Criminal Appeal No. 653 of 2020 · The High Court
Case Details
2024:BHC-AUG:17418-DB Cri.Appeal No.653/2020:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.653 OF 2020Pradeep s/o Manik KanseAge 25 years, Occ. Agri.R/o Talni, Tq. Renapur,District Latur… APPELLANTVERSUSThe State of Maharashtra through Kotwali Police StationAhmednagar, Taluka andDistrict Ahmednagar(Copy to be served on Public Prosecutor, High Court ofBombay, Bench at Aurangabad)… RESPONDENT.......Mrs. S.G. Chincholkar, Advocate for appellantMr. V.K. Kotecha, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 25th July, 2024Date of pronouncing judgment : 7th August, 2024JUDGMENT (PER R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and consequential sentence dated27/10/2020, passed by learned Sessions Judge, Ahmednagarin Sessions Case, No.279/2016. Vide impugned judgment andorder, the appellant was convicted for offence punishable Cri.Appeal No.653/2020:: 2 ::under Section 302 of the Indian Penal Code and under Section12 of the Protection of Children from Sexual Offences Act,2012 (POCSO Act for short). He has been sentenced to sufferimprisonment for life and to pay a fine of Rs.500/- with defaultstipulation for the offence punishable under Section 302 of theIndian Penal Code with further direction that the appellant shallnot be released from the captivation until his life. No separatesentence has been awarded for the offence punishable underthe POCSO Act. He was acquitted of the offence punishableunder Section 3(2)(v) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989 and under Sections4/25 of the Arms Act.2.Facts giving rise to the present appeal are asfollows :-P.W.1 Tirthaprasad was resident of Ahmednagar.He would reside along with his wife and their son. He wouldserve with a private Company at MIDC, Ahmednagar. His wifewas serving as a Conductor with Maharashtra State RoadTransport Corporation (MSRTC) at Shirur. One TanajiSuryawanshi, resident of village Hadgaon, Taluka Nilanga,District Latur was P.W.1’s co-brother. Kum. Mohini (deceased)was Tanaji’s daughter. She had appeared for 10th Standard Cri.Appeal No.653/2020:: 3 ::examination in 2016 at her grand parent’s place at villageTalni. For Summer Vacation she had come to the house ofP.W.1 Tirthaprasad at Ahmednagar.3.On the fateful day i.e. 27/5/2016, both P.W.1Tirthaprasad and his wife had left the house for their respectivework place/s. Their son had gone to his grand parent’s house.As such, Mohini was alone at home. By 11.00 in the morningon the fateful day, the appellant went to the house of P.W.1Tirthaprasad. It appears that, both the appellant and Mohini(deceased) were emotionally involved. They had even marriedin a temple at Ahmednagar. What went wrong between thetwo is not known. Mohini had not completed 18 years of age.The appellant, by going to the house of P.W.1 Tirthaprasad,assaulted Mohini with sharp sickle. He gave her number ofblows with the sickle. He then left the house of P.W.1Tirthaprasad and directly went to Kotwali Police Station,Ahmednagar. He reported to the Police Station Officer to havekilled his wife. A Station Diary entry was made to that effect.Services of employees of Municipal Corporation were availedfor acting as panchas. In their presence, the sickle and bloodstained clothes on the person of the appellant were seized.The Police Station Officer informed his higher-ups. The police
Facts
Cri.Appeal No.653/2020:: 4 ::officials went to the crime scene. Dead body of Mohini wasfound lying in a pool of blood. A crime scene panchanama wasdrawn. Her dead body was shifted to Civil Hospital,Ahmednagar. Inquest panchanama (Exh.38) and autopsy(Exh.51) were conducted on her mortal remains on 27/5/2016.The landlady in whose premises P.W.1 Tirthaprasad wasresiding, informed P.W.1 Tirthaprasad on phone. Heimmediately came. He even informed his wife. She tooarrived. He then lodged First Information Report (F.I.R.-Exh.16) with Kotwali Police Station, Ahmednagar. Theappellant was arrested. He was medically examined beforearrest. Statements of persons acquainted with the facts andcircumstances of the case were recorded. All the seizedarticles were sent to Forensic Science Laboratory, Nasik forchemical analysis and report. During interrogation, theappellant made disclosure statement. He led the police to theshop wherefrom he purchased the sickle. Then he took thepolice to a shop whereat he got it sharpened. Thereafter hetook the police to a shop wherefrom he bought a cloth bag tokeep the sickle therein. It was also found that the appellantalong with his friend had come to Ahmednagar on the previousday. They had stayed in a hotel, “Chetana” at Maliwadaovernight. Upon completion of the investigation, a charge Cri.Appeal No.653/2020:: 5 ::sheet was filed.4.The Sessions Court (Trial Court) framed theCharge (Exh.5). The appellant pleaded not guilty. His defencewas of false implication. He put on record his side of the storyin writing. According to him, he was in love with Mohini(deceased). Both of them had even got married with eachother in a temple at Ahmednagar. The parents of Mohini wereopposed to the relationship. They were persuading her todisassociate from the appellant. She did not listen. With aview to teach him (appellant) a lesson, P.W.1 Tirthaprasadasked Mohini to call the appellant to his residence for talksrelating to their marriage. On his arrival, P.W.1 Tirthaprasadgot killed Mohini through his men only with a view to falselyimplicate the appellant. Even the appellant was assaulted onhis head with an iron rod. He became unconscious. He waskept confined in the house of P.W.1 Tirthaprasad and thenbrought to the police station. According to the appellant, he isfrom a different district. Nobody was there to speak on hisside. He was alone all along.5.To bring home the charge, the prosecutionexamined 19 witnesses and produced in evidence certaindocuments. On appreciation of the same, the Trial Court
Legal Reasoning
Cri.Appeal No.653/2020:: 9 ::before a case against an accused can be said to befully established :(1)the circumstances from which the conclusionof guilt is to be drawn should be fully established.It may be noted here that this Court indicated thatthe circumstances concerned must or should andnot ‘may be’ established. There is not only agrammatical but a legal distinction between ‘maybe proved’ and ‘must be or should be proved’ aswas held by this Court in (Shivaji SahebraoBobade v. State of Maharashtra, (1973) 2 SCC793, where the following observations were made :“certainly, it is a primary principle that theaccused must be and not merely may be guiltybefore a Court can convict and the mentaldistance between ‘may be’ and ‘must be’ islong and divides vague conjectures from sureconclusions.”(2)the facts so established should be consistentonly with the hypothesis of the guilt of theaccused, that is to say, they should not beexplainable on any other hypothesis except that theaccused is guilty,(3)the circumstances should be of conclusivenature and tendency,(4)they should exclude every possiblehypothesis except the one to be proved, and(5)there must be a chain of evidence socomplete as not to leave any reasonable ground forthe conclusion consistent with the innocence of theaccused and must show that in all humanprobability the act must have been done by theaccused.” Cri.Appeal No.653/2020:: 10 ::11.The following can be the circumstances said tohave been relied on by the prosecution.(1)The acquaintance and emotional relationship betweenthe appellant and the deceased.(2)Presence of the appellant at the crime scene.(3)He was seen by number of witnesses running awayfrom the premises of Athare.(4)He was carrying a blood stained sickle and clothes onhis person were stained with blood.(5)Appellant himself visited the Police Station andreported the matter(6)Blood stained sickle was seized from him.(7)Clothes on his person stained with blood, too wereseized.(8)Dead body.EVIDENCE IN THE CASE : -12.P.W.1 Tirthaprasad was the co-brother of the fatherof Mohini (deceased). He was resident of Ahmednagar.Mohini’s parents would reside at Hadgaon, Taluka Nilanga.Mohini was staying with her grand-parents at village Talni,Taluka Renapur, District Latur for her education. In the year Cri.Appeal No.653/2020:: 11 ::2016, she had appeared for 10th Standard examination. Shehad been to the house of P.W.1 Tirthaprasad for SummerVacation.13.It is in the evidence of P.W.1 Tirthaprasad that, onthe given day i.e. on 27/5/2016, he left for his work place in theearly morning. Since his wife was serving as a Conductor withMSRTC at Shirur, she too had left earlier to him. Their sonhad gone to the house of his grand-parents. As such, Mohiniwas alone home. It is further in his evidence that, he receiveda phone call of landlord Athare. He was informed that, Mohiniwas assaulted. He took a leave and returned to his house. Henoticed Mohini lying in a pool of blood on the terrace of thesecond floor. She had suffered multiple injuries. He thencontacted his wife Jayshree. She too came. Both of themwent to Kotwali Police Station. Then he came to know theappellant to have assaulted Mohini. He was present at thePolice Station. A sickle was in his hand. Clothes on hisperson were stained with blood. He, therefore, lodged theF.I.R. (Exh.16).14.P.W.1 Tirthaprasad was subjected to a searchingcross-examination. It is in his evidence that, it was a threestorey building owned by Shri Athare. He was staying on the Cri.Appeal No.653/2020:: 12 ::ground floor. There were shop blocks on the ground floor. Theconstruction work of a two storey building was in progress bythe side of the premises of Shri Athare. Here, the learnedcounsel for the appellant would submit that, when the victimwas assaulted with number of blows, how could there be nohue and cry. It is further in his evidence that, he received aphone call by 12.15 p.m. On having seen Mohini in a pool ofblood, he became numb. His wife too returned in response tohis call. Then both of them went to the Police Station. It wassuggested to him that, when he reached his house from hisworkplace, the police had already been present there. Hedenied to have known the appellant since before the incident.He admitted the appellant to have been resident of villageTalni. He was shown a photograph. He admitted that thepersons in the photograph were the appellant and Mohini. He,however, denied that, Mohini was seen in the photograph tohave sported a Mangalsutra of his wife. It was also suggestedto him that, a year before the incident, the appellant had beento his house and stayed overnight when he and his wife werenot there. He denied to have secured a job for appellant, butthe appellant left the same. He also denied that there wasemotional relationship between the appellant and thedeceased. It was also suggested to him that, whenever he Cri.Appeal No.653/2020:: 13 ::would visit Talni, his mother-in-law would inform him thatMohini would wander with boys and her behaviour made themdifficult to stay in the village. He denied that he, therefore,brought her to his residence. He denied to have made Mohinito call the appellant to his house and got her killed through hismen. He denied that he smeared clothes on the person of theappellant at the relevant time and sickle (Koyta) with blood ofthe deceased. He was confronted with his F.I.R. which is silentto state therein that when he had been to police station tolodge F.I.R., he saw the appellant present there armed withsickle and the clothes on his person to have been stained withblood.15.P.W.2 Mahadev was an employee of MunicipalCorporation, Ahmednagar. The police authorities availed hisservices to act as panch witness to various panchanamas.First of such panchanamas is relating to seizure of bloodstained sickle and clothes on the person of the appellant by12.45 p.m. on 25/7/2016. It is in his evidence that, pursuant tothe directions of the Deputy Commissioner of MunicipalCorporation, Ahmednagar, he went to Kotwali Police Station.In his presence a blood stained sickle was seized from theappellant. Clothes on the person of the appellant were stained Cri.Appeal No.653/2020:: 14 ::with blood. Those too were taken charge of. Those clotheswere – shirt, banian and Jeans Trouser. It is further in hisevidence that, P.S.I. Karhewad wrapped these articles andplaced them under seal. He referred to the panchanama(Exh.23) in that regard.16.Then, he is a witness to the crime scenepanchanama (Exh.24) and sketch thereof (Exh.25). Accordingto him, hair clip, a pair of ladies chappal, blood stained soil, amobile handset, a saffron colour cloth bag etc. were takencharge of from the crime scene. According to him, thosearticles were packed and sealed on the spot. It is further in his evidence that, on the same day,by 5.30 p.m., the clothes on the person of the deceased wereseized under panchanama (Exh.26) drawn by P.S.I. Chavan.The seized clothes were white top, black scarf, legging andknicker of the deceased. It is further in his evidence that, theappellant was then personally searched. Articles like mobilehandset, 4 GB Micro Card, 2 SIM Cards, PAN Card, AadharCard etc. were seized besides admission card of Mohini(deceased) of examination for 10th Standard. It was videpanchanama (Exh.27). Cri.Appeal No.653/2020:: 15 ::17.It is further in his evidence that, on the same daythe appellant was arrested in his presence. A panchanama tothat effect (Exh.28) was drawn.18.We do not propose to refer to his further evidencewhich pertains to the disclosure statement made by appellant,disclosing the shop wherefrom he purchased sickle, shopwhereat he sharpened it and another shop wherefrom hepurchased a cloth bag to keep the sickle therein. The policeofficer recorded such statements given by the appellant anddrew the panchanama of the places (shops) to which theappellant took them. There is nothing to indicate that theseized sickle was the one which was allegedly purchased bythe appellant from the shop of P.W.6 Husen and sharpened itat the shop of P.W.7 Mustafa and the shop owned by P.W.8Sahil from whom he purchased the cloth bag.19.P.W.3 and P.W.4 were the owner and Managerrespectively of Hotel Chetana, Ahmednagar wherein theappellant had stayed overnight on 26/5/2016. An extract fromthe Check-in Register was placed on record vide Exh.34. Thesaid extract indicates the appellant had stayed in the said hotelalong with his friend. Cri.Appeal No.653/2020:: 16 :: Learned Advocate for the appellant brought to ournotice that the extract contained 12 entries of the customerswho had checked in. As against the 4 entries only, there weresignatures of the customers. According to the learnedAdvocate the witnesses have admitted to have not obtainedany document in proof of identification of customers and notexplained why there were no signatures of customers whosenames are there at Sr.No.5 onwards. We do not propose to give much credence to thesubmissions made by learned Advocate for the appellant andeven evidence as regards the appellant to have stayedovernight at Hotel Chetana since he himself has admitted hispresence at the crime scene by 11.00 in the morning on 27May (fateful day).20.P.W.5 Raju is proprietor of a shop SrichandElectronics. He produced in evidence receipt (Exh.40) in thename of person – Kanse Pradeep (appellant), suggesting theappellant to have purchased a cell phone worth Rs.1300/- on23/5/2016. No office copy or the original receipt book wasplaced before the Court. The receipt does not bear appellant’ssignature. The prosecution proposes to rely on his evidence tomake out a case that the cell phone seized from the crime Cri.Appeal No.653/2020:: 17 ::scene was one gifted by the appellant to deceased as abirthday gift on 23/5/2016.21.P.W.6 Husen was proprietor of a Hardware Shop,“Ajij Tools”. It is in his evidence that, police had come to hisshop along with one person, (appellant), who had purchased asickle for Rs.100/-. He delivered the police a CCTV footage inthat regard in one pen drive after obtaining it in one CD.22.For want of there being any receipt of the appellantto have purchased a sickle from him, we do not propose togive much credence to his evidence. The CCTV footagetendered by him was in the nature of “secondary of secondaryevidence”. The same too, therefore, is not relied on. 23.P.W.7 Mustafa would run a shop by name “PoonaMachine Dhar Kendra”. It is in his evidence that, one personhad been to his shop by 10.45 a.m. on 27 May and got onesickle sharpened. The appellant had taken the police to hisshop pursuant to a disclosure statement made by him. Asalready observed above, there being no further evidence toindicate the very sickle to have been sharpened by thiswitness, his evidence too is not given much credence.24.P.W.8 Sahil was serving as a Salesman in a shop Cri.Appeal No.653/2020:: 18 ::of one Rohit Lodha. The appellant had taken the investigatingofficer to his shop. According to this witness, the appellant hadpurchased a saffron colour bag from his shop for Rs.10/-. Forthe reason that there being no earmark on the cloth bag seizedfrom the crime scene to identify it to have been purchased bythe appellant from the said shop, the evidence of this witnesstoo is given little importance.25.Then there is evidence of P.W.9 Nanda. It is in herevidence that, she was residing at Burudgaon Road,Ahmednagar. Athare Niwas was adjacent to her premises. Itis further in her evidence that, it was 11.35 a.m. of 27/5/2016.She left the house for collecting scrap. She saw one personcame running from opposite side. He was armed with a sickle.Clothes on his person were stained with blood. The saidperson was clad in a white shirt and blue Jeans. She heardnoise from the premises of Athare house. She, however, could not identify the appellantbefore the Court since according to her, about three yearswere passed post she had seen that person.26.During her cross-examination, it was suggested toher that said person ran away within a fraction of seconds. Cri.Appeal No.653/2020:: 19 ::This suggestion goes a long way to indicate the appellant tohave admitted P.W.9 Nanda to have witnessed one personrunning away and he was having a blood stained sickle andclothes on his person were stained with blood. Furtherquestions put to her during her cross-examination would,therefore, be of little consequence.27.P.W.10 Ravindra was a rickshaw driver byprofession. According to him, he was present at ChanakyaChowk. Little past 11.30 a.m., one person came running fromBhosle Akhada. He was armed with sickle. The person wasclad in white shirt and blue Jeans. The clothes on his personand the sickle were stained with blood. On his request, hetook that person to Kotwali Police Station. That person gavehim Rs.500/- as fare. During interaction, he told a quarrelbetween two brothers to have ensued. This witness too could not identify the appellantbefore the Court only on account of gap of three yearsbetween he carried that person as passenger in his auto andgave evidence before the Court.28.P.W.11 Dr. Manoj conducted autopsy on the mortalremains. His evidence would be referred to a little later. Cri.Appeal No.653/2020:: 20 ::P.W.12 Sadashiv was the Naib Tahsildar-cum-ExecutiveMagistrate. He conducted test identification parade. In ourview, his evidence too is of little consequence since thewitness who identified the appellant in test identification paradewere the shop owners to whom the appellant had taken thepolice pointing out the places wherefrom he purchased sickle,sharpened it and then purchased a cloth bag. Meaningthereby, the witnesses who identified him in test identificationparade had already seen him a few days before the testidentification parade was held.29.P.W.13 Vaishali was the landlady, owner of AthareNiwas. P.W.1 Tirthaprasad was residing as a tenant in thesaid premises. It is in her evidence that, on 27/5/2016, it was11.30 a.m., she was serving meal to her husband. She heardhue and cry. She, therefore, went close to the entry gate ofher house. Outside, people told her that something was goingon the terrace of her house. She, therefore, entered thepremises and while climbing the staircace, she saw a boycoming down the staircase. He was in the age group of 25-30years. He was clad in white shirt and blue Jeans. A sickle wasin his hand. Both the sickle and clothes on his person werestained with blood. She went upstairs and noticed a girl lying Cri.Appeal No.653/2020:: 21 ::in a pool of blood. She was none other than Mohini, who hadcome for Summer Vacation to the house of P.W.1 Tirthaprasad.She informed the incident to her husband, who in turncontacted P.W.1 Tirthaprasad on phone.During her cross-examination, it was suggested toher that after arrival of police to the crime scene, P.W.1Tirthaprasad arrived. He then called his wife by making aphone call. She too came. Thereafter both of them went tothe police station. These suggestions are implied admissionsgiven on behalf of the appellant.30.P.W.14 Dattatraya was Station House Officer,Kotwali Police Station on 25/5/2016. It is in his evidence that,by 11.30 a.m., the appellant came to the Police Station anddisclosed him to have beaten up his wife Mohini on account ofdomestic quarrel at Athare Niwas, Near Jakat Naka,Burudgaon Road, Ahmednagar. He narrated the said fact tohis superior – Malkar. On the directions of his superior, hedeputed police staff to the crime scene. They were, A.P.I.Chavan, Patil, Head Constable Musale. It is further in hisevidence that, he made a station diary entry, as to what wasdisclosed by the appellant. He referred to the station diaryentry (Exh.65) (Sr.No.26). It is further in his evidence that, Cri.Appeal No.653/2020:: 22 ::while appellant appeared in the police station, he was armedwith a sickle stained with blood. Clothes on his person alsoborne blood stains. He identified the appellant as the personwho had come to the police station and based on hisdisclosure, made station diary entry (Exh.65).During cross-examination, he admitted that, stationdiary entry is silent to record therein that the appellant wasarmed with a sickle stained with blood and clothes on hisperson too borne blood stains. He, however, denied theappellant to have had not come to the police station. He alsocould not state as to why did he not record appellant’sstatement.31.P.W.15 Gajanan was P.S.I. attached to KotwaliPolice Station. It is in his evidence that, he was present at thepolice station while appellant came there. It is further in hisevidence, after a while, P.W.1 Tirthaprasad appeared in thepolice station and lodged F.I.R. (Exh.16). He registered thecrime based on the said F.I.R. It is further in his evidence that, he seized theclothes on the person of the appellant and the sickle as well,under panchanama (Exh.23). He then handed over those Cri.Appeal No.653/2020:: 23 ::articles to the Muddemal Clerk. It is further in his evidencethat, during personal search of the appellant, certain articleslike deceased Mohini’s admission card, handset, SIM Card etc.were seized and handed over to Muddemal Clerk. He referredto the Muddemal Receipt (Exh.71). During his cross-examination, he testified that, theappellant was given old clothes to put on his person whileblood stained clothes were taken charge of. He could not offerany reason as to why panchanama (Exh.23) is silent to stateseizure of admission card of Mohini, wallet, mobile handsetetc. He denied that, P.W.1 Tirthaprasad and parents ofdeceased Mohini had brought the appellant to the policestation by little past 5.00 in the evening. It was suggested tohim that, he applied blood of Mohini on the sickle seized fromthe appellant and then sprinkled the same on the appellant’sclothes.32.P.W.16 Vinod was the investigating officer. Hereferred to all the panchanamas which have already beenreferred to hereinabove during evidence of the panch witness.His evidence is consistent with the evidence of the prosecutionwitnesses namely P.W.2. According to him, the appellant hadmade disclosure statement. He referred thereto. He being Cri.Appeal No.653/2020:: 24 ::investigating officer, what he did as part of investigation hasalready been referred to hereinabove as evidence of theprosecution witnesses. We do not propose to refer to hisevidence in extenso.33.P.W.17 was Dr. Kaustubh, who examined theappellant before his arrest. The medical examination report(Exh.76) of the appellant indicates that there was abrasionover clavicular area of approximately 5 cms. 34.P.W.18 Bajrang was Sub-Divisional Police Officer,Ahmednagar. Since provisions of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 wereinvoked, further investigation was entrusted with him. Hisevidence is of little relevance. His evidence indicates that, heobtained caste certificate of the victim. Got test identificationparade held etc.35.P.W.19 Laxmi was mother of the deceased. It is inher evidence that, she was resident of village Talni, TalukaRenapur. Mohini (deceased) had told her that the appellantwas insisting her to marry him. He would also abuse Mohini.She tried to reason with the appellant not to be after herdaughter since she was minor and belonged to Scheduled Cri.Appeal No.653/2020:: 25 ::Caste. According to her, appellant still did not listen. Theappellant had even threatened them if they did not allow him tomarry her daughter. According to her, after 10th Standardexamination, Mohini had been staying at the house of P.W.1Tirthaprasad since it being Summer Vacation.36.Exh.104 is the C.A. report of the articles seizedduring investigation and chemically analysed at ForensicScience Laboratory, Nasik. While Exh.106 is the writtenstatement given by the appellant in addition to his replies to thequestions put to him under his examination under Section 313of the Cr.P.C. Aforestated was the evidence adduced before theTrial Court and was relied on before us in this appeal.APPRECIATION :37.Kum. Mohini (deceased) died of haemorrhagicshock due to multiple injuries is not in dispute. P.W.11 Dr.Manoj conducted autopsy on her mortal remains. He found 17external injuries, almost all of them were in the nature ofincised wounds. P.W.11 did not describe size and dimensionsof injuries noticed on the person of Kum. Mohini. The postmortem report is also silent to state time by which Mohini died. Cri.Appeal No.653/2020:: 26 ::The same, however, in our view, is of little consequence. Theappellant in his examination under Section 313 of the Cr.P.C.and written submissions, admitted his presence by little past11.00 a.m. at the crime scene i.e. terrace of second floor of athree storey building of one Shri Athare, Burudgaon Road,Ahmednagar. Mohini met with homicidal death is alsoundisputed since it was suggested to P.W.1 in his cross-examination that he got her killed through his men. Except thebare suggestion, nothing was there to substantiate the saidsuggestion even on preponderance of probabilities. True, theburden of proof rests on the prosecution. 38.The question is, whether the appellant hascommitted murder of Mohini. Admittedly, the appellant wasresident of village Talni, Taluka Renapur while Kum. Mohini’sparental house is at village Hadgaon. Mohini was, however,staying at her grand-parent’s house at Talni for education. Shehad appeared for 10th Standard examination in March 2016.There is evidence to indicate that, both, appellant and Mohiniwere emotionally involved. A photograph (Exh.100) has beenadmitted in evidence. The same indicates both, the appellantand Mohini posed themselves as husband and wife. Mohiniwas even sporting Mangalsutra. It was even suggested to Cri.Appeal No.653/2020:: 27 ::P.W.1 Tirthaprasad in his cross-examination that, the appellantand Mohini got married in a temple at Ahmednagar. He,however, denied the suggestion that he secured a job forappellant in M.I.D.C., Ahmednagar and the appellant then leftthe job.39.The crime scene is a terrace of a second floor of apremises, on the ground floor of which P.W.1 Tirthaprasadwould reside. His evidence indicates that, he left the house on27/5/2016 in the early morning for his work place. His wife tooleft the house as she was serving as Conductor in MSRTC atShirur. Their son was away at his grand-parent’s house. Hisevidence would further indicate that he returned to his houselittle past 12.00 noon in response to a phone call made by hislandlord. On his return, he saw Mohini lying in a pool of blood.He, therefore, immediately contacted his wife on phone. Shetoo arrived. The case of the prosecution is that, the appellant,after having committed murder of Mohini, himself surrenderedat Kotwali Police Station.40.P.W.14 Dattatraya was discharging duty as StationHouse Officer at Kotwali Police Station on 27/5/2016. Hisevidence is to the effect that the appellant came to the PoliceStation by 11.30 a.m. The appellant disclosed him to have Cri.Appeal No.653/2020:: 28 ::beaten up his wife Mohini on account of domestic reason atAthare Niwas, near Jakat Naka, Burudgaon Road,Ahmednagar. He informed the said fact to his superior. Madea Station Diary Entry (Exh.65) to that effect. True, the StationDiary Entry was made at 12.30 p.m. It is but natural that afterthe appellant reached police station by 11.30 in the morning, itmust have taken time for him to intimate his official. Moreover,the evidence of this witness was recorded about three yearsafter the incident. A little difference in timing here and there is,therefore, bound to occur. The extract of Station Diary hasbeen placed on record. The same indicates the entries thereinto have been made in the official course of business. There isnothing to indicate the entries to have been manipulated.True, the entry is silent to record therein that the appellant wasarmed with sickle, and clothes on his person were stained withblood. It is also true that, no statement of the appellant wasrecorded nor, based on what has been reported by him a crimewas registered. After all, P.W.14 was an officer in the rank ofPolice Constable.41.P.W.2 Mahadev was an employee of the MunicipalCorporation, Ahmednagar. On the directions of the DeputyCommissioner of the Corporation, he along with another Cri.Appeal No.653/2020:: 29 ::employee reached Kotwali Police Station by 11.30 a.m. on27/5/2021. In his presence a panchanama (Exh.23) wasdrawn. The same is on record to indicate a blood stainedsickle and blood stained clothes on appellant’s person wereseized under the said panchanama. True, there is somevariance between his evidence and the evidence of P.W.16 asto whether old or new clothes were provided to the appellant toput on immediately after the clothes on his person were takencharge of. The same too makes little difference. Although thewitness stated that those were old clothes, while thepanchanama indicates new clothes were provided. Thisinconsistency in the evidence is also of not much assistance tothe appellant since it was suggested to the investigating officerand even P.W.1 as well that they smeared the clothes on theperson of the appellant and the sickle with the blood of thedeceased. This suggestion too goes a long way to indicate theappellant to have admitted that the sickle and the clothes onhis person borne the blood of the deceased – Mohini.42.The Station Diary Entry was made by 12.30 p.m.regarding the appellant’s appearance at the Police Station andreporting to have assaulted his wife. P.W.14 Dattatray testifiedthat, after having made a Station Diary Entry and with the Cri.Appeal No.653/2020:: 30 ::directions of his officer Shri Malkar, police officials namelyA.P.I. Chavan, A.P.I. Patil and Head Constable Musale went tothe crime scene. It was specifically suggested to the landladyVaishali (P.W.13) in her cross-examination that P.W.1Tirthaprasad (informant) reached his house while the policeofficials had already been present on the crime scene. Thesame suggests that, pursuant to the statement made by theappellant to the Station House Officer, it was disclosed/discovered that Mohini was lying in a pool of blood at the placestated by him to P.W.14 Dattatray. Although he had notaccompanied the police to the crime scene, the said statementof the appellant would very much be relevant under Section 27of the Evidence Act. It is true that, in the crime scenepanchanama the C.R. Number has been mentioned. Theevidence of P.W.1 Tirthaprasad (informant), however, indicatesthat he immediately rushed to the Police Station and lodgedthe report. A Station Diary Entry of registration of crime basedon his statement was made by 12.40 noon. The fact remainsthat, the conduct of the appellant in visiting the Police Stationin the condition of having the clothes on his person stainedwith blood and sickle in his hand too bearing blood stains thattoo with the blood of the deceased is a fact to have been dulyproved. The C.A. report (Exh.104) reinforces the said fact. Cri.Appeal No.653/2020:: 31 ::The clothes of the deceased namely leggings and Dupattaborne blood stains of blood group “A”. While the sickle toowas found to have stained with the very blood (Group ‘A’). It isreiterated that, the appellant, during cross-examination of thewitnesses, has admitted the said fact. True, whatever he hasstated to the police about having assaulted his wife would beinadmissible, being confession to police.43.Kum. Mohini (deceased) belonged to lower caste.Her parents were opposed to relationship between theappellant and her. She, therefore, appears to have beenstaying at her maternal aunt’s house at Ahmednagar duringSummer Vacation. Even both, the appellant and Mohini gotmarried with each other clandestinely. It was, however,suggested to P.W.1 Tirthaprasad in his cross-examination thatbehaviour of Mohini was not good. She had many boy friends.Even her grand-parents had expressed to P.W.1 Tirthaprasadthat her conduct made them difficult to stay in the village withhonour. This fact, coupled with the opposition of the parentsand the relations of deceased Mohini, the relationship with theappellant appear to be a motive for the appellant to eliminateher.44.True, the appellant was arrested at 7.30 p.m. on Cri.Appeal No.653/2020:: 32 ::the fateful day. Before his arrest, he was medically screenedby P.W.17 Dr. Kaustubh. The appellant’s injury certificate is onrecord. There is nothing to indicate him to have suffered anyhead injury with an assault with wooden log. It was the case ofthe appellant that, P.W.1 Tirthaprasad had asked Kum. Mohinito call him to his residence under the pretext of negotiations ofmarriage. He, therefore, arrived at the house of P.W.1Tirthaprasad. When he was there, he was assaulted on hishead. He became unconscious and post 4.30 p.m., he wasbrought to the police station by P.W.1 Tirthaprasad. At thecost of repetition, there is nothing to infer the defence versionto be true. Lapse in/ or incorrect investigation that does not goto the root of the matter would be of no assistance to theculprit. Delay in arresting the concerned would, therefore, beof little consequence. There is a difference between “arrest”and “detaining a person at the Police Station”. More so, whenthere is voluminous evidence to indicate that the appellant withblood stained sickle in his hand and clothes on his person withblood stains appeared in the police station by 11.30 in themorning and those articles wee seized under panchanama(Exh.23) in the presence of panch witness P.W.2 Mahadev.The said exercise was done by police officer, P.W.15 Gajanan. Cri.Appeal No.653/2020:: 33 ::45.Then there is evidence of P.W.9 Nanda and P.W.13Vaishali, landlady, indicating them to have had seen a personclad in white shirt and Jeans pant. The person was appearingwith a sickle, stained with blood. Clothes on his person toowere stained with blood. These witnesses cannot be termed tohave been won over merely because they did not identify theappellant before the Court as the very person whom they hadseen. Both these witnesses offered explanation that it wasafter a gap of little over three years they gave evidence in theCourt and therefore, could not identify him as the very person.Same is the case about the evidence of P.W.10 Ravi, anautorickshaw driver. His evidence too is consistent withevidence of P.W.9 Nanda and the landlady Vaishali (P.W.13). Itis in his evidence that, he reached one person at KotwaliPolice Station in his auto. The said person was armed with ablood stained sickle and clothes on his person were alsostained with blood.46.As stated above, we do not propose to refer to andrely on the evidence of P.W. 3 Rameshwar and P.W.4 Saukatin relation to the fact of the appellant had stayed overnight inHotel Chetana since the appellant himself admitted hispresence at the crime scene at the relevant time. We also do Cri.Appeal No.653/2020:: 34 ::not propose to give much credence to the evidence of P.W.6 toP.W.8 i.e. sickle vendor, the person who sharpened the sickleand the vendor of the cloth bag respectively, since theirevidence could not be said to have proved the sickle that wasseized from the appellant was the one which was sold byP.W.6 Husen and sharpened by P.W.7 Mustafa. As alreadyobserved above that evidence of P.W.5 Raju from whom theappellant admittedly purchased a cell phone to give it to Mohinias a birthday gift is also not relied on for cogent and reliableevidence. Since the appellant accompanied the policepursuant to his disclosure statement, to the shops of P.W.6 toP.W.8, the fact that they identified him in the test identificationparade held by P.W.12 Sadashiv, Executive Magistrate lost itsefficacy. Moreover, these witnesses namely P.W.6 to P.W.10failed to identify the appellant before the Court. 47.True, some articles namely cell phone, SIM Card,Kum. Mohini’s examination admit card were seized from theperson of the appellant under the panchanama (Exh.28) drawnby P.W.15 Gajanan. There would be a question as to why,when sickle and blood stained clothes were seized, thosearticles were not found on his person. However, no question inthat regard were also put to the police officials who seized Cri.Appeal No.653/2020:: 35 ::those articles. Over zealousness of the Police Officer in thisact in the facts and circumstances of the case would be of noassistance to the appellant.48.In our considered view, the facts that the appellantwas in relationship with the deceased Mohini, her parents wereopposed to their relationship and her behaviour, according tothe appellant himself was not good, is a motive for theappellant to commit her murder. Both of them appear in aphotograph as husband and wife. Mohini was sportingMangalsutra. It was suggested to P.W.1 Tirthaprasad thatMohini’s marriage was being settled with someone else, butcould not take place. In the case based on circumstantialevidence, motive plays an important role. The fact that theprosecution even assumed to have failed to make out a motiveitself would not be a ground of acquittal when othercircumstances conclusively establish the crime. At the cost ofrepetition, it is observed by us that, the appellant hadadmittedly been on the terrace of the second floor whereat thecrime took place. The landlady had seen a person climbingdown the staircase. A person was armed with a sickle.Clothes on his person were blood stained. Nanda (P.W.9) hadalso seen a person in similar condition by same time. P.W.10 Cri.Appeal No.653/2020:: 36 ::Ravindra reached the very person to Kotwali Police Station. Itwas necessarily little past 11.30 in the morning. P.W.14Dattatray was Station House Officer. The appellant enteredthe Kotwali Police Station and informed the matter which is notadmissible in evidence, being confession to police. However,a Station Diary Entry (Exh.26) was immediately made to thateffect. Services of panchas were availed immediately. By12.30 noon, blood stained clothes and blood stained sicklewere seized from the appellant under panchanama. Theappellant himself admitted the clothes on his person and sickleborne blood of the deceased. It was his case that, the samewas smeared on those articles by police authorities and P.W.1Tirthaprasad. He could not make out his case even based onpreponderance of probabilities. It was suggested to P.W.1Tirthaprasad that, he reached his house after the police hadalready arrived at the crime scene. It was also suggested tohim that, seeing the body of Mohini, he became insensitive(numb). It was also suggested to him that he made Mohini tocall the appellant to his house under the pretext of holdingtalks of settlement of marriage with her.49.On appreciation of overall evidence in the case, wefind the appellant to have had every motive to eliminate Cri.Appeal No.653/2020:: 37 ::Mohini. He came to Ahmednagar, was there at the crimescene by 11.00 in the morning on the fateful day. By that time,the informant P.W.1 Tirthaprasad was at his work place. Beforethat, the appellant, armed with a blood stained sickle and theclothes on his person also stained with blood of Mohini,appeared in the Police Station. A person in the very conditionclimbing down the premises wherein the crime took place, wasseen by the landlady. The same person was seen by P.W.9Nanda and then the very person went to the Kotwali PoliceStation in autorickshaw of P.W.10 Ravindra go long way toinfer that it was the appellant and none else who brutally killedMohini. Pursuant to his statement made to the Police StationOfficer, the police reached the crime scene first and noticedthe dead body of Mohini. This too would be a discoveryrelevant under Section 27 of the Evidence Act although C.R.Number is recorded in the crime scene panchanama since thetime gap between the two was not of more than 10 minutes.The appellant himself had suggested to the landlady that P.W.1Tirthaprasad reached the crime scene post the police hadarrived there. The Medical Officer ruled out the injuries on theperson of the deceased to have been caused by a fall onbuilding material like iron rods etc. For all the above reasons,we reach the conclusion that it was the appellant and none Cri.Appeal No.653/2020:: 38 ::else who has committed murder of Mohini.50.Since both, the appellant and Mohini wereemotionally involved and there is nothing in the evidence tosuggest the appellant to have made any sexual overt acttowards her, the conviction of the appellant for the offencepunishable under Section 12 of the Protection of Children fromSexual Offences Act must fail. The offence punishable underSection 302 of the Indian Penal Code is punishable withimprisonment for life or death, and with fine. The Trial Court,while sentencing the appellant to imprisonment for life,appears to have exceeded its jurisdiction while adding clause(2) of the impugned order - “(2) Accused Pradip Manik Kanseshall not be released from the captivation until his life.” Thisclause (2) of the impugned order, therefore, needs to bewithdrawn. The same is accordingly withdrawn. 51.Thus, the appeal partly succeeds. Hence theorder:-O R D E R(i)The Criminal Appeal is partly allowed.(ii)The order dated 27/10/2020, passed by learned Cri.Appeal No.653/2020:: 39 ::Sessions Judge, Ahmednagar in Sessions Case No.279/2016convicting the appellant for the offence under Section 302 ofthe Indian Penal Code and sentencing him to sufferimprisonment for life and to pay fine of Rs.500/-, in default, toundergo rigorous imprisonment for six months is maintained.However, clause (2) of the operative order i.e. “(2) AccusedPradip Manik Kanse shall not be released from the captivationuntil his life” is hereby withdrawn.(iii)The conviction of the appellant for offence under Section12 of the Protection of Children from Sexual Offences Act ishereby set aside. The appellant is acquitted of the same. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.653/2020:: 6 ::convicted the appellant and consequently sentenced as statedabove.6.Heard. Learned counsel for the appellant wouldsubmit that, the case was based on circumstantial evidence.She, therefore, relied on the judgment of the Apex Court incase of Sharad Birdichand Sarda Vs. State of Maharashtra(1984 CJ (SC) 262), to submit that the circumstances relied onhave not been conclusively proved. The chain ofcircumstances relied on has not been complete. When theincident took place in a broad daylight that too in a populatedarea, how there was no hue and cry. No independentwitnesses have been examined. Construction work was goingon by the side of the premises in which the incident took place.She further relied on the following authorities :(1)Anant Dyaneshwar Jadhav Vs. The State of Maharashtra2017 ALL MR (Cri) 4820(2)Arjun Panditrao Khotkar Vs. Kailash KushanraoGorantyal & ors. [ 2020 (3) SCC 216 ](3)P. Yuvaprakash Vs. State represented by Inspectorof Police [ 2023 AIR (SC) 3525 ](4)Gireesan Nair & ors. Vs. State of Kerala2022 DGLS (SC) 1503 : 2022 K.L.T. 357 Cri.Appeal No.653/2020:: 7 ::7.Turning to the medical evidence, she would submitthat, the Medical Officer Dr. Manoj (P.W.11) did not give sizeand deepness of the injuries suffered by the victim. Accordingto her, 4-5 witnesses who had claimed to have seen theappellant armed with blood stained sickle, did not stand by theprosecution. None of those witnesses could identify theappellant before the Court. The investigating officer had takenthe appellant to the shop wherefrom he allegedly purchasedthe sickle and sharpened it, and then purchased a cloth bag forkeeping it therein. The test identification parade lost itsefficacy. Had the appellant really been at the Police Station at11.30 in the morning, there is no explanation as to why he wasarrested by 7.30 in the evening. According to learnedAdvocate, the prosecution miserably failed to bring home thecharge beyond reasonable doubt. She, therefore, urged forallowing the appeal.8.Learned A.P.P. would, on the other hand, submit itto be an open and shut case. The cross-examination ofvarious witnesses would indicate that, the defence was notfirm. At one time the appellant admitted his presence at thecrime scene. It was suggested that, P.W.1 and his wife werehome and Mohini (deceased) was made to call the appellant to Cri.Appeal No.653/2020:: 8 ::their residence. While it was suggested to one of thewitnesses that the P.W.1 Tirthaprasad returned home in theevening from his workplace. No sooner the appellant reachedthe Police Station, the sickle and blood stained clothes on hisperson were seized in the presence of panchas. A suggestionwas given to the investigating officer and other witnesses thatthese articles were smeared with the blood of the deceased bythe police officials. The same suggests the appellant to haveadmitted the sickle and the clothes on his person borne theblood of the deceased. It was the appellant and none elsewho had a motive to commit murder of Mohini. The learnedA.P.P. would ultimately submit that no interference is warrantedwith the impugned order of conviction and consequentialsentence in the facts and circumstances of the case. LearnedA.P.P. ultimately urged for dismissal of the appeal.9.Considered the submissions advanced. Perusedthe evidence on record. Let us advert thereto and appreciatethe same.10.In case of in case of Sharad Sarda (supra), theApex Court observed :-“152. A close analysis of the decision would showthat the following conditions must be fulfilled