statement of the  appellant was  wholly immaterial.   In that context, equally irrelevant were the question whether those ornaments were recovered  from them  pursuant to  the statement of the appellant was  wholly immaterial.   In that context, equally irrelevant were the questions whether the appellant made the statement (Ext.19) and, if so, whether it was true or not. 10. In  the result  we uphold  the impugned  judgment of the High Court and dismiss the appeal.  The appellant, who is on bail, will  now surrender to his bail bonds to serve out the sentence.