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Judgment
A.V. Potdar, J.—By the present criminal appeals, the Appellants have questioned the correctness of their conviction u/s 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs. 5000/ each with default stipulation of undergoing sentence of Simple Imprisonment for 3 months, awarded by Additional Sessions Judge, Parbhani, vide judgment and order dated 18.11.2009, rendered in Sessions Case No. 118/2008. As both these appeals arise out of Sessions Case No. 118/2008, they are being disposed of by this common judgment.
Case of the prosecution, as unfolded during the trial, is as follows:
a) Police Inspector, Namdeo Manohar Thombre (PW13), attached to Parbhani police station, had received an information during the night of 25.01.2008, on phone, that one Shantabai Potdar was murdered in her residential service quarter. On receipt of the information PW13, PI Thombre immediately rushed to the spot and saw that Shantabai was lying in a pool of blood. The dead body was forwarded to Rural Hospital, Pathri for postmortem after conducting the Inquest Panchanama (Exhibit24).
b) PW1 Dr. Dhananjay Mudgalkar, conducted the postmortem examination on the dead body of Shantabai. During the postmortem, following external injuries were noticed
Contusion on left side of forehead 5 X 4 cm.
Incised wound in front of neck 10 X 1 1/2 cm (transverse)
Stab wound on right side of chest 4 x 1 x 7 cm (Oblique)
Stab wound on right side of abdomen, renal angle 5 x1x 6cm
Stab wound on right side of abdomen iliac fossa region 6 x 2
x 7 cm with protrusion of mesentery ,transverse in direction.
Stab wound, on right sight of abdomen, iliac region 4 x 3 x 5 with protrusion of mesentery, transverse in direction.
Stab wound on right side of abdomen 4 x 1 x 5 cm transverse in direction.
Penetrating incised wound over back lumber region 5 x 1/2 x 3
cm transverse in direction.
Penetrating incised wound, on back sacral region 32 x 1/2 x 3
cm oblique in direction.
Incised wound over left buttock 3 x 1 x 2 cm oblique in
direction.
Incised wound on left buttock 3 x 1/2 x 1 cm oblique direction
Stab wound over right buttock 5 x 2 x 6 cm vertical in direction,
According to the medical officer, all the injuries, fond on the person of the deceased, were antemortem and the same can be caused by hard and sharp weapons. In the opinion of the medical officer, the cause of death is cardio respiratory failure due to hemorrhagic shock due to multiple stab wounds. Accordingly, postmortem report (Exhibit16) was prepared. According to the medical officer, the incised wounds are possible due to sharp edged knife.
c) While conducting the spot Panchanama, traces of blood foot prints were noticed from the scene of offence till the gate and further on the road till the house of Appellant Shailesh, which is at a distance of about 750 meters to 1 km from the spot. Accordingly, Spot Panchanama (Exhibit34) so also running Panchanama (Exhibit34A and 35) were drawn. From the scene of offence, two broken pieces of spectacle, one pen, four tea cups, one jerkin were recovered. So also one white shirt and one cotton bandage were seized from the house of Appellant Shailesh. Thereafter, on the basis of information received, some police officers were deputed to trace the Appellants. Information about murder of Shantabai was given to her husband and hence he had reached at the spot and had lodged the report (Exhibit26). On the basis of the said report, an offence at Crime No. 7/2008 was registered against the present Appellants.
d) Investigation of the said crime was taken over by PW13 PI Thombre. During the investigation, statements of certain witnesses were recorded. Clothes on the person of the deceased were seized under Seizure Panchanama (Exhibit37). On 26.01.2008 the police party, sent to nab the Appellants, produced the Appellants in the police station. During physical examination, injury was noticed on the left ankle of Appellant Shailesh. Both the Appellants were referred to Rural Hospital, Pathri. After medical examination, the Appellants were put under arrest vide arrest Panchanama (Exhibit67 and 86). During the interrogation, Appellants disclosed name of accused Bhausaheb @ Guddu who was also put under arrest. One motor cycle, allegedly used for commission of offence, was seized under seizure Panchanama (Exhibit59).
e) Accused Bhausaheb @ Guddu, while in custody, made voluntary disclosure statement (Exhibit48) on 27.01.2008, which lead to recovery of clothes from his house, which were seized under Panchanama (Exhibit49). On the same day, Appellant Ajit made voluntary disclosure statement (Exhibit46), which lead to recovery of blood stained clothes from his house, which were seized under Panchanma (Exhibit47). On the same day, complainant Shashikant had produced one pair of sleepers used by the deceased, which was seized under Panchanama (Exhibit56).
f) On 28.01.2008, accused Bhausaheb @ Guddu had again made a voluntary disclosure statement (Exhibit50), which lead to recovery of one blood stained knife, concealed in a hut, which was recovered under Panchanama (Exhibit51). Accused Bhausaheb @ Guddu had over again made a voluntary disclosure statement(Exhibit52) which lead to the discovery of some bills and registers from his house, which were seized under Panchanama (Exhibit53). Thereafter, Appellant Shailesh had also made a voluntary disclosure statement (Exhibit70), which lead to the recovery of one knife from his house, which was seized under Panchanama (Exhibit71). On 29.01.2008, Appellant Ajit again made a voluntary disclosure statement (Exhibit57), which lead to the recovery of one knife from his house, which was seized under Panchanama (Exhibit58).
g) During the investigation, correspondence was made with Panchayat Samiti in respect of the documents of budget so also with the concerned medical officer seeking medical opinion as regards injuries found on the person of the deceased. The property, seized during the investigation, was sent to the Chemical Analyzer along with requisition letter (Exhibit62 and 73). Foot prints of the Appellants were sent to finger print export for examination. In due course CA report (Exhibit74) was received. After completion of the investigation, charge sheet was filed on 21.04.2008 against the Appellants and other accused, before the JMFC, Pathri.
h) On committal of the trial to the Court of Sessions, Additional Sessions Judge, Parbhani framed charge against all the accused persons for an offence punishable u/s 302 and 398 r/w 34 of the Indian Penal Code. The accused pleaded innocence and claimed to be tried. The prosecution, in support of its case, has examined as many as 13 witnesses. On appreciation of the evidence on record, the trial court has acquitted accused Bhausaheb @ Guddu of all the charges. The trial court has also acquitted the Appellants for the offence punishable u/s 398 r/w 34 of the Indian Penal Code, however convicted them for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The State has not preferred any appeal against the order of acquittal and hence the order of acquittal has attained finality.
Before we embark upon the submissions advanced before us by the rival parties, it may be useful, for better appreciation of the evidence, to advert to the material prosecution witnesses examined before the trial court.
The Appellants have not seriously disputed that the death of Shantabai Potdar is a homicidal one. However, it is their contention that they are not the authors of the injuries found on the person of deceased, which ultimately resulted in her instantaneous death. In view of this aspect, we need not dilate on the evidence of PW1, Dhananjay Mudgalkar.
Shashikant Potdar, (PW3) husband of the deceased, complainant, has stated that his wife, deceased Shantabai, was serving as Project Officer in the Child Development Scheme and was residing alone in the service quarter provided by Panchayat Samiti, Pathri. In the night, small girls used to accompany her. In the night of 25.01.2008, he had received a message from police informing him about murder of his wife. Thereafter, he had lodged the report (Exhibit26), on the basis of which crime was registered in Pathri police station. He was not acquainted with either of the Appellant. Without dilating about his marathon cross examination, only inference can be drawn that on the basis of information received by him, he had lodged the report (Exhibit26) and he has no personal knowledge about the incident in question.
Dipali (PW4), has stated that the deceased used to call her, Meera Kedar and Deepali Shinde to accompany her during night time, in her residential quarter. While deposing about the incident, she has stated that the deceased had been to her house along with Deepali Shinde and Meera at about 8.30 p.m. and on their way back to the residential quarter of the deceased, some boys had talked with the deceased near one grocery shop. All of them took food at the house of the deceased and she along with Meera and Deepali Shinde went to sleep in the inside room and were slept. The deceased had asked them not to lock the door of the outer room as some Waman was to come for collecting bill. Sometime after they slept, Meera got up to urinate so also she and Deepali Shinde got up and noticed that the deceased was lying in a pool of blood and the light of the room was put on. They got frightened and hence all of them went to the house of Deepali Shinde, which was adjacent to the house of the deceased and informed the incident to the father of Deepali Shinde, who in turn informed Pathri police station. It was 12.00 to 12.30 midnight. She has stated that she was not acquainted with the person by name Waman. In her cross examination, she has stated that usually they used to go to bed about 11.00 p.m. as till then they used to study. They used to sleep in the same room in which the deceased used to sleep. There was a wall clock and they saw the time when all of them got up to urinate and it was 12.30 midnight. Omission is proved that she had not stated in the statement before police that the girls woke up to go to bathroom.
Miss Meera Kedar, PW5, a child witness, has stated on the similar lines with that of PW4 Dipali. Additionally, she has stated that when they had stopped at the grocery shop, Waman had come. She has further stated that deceased had told Waman to come and collect his bill. All of them had reached at the house of the deceased around 9.00 p.m. In her examination in chief itself, she has stated that she cannot identify the boy named Waman. In her cross examination, she has stated that in the said night, they studied up to 10 p.m. and thereafter went to bed at that time the deceased was doing some work. She had not seen that peon of the office of the deceased was present in the quarter. Usually, they used to close the door of outer room about 9.30 pm. Though she has stated that she had seen foot print of blood, yet she was unable to answer as to how many foot prints were there.
At this juncture, we may take note of the fact that PW4 and PW5 have not identified any of the Appellant as the boys who had met the deceased on their way back to the house of deceased on the night of the incident.
It is in the evidence of PW6 Sainath Kedar, father of PW5 Meera that his daughter and two girls used to sleep with the deceased during the night time. In the night of the incident, all the girls had came running to his house around 12.30 midnight and had informed him that the deceased was lying on the floor in a pool of blood. Thereafter, he had called other neighbours and they all had rushed to the service quarter of the deceased where they saw that the deceased was lying in a pool of blood on the floor. Thereafter, he had informed the incident to the police on phone. Evidence of this witness is material only on the point that he saw the dead body in a pool of blood and accordingly intimated the police.
PW7 Ashok Dhage has stated that around 1.30 a.m. on the night of the incident, mother of Appellant Shailesh had came to his house and requested to give his motorcycle to take Shailesh, who had received injury, to the hospital. Accordingly, he had handed over key of his motorcycle to the friend of Shailesh, who had carried Shailesh to the hospital. He has stated that he was standing in the door of his house when friend of Shailesh had taken Shailesh on his motorcycle. Surprisingly, though he has stated that he had seen the friend of Shailesh, who took Shailesh on the motorcycle, yet he has not identified Appellant Ajit or other accused as friend of Shailesh.
PW8 Jijabhau Salve is the Panch witness to all the memorandums of the disclosure statements made by all the accused. He has stated that Appellant Ajit and accused Bhausaheb @ Guddu had made disclosure statements in his presence, which lead to recovery of articles 13, 16. He has also stated that accused Guddu had made disclosure statement in his presence, which had resulted into recovery of knife (Article 12). He has, however, not supported the prosecution case in respect of disclosure statement made by Appellant Shailesh. He has stated that Appellant Ajit had made disclosure statement in his presence, which had lead to recovery of knife (Article 26). He has admitted in his cross examination that on number of occasions, he has acted as Panch witness for Pathri police station. He has, unambiguously, admitted that - it is correct to say that when the accused were removed from lock up they were frightened. It is correct to say that some police constable said to the accused that they should produce the muddemal articles concealed by them. Interrogation was made to each accused separately. He has admitted that in the recovery Panchanama, house number of accused Ajit was not mentioned. He was unable to depose as to who were present in the house of Appellant Ajit at the time of their visit. He denied that he had put signature on the preprepared Panchanamas without witnessing anything.
At this juncture, we may take note of the fact that the entire evidence given by this witness nowhere speaks that after the alleged recovery of the articles, they were properly sealed at the spot. Even the contemporaneous record i.e. seizure Panchanama at Exhibit47 and 48 are also conspicuously silent on the point that after the alleged recovery of the articles at the instance of the accused, the same were sealed at the spot.
It is in the evidence PW11 Dr. Satyawan Chavare, Medical Officer, Rural Hospital, Manwat that in the night of 25.01.2008 at about 2.00 a.m. injured Shailesh was brought to his hospital by his friend Ajit and he had provided treatment to him. At that time, injured Shailesh had given the history of sustaining injuries, due to accidental fall of axe. According to him, two injuries were noticed on the person of Appellant Shailesh, which were simple in nature and could have been caused with hard and blunt object. Age of the said injuries was within 24 hours. Accordingly, he had issued medical certificate (Exhibit39). He has further stated that he had advised injured to get admitted in the hospital however, he had denied. Friend of Appellant Shailesh, i.e. Appellant Ajit had put in his hand writing that they do not want to make a police case and had also put his signature below the writing (Exhibit40). It is surprising to note that PW11 Dr. Chavare was also unable to identify the injured so also his friend in the Court. In his cross examination, he has admitted that though the entry in the MLC register was in his hand writing, yet he has not obtained signature of the injured in the said register. He has further stated that the blood from the injury of the Appellant Shailesh was coagulated. He has admitted that though he had examined the injured in the midnight on 24.01.2008, yet the entry was taken in the MLC register in the morning of 25.01.2008. He has admitted that in the case papers as well as in the injury certificate, he has not mentioned any identification mark of the injured. What is the effect of non identification of the injured and his friend by this witness, we would consider in the later part of the judgment.
It is in the evidence of Dr. Naidu (PW2) that on 25.01.2008, he had examined one Suhas Jadhav in his private hospital and had noticed sutured wound and fresh bleeding. The said patient had stated that the wound was sutured in civil hospital Parbhani, one day prior to the examination by Dr. Naidu. The said patient had came to his hospital for dressing and he had taken Xray and had found that the injury was normal and there was no fracture. After the wound was dressed, the patient had left. On 27.01.2008, police had came to his hospital, to enquire about the patient to whom he had provided treatment and the police had shown him the prescription (Exhibit18) issued by him wherein name of the patient was Suhas Jadhav. On the request of police, he had certified (Exhibit20) about the injury sustained by the said patient. He has categorically stated that he was not in a position to identify the patient to whom he had treated. In his cross examination he has stated that neither in (Exhibit18) prescription nor in certificate (Exhibit20) he has mentioned that the injuries on the person of said patient were fresh bleeding injuries. In Exhibit18 prescription, he has not mentioned the history allegedly given to him by the said patient. In the OPD register, maintained in his hospital, address of the said patient is mentioned as resident of Parbhani. He has also stated that the police has not recorded his statement.
It transpired from the evidence of PI Thombre (PW13), the investigating officer, particularly, in his cross examination, that husband of deceased had lodged a complaint on the basis of the information provided by him. During the investigation, he has not recorded statements of mother of Appellant Shailesh, the medical officer, Rural Hospital, Pathri or the constables who had brought Appellant Shailesh and Appellant Ajit from Nanded. He has admitted that it was not mentioned in Panchanama (Exhibit34A) that they had asked mother of Appellant Shailesh as to whether she wanted to take their search. Copy of the spot Panchanama (Exhibit34A) was not provided to the mother of Appellant Shailesh, as she was present at the time of drawing of the same. In unambiguous terms he has admitted that in the seizure Panchanamas, in respect of recovery and seizure of articles, it is not mentioned that the articles were sealed at the spot. According to him, articles found at the spot, were sent for opinion of finger print expert and the report of the expert is at Exhibit85. He has also admitted that during the investigation, it was revealed that the motive behind the crime was to loot the amount of budget received by the deceased. He has also admitted that the investigation revealed that no robbery has taken place at the residence of the deceased. He has also admitted that though he has seized documents and bills in connection with the budget, yet he has not recorded statement of any officer from Panchayat Samiti.
We have heard learned Counsel for respective Appellants followed by the submissions of learned APP. From the evidence, which we have discussed above, it is clear that the case of the prosecution rests on circumstantial evidence.
The circumstances against Appellant Shailesh are as follows:
Appellant Shailesh had met deceased near a grocery shop when the deceased was returning along with PW4 Deepali, PW5 Meera and Deepali Shinde and at that time deceased had asked him to come and collect the bills.
Deceased had asked the three little girls not to close/lock door as Waman was to come to collect bills.
Imprints of blood stained foot steps were found from the dead body till the house of Appellant Shailesh.
Appellant Shailesh was taken to hospital at 1.30 a.m. for treatment.
Appellant was treated in Rural Hospital Manvat in the night of 25.01.2008 around 1.30 a.m.
Appellant was treated by Dr. Naidu (PW2) in his private hospital at Nanded.
Knife and blood stained clothes were recovered from the house of Appellant Shailesh and the blood group of the said blood, found on the weapons and clothes, was of the blood group of the deceased.
Circumstances against Appellant Ajit are as follows:
Appellant Ajit had took Shailesh on motorcycle for medical treatment.
Appellant had put an endorsement in the hospital record, which was produced by Medical Officer, Rural Hospital, Manvat.
Clothes and weapons were recovered at the instance of Appellant Ajit, on which blood of the group of the deceased was found.
During the course of submissions, learned Counsel for the Appellants draw our attention to the fact that though the prosecution tried to make out a case that on the way back to the service quarter of the deceased, Appellant Shailesh, who was referred as Waman, had met them near a grocery shop and deceased had asked him to come and collect bill and that after reaching at the quarter the deceased had told the three girls not to close / lock the door as said Waman was to come, yet in their substantive evidence before the Court, PW4 and PW5 have not identified Appellant Shailesh as the person who had met them when they were returning back to the quarter of the deceased in the night of 24.01.2008.
It is further brought to our notice that though some foot prints stained with blood, were noticed in the room as well as outside the room and though the foot prints of the accused were collected, yet the same were not referred to the expert to establish that the foot prints stained with blood were the foot prints of either the Appellant.
Our attention is also drawn by the learned Counsel for the Appellant that though the medical officer, Rural Hospital, Manwat who had treated Appellant Shailesh at 1.30 am on 25.01.2008, was examined before the trial court, yet he was unable to identify Appellant Shailesh as the same person to whom he had treated during the said night.
Further, it is brought to our notice that Dr. Naidu, who had treated the patient by name Suhas in the afternoon of 25.01.2008, has also not identified the Appellant as the same person to whom he was provided treatment who had given his name as Suhas.
Learned Counsel for the Appellant also urged that CA report shows that the blood group of Appellant Shailesh is "A" so also the blood found on the clothes and weapons allegedly recovered at the instance of Appellant Shailesh is also of "A" group. Our attention is also drawn to the fact that the seizure Panchanama, proved through the Investigating Officer, does not indicate that after recovery of the alleged articles, the same were sealed at the spot. By drawing our attention to these facts, it is urged by learned Counsel of Appellant Shailesh that the circumstances on which the prosecution has relied on, to link the Appellant with the murder of Shantabai, are not established. It is also urged that according to the investigating officer the motive behind the crime was robbery, yet at the same time the Investigating Officer has admitted that no robbery has taken place at the house of the deceased and hence according to learned Counsel for the Appellant, the motive, as required in the case of circumstantial evidence, is not established. Therefore, it is urged that the Appellant is entitled for benefit of doubt and hence requested for acquittal of the Appellant.
It is urged on behalf of Appellant Ajit that the only circumstance against him is that he took Appellant Shailesh, on motorcycle of PW7 Ashok Dhage for medical treatment at Manvat. However said Ashok Dhage has not identified the Appellant Ajit as the person who had collected motorcycle from his house and had taken Shailesh for medical treatment. Another circumstance against the Appellant Ajit is that he had put an endorsement in the register of rural hospital, however according to learned Counsel, to help any injured, by taking him to hospital, would not amount to an offence of common intention to commit murder. It is further urged that the recovery of clothes and weapons cannot be linked with the offence of murder for the reason that sealing of these articles is not proved and that there were no blood stains on the motor cycle which was allegedly used by the duo, and hence it cannot be inferred that the Appellant Ajit is involved in the commission of the said offence.
Per contra, learned APP has urged that the strong circumstance about trail of foot prints with blood stains from the house of the deceased to the house of the Appellant Shailesh clearly indicates his involvement in the murder of Shantabai. It is further urged that though the Medical Officer, Rural Hospital, Manwat has not identified the Appellants, yet as the endorsement given by Appellant Ajit on the medical papers is not disputed and hence it has to be inferred that the said circumstance has been proved against the Appellants and hence requested for dismissal of both the appeals.
The Appellants have not seriously disputed that the death of Shantabai is a homicidal one. However, at the same time it is the submission of the Appellants that though the death of Shantabai is a homicidal one, yet they are not the authors of the same. Admittedly, there is no eye witness account and the case of the prosecution solely rests upon the circumstantial evidence.
Mr. Bora, learned Counsel for Appellant Ajit, has placed reliance on the observations of the Supreme Court, in the matter of Pawan Vs. State of Uttaranchal, , wherein it is observed by the Supreme Court thus
When a case rests on circumstantial evidence, such evidence must satisfy oftquoted tests viz:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and (4) 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.
Where the entire case hinges on circumstantial evidence, great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of the guilt of the accused.
Legal principles with regard to the circumstantial evidence in criminal trial have been explained by this Court time and again; the first in long line of these cases being Hanumant Vs. The State of Madhya Pradesh, and of late, State of U.P. Vs. Satish, . Reference to all these decisions is not necessary as we have already noticed these principles in preceding paragraphs.
It needs no emphasis that while evaluating circumstantial evidence, which of course has to be done carefully, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged and the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis.
Further reliance is placed by the learned Counsel for the Appellants in respect of relevancy of the evidence of recovery in the cases based on circumstantial evidence. Division Bench of this Court, in the matter of "Lalchand Cheddilala Yadav v. State of Maharashtra" 2000 ALL MR 1485 has observed thus
In this connection, it would be pertinent to refer to para 8 of the Division Bench Decision of the Rajasthan High Court, reported in AIR 1955 Raj 82 (42 C.N. 27) The State v. Motia and others, wherein Wanchoo, C.J. (as he then was) observed thus
... 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....
It is observed by this Division Bench of this Court, in the matter of "Raju Brijmohan Maurya v. State of Maharashtra" 2008 ALL MR 2632 that
As a matter of principle, a mere recovery alone would not be sufficient to convict the accused on a substantive charge of murder u/s 302 of the Penal Code in the absence of substantive evidence. This principle would emerge from the judgment of the Supreme Court in Baboo v. State of Madhya Pradesh AIR 1979 SC 1042. In a case which is based on circumstantial evidence, the Court would also have to be mindful of the fundamental principle of law connect the accused to the offence beyond reasonable doubt. Moreover, in a case founded on circumstantial evidence, all the circumstances must be consistent only with the guilt of the accused.
Further, it may be useful to refer the observations of the Division Bench of this Court, on which reliance is placed by the learned Counsel for the Appellant, in the matter of "Ramesh Govind Thakur v. State of Maharashtra" 2008 ALL MR 1647. The Division Bench, in the said judgment, has observed thus
At the outset, we may point out that the law as settled is that all proved circumstances must form a chain of which no link must be missing and they must unequivocally lead to the guilt of the accused. We may refer to the law as decided in Hanumant Govind Nargundkar v. State of Madhya Pradesh, wherein the Court observed as under
In dealing with the substantial evidence the rules specially applicable to such evidence must borne in mind in such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge (1838) 2 Lewin 277) wherein he said:
The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little. If need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.'' 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 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 accused.
As against this learned APP has placed reliance on the observations of the Supreme Court, in the matter of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, , wherein it is observed that
In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, least the shocking nature of the crime induces an instinctive reaction against dispassionate judicial scrutiny of the facts and law.
We have considered the rival submissions, in the light of the judgments cited supra. As the case of the prosecution rests on circumstantial evidence, as per settled legal position, the chain of circumstances has to be completed and the complete chain should clearly indicate that the circumstances established has to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged and the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis. It is clear from the evidence of PW4 and PW5 that they have not identified the Appellant Shailesh as the person, who had met them when they were returning to the house of deceased and the deceased had told them not to close the door as he was to come to collect bill. So far as the circumstance in respect of foot print is concerned, it may be noted that the foot print of the culprit was not referred to the finger print expert to establish that in fact these are the foot prints of the accused. Apart from it, the report of the finger print expert (Exhibit85) about chance print collected from the scene of offense, indicates that the same are unfit to match with the print sent for comparison. Thus, this circumstance also fails. Apart from it, we have an occasion to go through the photographs of the blood stained foot prints (ExhibitD1) and perusal of the said photographs clearly indicates that both the foot prints are of only left leg. It has came in the evidence of IO that trails of blood were noticed till the house of accused Shailesh from where some clothes were recovered, however the said clothes were not recovered in presence of accused Shailesh, but in presence of mother of accused Shailesh. The evidence on record indicates that statement of mother of Shailesh was not recorded during the investigation to establish that the clothes seized were the clothes of the accused Shailesh. Hence, the recovery of clothes of the accused is of no avail to link the Appellants with the offence of murder.
Now remained evidence about recovery of clothes and weapons at the hands of the accused. Though the prosecution has examined PW8 Salve to prove the disclosure statement and recovery of the articles at the instance of Appellant Shailesh, yet PW8 has not supported the prosecution case to the extent of recovery of object from the house of Appellant Shailesh and hence the same is proved through the IO. Generally, merely because the witness has not supported the prosecution and the disclosure and recovery to be proved through the investigation officer, must not be suspected, however, in the instant case, it is brought on record that the Panch appears to be regular Panch of the police and hence it is not safe to rely on his sole testimony, in absence of corroboration. Apart from it, the substantive evidence of PW8 Salve as well IO coupled with the contemporaneous record, discloses that at the time of alleged recovery the articles were not sealed at the spot and sent to CA in the same condition. In such circumstances the recovery is doubtful. Even the CA report shows that the blood group of the deceased was not determined, but the blood group of the Appellant Shailesh is "A". As it has came in the evidence that accused Shailesh had sustained bleeding injury and was carried for medical treatment and hence possibility of transferring of his own blood, in that process, cannot be ruled out so also the possibility that the blood of Appellant Shailesh might have been transferred on the clothes of Appellant Ajit cannot be ruled out. It is to be noted that the blood found on the clothes of Appellant Ajit was found on his pant only and not on his shirt. Considering these aspects, it is clear that the chain of circumstances is not established and complete and, therefore it cannot be inferred that the only hypothesis to be drawn that the Appellants are the authors of the murder and if it is so, the conviction of the Appellants requires interference. In the premise, we extend the benefit of doubt to the Appellants, as the prosecution is unable to prove the case against the Appellants beyond reasonable doubt.
Consequently, both the criminal appeals No. 646/2009 are allowed. The judgment and order of conviction and sentence dated 18.11.2009, rendered in Sessions Case No. 118/2008, convicting and sentencing both the Appellants, is hereby quashed and set aside. Both the accused are in jail, they be set at liberty, forthwith, if not required in any other case. Fine, if paid, be refunded to the Appellants.
We have taken a serious note of the fact that though the Investigating Officer, Police Inspector Namdeo Manohar Thombre has stated in his evidence that it revealed during the investigation that the motive behind the crime was to loot the amount of budget received by the deceased, yet he has given clear admission that he has not recorded statement of any of the officer from Panchyat Samiti to ascertain as to whether in fact the amount of budget was received by the deceased. According to us, this is very casual approach on the part of the IO, which proved to be very fatal to the prosecution case and hence the robbery, the sole motive behind the crime could not be proved and we are constrained to give benefit of doubt to the Appellants. In this light of the matter, we direct that a copy of this order be forwarded to the concerned Superintendent of Police, with the directions to deal with the concerned IO in accordance with law.