Atmaram vs State Of Maharashtra

Amit B. Borkar, J

Hearing was conducted through video conferencing and the learned counsel agreed that the audio and video quality was proper.

The appellant/accused has assailed the judgment and order dated 04.09.2017 rendered by Additional Sessions Judge, Gadchiroli in Sessions Case

No. 32 of 2015, by which the appellant has been convicted of offence punishable under section 302 of Indian Penal Code . The appellant is sentenced

to suffer imprisonment for life and to pay a fine of Rs.500/- (Rs. Five Hundred) in default of payment to suffer further rigorous imprisonment of five

months.

The case of the prosecution stated briefly is that Bharatbai is the wife of accused. The deceased Vacchalabai was her real sister. Baburao

Wadengwar is the husband of deceased. The wife of the accused deserted him prior to 4 to 5 years of the incident. She started residing in her

parental house at Marakbodi. Therefore, the accused was keeping anger on deceased. The incident took place on 22.11.2014. On the day of incident

at about 10.00 to 10.15 a.m., the accused was going towards the lake with bullocks, carrying axe on his shoulder. The deceased was returning from

call of nature through footway of the lake. The accused was proceeding towards the lake. Accused gave axe blow on the head of Vacchalabai, which

resulted into her death. Bajirao (PW3) witnessed the incident. Body of Vacchalabai was found injured and in unconscious condition on the road of

lake having severe head injuries. She was brought to her house. Then admitted in General Hospital, Gadchiroli. She died in the hospital on the same

day at about 2:20 PM. The accused and the witnesses belong to the same village.

During investigation, the Investigating Officer conducted inquest panchnama, got performed postmortem of the dead body. The Investigating

Officer seized blood sample, blood stained sari and blouse of the deceased from home-guard Dashrath Aatla. The Investigating Officer prepared spot

panchnama. The Investigating Officer also seized blood-grass mixed soil, blood mixed grass, leaves and simple soil from the spot. The Investigating

Officer seized bloodstained quilt from the husband of the deceased. The Investigating Officer recorded statement of the witnesses. The accused was

arrested on 02.12.2014. Bloodstained axe was recovered from the house of the accused, at his instance, as per memorandum of statement. The

investigating officer seized clothes of accused and sent axe for examination to the Medical Officer and obtained opinion about the injuries. The

chargesheet was filed against the accused on 19.1.2017 for offences punishable under section 302 of Indian penal code. The charge was framed

against the accused for offence under section 302 of Indian Penal Code. The accused entered the plea of not guilty and claimed to be tried. The

defence propounded by the accused was of total denial.

During the trial, in all, the prosecution examined 8 witnesses. Since PW.3-Bajirao, eye witness of the incident turned hostile, prosecution led

circumstantial evidence against the appellant. The circumstances were presence of accused in vicinity of the place of incident, false explanation of the

appellant and recovery of weapon. The Investigating Officer was not examined. The learned Trial Judge believed the said circumstances and

convicted and sentenced the appellant in the manner stated in paragraph No.1.

We heard learned counsel Mr S. K. Sable, who is appointed by court and Shri A. D. Sonak, Additional Public Prosecutor for State. We have

meticulously gone through the deposition of the witnesses. We have perused various exhibits proved by the prosecution to substantiate their case.

The contentions raised on behalf of the appellant stated briefly are the entire case is based on circumstantial evidence, the chain of events and

circumstances is not at all complete. The prosecution has failed to prove the presence of accused in the vicinity or at the place of incident where the

murder is alleged to have taken place, particularly when none of the witnesses have seen accused at the time of incident. The panch witness has

admitted in cross-examination that while sealing of axe, the Investigating Officer obtained his signature on paper label but said label is not there on the

axe, similar type of axe is easily available in the market. The prosecution has failed to examine the Investigating Officer to explain material omissions

and inconsistencies. Without prejudice to these contentions, even if the prosecution evidence in its entirety is accepted, it does not prove the complicity

of the accused in the murder. C. V. report in respect of full shirt of the accused containing blood stain is inconclusive, the prosecution has failed to

establish that the blood stain on the shirt of the accused is of deceased Vatsalabai therefore, the judgment of conviction of appellant is unsustainable in

law.

Mr A. D. Sonak, learned APP appearing on behalf of the State, pointed out from the evidence that the circumstances, which according to him,

proved complicity of the appellant in the murder. According to Mr Sonak, the prosecution has successfully proved beyond doubt that the homicidal

death of Vacchalabai was caused by the appellant only. According to him, the circumstantial evidence was complete and the appellant had motive. It

is further submitted that recovery of weapon from the house of the appellant has not been explained nor there is any explanation as regards motive

alleged by the prosecution. It is further submitted that the accused has failed to explain blood stain on his shirt. He therefore, prayed for dismissal of

appeal.

Before entering into the arena of appreciating evidence relating to circumstances, it would be appropriate to put on record the fact that the death of

Vacchalabai is homicidal in nature. In addition to the Inquest Panchnama (Exhibit-45), which shows presence of elliptical injury on the head of

deceased Vacchalabai, there is Post Mortem Report (Exhibit-33). The evidence of Dr. Kumbhare (PW-6), who has conducted autopsy proves that

there was chop wound over right parietal region measuring 8x2x13 c.m. (LBD) having sharp margin found on head of the dead body. According to

the opinion of Dr. Kumbhare (PW-6), the cause of the death was the head injury, which was sufficient in the ordinary course of nature to cause the

death and there is not much cross-examination of Dr. Kumbhare (PW-6) as regards homicidal nature of the death. The above evidence sufficiently

proves that death of deceased was homicidal in nature.

Since there was no direct evidence regarding the murder of the victim, the prosecution case in the present appeal rests on the circumstantial

evidence. There is no eye-witness to the alleged incident nor there is any witness who claims to have been present in the vicinity at the time of alleged

incident.

Before delving deep into the contentious issues emanating from the present case, this Court reminds itself of the duty of Court while appreciating

circumstantial evidence as laid down in the decision of the Apex Court in the case of Hanumant Govind Nargundkar Vs. State of Madhya Pradesh,

reported in AIR 1952 SC 343 which is to the following effect:

“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of

guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the

hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to

leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all

human probability the act must have been done by the accusedâ€​.

It is well established that in a case resting on circumstantial evidence, all the circumstances brought out by the prosecution must inevitably and

exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence

of the accused. Even in a case of circumstantial evidence, the Court requires to bear in mind the cumulative effect of all the circumstances in the

given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. Moreover, the principles governing the

appreciation of evidence in a case dependent upon the circumstantial evidence are that each circumstance relied upon by the prosecution must be

established by cogent, succinct and reliable evidence. The circumstance relied upon must be such as cannot be explained on any hypothesis except the

guilt of the accused. In other words, the circumstance must be of an incriminating character. All the proved circumstances must provide a chain, no

link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.

Keeping in view the aforestated well settled principles of law enunciated by the Apex Court in various judgments in criminal cases of circumstantial

evidence, we proceed to consider the instant appeal.

The prosecution has brought on record the following circumstances, which according to them are sufficient to prove the guilt of the accused. The

circumstances enumerated by the trial court in the judgment are to the following effect :-

(I) Accused was keeping anger on the deceased as his wife left her before 4 to 5 year due to instigation of the deceased.

(II) Accused was seen going towards place of incident.

(III) Accused went with bullocks and axe on his shoulder but, in the evening returned alone and when his father asked him about bullocks he raised

quarrel with him.

(IV) Accused was restless and used to go upâ€"down in the upper room of his house after the incident.

(V) Axe was recovered from the house of accused as per his memorandum statement.

(VI) Non-explanation of blood of deceased on the axe and giving false explanation of blood on the shirt of the accused.

We would individually take up each of the circumstances.

The first circumstance, which is in the form of motive, which weighed with the trial court is that accused was keeping anger on the deceased, as wife

of the accused left him before 4 to 5 years due to instigation of deceased. We get a insight into the motive of crime after going through the evidence

of PW-1 Baburao, husband of deceased and PW2-Barikrao, the brother of the accused. PW1-Baburao and PW2-Barikrao, in their deposition have

stated that accused was angry on P.W-1 and victim, as he thought that his wife deserted him on the instigation of victim and PW1-Barikrao. PW-1

has stated that on one occasion the accused had beaten him by stick and on another occasion the accused had come to his house with knife to kill his

wife (victim). PW-1 has further stated that he had lodged a report with police station reporting both the incidents. In the cross examination PW-1 has

denied suggestion that he is deposing falsely that accused had beaten him and came to his house with knife. It is also stated by them that they have a

doubt that accused has killed the deceased. In the statement under Section 161, PW-1 has not stated anything about filing of report with police station

regarding both the incidents. PW-1 has not mentioned day, month or year as to when both incidents took place. Proximity of those incidents have

material bearing on the incident of murder of victim. There is no clear statement from both the witnesses to the effect that accused has killed

deceased . Failure to give details about both incidents and omission of fact regarding report of both incidents to police in a statement under Section

161, shakes credibility statements as regards prior incidents stated by PW-1. In our judgment, the circumstance of motive may arouse the strongest

suspicion against the appellant or show that the prosecution case may be true, but it may not take the place of proof. We are fortified in our view by

the decision of the Apex Court in the case of Sarwan Singh Vs. State of Punjab, reported in 1957 AIR 637. In para 9 of the aforesaid decision, their

Lordships of the Apex Court have observed:

‘Suspicion however, strong, cannot take the place of proof’.

In para 12 of the same decision. Their Lordships have observed this:

“between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be

covered, by legal, reliable and unimpeachable evidenceâ€​.

We have carefully examined the evidence of ‘Motive’ and in our considered opinion, it fails to inspire confidence. In our judgment, the

circumstance of motive, as alleged, cannot be said to be strong to return finding of conviction against the accused.

So far as circumstance no.2 is concerned, accused was seen going towards place of incident. PW8-Kokila (Ex.43) in her statement has stated that

she and Shantabai Tunkalwar were returning from call of nature, at that time accused was proceeding towards direction of lake with bullocks and axe

on his shoulder. PW-8 in her cross-examination, has clearly stated that many persons used to walk through foot way towards lake where the incident

happened. It is therefore clear that footway was accessible to all villagers, who were using it as a public way. In fact PW-8 herself had used said

footway while returning from call of nature. It cannot be therefore, conclusively held that accused alone and nobody else had used foot way in

question on the day of incident. Therefore, the evidence against the accused that he had used the footway along with bullocks and axe on the day of

incident does not in any manner form link in the chain of evidence against the accused.

We then come to circumstance no. 3 and 4 that the accused went with bullocks and axe on his shoulder but, in the evening returned alone and

when his father asked him about bullocks he raised quarrel with him and the accused was restless and used to go upâ€" down in the upper room of his

house after the incident. These circumstances at the most raise suspicion about conduct of accused but in our judgment does not incriminate the

accused. It is pertinent to note that PW-8 Kokila has not used word 'restless' in her deposition. She has stated in her examination in chief as under:-

“On the day of incident when I was cooking,accused used to go and come in the upper roomâ€​

This statement in our view does not incriminate the accused.

We next come to circumstance no. 5 , that the axe was recovered from the house of accused as per his memorandum statement. In the recovery

panchanama there is not even a whisper of the fact that, it was the accused who had concealed the axe in the house from where it was recovered. It

is true that in their statements in the trial Court, the panch of recovery panchnama Sanjay Rajpure P.W-5 has stated that it was the accused who had

mentioned that he had concealed the axe in the house, but since this has not been mentioned in the recovery panchanama, the probability of it being an

improvement to constitute incriminating recovery evidence within the ambit of Section 27 of the Evidence Act, cannot be ruled out. In such a situation

we feel the safer and wiser course would be to go by the recovery panchanama. And if that is done the said circumstance cannot be held to

incriminate the Appellant.

We are fortified in our view by the decision of the Supreme Court in the case of Pohalya Motya Valvi v. State of Maharashtra, reported in (1980)

1 SCC 530. A perusal of paragraphs 13, 14 and 15 would show that in the said case spear was recovered on the pointing out of the accused, but in the

recovery memo there was no mention of authorship of its concealment by the accused and the fact that he gave information leading to its discovery.

The Supreme Court in paragraph

16 held that this recovery was of no consequence. It made observations in paragraph 15 which we feel are pertinent to extract. They read thus:

“15. …… The recovery of a blood-stained spear becomes incriminating not because of its recovery at the instance of the accused but

the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant

who gave information leading to its discovery was the person who concealed it.â€​

As regards circumstance no. 6 about non-explanation of blood of deceased on the axe and giving false explanation of blood on the shirt of the

accused is concerned, there is doubt created regarding recovery axe from the house of the accused. PW-5 Panch witness has stated in his cross

examination that while sealing, the Investigating Officer had obtained his signature on the paper label but the said label containing signature is not the

wrapped paper of axe. He has also stated that similar type of axe can be easily obtained from the market. This creates doubt as regards recovery of

axe from the house of accused. It was necessary for prosecution to offer explanation for the said omission by examining Investigating officer who had

carried out said panchnama. The aforesaid recoveries would not be of much avail to the prosecution for there is no evidence on record to show that

from the time the aforesaid articles were recovered and till the time, they were sent to the Chemical Analyst, the gap being of more than 6 days, they

were kept throughout in a sealed condition. It was obligatory on the part of the prosecution to lead link evidence to that effect. This was imperative

because the possibility that the prosecution may have put human blood on the aforesaid articles during that interregnum, had to be eliminated before

any reliance on the aforesaid recovery evidence could be placed. The question is not whether human blood was actually put on the recovered articles

but as to whether it could have been put, observed a Division Bench of the Rajasthan High Court in the case of State Vs. Motia, reported in A.I.R.

1955 Rajasthan 82 . The aforesaid decision was followed by a Division Bench of our own Court in the case of Deoraj Deju Suvarna Vs. State of

Maharashtra, reported in 1994 (4) BCR 85.

The necessity of sealing has also been emphasized by their Lordships of the Apex Court in the decision in the case of Amarjit Singh Vs. State of

Punjab, reported in 1995 Supp.(3) SCC. 217 . For the aforesaid reasons, the evidence of recoveries has to be excluded by us in determining the

appellant's guilty. We propose placing no reliance upon it.

In so far as circumstance of giving false explanation of blood on the shirt of the accused is concerned, it is worthwhile to note that Full Shirt of the

accused was sent to Regional Forensic Science Laboratory, Nagpur wrapped in paper labelled-D, Sr. No. 8. The report of the said laboratory has

given result of analysis to the effect that blood group of blood detected on Exh.-8 cannot be determined as the result is inconclusive. Therefore it

cannot be conclusively said that the accused has given false explanation for blood on his shirt. The Supreme Court in the oft-quoted case of Sharad

Birdhichand Sarda Vs. State of Maharashtra, reported in AIR 1984 SC 1622, in paragraphs 150 and 158 has held that the circumstance of false

explanation can only be pressed into service by prosecution, if through cogent evidence it completes the links in circumstantial evidence. In the said

paragraphs it is observed that false explanation cannot be taken into consideration for completing the chain. We are in respectful agreement with the

said observations of Their Lordships. The result is that the circumstance of false explanation in this case cannot be taken into consideration as an

incriminating circumstance against the appellant because motive and other circumstances are not sufficient to complete the chain of circumstantial

evidence.

It is an accepted principle that non-examination of investigating officer is not fatal to the prosecution case. In Bihari Prasad Vs. state of Bihar

reported in 1996(2) SCC 317 the Apex court has held that non-examination of Investigating Officer is not fatal to the prosecution‘s case, especially,

when no prejudice is likely to be suffered by the accused. It is worthy to note that the Trial Court has not delved into the issue of non-examination of

investigating officer. In the present case we are inclined to think so especially when panch witness PW5 (Ex. 26) has stated in cross-examination that

while sealing, Investigating Officer had obtained his signature on the paper label but the said label containing signature is not the wrapped paper of

axe. He has also stated that similar type of axe can be easily obtained from the market. On perusal of entire material on record, we find that no

explanation has been offered as regards paper label on the Axe. The Supreme Court in case of Arvind Singh Vs. state of Bihar 2001(6) SCC 407,

Ratan Lal Vs. state of JK reported in 2007(13) SCC 18 and Ravi Shankar Prasad Manjhi Vs. State of Jharkhand reported in 2008(16) SCC 561 has

explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that present case is the one

where investigating officer should have been examined and his non-examination creates lacuna in the case of prosecution.

In view of the aforesaid infirmities, we hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In our

opinion, the maximum which can be said in favour of the prosecution is that a strong suspicion has been created against the appellant and that the

prosecution case may be true. But strong suspicion and may be true are not good enough to record a finding of guilt in a criminal case.

Gajendragadkar, J., (as he then was) in the case reported in Sarwan Singh Vs. State of Punjab (Supra), observed that suspicion howsoever strong, can

never take the place of proof. In the same decision. Justice Gajendragadkar further observed that between ‘may be true’ and ‘must be

true’, there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and

unimpeachable evidence. We regret that this distance has not been traveled by the prosecution in the instant case, by legal, reliable and unimpeachable

evidence. In our view, the said distance has not been traveled by the prosecution in the instant case. For the said reasons in our view the conviction of

the appellant for the offence under Section 302 of the Penal Code, 1860 cannot be sustained.

For the reasons recorded above, the Court passes the following order:-

(i) Criminal Appeal is allowed.

(ii) The judgment and order of conviction passed by the learned Additional Sessions Judge, Gadchiroli in Sessions Case No. 32/2015 is set aside.

(iii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He is set at liberty, if he is not required in any

other case.

(iv) Fees of learned counsel appointed for the appellant are quantified at Rupees Five Thousand only.

The order be communicated to the counsel appearing for the parties, either on the email address or on WhatsApp or by such other mode, as is

permissible in law.