AI Structured Summary
Not yet generated for this judgment
Judgment
By way of the present Appeal, the Appellant, the solitary accused has questioned the Judgment and Order dated 30th March 2024, passed by learned Additional Sessions Judge, Thane, in Sessions Case No.268 of 2017 inter-alia convicting the Appellant for offences punishable under Sections 302, 452 and 511 of the Indian Penal Code (‘IPC’) and sentencing him as follows:-
A. For the offence punishable under Section 302 of the IPC to suffer life imprisonment and to pay a fine of Rs.1,000/- (Rs. One Thousand only), in default of payment of fine, to suffer rigorous imprisonment of one month;
B. For the offence punishable under Section 452 of the IPC to suffer rigorous imprisonment for the period of three years and to pay a fine of Rs.1,000/- (Rs. One Thousand only), in default of payment of fine, to suffer rigorous imprisonment of one month.
C. For the offence punishable under Section 511 of the IPC to suffer rigorous imprisonment for the period of one year and to pay a fine of Rs.1,000/- (Rs. One Thousand only), in default of payment of fine, to suffer rigorous imprisonment of one month. All the aforesaid sentences were directed to be run concurrently.
D. The Appellant was acquitted of the offence punishable under Section 376 of the IPC.
For the ease of convenience the Appellant is referred to as the accused hereinafter.
The Prosecution case in a nutshell is that the First Informant (husband of the deceased) has filed the FIR dated 2nd October 2016, which has led to the investigation in this case. He stated in the FIR that he along with his wife (deceased) and two sons was residing in a rented premises at Anand Nagar, Kopari, Thane (East). He is employed as a driver and the income that he earns from his employment is the only source of livelihood for his family. He narrates that usually he leaves for work at 8:30 am in the morning and returns home at about 8:00 p.m. in the evening. Narrating the events of the day of the incident i.e. 2nd October 2016, the informant states that as usual he left for his work, since it was a Sunday, his children were staying with their grand mother at Ramabai Nagar, Ghatkopar, an area nearby. His wife (deceased) was alone at home. Around 11:30 a.m. he casually gave a phone call to his wife enquiring whether the children have come home. His wife replied in the affirmative and said that they had gone down to play. Around 1:30 p.m. (in the afternoon), he received a phone call from his sister in law, who told him that his wife has met with an accident and she is lying in a pool of blood and that he should come home immediately. On hearing this, the informant replied that his wife should be taken to the hospital first. The informant then rushed home. On reaching home, he found that a crowd had gathered around his house. When he went in the house, he found his wife lying in a pool of blood on the floor of the house. She was dead. The police registered the FIR at 3:45 p.m. in the afternoon.
The investigation commenced. PI. N. D. Patil (PW14) went to the scene of the offence. The police photographer took photographs of the spot. The blood stained bed-sheet, pillow cover, pieces of blood stained bangles and blood samples were collected, sketch of the scene of offence was prepared, dead body was sent for postmortem, inquest panchanama was drawn up and blood stained clothes were seized under a panchanama.
On 4th October 2016, in the morning hours, the accused came to be picked up from his house by Officers of the Crime Branch and interrogated upto 3.00 pm in Crime Branch Unit. He was handed over to Kopari Police Station at 6.00 pm. He was referred for medical examination and remanded to custody of Kopari Police Station. On 8th October 2016, the accused made a disclosure statement in pursuance of which a knife and blood stained clothes were discovered at his instance from below the tin roof of his house. A panchanama was drawn up accordingly. Statements of witnesses were recorded, injury certificate, postmortem report were obtained, samples were forwarded to Chemical Analyser. On culmination of the investigation, charge-sheet came to be filed before the Judicial Magistrate First Class, Thane, who committed the same to the Sessions Court.
Charge was framed against the accused for the offences punishable under Sections 302, 452, 376 and 511 of the IPC. He denied the charges and came to be tried. The prosecution examined 15 witnesses, in their support. The accused did not examine himself, nor relied on any defence witnesses. From his statement u/s 313 of CrPC., it can be gathered that his defence is of total denial and false implication.
On behalf of the accused, it was contended that the trial Court has not appreciated major contradictions, omissions and discrepancies in the statement of witnesses, specifically in the statement of PW2, who was projected to be an eye-witness by the prosecution. It was also contended that the evidence of PW2, is not reliable, her statement was recorded 3 days after the incident, her conduct was not natural, she has not disclosed the incident to anyone in the family, although it is contended that she had visited the house and met the family of the deceased on the same evening of the incident. It was sought to be argued on behalf of the accused that PW2 was an interested witness, her conduct raises a shadow of doubt, particularly because there are omissions and contradictions between her oral evidence and her previous statements. These omissions have been proved through the investigating officer PW14. The omissions and contradictions raise a cloud of doubt over whether PW2 has actually seen the incident or not.
It was further argued that although PW2 met PW12, and had together visited the house of PW1 to console him on the same day of the incident, PW2 did not narrate the incident even though she had already told PW12 about the same. Infact, PW12 admits that on the day of the incident, she along with PW2 went to the police station and was there for more than 2 hours, which is contrary to the evidence of PW2. It was also canvassed on behalf of the accused that the prosecution theory that the murder was committed by the assailant because the deceased resisted his attempts to sexually assault her also seems to be improbable considering the fact that there are absolutely no signs of struggle either on the body or clothing of the deceased or in the surrounding area. It was contended that the only incriminating circumstance against the accused was the eye-witness account of PW2 whose statement was recorded a day after the accused was arrested. In other words, the arrest of the accused was prior to the statement of PW2 and therefore, based only on surmises and conjectures. Moreover the recovery of the knife and blood stained clothes at the instance of the accused are also not believable since the recovery was effected 4 days after the arrest of the accused. The knife was allegedly blood stained when it was recovered, however, it was argued that the C.A. Report does not show any blood stains on the knife. Lastly, it was argued that apart from the eye-witness evidence there is no other corroborative evidence to implicate the accused, the blood sampling has proved to be inconclusive and does not connect the accused to the scene of offence, DNA profile could not be obtained. Blood stains were present on the clothes of the accused, however, the ABO grouping was inconclusive. Merely because some scratch marks were found on the body of the accused by itself cannot be a link in the circumstantial evidence against the accused without there being any corroborative material.
The learned A.P.P. countered the aforesaid submissions by arguing that the crime was committed in a gruesome manner. The evidence of the eye-witness cannot be subjected to rigorous scrutiny, since she was threatened by the accused at knife point and her subsequent conduct and delay in reporting to the police must be viewed from the perspective of her mental frame of mind. It was argued that the witnesses cannot be expected to possess a photographic memory and expected to recall minor details of an incident. Powers of observation differ from person to person and minor embellishments to eye-witness account, infact, demonstrates that the eye-witness is a natural witness. The recovery against the accused, the injuries on his body coupled with the eye-witness account establish the case of the prosecution beyond reasonable doubt. The accused has not explained the injuries on his body and this is a factor which has gone against the accused.
An overview of the depositions of the various prosecution witnesses and the documents proved through them are as follows :-
PW1 is not an eye-witness. He claims to have received phone call from his sister in law at around 01:30 p.m. which is the first time that he comes to know that some incident has taken place. The last time that he has spoken to his wife i.e. the deceased is 11:30 a.m., which means according to him the death has taken place between 11:30 a.m. and 01:30 p.m. i.e. within a span of almost 2 hours. During his cross examination, PW1 admits that Pratika (PW2) and Monali (PW12) are childhood friends of his wife. Both of them were having their matrimonial homes in the same locality. In the evening of 2nd October 2016, PW2, PW12 and their respective husbands and family members had come to his house to offer him condolences. Both of them neither enquired as to who had committed the crime, nor suspected anybody and either of them did not claim that they knew the assailants. Further he admits that his wife had not lodged any complaint against the accused about his teasing her etc. The accused was residing in the adjoining house of the deceased since a year and half prior to the incident. The relations of their family with the family of the accused were cordial in nature. He further admits that both the accused and the deceased shared adjoining houses on the first floor in a chawl type house. There are other houses situated on all sides of their house and loud noise in the house of the deceased can be heard by any persons in these houses. It is pertinent to note that PW1 has proved his statement (Exhibit – 20) on the basis of which the FIR came to be lodged. The statement does not name the accused. Hence, it would be relevant to examine at what point of time the police came to a subjective satisfaction that the accused was involved in the commission of the offence.
PW2 is a crucial witness for the prosecution. She claims to be an eye-witness. She deposes that she stays 3 to 4 houses away from the house of the deceased at her parents house. It was a holiday on the day of the incident, being Gandhi Jayanti. Around 01:00 to 01:30 p.m. she had gone to the house of the deceased. Upon climbing the steps to the first floor, she found that the door of the house of the deceased was closed but not bolted. She pushed the door and saw that the accused had a knife in his hand. The deceased had fallen down and had blood all over. Her neck was cut. The accused was holding her hair. Her eyes were open and she was screaming. The accused was assaulting on her neck with a knife. She further deposes that the accused pointed the same knife at her and threatened her that if she raises an alarm he would also finish her like he finished the deceased. The witness was stunned and scared. She started trembling. She claims that her blood pressure became low. She ran back to her house and did not come out for quite some time. She further deposes that in the evening her friend Monali (PW12) came to her place to meet her. On the promise that PW12 would not share what she was about to tell her, PW2 narrated what had happened with her. It is pertinent to note that even after confiding in PW12 on the very same day of the incident, it takes her 3 days to go to the police station and narrate the facts. She explains this delay in her deposition by stating that it was biting her conscience that she was not able to give justice to her friend. After she narrated the facts to the police, her statement was recorded initially under Section 161 of Cr.P.C. and subsequently under Section 164 of Cr.P.C. She has identified the accused as the next door neighbour of the deceased. Under cross examination, she admits that apart from PW12, she had not stated about what she saw to anyone, until 5th October 2016, when she gave statement to the police. She also admits that while returning from the house of the deceased, she did not shout or raise an alarm because she was in a state of shock. The fact that her blood pressure had become low and that she had confined herself to her house are proved to be omissions. She states that on the next 2 days i.e. on 3rd and 4th October 2016, she met PW12. It is pertinent to note that the fact that when she saw the accused, he was holding the hair of the deceased, her eyes were open, the accused was assaulting her on her neck with a knife, her neck was cut and she was screaming, are all proved to be omissions and improvements, both qua the 161 statement and 164 statement. Moreover the fact that the accused had threatened her that he will finish her if she raises an alarm has been proved to be an omission qua her statement before the Magistrate under Section 164 of Cr.PC and the fact that upon seeing the incident she was stunned and scared and her hands and feet were trembling have also come as an improvement qua her statement before the police. All these improvements have been put to the Investigating Officer (PW14) and proved through him.
PW3 is Police Inspector Vijay Dalvi, attached to Crime Branch, Unit V, Wagle Estate, Thane. He states that the accused was picked up in the morning hours from his residence on 4th October 2016. However, his arrest panchanama was not prepared at the residence. He further states that at the time of arrest the parents and brother of the accused were also present. The accused was in the custody of the Crime Branch from the time he was nabbed in the morning to 3:30 p.m. in the afternoon of 4th October 2016. He was handed over to Kopari Police Station at 6.00pm on the same day. He admits that they had no information about the name of the accused and that the accused was arrested only on the basis of suspicion. Although, he states that at the time of arrest he was aware of the complicity of the accused in the offence, he could not state from whom he had received this information. He had not made any entry to that effect. He further states that the mother of the accused had told him that on the day of the incident the accused was at home since morning. The evidence of this witness clearly shows that the accused was picked up by the Crime Branch only on the basis of suspicion and subjected to intensive interrogation.
PW4 is the panch for the seizure panchanama of SIM Card, battery and memory card seized from the phone of the accused. Since nothing incriminating was found from these articles, his evidence is of no major relevance.
PW5 is the Medical Officer attached to Civil Hospital, Thane, who conducted the postmortem on the dead body of the deceased. She deposes that postmortem was conducted on 3rd October 2016, between 09.00 a.m. to 10:30 a.m. She has enumerated the external injuries on the body of the deceased as under:-
“i] CLW on the right side neck extending from posterior from post occipital region crossing midline neck of size 15 x5x3 cm, over the right side neck laterally mid all muscle neck and vessels (internal jegular and carotid with evidence of fracture on cervical vertebra 5th and 6th.
ii] Anteriorly trachea cut through and through completely iii] CLW of size 5 x 1.5 x 0.5 cm skin subcute deep below the angle of mandible, lower jaw iv] Contusion over the anterior abdominal wall 2 in number on right iliac fosa 3 x 3 cm v] CLW over index, middle and ring finger oblique of size 2 x 1 x 0.5 cm each loosing of the skin right side ring finger vi] Right hand thumb CLW of size 2 x 1 x 0.5 cm oblique vii] Right hand thumb superficial CLW of size 2 x 0.5 x 0.5 cm anterior aspect. viii] CLW left side ring finger posterior aspect proximal 1 x 0.5 x 0.5 cm”
All these injuries were ante-mortem, examination of private parts revealed that hymen was ruptured, samples of vaginal swab, pubic hair and nails were collected. Viscera is also preserved. She opined that death was caused due to “haemorrhagic shock due to cut throat injury”. On 4th October 2016, the accused was brought for medical examination at 05:15 p.m. The following injuries were found on his body:-i] Nail scratch mark on left side of chest, below left chest lateral aspect 6 x 0.2 cm ii] Nail scratch mark on right side of hand between thumb and index finger it measures 2 x 1 x 0.2 oblique in direction. iii] Nail scratch mark on right little finger of size 2 x 0.2 cm lateral aspect iv] Nail scratch mark on the right side elbow anterior aspect of size 0.5 x 0.5 cm v] Nail scratch mark on middle finger on left side middle aspect brownish in colour of size 2 x 0.2 cm
Aforesaid injuries were caused within preceding 24 to 48 hours by hard and blunt object and were simple in nature. Accordingly, medico legal certificate was issued. Under cross examination the doctor admits that she has not mentioned the time of death as well the age of injuries. Weapon was also not shown to her by the police. She has not opined about the weapon by which such injuries may have been caused but states that incised wounds can be caused by sharp weapon. It is pertinent to note that there are no findings of recent sexual intercourse or external injuries on the body of the deceased in consonance with an attempt to resist sexual assault upon her.
PW6 is another important witness of the prosecution. He was examined as a panch witness to prove the recovery of knife and blood stained clothes at the instance of the accused on 8th October 2016. He states that he was called to the police station at about 01:00 p.m. (in the afternoon). Interestingly, although the accused makes a self inculpatory statement in presence of PW6, he does not depose to any information or fact, as a consequence of his disclosure. He states that the police told him that they have to go to carry out the panchanama at the house of the accused. Accordingly, they along with the other panch and police accompanied by the accused went to a house from the tin roof of which the accused took out a bag containing a blue colour jeans pant and a knife. During cross examination he admits that the police had told him that he was called in connection with the investigation of the murder of the deceased. The PW6 knew the informant since he also stays in the same locality. Infact, he states that the first informant is like a son in law to him. He has cordial relations with the family of the deceased and the informant. When confronted, he admitted that apart from his signature on the panchanama there was no other signature on the wrapping and packet containing the knife and clothes of the accused.
PW7 is the land lady of the rooms which were given on rent to the families of the accused and the deceased respectively. She states that she stays on the ground floor of the house which is a ground plus one structure. On the first floor there are two adjoining rooms which are given on rent, one is rented to PW1 and the other is rented to the family of the accused. She narrates that on the day of the incident she was at her work place. While returning she came to know that the deceased had been murdered. The police recorded her statement. Under cross examination, she admits that since the time that the family of the deceased was staying next to the family of the accused, there were no complaints against the accused or his brother that he had misbehaved with the deceased at any point of time. She also corroborates the fact that the area is densely populated and that if a person shouts from the first floor of the house, he can be easily heard from the surrounding houses.
PW8 is the neighbour of the deceased. She states that on the day of the incident, the children of PW1 were playing and creating a ruckus, so she asked them to go home. They immediately came down running. They were screaming and scared. They said that their mother is no more. When she went upstairs she saw the dead body of the deceased.
PW9 is the elder sister of the deceased. On the day of the incident, she had called her sister at around 11.30 am. After some time, the deceased along with her children had come to the house of PW9. The deceased thereafter left her house alongwith her children. At around 01:30 p.m. in the afternoon the children on the deceased came to her in shock and informed her that their mother was no more and she is lying in a pool of blood. She also rushed to the scene of offence and saw her sister lying dead. She raised an alarm and the nearby persons gathered there.
PW10 is a resident of the same locality, who knows the deceased by face. He stays in the room on the ground floor of the same house where the deceased stayed on the first floor. It is a chawl type residence. On the day of the incident, it was a Sunday and hence a holiday. He was at home watching a television match. Around 12:30 p.m. in the afternoon, he saw the accused going across his house. Thereafter at around 01:00 to 01:15 p.m. the children of the deceased came running saying that their mother was no more. Crowd gathered. The witness went to the house of the deceased and saw the dead body.
PW11 is the mother of the deceased. She is not an eye-witness and neither does her evidence corroborate any material fact.
PW12 is another important witness of the prosecution. The prosecution has projected PW12 as the confidante of PW2 to whom PW2 has unburdened herself. PW12 deposes that herself, the deceased and PW2 were childhood friends. They stayed in the same locality and used to visit each others houses often. On the date of the incident i.e. 2nd October 2016, she heard commotion at around 01:00 to 01:30 p.m. She learnt that her friend, the deceased has been murdered. Immediately she went to the house of the deceased and saw the dead body. Shaken by this incident, she went to the house of PW2 in the evening. PW2 was scared and not in a position to talk. Upon making enquiries, PW2 made PW12 swear that she will not disclose whatever PW2 told her. Thereafter, PW2 confided that she had gone to the house of the deceased on her way to her mother. She saw that the deceased was lying in a pool of blood and the accused was assaulting her with a knife. She further stated that the accused pointed the same knife at her and threatened her that if she discloses this fact to anyone he will also finish her in the same way that he has finished the deceased. PW2 was stunned and scared and came back to her house. PW12 was also scared upon hearing all this. She comforted PW2 and told her that they should go to the police to complain. PW2 and PW12 went to the police and narrated what happened to PW2 and the police recorded the statement of PW2. 2 to 3 days later, the police recorded her statement also. Thereafter, she was taken to the JMFC, Thane where her statement under Section 164 of Cr.P.C. was also recorded. During her cross examination, this witness makes several admissions. She states that on the day of the incident, when she went to the house of the deceased, she was accompanied by around 10 people. She was there at the residence of the deceased for about 10 to 15 minutes. She admits that at the relevant time the deceased, herself and PW2 all had their own mobile phones. In the evening of the incident, she had met PW1, the husband of the deceased and at that time police from Kopari Police Station were also there. She admits that when she had gone to pay condolences to PW1 (husband of deceased), PW2 and her husband was also there. They were there for about an hour. Thus, it was only after she went to PW2’s house that she told her about being an eye-witness to the incident. The fact that PW2 had asked to swear that she will not reveal what PW2 told her has being proved to be an improvement in both the 161 and 164 statements of PW12. She also admits that what she learnt from PW2 in the evening of the incident was an extremely serious offence and as a responsible citizen it was her duty to inform the police immediately. Hence, between 09:00 to 10:00 p.m. of the day of the incident, she along with PW2 went to the Kopari Police Station. She was made to sit outside and hence she was not aware about the discussion between PW2 and the police. Her statement was recorded on 5th October 2016, along with the statement of PW2.
PW13 has been examined as the carrier who took the forwarding letter from the Kopari Police Station to the Civil Hospital, Thane.
PW14 is the Investigating Officer. He narrates that on 2nd October 2016, when he was on duty at Kopari Police Station, they received a call from the Police Control Room that a woman has been found lying in a pool of blood at Anand Nagar, Kopari. He along with his police team rushed to the scene of offence, which was a room on the first floor in a chawl type building at Anand Nagar. They were informed the name of the deceased. She was lying dead in a pool of blood. After taking the photographs of the dead body with the help of the police photographer and carrying out the scene of offence panchanama, the dead body was sent for postmortem, inquest panchanama was prepared, statement of the first informant (PW1), the husband of the deceased was recorded and treated as the First Information Report which led to registration of FIR No.99 of 2016. He further deposes about how the clothes of the deceased were seized under panchanama on 3rd October 2016 and how the arrest of the accused was effected on 4th October 2016. He also deposed about the postmortem report being received and the statement of eye witness (PW2) and PW12 being recorded on 5th October 2016. He deposes about recovery of blood stained clothes and knife at the instance of the accused on 8th October 2016 and the DNA Report obtained from the Forensic Science Laboratory. He deposes about the opinion of the doctor regarding injuries, recording of the statements of the other witnesses, collection of documents etc. Under cross examination he proves the omissions and improvements of the eye witness (PW2) and her friend (PW12).
PW15 is the Nodal Officer of the Service Provider who was examined to produce the call detail records (CDR) of the mobile phone of the accused. He has produced the same in evidence along with Certificate under 65B of the Evidence Act. In his evidence he states that the SIM Card was registered in the name of Gopal Gogavale, father of accused.
The statement of the accused recorded under Section 313 of Cr.P.C indicates that the accused had claimed false implication and innocence. He also claims that he was at her sister’s place at Rabale and that he was assaulted during custody to extort the confession.
The case of the prosecution rests on the foundation of the eye-witness evidence of PW2, recovery of knife and blood stained clothes at the instance of the accused and minor injuries on his body, which are projected to be injuries out of a scuffle with the deceased during his attempt to sexually assault her.
The prosecution has relied heavily on the evidence of PW2, who happens to be a friend of the deceased. Before examining her evidence, it would be necessary to set out certain timings. The incident, as per the evidence of PW1, the husband of the deceased has taken place between 11:30 a.m. to 01:30 p.m. (i.e. in the afternoon of 2nd October 2016). Admittedly, the day of incident was a Sunday and also a Public Holiday viz. Gandhi Jayanti. The statement of PW2 was recorded by Kopari Police Station three days after the incident i.e. on 5th October 2016 and her statement before the Magistrate under Section 164 of Cr.PC was recorded on 15th November 2016. In her evidence, PW2 states that she herself, the deceased and PW12 were childhood friends who were staying in the same area and grew up together.
Before adverting to the eye witness account given by this witness, it is pertinent to note that she narrated the incident as seen by her to her friend PW12 in the evening of 2nd October 2016 for the first time. She did not narrate this incident to anyone else until 5th October 2016, when her statement was recorded by the police. This narrative of PW2 runs contrary to the evidence of PW12 who states that on the day of the incident, she along with PW2, had gone to Kopari Police Station between 09:00 to 10:00 p.m. There PW2 narrated the incident as seen by her to the police and the police recorded the statement of PW2. Under cross examination she states that she was not aware about the discussion between the PW2 and the police since she was made to sit outside. This contrary narrative raises a question mark as to whether the PW2 had approached the police on 2nd October 2016 as claimed by PW12 or whether her statement was recorded for the first time on 5th October 2016 as claimed by the PW2 herself. Secondly, PW2 states that she was so disturbed after seeing the accused assault the deceased and also being threatened with dire consequences, that for three days, apart from confiding in PW12, she did not even speak about the incident to any other person not even her husband or in-laws in these 3 days. In her deposition, she is silent about visiting the house of PW1 for offering condolences on the day of the incident, however, this runs contrary to the evidence of PW1 who states that not only PW2 but also PW12, their respective husbands and family members had come on the day of the incident to offer their condolences to PW1.
It is undisputed that PW2 must have been immensely frightened, stunned and in terror because of the dual effect of seeing such horrific crime and being threatened by the perpetrator of that crime. However, the contradiction between the PW2 and PW12 on whether they visited the Police Station on the day of the incident does raise a question on the reliability of PW2 as a witness. If PW12 is to be believed then, not only did PW2 visit the Police Station on the day of the incident in the evening, but also spent about 2 hours there. The evidence of PW12 could have been perhaps, brushed aside as a minor omission had it not been for the evidence of PW14, the IO who also admits that PW2 and PW12 did visit the Police Station on the evening of the incident. Here it must be also borne in mind that, the accused is a young boy aged 21 years and not some dreaded criminal who held a sway of his influence in the area due to which the ordinary citizens of the area were scared of him. Hence, assuming that initially the PW2 was naturally scared, considering the fact that eventually she was emboldened to approach the police after 3 days, there was nothing that prevented her from approaching the police earlier.
This element of doubt about the credibility of the eye-witness account is further reinforced when the omissions and improvements in her eye-witness testimony are seen. Firstly, the deposition about her blood pressure becoming low and she confining herself to her room is brought out as an improvement/omission qua her previous statement made to the police. Secondly, the narration that when she saw the accused, he had held the hair of deceased, her eyes were open and she was screaming is brought out as an improvement/omission qua her statement before the police as well as her statement before the Magistrate under Section 164 of the Cr.PC. Also, her testimony that she saw the accused assault the neck of the deceased with the knife and her neck being cut has been brought out as an improvement/omission qua her statement before the police as well as her statement before the Magistrate under Section 164 of the Cr.PC. Lastly, the deposition that she was stunned and scared after the incident has been proved as an improvement/omission qua her statement before the police.
These omissions and improvements are not cosmetic in nature. They change the entire perspective of the eye-witness testimony and therefore assume significance.
The most important aspect which accrues to the favor of the accused is that the entire case against the accused rests on the eye-witness evidence of PW2. The accused was arrested on 4th October 2016, whereas the statement of PW2 was recorded on 5th October 2016. In other words in the absence of the statement of PW2, the police had no incriminating material against the accused. However, the accused was arrested a day prior to the statement of PW2, which in itself demonstrates that the arrest of the accused was not based on the statement of PW2. The inherent contradiction about her visit to the police station, her improbable behavior, the improvements while describing the incident, seen as independent facts may seem to be innocuous but when cumulatively considered reinforce the lack of credibility of PW2.
This assumes significance since the entire foundation of the case against the accused largely rests on the solitary evidence of PW2, which is why her evidence has to be scrutinized minutely. Although the prosecution has relied upon the evidence of PW2 as their star witness, the inherent contradictions between her evidence and that of PW12 and PW1 inter se along with the questionable conduct of PW2 especially with regard to her visiting the police station for an extended length of time on the day of the incident itself when seen in the context of the fact that the arrest of the accused was based only on suspicion and not on the eye-witness account given by PW2 cumulatively erodes the credibility of the evidence of PW2 who cannot be termed as a reliable witness. It is a settled position of law that, where the omissions and contradictions either with the previous statements or inter se between the witnesses creates a serious doubt about the truthfulness of the witness it would not be safe to rely upon such evidence. Improvements and embellishments if minor, may be considered as errors of observation or errors of memory due to lapse of time, but, if the contradictions go to the root of the case, as in the present facts, the testimony of the witnesses is liable to be discredited.
The other incriminating material against the accused is recovery of the murder weapon i.e. knife and blood stained clothes at his instance. The recovery panchanama is proved by PW6, Recovery Panch. In his evidence he states that on 8th October 2016, he was called to the police station at about 01:00 a.m. in the afternoon. He was informed that he was required to carry out a panchanama pertaining to the murder of PW1’s wife. He admits to know both the accused as well as the PW1 i.e. the informant very well. He deposes that the accused made a self inculpatory statement before him inter-alia confessing to his offence. However, it is pertinent to note that there was no disclosure of any nature made by the accused regarding the murder weapon or clothes. He deposes that he was told by the police that they had to go to the house of the accused to carry out a panchanama. Under cross examination there is a stray admission that the accused had disclosed that he would show the “things” that he had kept. By no stretch of imagination can the disclosure made by the accused amount to a disclosure in terms of Section 27 of the Evidence Act. Excluding the inculpatory statement of the accused there is nothing to show that the accused had made a voluntary statement about any article (knife or clothes) which were subsequently recovered in consequence of the information received from him. Thus, the recovery effected from the accused is completely vitiated. Additionally, it is also demonstrated that the panch witness was not a neutral witness since he was known to both the accused as well as the informant family. This demolishes the incriminating circumstance of recovery against the accused.
The case of the prosecution that the accused had committed rape on the deceased is not proved in the trial and hence, the accused was acquitted from the charge of Section 376 IPC. This acquittal was not challenged by the State and hence it has attained finality. Consequently, we do not deem it necessary to deal with the allegations of rape against the accused. However, the trial Court has convicted the accused for attempt to commit rape punishable under Section 511 of the IPC. The foundation of the prosecution case as regards attempt to rape rests solely on the injuries on the body of the accused allegedly as a result of the resistance put up by the deceased in an attempt to rape, frustrated by which the accused committed her murder. The inquest panchanama and the spot panchanama clearly reveals that there are no external signs of struggle. The doctor who has conducted the postmortem has not opined that there were external indications of struggle or injuries on the private parts of the deceased. It is further pertinent to note that although nail clippings, vaginal swabs, blood samples and other genetic material of both the accused and the deceased were sent for Forensic Analysis, no DNA profile could be obtained and there is no forensic evidence that links the accused to the offence. In this light, merely because there are some scratch marks found on the hand, elbow and chest of the accused, that by itself cannot be the solitary ground to connect him with the offence.
The manner in which the accused has been implicated by the police in this case is raises several question marks on the procedure of investigation. The accused was ‘picked up’ by an officer of the Crime Branch on 4th October 2016 in the morning hours. He was interrogated by the Crime Branch until 3:30 p.m. He was not arrested then. He was handed over to Kopari Police Station at 6:00 p.m. on the same day. These facts are narrated by PW3, PSI Dalvi. He also categorically agrees that he was informed that the accused was involved in the offence but could not say who informed him. Similar is the admission of PW14, the investigating officer of the case. The arrest of the accused is thus only on the basis of suspicion. This assumes great significance in the light of the fact that the only material that points a finger at the accused is the eye-witness evidence of PW2, whose statement was recorded one day after the accused was arrested.
The investigative lapses do not stop here. PW14, IO further goes on to depose that the hair which was found in the closed fist of the deceased was not even collected. He further states that all the hair which were collected from various parts of the body of the deceased was not packed separately but kept in one envelope. The manner in which this extremely crucial scientific evidence was treated by the police shows utter negligence on the part of the police to handle such crucial scientific link evidence.
The evidence also brings out certain other relevant facts. PW7, the land lady of the room which was given on rent to the family of the accused as well as to the husband of the deceased clearly states that since the time the family of the deceased was staying with the family of the accused there were no complaints against the accused that he had misbehaved with the deceased at any point of time. This fact is corroborated by other witnesses also. Thus, it is clear that there is no prior history of misbehavior of the accused with the deceased. She also states that the area is densely populated and if a person shouts from the first floor of the house he can be easily heard in the surrounding houses, this fact is corroborated by the other witnesses also. Thus, it can be safely assumed that the house where the offence was committed was in a densely populated area where the houses where in close proximity to each other. The offence was committed some where in the afternoon, if the deceased had screamed as narrated by PW2, her screams would have certainly been heard in the neighbourhood. Another important aspect is that the accused after committing such a gruesome crime would not have lingered on and continued to reside in his own house which was virtually next door to the scene of crime, only to be arrested two days after the crime on the basis of suspicion.
Dealing with the reasoning of the trial court in the impugned judgment, we notice that the trial court has believed the recovery evidence against the accused, it has overlooked the improvements in the evidence of PW2 the contradictions between evidence of PW2 and PW12 are not appreciated in the proper context. Most importantly, the trial court has failed to appreciate that the entire prosecution case rests on the foundation of the eye-witness account which has come to the knowledge of the police only a day after the arrest of the accused. Thus, the police had already come to a conclusion that the accused was the offender only on the basis of surmises and conjectures which cannot take the place of proof. This fact has gone completely unnoticed in the impugned judgment. The trial court has also failed to consider that the forensic evidence has not implicated the accused. Due to all these reasons we are unable to agree with the findings of the trial court and consequently the conviction deserves to be set aside.
In the wake of the aforesaid discussion, the appeal is allowed. Appellant is acquitted. The Appellant be released forthwith, unless required in any other offence.