Bombay High Court
The State Of Maharashtra Thr. P.S.O. ... vs Manoj @ Lalya Vasantrao Atram And Others on 21 December, 2018
Equivalent citations: AIRONLINE 2018 BOM 1368
Author: P.N.Deshmukh
Bench: P.N.Deshmukh, M.G.Giratkar
1 conf1.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL CONFIRMATION CASE NO.1 OF 2017
WITH
CRIMINAL APPEAL NO.515 OF 2017
1) CRIMINAL CONFIRMATION CASE NO.1 OF 2O17 :
The State of Maharashtra,
through P.S.O., Ghatanji,
Tq. Ghatanji, Distt.Yavatmal. .......... APPELLANT
// VERSUS //
1.Manoj @ Lalya Vasantrao
Atram (Original Accused No.1).
2.Devidas Punaji Atram
(Original Accused No.2).
3.Yadavrao Tukaram Tekam
(Original Accused No.3).
4. Punaji Mahadev Atram
(Original Accused No.4)
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:38 :::
2 conf1.17.odt
5.Motiram Mahadev Meshram
(Original Accused No.6)
6.Yashodabai Pandurang Meshram
(Accused No.7)
All r/o. Gram Choramba, Tq.
Ghatanji, Distt. Yavatmal. .......... RESPONDENTS
____________________________________________________________
Mr.A.M.Deshpande, A.P.P. with Mr.N.R.Rode, A.P.P.
for the Appellant/State.
Mr.R.M.Daga, Advocate for the Respondents.
____________________________________________________________
*******
2) CRIMINAL APPEAL NO.515 OF 2017 :
1.Manoj @ Lalya s/o.Vasantrao Atram,
Aged about 19 years.
2.Devidas s/o. Punaji Atram
Aged about 22 years.
3.Yadavrao Tukaram Tekam,
Aged about 50 years.
4. Punaji s/o. Mahadev Atram
Aged about 57 years.
5.Motiram s/o. Mahadev Meshram
Aged about 54 years.
6.Sau. Yashodabai Pandurang Meshram
Aged about 60 years.
All r/o. Gram Choramba, Tq.
Ghatanji, Distt. Yavatmal. .......... APPELLANTS
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:38 :::
3 conf1.17.odt
// VERSUS //
The State of Maharashtra,
through Police Station Officer,
Police Station Ghatanji, Tq.
Ghatanji, Distt.Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for the Appellant.
Mr.A.M.Deshpande, A.P.P. with Mr.N.R.Rode, A.P.P.
for the Respondent/State.
____________________________________________________________
-----------------------------------------------------------------------------------------------
Date of reserving the Judgment : 19.10.2018.
Date of pronouncement of the Judgment : 21.12.2018.
----------------------------------------------------------------------------------------------
CORAM : P.N.DESHMUKH
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per P.N.Deshmukh, J) :
1. For the sake of convenience, accused are referred as mentioned in the Charge Exh.100.
2. The learned District Judge-2 and Additional Sessions Judge, Yavatmal vide its Judgment in Sessions Trial No.114 of 2013, dated 14th August, 2017 found Original accused no.1 Manoj @ Lalya ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:38 ::: 4 conf1.17.odt Vasantrao Atram, Original accused no.2 Devidas Punaji Atram, Original accused no.3 Yadavrao Tukaram Tekam, Original accused no.4 Punaji Mahadev Atram, Original accused no.6 Motiram Mahadev Meshram and Original accused no.7 Sau.Yashodabai Pandurang Meshram guilty for commission of offence punishable under Section 302 r/w. 34 of the Indian Penal Code and they are sentenced to suffer death penalty to be hanged by neck till their death as envisaged under Section 354(5) of the Code of Criminal Procedure.
Above accused are further convicted for the offence under Section 120(B) r/w. 34 of the Indian Penal Code and are sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- each, in default of payment of fine, to suffer rigorous imprisonment for six months. Above accused are further convicted for the offence punishable under Section 201 r/w. 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rs.2,000/- each, in default of payment of fine, to suffer rigorous imprisonment for two months. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:38 :::
5 conf1.17.odt Original accused no.1 Manoj Atram, accused no.3 Yadavrao Tekam and accused no.7 Yashodabai Meshram are further convicted for the offence punishable under Section 363 r/w. 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for a term of seven years and to pay a fine of Rs.3,000/- each, in default of payment of fine, to suffer rigorous imprisonment for two months. Said accused are also convicted for the offence punishable under Section 364 r/w. 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for a term of seven years and to pay a fine of Rs.3,000/- each, in default of payment of fine, to suffer rigorous imprisonment for three months on this count also.
Original accused no.8 Durga Sitaram Shirbhate is convicted for the offence punishable under Section 120 (b) r/w. 34 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.3,000/-, in default of payment of fine, to suffer rigorous imprisonment for two months.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:38 :::
6 conf1.17.odt As required under Section 366 of the Code of Criminal Procedure, reference is made to this Court by the learned trial Court for confirmation of death sentence awarded to above accused while Criminal Appeal No.515 of 2017 is filed by appellant nos. 1 to 7 being aggrieved by the Judgment recorded as aforestated. No appeal is preferred by accused no.8 Durga Sitaram Shirbhate.
3. In brief, it is the case of prosecution that deceased Sapna, aged about seven years was daughter of PW-1 Sharda Palaskar and PW-3 Gopal Palaskar, resident of Choramba and from 24.10.2012 as she was missing, PW-3 Gopal lodged missing report. 15 to 20 days thereafter one Pandurang Khaire came to house of parents of deceased and informed them that, at village Murli, he was told by one of the villagers of his hearing sound of some girl, weeping and accordingly, on 19.11.2012, PW-1 Sharda, mother of deceased lodged report vide Exh.112 with Police Station, Ghatanji, on the basis of which Crime No.95 of 2012 at Exh.113 came to be registered on 20.11.2012 for the offences punishable under Sections 363, 364 r/w. 34 of the Indian Penal Code by one Arun Gurnule, Assistant Police Inspector, Police Station, Ghatanji (not examined). Report Exh.112 was lodged by PW-Sharda against one Ashok ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 7 conf1.17.odt Darshanwar, resident of Ghatanji, District Yavatmal, Bapu Yambadwar, r/o. Belora, Tq.Ghatanji, District Yavatmal and Raju Taksande, r/o. Murli, Tq.Ghatanji, District Yavatmal and 3-4 unknown persons alleging that the above named persons along with 3-4 others kidnapped minor girl Sapna from village Choramba on the day of "Dussera", of which missing report is already lodged with Police Station, Ghatanji. It is further contended that, 2-3 days before, above named appellants took deceased to the field of one Vijay Sham Chavan, resident of Murli Tanda with an intention to cause her murder, when appellants having armed with weapons, dug a pit. It is further alleged that, on hearing cries of girl, said Vijay Chavan arrived on the spot, due to which all above named persons fled from his field alongwith the girl. It is also stated in the report that said Vijay Chavan had also lodged report of this incident with Police Station, Ghatanji and that PW-1 Sharda had suspected in her report above named persons to have kidnapped her daughter to cause her murder.
4. It is the case of prosecution that, 3-4 days prior to Navratri festival, accused no.7 Yashodabai Meshram had called accused nos. 1 to 6 and told them that her daughter accused no.8 ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 8 conf1.17.odt Durga Sitaram Shirbhate is bodily affected due to power of some goddess for which it is necessary to offer her blood of some female by which everything would be set right and therefore, on the say of accused no.7 Yashodabai, all accused conspired to sacrifice life of Sapna by causing her death to offer her blood and got the work distributed amongst themselves by allotting specific role to each of them to give effect to their conspiracy.
5. In pursuance to their conspiracy as aforesaid, on 24.10.2012, at about 7.30 p.m., accused no.3 Yadavrao Tekam gave Rs.10/- to deceased and asked her to bring biscuits from the nearby shop. When she went and was returning from the shop towards her house, accused no.6 Motiram Meshram removed fuse from the electricity D.P., due to which lights were switched off and by taking advantage of darkness, accused no.3 Yadavrao forcibly took Sapna behind the school by tying her mouth by towel. Accused no.1 Manoj kept watch upon said act of accused nos. 3 Yadavrao and accused no.6 Motiram. From behind school, Sapna was taken by accused no.3 Yadavrao to the house of accused no.7 Yashodabai where all other accused persons were present. In her house, accused no.6 Motiram chanted some mantras and offered pooja and all the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 9 conf1.17.odt accused by tightly holding Sapna placed her in front of temple of goddess in the house of accused no.7 Yashodabai and accused no.5 Ramchandra (deceased) by means of knife cut throat of Sapna separating her head from her body.
6. It is further case of prosecution that accused persons collected blood in one steel plate and after sprinkling it on the idol of goddess at village Choramba came back to the spot and after having sip of blood as offering (prasad), the dead body was kept in a gunny bag and by digging pot, was buried near the bathroom in the house of accused Yashodabai.
7. About 1 ½ months later, on the say of accused Yashodabai, remains of dead body were exhumed and thereafter, were carried to one field owned by Liyakat Anwar situated in Zudpi Jungle near Choramba village and by digging pit, were buried again.
8. From 17.12.2012 further investigation in the present crime was carried out by PW-13 Chadansinh B. Bayas, P.I. attached to L.C.B., Yavatmal. On 21.5.2013, he received information that in one field situated at Choramba, human bones, skull of a small child, ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 10 conf1.17.odt one blue coloured knicker, dark green coloured pieces of frock having thereon floral design in pink colour were lying. PW-13 I.O. Chandansinh accordingly visited the said spot along with witnesses who were requisitioned vide Memo (Exh.124) and drew Spot Panchanama (Exh.120) and seized skull and frock under Seizure Panchanamas (Exh.121 and 122 respectively). At the same time, he prepared Inquest Panchanama in respect of human bones found on the spot as per Exh.123 and issued requisition memo to Medical Officer, Government Hospital, Yavatmal to examine human bones, skull, scalp hair and to give report.
9. On 25.5.2013, on suspicion, accused no.1 Manoj @ Lalya Atram, accused no.2 Devidas Atram, accused no.3 Yadavrao Tekam, accused no.4 Punaji Atram, accused no.5 Ramchandra Atram (dead), accused no.6 Motiram Meshram, accused no.7 Yashodabai Meshram, accused no.8 Durga Shirbhate, all residents of Choramba came to be arrested under Arrest Panchanamas Exh. Nos. 199 to 206 respectively.
On interrogation, Memorandum Statement (Exh.130) of accused no.1 Manoj is recorded on 25.5.2013 between 16.00 hours ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 11 conf1.17.odt to 16.15 hours, by which he expressed his willingness to show the spot where dead body of Sapna was inhumed and later on, exhumed. In pursuance to said statement, accused no.1 Manoj led the Investigating Officer to the house of accused no. 7 Yashodabai and pointed out the spot adjoining to bathroom. On digging soil upto 2 ½ feet, two human bones and pieces of green coloured bangles are recovered which are seized under Panchanama (Exh.132). Thereafter, parents of deceased Sapna were confronted with one frock and knicker seized under Seizure Panchanama (Exh.122) in the Police Station, which they identified to be that of deceased Sapna, of which Panchanama is drawn as per Exh.134.
10. Memorandum Statement (Exh.136) of accused no.7 Yashodabai is recorded on 27.5.2013 between 2.45 p.m. to 3.00 p.m. to produce steel plate and knife from her house and in pursuance to it, one steel plate only, came to be seized at the instance of said accused, which is seized under Panchanama (Exh.137). Demonstration Panchanama of above facts is prepared as per Exh.138.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
12 conf1.17.odt
11. Memorandum Panchanama (Exh.139) of accused no.6 Motiram is recorded on 27.5.2013 between 5.00 p.m. to 5.15 p.m. to recover Crow Bar and Spade concealed in the house of accused no.7 Yashodabai which came to be seized under Panchanama (Exh.140). On the same day, at around 18.30 hours, vide Seizure Panchanama (Exh.141), steel lamp, one shell of broken coconut and small pieces of human bones came to be seized from the field of Liyakat Tanwar.
12. Memorandum Statement (Exh.142) of accused no.3 Yadavrao is recorded on 29.5.2013 between 12.30 p.m. to 12.45 p.m. to discover towel from his house and in pursuance to it, one yellow coloured towel came to be seized under Panchanama (Exh.143).
13. On 30.5.2013, between 4.15 p.m. to 4.30 p.m., Memorandum Statement (Exh.145) of deceased accused Ramchandra is recorded to discover knife from his house and in pursuance to it, one big sized knife having iron blade is seized under Panchanama (Exh.146).
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
13 conf1.17.odt Soil seized from the spot under Panchanama (Exh.120) is marked as Article 'A', frock is marked as Article 'B', Knicker is marked as Article 'C'. Seized bones and pieces of bangles are marked as Article 'D'. Steel plate is marked as Article 'E'. Crow bar and Spade are marked as Articles 'F' and 'G'. Steel lamp is marked as Article 'H', Coconut shell is marked as Article 'I', human bones are marked as Article 'J'. Towel is marked as Article 'K' and Knife is marked as Article "L".
14. During the course of investigation, under requisition (Exh.207), seized skull, bones along with blood samples of parents of Sapna were forwarded for D.N.A. test to C.A., Nagpur through PW-11 Police Constable Ashish Bhusari. As per D.N.A. reports Exh.216 and 217, bones sent for D.N.A. matched with D.N.A. profile of Sharda and Gopal Palaskar and concluded them to be biological parents. Accordingly, offences punishable under Sections 302, 201 and 120-B of the Indian Penal Code came to be added in the present crime and by issuing letter of request dt.26.5.2013 to the Court of Judicial Magistrate, First Class, Ghatanji vide Exh.208 and by issuing letter dt.1.6.2013 to the learned Magistrate, accused, who were earlier arrested namely Ashok Darshanwar, Bapu Yambadwar and ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 14 conf1.17.odt Raju Taksande and one another, were discharged under Section 169 of the Code of Criminal Procedure. During the course of investigation, sketch of spot is drawn by Tahsildar, Ghatanji and Supplementary statements of PW-1 Sharda, PW-3 Gopal and PW-9 Shakuntala Nakwade are recorded. On receipt of D.N.A. reports (Exh.217 and 218), on completion of investigation, charge-sheet is filed against the accused before the Court of learned Judicial Magistrate, First Class, Ghatanji.
15. In the course of time, case is committed to the Court of Sessions for trial. Charge is framed vide Exh.100 against all the accused for the offences punishable under Sections 120-B, 363, 364, 302, 201 r/w. 34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. During pendency of trial, Original accused no.5 Ramchandra Ganpat Atram died on 26.9.2016 and thus, case is abated against the said accused by Order dt.23.6.2017.
16. In order to prove guilt of the accused, prosecution in all examined 13 witnesses and commenced its evidence on examining PW-1 Sharda Palaskar, mother of deceased who did not support the case of prosecution; PW-2 Adikumar Kalandre, panch on seizure of ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 15 conf1.17.odt articles from spot and Inquest Panchanama of bones; PW-3 Gopal Palaskar, father of deceased who did not support the case of prosecution; PW-4 Rajendra Shukla on Memorandum statement of accused no.1 Manoj (Exh.130) disclosing the spot where dead body was buried and panch on Seizure panchanama in respect of recovery of two human bones and pieces of green bangles (Exh.132); PW-5 Sanjay Dandage on Panchanama (Exh.134) regarding parents of deceased Sapna i.e. PW-1 Sapna and PW-3 Gopal identifying skull, human bones, knicker, pieces of frock seized on 21.5.2013 from near the field of Liyakat Tanwar to be that of deceased Sapna; PW-6 Sunil Bhele on Memorandum Statement (Exh.136) of accused no.7 Yashodabai, Seizure Panchanama (Exh.137) of steel plate and Demonstration Panchanama (Exh.138) of above facts. He is also examined as a panch on Memorandum Statement (Exh.139) of accused no.6 Motiram, Memorandum Statement to discover Crow bar and Spade, Seizure Panchanama (Exh.141) of steel lamp, one broken shell of coconut, pieces of human bone and Demonstration Panchanama (Exh.140). PW-6 Sunil Bhele is further examined as a panch witness on Memorandum Statement of accused no.3 Yadavrao to recover towel which came to be seized under Seizure Panchanama (Exh.143); PW-7 Dinesh Karmarkar is a witness on Memorandum ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 16 conf1.17.odt Statement (Exh.145) of deceased accused no.5 Ramchandra and Seizure Panchanama of Knife at Exh.146; PW-8 Ramesh Mendhe, Naib-Tahsildar, Ghatanji who has proved sketch of scene of offence at Exh.152 and map of house of accused Yashodabai (Exh.153) which are forwarded by him to Investigating Officer under his covering letter (Exh.154); PW-9 Shakuntala Nakwade on circumstance, who did not support the case of prosecution; PW-10 Ashok Kalmegh, A.S.I., Police Photographer, who has obtained video shooting of entire proceedings carried out during the course of investigation and prepared C.D. thereof (Exh.164) on Computer and handed it over to Investigating Officer.
17. PW-11 Ashish Bhusari, Police Constable, B.No.2243 who, on the basis of duty pass (Exh.179) issued by PW-13 P.I. Chandansinh Bayas, Investigating Officer deposited Muddemal with C.A., Nagpur and produced its receipt (Exh.180) and submitted his report (Exh.181). On 9.1.2014, on the basis of letter (Exh.182) issued by S.P., Yavatmal, he visited Office of C.A. and collected D.N.A. Kit. On 10.1.2014, PW-11 Police Constable Ashish took PW-1 Sharda and PW-3 Gopal, parents of deceased for collecting their blood samples to Government hospital, Yavatmal along with D.N.A. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 17 conf1.17.odt Kit under Letter (Exh.183) and obtained their blood samples for D.N.A. purpose. Forms for collecting blood samples are marked as Articles 'M' and 'N'. Police Constable Ashish deposited blood samples in the Office of C.A. on the same day on the basis of letter (Exh.184) issued to him by API Bramhane and obtained acknowledgement (Exh.185). On 18.1.2014, on the basis of letter (Exh.186) issued to him by P.I. Giri, he visited Office of C.A., Nagpur and obtained D.N.A. report.
18. PW-12 Nilesh Bramhane, A.P.I., who had received letter (Exh.196) from Regional Forensic Laboratory for collecting D.N.A. Kit, instructed PW-11 Police Constable Bhusari to visit Office of C.A. and collect D.N.A. Kit and to take parents of deceased to Government Medical College hospital, Yavatmal for obtaining their blood samples for D.N.A. test and concluded its evidence on examining PW-13 Chandansinh Bayas, Investigating Officer who, on carrying out investigation in the present crime no.95 of 2012, filed the charge- sheet.
19. The learned Additional Sessions Judge, Yavatmal, on trial, found involvement of all the accused in the present crime and ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 18 conf1.17.odt on hearing them on the point of sentence, finding that punishment of life imprisonment is not adequate sentence, imposed capital punishment on Original accused nos. 1, 2, 3, 4, 6 and 7 who are also imposed punishment on other counts and also imposed punishment on Original accused no.8 as aforesaid.
20. Mr.R.M.Daga, learned Counsel for the accused submitted that the learned trial Judge had considered the following circumstances and held the same to be proved establishing involvement of accused in the present crime :
(i) missing report,
(ii) motive, preparation and previous conduct of
accused persons,
(iii) criminal conspiracy,
(iv) kidnapping of victim.
(v) recovery of bones, skull and other articles,
(vi) video shooting of proceedings u/s.27 of Indian
Evidence Act and C.D. produced on record and
lastly,
(vii) C.A. and D.N.A. reports.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
19 conf1.17.odt
The learned Counsel, however, submitted that the evidence on record is not at all convincing since the same is full of doubts and to establish said submission, invited our attention to missing report, dt.25.10.2012 (Exh.127) on record and submitted that, as per said report lodged by PW-3 Gopal - father of victim, while giving physical description of victim, her clothes are described as red coloured frock and white coloured shirt. It is contended that, in the missing report, no suspicion is raised against any of the accused or against any one. Laying emphasis on the colours of frock and shirt of victim as mentioned in the report, the learned Counsel referred to evidence of PW-2 Adikumar, Spot panch whose evidence is silent on the aspect of identification of clothes by any one which, according to his evidence, consists of green coloured frock, but there is no reference of white colour shirt which is seized under Seizure Panchanama (Exh.122). The learned Counsel had further referred to Spot Panchanama (Exh.120), dt.21.5.2013 drawn after seven months of lodging of missing complaint in respect of field situated at village Choramba, wherein colour of frock alleged to be found on the spot is referred of Heena colour having pink coloured floral design and knicker to be identified by PW-3 Gopal. It is submitted that accused nos. 1 to 8 are arrested on 25.5.2013 between 3.35 p.m. to 6.00 p.m. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 20 conf1.17.odt under Arrest Panchanamas (Exh. Nos. 199 to 206), while spot was already detected four days prior to arrest of accused as shown by PW-3 Gopal on 21.5.2013. In Column no.10 of Inquest Panchanama dt.21.5.2013, properties found on the spot are described as blue coloured knicker, heena coloured frock, sample of earth, human skull bones and hair of head which, as per the Spot Panchanama were already found on spot on 21.5.2013. It is contended that, according to Seizure Panchanamas Exh. Nos. 121 and 122, dt.21.5.2013 properties seized are earth, scalp hair and skull as mentioned in Exh.121 and blue coloured knicker and heena coloured frock as mentioned in Exh.122. It is submitted that, thus, it is the case of prosecution that above referred articles came to be seized from spot on 21.5.2013 at 9.00 a.m. after drawing Spot Panchanama on that day from 7.00 to 8.00 a.m. Same are deposited with Malkhana as admitted by PW-13 Chandansinh, Investigating Officer after 12 days on 2nd June, 2013. It is, therefore, submitted that the description of clothes of victim thus given by her father PW-3 Gopal in his missing report and the clothes recovered and seized from the spot on 21.5.2013 does not match and even, according to Spot Panchanama, there is no reference of sealing of muddemal articles on the spot which are deposited in Malkhana 12 days after its recovery. On this ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 21 conf1.17.odt count, therefore, it is submitted that the case of prosecution is doubtful about recovery of articles from the spot to be that of deceased Sapna.
21. By referring to contents of Inquest Panchanama (Exh.123) drawn on the spot, after recovery of bones, skull, human hair and clothes of deceased, it is submitted that, in Column no.10 thereof, PW-3 Gopal is stated to have identified bones, skull etc. to be of his deceased daughter, which contents are said to be unreliable as such recovery is effected more than seven months after lodging of missing report and there is nothing on record to show on what basis PW-3 Gopal identified articles which, as per Inquest Panchanama, are stated to be exhumed bones, skull etc.
22. Mr.R.M.Daga, learned Counsel, by further doubting the case of prosecution, referred to evidence of PW-2 Adikumar in whose presence Spot Panchanama and Seizure Panchanama in respect of articles seized from the spot came to be drawn and submitted that PW-2 Adikumar as per summons issued to him (Exh.124) was called upon to carry out Inquest Panchanama over the body of Sapna, minor girl aged seven years only and not for any other purpose. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
22 conf1.17.odt However, apart from carrying out Inquest upon bones, skull as aforesaid, as is the case of prosecution, he was also made to act as a panch for Spot Panchanama (Exh.120) and Seizure Panchanamas (Exh.121 and 122), though summons referred for his presence only till drawing of Inquest Panchanama. It is, thus, contended that PW-2 Adikumar was stock panch of police, whose services were taken as and when required by the Investigating Agency.
Referring to sketch of scene of offence, it is submitted that same is drawn after about two months on 15.7.2013 after alleged recovery of articles from the spot on 21.5.2013 by PW-8 Ramesh and in respect of same, the sketch refers to various spots where bones, skull, hair, knicker, frock are stated to be found lying; while PW-8 Ramesh is silent on the point as to who had shown the spot where such articles were alleged to be found. In fact, it is submitted that PW-8 Ramesh who has drawn sketch had admitted that there is no mention in the Spot Panchanama about the person who showed the same and though he had deposed that Panchas, Talathi and Kotwal had shown the spot of incident to him, their presence is nowhere mentioned in the sketch (Exh.152) nor it bears their signatures. It is, therefore, submitted that nothing can be relied ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 23 conf1.17.odt from sketch which admittedly is drawn two months after alleged recovery of articles and even in the said sketch, field of Liyakat Tanwar is shown to the western side of the area where the articles are stated to be found and seized. As such, it is submitted that, from the sketch, articles are found to have seized from the place adjoining to the field of Liyakat Tanwar. Then, again referring to the evidence of PW-2 Adikumar, panch on Spot Panchanama and seizure of articles, the learned Counsel submitted that his evidence destroys entire case of prosecution on seizure of articles as aforesaid as he has admitted that he was taken to the field of one Liyakat Tanwar where, as per sketch or Spot Panchanama, no seizure of any articles was effected and further admitted that when he reached to said field, 40 to 50 police had gathered along with PW-13 Chandansinh, Investigating Officer and Exhs. 120 to 124, which consist of Spot Panchanama and Seizure Panchanamas, were already written and even without its contents being read over to him, he gave signatures on them and as such, he is unable to state what are contents of said documents. By referring to above evidence, it is, therefore, submitted that the case of prosecution is totally doubtful with reference to recovery of bones, skull, clothes i.e. knicker and frock from the spot on 21.5.2013 which is, admittedly, prior to four days ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 24 conf1.17.odt of arrest of all the accused persons. The learned Counsel submitted that as these properties admittedly were deposited belatedly after 12 days in Malkhana, the case of prosecution is full of doubts.
23. With regards to homicidal death, it is submitted that there is nothing on record to establish said fact. In fact, it is submitted that the learned trial Court presumed death of deceased Sapna to be homicidal, which cannot stand for any reasons. Learned Counsel for the accused then referred to evidence of PW-1 Sharda, mother of deceased who, on 19.11.2012, lodged report of kidnapping of her daughter with intention to cause her murder against Ashok Darshanwar, Bapu Yambadwar and Raju Taksande alleging that 2-3 days before lodging of same, above named accused having armed with weapons took daughter to the field of one Viju Chavan, resident of Murli to cause her murder, where they dug one pit, where Viju Chavan arrived on hearing cry of a minor girl and on seeing him, above named three persons fled from his field with the girl, of which Viju Chavan lodged report with Police Station, Ghatanji, of which reference is found in the F.I.R. (Exh.113), dt.20.11.2012 registered for the offences punishable under Sections 363 and 364 r/w.34 of the Indian Penal Code on the basis of ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 25 conf1.17.odt complaint lodged by PW-1 Sharda against above named three persons as mentioned in Column No.12 of the F.I.R. It is pointed out that, there is reference of police receiving two written complaints consisting of one by Vijay Chavan (not examined), resident of Murli Tanda, dt.17.11.2012 and another by PW-1 Sharda, dt.19.11.2012 against persons named therein i.e. Ashok Darshanwar, Bapu Yambadwar and Raju Taksande for kidnapping her daughter Sapna for causing her murder to get hidden treasure out of some land. However, nothing is on record to show as to what was investigated against said three suspects during the period of three months who are admittedly discharged by the Investigating Officer under Section 169 of the Code of Criminal Procedure.
24. With reference to alleged recovery of articles effected at the instance of accused nos. 1, 3, 6, 7 and deceased accused no.5 Ramchandra, it is contended that all the accused are arrested on 25.5.2013 between 3.35 to 6.00 p.m. by PW-13 P.I. Chandansinh and by referring to arrest memos of accused nos. 1 and 2, it is pointed out that their arrest is effected on 25.5.2013 at 3.35 p.m., while Memorandum Statement (Exh.130 ) of accused no.1 Manoj is stated to be recorded immediately in 20 minutes of his arrest, which ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 26 conf1.17.odt is doubtful and it is, therefore, submitted that this fact shows that Memorandum Panchanama (Exh.130) was already prepared. By referring to contents of Memorandum Panchanama (Exh.130), it is pointed out that it refers to house and places only and does not refer to any bones and contended that in fact what is recovered in compliance to Memorandum Statement of accused no.1 Manoj was already seized on 21.5.2013 and therefore, case of prosecution in respect of recovery of bones, skull etc. at the instance of accused no.1 Manoj is of no consequence.
25. While commenting upon evidence of PW-4 Rajendra Shukla, panch witness on Memorandum Statement and Discovery Panchanama (Exh.130 and 131 respectively), it is submitted that said panch is resident of Yavatmal whose services as admitted by him were taken by police even without issuing summons to him at Ghatanji, a place situated at a distance of 45 kms. from Yavatmal. It is also pointed out that, though according to PW-4 Rajendra, panch he claims to know accused no.1 Manoj, there is no evidence on record to show as to how he knows him though, according to case of prosecution, accused no.1 Manoj is resident of Choramba and PW-4 Rajendra is residing at Yavatmal.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
27 conf1.17.odt
26. Then, by referring to evidence of PW-6 Sunil, who has acted as a panch on Memorandum Statement and recovery of articles at the instance of accused no.3 Yadavrao, accused no.6 Motiram and accused no.7 Yashodabai, it is submitted that, according to Memorandum statement of accused no.7 Yashodabai (Exh.136) though there is reference to one knife and plate, no knife is recovered.
By further referring to evidence of PW-6 Sunil along with Memorandum Statement of accused no.6 Motiram and Seizure Panchanama (Exh.139 and 140 respectively), it is stated that time mentioned on Exh.139 is between 5.00 to 5.15 p.m.; while Recovery Panchanama (Exh.140) was drawn from 5.15 to 6.30 at Zilla Parishad School and by referring to timings, it is submitted that, till 4.45 p.m., PW-13 P.I. Chandansinh, Investigating Officer was drawing Panchanama (Exh.136) of accused no.7 Yashodabai. It is thus contended that this fact also creates doubt upon investigation. Learned Counsel for the accused then, by referring to contents of Memorandum Statement of accused no.6 contended that, according to it, said accused referred to discovery of crow bar and iron spade seized vide Recovery Panchanama (Exh.140) and steel lamp, broken ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 28 conf1.17.odt pieces of coconut shell and human bones are separately seized under Panchanama (Exh.141). It is thus contended that, in Seizure Panchanama (Exh.140), there is no reference of seizure of steel lamp, coconut shell, human bones; while in Seizure Panchanama (Exh.141), there is no reference of crow bar and spade though, according to case of prosecution, the same were seized at one and the same time at the instance of PW-6 Sunil and there is no reference of other articles than spade and crow bar in Memorandum Statement of Accused no.6 Motiram.
27. Thereafter, on commenting upon further evidence of PW-6 Sunil with reference to Memorandum Statement (Exh.142) and Discovery Panchanama (Exh.143) of towel at the instance of accused no.3 Yadavrao, it is submitted that this recovery does not substantiate case of prosecution in any manner even if relied and it is contended that from the Memorandum Statement (Exh.145) of deceased accused no.5 Ramchandra and Seizure panchanama (Exh.146), case of prosecution is of recovery of one knife from his house having no blood stains and is not stated to be referred to C.A. for analysis. It is, thus, submitted that learned trial Court wrongly ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 29 conf1.17.odt convicted all the accused only on the basis of their Memorandum Statements under Section 27 of Indian Evidence Act.
By commenting on the case of prosecution of its video- graphing investigation with regards to discovery of articles at the instance of accused, learned Counsel for the accused referred to evidence of PW-10 Ashok Kalmegh, who is retired ASI and Police Photographer, who is claimed to have video-graphed said investigation of recovery of articles at the instance of accused no.3 Yadavrao and accused no.7 Yashodabai. Pointing to his evidence, it is stated that said witness though had stated that he has saved the video-shooting in hard disc of computer of Police Headquarter, Yavatmal and had prepared C.D. of said shooting in computer and handed over the same to Investigating Officer, admittedly such primary evidence of hard disc is not brought on record nor investigating agency has placed on record Certificate required under Section 65(B) of the Indian Evidence Act and therefore, it is submitted that since there is no primary evidence i.e. hard disc on record nor certificate as aforesaid, case of prosecution of obtaining video-shooting is full of doubts.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
30 conf1.17.odt Learned Defence Counsel, doubting the D.N.A. report, contended that, as per the case of prosecution, the articles seized on 21.5.2013 from the spot in jungle, and on 25.5.2013, at the instance of accused, were forwarded for its analysis to C.A. on 10.1.2014 i.e. after lapse of 7 ½ months, which is fatal to prosecution; more particularly, in view of evidence of PW-13 P.I. Chandansinh, Investigating Officer, whose evidence does not establish safe custody of such muddemal till it was sent for its analysis.
It is further submitted that, according to opinion in D.N.A. report, bones referred as Exh. Nos. 2, 3, 4 and 5 when compared with DNA profile of PW-1 Sharda and PW-3 Gopal are concluded to be biological parents of said exhibits. Harping upon said D.N.A. report along with requisition to C.A. (Exh.207), it is submitted that, from the contents of this document, nothing can be established showing if bones (Exh. Nos. 2 to 5) are seized either on 21.5.2013 or 25.5.2013 as the requisition refers to forwarding of bones as stated in Columns B and C of the same along with skull as referred in Column A. By referring to evidence of PW-11 HC Ashish Bhusari, it is submitted that there is no evidence of collecting blood samples of PW-1 Sharda and PW-3 Gopal as his evidence is silent on ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 31 conf1.17.odt this aspect and it is, therefore, contended that case of prosecution of collecting blood samples of parents of deceased, storage of bones and delay of 7 ½ months to forward muddemal to C.A. creates doubt about truthfulness of D.N.A. reports.
28. Referring to submissions as aforesaid, it is concluded saying that, from the evidence on record, prosecution has miserably failed to establish the chain of circumstances nor it has established motive for accused to commit murder of Sapna as, in fact, according to F.I.R., PW-1 Sharda had suspected three persons named therein to have kidnapped her daughter for the purpose of causing her murder by way of offering to get the treasure concealed in a piece of land; however, without bringing on record any investigation carried out with regards to said three persons, admittedly they were discharged under Section 169 of the Code of Criminal Procedure. It is, therefore, submitted that possibility of kidnapping of minor girl Sapna by some one else cannot be ruled out. It is also contended that village Choramba is a small village and thus, killing of a girl from the village cannot be concealed for a period of 7 to 8 months and even case of prosecution of accused having buried dead body of deceased in a house near bathroom of accused no.7 Yashodabai and after a gap of ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 32 conf1.17.odt one month of exhuming it and carrying it in the field of Liyakat Anwar and again digging at that spot, without having been noticed by any of the villagers is not convincing at all. Even otherwise, it is submitted that there is no reason brought on record for accused to dead body from one place to another after it was dug and it is thus contended that since discovery of articles at the instance of accused as aforesaid is full of doubts and as case of prosecution also does not establish homicidal death of deceased nor knife which, according to prosecution is discovered at the instance of deceased accused no.5 Ramchandra, is sent to C.A., no charge levelled against the accused can said to have been established. Going a step further, it is further contended that even assuming that Exh Nos.2, 3, 4 and 5/bones as referred in D.N.A. reports are of Sapna, of whom PW-1 Sharda and PW-3 Gopal are biological parents, there is no other evidence on record sufficient and convincing to reach to the conclusion that it is the accused alone who, on kidnapping Sapna, committed her murder.
Lastly, it is also submitted that statements of accused under Section 313 of the Code of Criminal Procedure are incorrectly recorded as all the circumstances are put to all the accused and as ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 33 conf1.17.odt such, one circumstance with which other accused is in no way concerned, was put to him, though he was not required to explain it. It is also pointed out that, while recording statement of accused under Section 313 of the Code of Criminal Procedure, no explanation is sought from the accused that PW-1 Sharda and PW-3 Gopal are biological parents of deceased Sapna and it is thus contended that as the findings of DNA tests are not put to accused, same cannot be used against them.
29. Learned Defence Counsel on the point of recording of statements of accused under Section 313 of the Code of Criminal Procedure has relied on the following Authorities :
a) State of Madhya Pradesh vs. Mukesh and Others, 2006(10) Scale 346.
b) Swapnali @ Sapana Sharad Mahadik .vs. The
State of Maharashtra, 2016 ALL MR (Cri) 1824.
c) Vijay Vitthal Jadhav .vs. The State of Maharashtra,
2016 ALL MR (Cri) 1188.
On D.N.A. tests, following Judgments and Authorities are referred and relied on :::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 :::
34 conf1.17.odt
a) Judgment in Criminal Appeal No.200 of 2016, Jitendra s/o. Suresh Gabhane .vs. State and other connected Appeals, dt.4.10.2017.
b) The State of Maharashtra .vs. Ramesh Jijeba Lahane, 2015 ALL MR (Cri) 3835.
c) Judgment of Andhra High Court in Criminal Appeal No.59 of 2013, Bollikonda Venkanna s/o. Yellaiah .vs. The State of Andhra Pradesh, dt.21.2.2018.
For establishing that the muddemal articles involved in this case were not deposited in stores for a long time, the learned Counsel has relied on the following Authorities :
a) Raju s/o. Mahesh Dhruv .vs. The State of Maharashtra, 2017 ALL MR (Cri) 496.
b) Surdas Balkrishna Kirgat .vs. The State of Maharashtra, 2017 ALL MR (Cri) 4017.
On circumstantial evidence, the learned Defence Counsel has relied on the following Authorities :
a) Sharad Birdhichand Sarda .vs. State of Maharashtra, AIR 1984 SC 1622. b) Satish Nirankari vs. State of Rajasthan, (2017) 8 SCC 497. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:39 ::: 35 conf1.17.odt c) Kashiram Jairam Pawar and another vs. State of Maharashtra, 2005 ALL MR (Cri) 1235. d) Ganpat Singh .vs. State of Madhya Pradesh, (2017) 16 SCC 353.
Lastly, on the case of prosecution of recovery under Section 27 of the Indian Evidence Act, following Authorities are relied on :
a) Kiran Gorakh Shelke and another vs. The State of Maharashtra, 2016 ALL MR (Cri) 4160.
b) Shashikant Tulsidas Kamble and another .vs. The State of Maharashtra, 2013 ALL MR (Cri) 3531.
c) Salim Akhtar @ Mota .vs. State of Uttar Pradesh, AIR 2003 SC 4076.
d) Arun s/o. Dharma Chavan .vs. The State of
Maharashtra, 2001 ALL MR (Cri) 2320.
e) Krishna Mohar Singh Dugal .vs. State of Goa,
AIR 1999 SC 3842.
f) Dudh Nath Pandey .vs. State of Uttar Pradesh,
(1981) 2 SCC 166.
30. Mr.Anand Deshpande, learned Additional Public
Prosecutor has submitted that the trial Court had rightly culled out circumstances proving guilt of the accused persons and contended ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 36 conf1.17.odt that, after receipt of missing report from PW-3 Gopal, report was lodged by PW-1 Sharda on 19.11.2012 suspecting three persons named therein who have kidnapped her daughter, upon which F.I.R.
came to be lodged vide Crime No.95 of 2012, for the offences punishable under Sections 363, 364 r/w. 34 of the Indian Penal Code and investigation was put into motion. Learned Additional Public Prosecutor further submitted that Vijay Chavan, who, according to report of PW-1 Sharda, is alleged to have heard noise of weeping of some girl in his field, has lodged report on 17.11.2012 stating that, on that day, at 10.15 p.m., near Maroti Temple, one pit was dug where one stone was kept having two lemons sprinkled with yellow turmeric powder upon it along with one coconut where persons namely Laxman Sitaram Yambadkar r/o. Belora and Ashok Gangaram Darshanwar, r/o. Ghatanji were seen armed with pickaxe, spade and three persons were found fleeing away from the said spot after one baby's cry was heard. According to prosecution, when this report was under inquiry, PW-1 Sharda filed written application on 19.11.2012, at 5 p.m. mentioning that Ashok Darshanwar, Bapu Yambadwar, Raju Taksande with 3-4 unknown persons kidnapped her daughter Sapna and attempted to cause her murder. In her report, PW-1 Sharda raised suspicion that a girl was found in the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 37 conf1.17.odt field of Vijay Chavan r/o. Murli Tanda. The girl found along with above named persons was her daughter. In spite of above, learned Additional Public Prosecutor, however, had admitted that no statement of Vijay Chavan is recorded nor any investigation is carried out on this aspect. According to learned Additional Public prosecutor, investigation in Crime No.95 of 2012 registered as aforesaid was transferred to local Crime Branch, Yavatmal and was carried out by PW-13 Chandansinh, Investigating Officer who, on 20.5.2013, on receiving information from PW-1 Sharda and PW-3 Gopal about lying of bones, frock etc. at jungle area in Choramba, as informed to them by accused no.2 Devidas, visited the said spot on 21.5.2013 along with two panchas and PW-3 Gopal and after drawing Spot Panchanama, seized articles under Seizure Panchanama. To establish said fact, learned Additional Public Prosecutor led evidence of PW-2 Adikumar, panch witness, who has proved Seizure Panchanamas (Exh. Nos. 121 and 122) in respect of recovery of bones, hairs, frock, knicker respectively and to connect this recovery, which articles admittedly were not concealed, referred to Memorandum Statement of accused no.1 Manoj wherein he has stated the spot where dead body of deceased was buried and Seizure Panchanama in respect of two human bones, pieces of green bangles ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 38 conf1.17.odt as well as Demonstration Panchanama of above investigation were prepared. Prosecution then relied upon evidence, Memorandum Statements and Discovery Panchanamas in pursuance to Memorandum Statements of accused no. 7 Yashodhabai, who stated to discover steel plate, which came to be seized and on Memorandum Panchanama of accused no.6 Motiram, to discover crow bar, spade along with Discovery Panchanama as well as on Demonstration Panchanamas carried out during the course of investigation.
Prosecution further relied on evidence of PW-6 Sunil on Memorandum Statement of accused no.3 Yadavrao and on Discovery Panchanama and Seizure of one towel as produced by him from his house and on evidence of PW-7 Dinesh Karmarkar on Memorandum of deceased/accused no.5 Ramchandra and seizure of knife in pursuance of his statement. Learned Additional Public Prosecutor made submissions in respect of Memorandum Statements and Seizure Panchanamas of accused nos.1, 3, 5 6 and 7, according to dates of their memorandums and recoveries effected between period from 25.5.2013 to 30.5.2013 and had submitted that evidence of above witnesses and recovery of incriminating articles at the instance ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 39 conf1.17.odt of accused go to establish involvement of accused beyond reasonable doubt, which evidence is stated to be further found corroborated by D.N.A. reports and C.A. reports when same are considered along with evidence of PW-11 PC Ashish Bhusari as well as Investigating Officers on the point of collecting D.N.A. samples. It is also submitted that evidence of PW-8 Ramesh Mendhe, Naib Tahsildar who has drawn map (Exh.153), establishes fact of investigating agency recovering incriminating articles involved in the present crime on 21.5.2013 from the spot adjoining to the field of Liyakat Tanwar. Thus, according to learned Additional Public Prosecutor, when the entire evidence is cumulatively considered from the Confessional Statement of accused and recovery of incriminating articles effected in pursuance to it, it establishes involvement of accused in the present crime.
31. Prosecution in the background of submissions as aforesaid and on its case of accused committing murder in complete secrecy, relied upon the case of Trimukh Maroti Kirkan .vs. State of Maharashtra reported in (2006) 10 SCC 681. On its case on the point of Section 27 of the Indian Evidence Act, prosecution relied upon the case of State of Maharashtra .vs. Suresh reported in ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 40 conf1.17.odt (2000) 1 SCC 471; Charandas Swami .vs. State of Gujarat and Others reported in (2017) 7 SCC 177; Mehboob Ali and another .vs. State of Rajasthan reported in (2016) 14 SCC 640; Judgment in Criminal Appeal No.1333 of 2009, decided on August 2, 2018 Raju Manjhi .vs. State of Bihar; Yakub Abdul Razak Menon .vs. State of Maharashtra reported in (2012) 12 SCC 1 and in the case of Pawan Kumar @ Monu Mittal .vs. State of U.P. reported in (2015) 7 SCC 148 and it is submitted that the entire incriminating material given by accused in his Memorandum under Section 27 of the Indian Evidence Act would be admissible in evidence. On the point of evidence of hostile witnesses, learned Additional Public Prosecutor relied upon case of Ganga Singh vs. State of Madhya Pradesh reported in (2013) 7 SCC 278 and on the point of not affording opportunity to the accused to explain each and every incriminating evidence against them, has relied upon the case of Nar Singh .vs. State of Haryana reported in (2015) 1 SCC 496. It is, therefore, submitted that no interference in the impugned Judgment is called for.
32. In reply, learned Counsel for the appellants reiterated that, in the missing report, there is no suspicion raised on any of the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 41 conf1.17.odt accused nor prosecution has established any motive nor for want of admissible evidence, has proved any preparation, previous conduct of accused except for relying upon statements of accused under Section 27 of the Indian Evidence Act and alleged recoveries made at the instance of accused which are based on inadmissible evidence. It is further contended that no conspiracy is established by any of the witnesses nor any kidnapping by the accused is established and in fact, in the report by PW-1 Sharda, three persons, though suspected and arrested, came to be released under Section 169 of the Code of Criminal Procedure without placing on record any reason for such release. It is submitted that, for want of sufficient evidence, no D.N.A. report or C.A. Reports can be relied nor in absence of Certificate under Section 65(B) of Indian Evidence Act or hard disc on record, case of prosecution of its video-graphing part of investigation with regards to recovery of incriminating articles at the instance of accused can be considered and it is, therefore, submitted that, in fact, the case of accused of their false implication by one of the Police Officers namely Omprakash Ambadkar has been established. Learned Counsel for the accused has, therefore, contended that since no chain of circumstances is established by prosecution by placing on record reliable evidence, there is nothing ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 42 conf1.17.odt to connect the accused with the present crime and hence, it is submitted that the appeal be allowed.
33. Admittedly, the case of prosecution is based on circumstantial evidence. Hon'ble Apex Court in its various pronouncements has issued guidelines showing how to evaluate and consider the case of prosecution when it is solely based on circumstantial evidence. One such Authoritative pronouncements of Hon'ble Apex Court is the case of Hanumant Nargundkar .vs. State of Madhya Pradesh reported in AIR 1952 SC 343. Similarly, five golden principles are formulated by Apex Court in the case of Sharad Birdhichand Sarda (cited supra). In view of above principles, we have evaluated the entire evidence on record to satisfy if, from the available material and evidence on record, prosecution can said to have established involvement of accused beyond reasonable doubt.
In the case of Hanumant Nargundkar (supra), in para 10, it is guided as to how circumstantial evidence is to be appreciated. For the sake of convenience, we have re-produced below para no.10 thereof.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
43 conf1.17.odt "10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex. P3-A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge,(1838) 2 Lewin 227) where he said:
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them incomplete."
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 ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 44 conf1.17.odt be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case."
Further, in a landmark case: Sharad Birdhichand Sarda vs. State of Maharashtra: AIR 1984 SC 1622, the Hon'ble Apex Court ruled the following five golden principles which the Hon'ble Court has said as 'Panchsheel' on proof of a case based on circumstantial evidence.
It would be useful to reproduce the following observations from the said authoritative pronouncements of the Apex Court:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
45 conf1.17.odt criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh (supra). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi vs. State of Uittar Pradesh (1969) 3 SCC 198; and Ramgopal v.State of Maharashtra (AIR 1972 Sc 636;. It may be useful to extract what Mahajan, J, has laid down in Hanumant case:
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 accused.::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
46 conf1.17.odt
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this court in Shivaji Sahabrao Bobade v. State of Maharashtra: 1973 2 SCC 793 where the following observations were made : (SCC Para 19 P. 807 : SCC (Cri) p. 1047.
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is a long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 47 conf1.17.odt (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
The Apex Court in Sarda's case (supra) at paragraph 157, ruled as under :-
"157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. ...................."
In the light of above legal principles, we have analysed evidence to satisfy if prosecution has established that deceased died of homicidal death. According to case of prosecution, all the accused conspired together to kidnap Sapna and offer her human sacrifice. It is the case of prosecution that, 3-4 days prior to Navratri festival, accused no.7 Yashodabai Meshram had called accused nos. 1 to 6 and told them that her daughter accused no.8 Durga Sitaram Shirbhate is bodily affected due to power of some goddess for which ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 48 conf1.17.odt it is necessary to offer her blood of some female by which everything would be set right and therefore, on the say of accused no.7 Yashodabai, all accused conspired to sacrifice life of Sapna by causing her death to offer her blood and got the work distributed amongst themselves by allotting specific role to each of them to give effect to their conspiracy.
34. Thus, it is the case of prosecution that, in pursuance of their criminal conspiracy, accused committed murder of Sapna and as such, she died of homicidal death. It is material to note that there is no evidence that deceased died of homicidal death. This appeal involves peculiar facts as revealed from the record that, on receipt of missing report of deceased on 24.10.2012 when it was pending inquiry, some bones, skull, hair, knicker, frock were found in the field of Liyakat Tanwar on 20.5.2013, which articles were seized by PW-13 Chandansinh, Investigating Officer after drawing Spot Panchanama, under Seizure Panchanama in presence of PW-3 Gopal where, according to case of prosecution, even Inquest Panchanama upon skull and bones found on the spot was carried out. According to D.N.A. reports, PW-1 Sharda and PW-3 Gopal are said to be biological parents of bones sent for D.N.A. tests along with D.N.A. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 49 conf1.17.odt profile of said witnesses and except for this, no other evidence is on record to hold that deceased died of homicidal death nor it is the case of prosecution that there is any report of expert certifying death of deceased to be homicidal nor C.A. report establishes injuries, if any, sustained by deceased which were sufficient to cause death in ordinary course of nature. In that view of the matter, we do not find any reason to hold that prosecution has established that deceased died of homicidal death. Learned trial Judge concluded this point noting that there are four types of death i.e. accidental, suicidal, homicidal and natural, and in the case in hand, from the bones found in jungle as well as seized from other spots like bathroom where, according to scientific evidence, remains of deceased Sapna were seized, and further noticing that as there is no other evidence with regards to natural or suicidal death of Sapna, presumed that deceased died of homicidal death.
35. In this background, we have scrutinized evidence to satisfy if it establishes involvement of accused in this crime, beyond reasonable doubt. PW-3 Gopal and PW-1 Sharda, parents of Sapna, on 25.10.2012 and 19.11.2012, had lodged missing report (Exh. Nos.127 and 112 respectively) of their daughter. Perusal of evidence ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 50 conf1.17.odt of PW-3 Gopal would reveal that Sapna was his elder daughter and he knows all the accused being his relatives. He has stated that the incident took place in the year 2012 during Dussera festival. On that day, Sapna went out for playing, however, did not return back. Therefore, he, along with his family members, searched for her; however, since he did not find her, he lodged missing complaint (Exh.127). He has further deposed that while police were searching for his daughter, accused no.2 Devidas, who is his brother-in-law, gave information about lying of one skull and pieces of clothes near the gaothan which fact was informed by PW-3 Gopal to police where he along with PW-1 Sharda visited and found that skull, bones, pieces of clothes were lying which were seized by police. This witness did not support the case of prosecution and is thus declared hostile. In fact, he stated in his evidence that he is not sure if, on the date of recording of his evidence, Sapna is dead or alive. He has denied to have learnt of involvement of appellants killing Sapna to offer her as human sacrifice. He denied if he inquired with accused no.2 why Sapna was murdered in front of Goddess Ghat in the house of accused no.7 Yashodabai. He has also denied that accused no.2 Devidas informed him that on cutting throat of Sapna by knife accused sipped her blood as offering of goddess and further denied ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 51 conf1.17.odt of his inquiring with Devidas as to why he has not informed said fact to him earlier when said accused had informed him that accused no.7 Yashodabai and accused no.6 Motiram had extended threats to play magic on him if he discloses said fact to any one.
36. It is further denied that, on the day of Dussera accused kidnapped Sapna and by taking her to goddess Ghat in the house of accused no.7 Yashoda, gave her sacrifice. PW-3 Gopal has denied to have identified clothes seized by police to be of Sapna and that accused on kidnapping committed her murder to give sacrifice to the goddess. PW-3 Gopal, father of Sapna, as such, has denied involvement of accused as suggested to him as aforesaid. In fact, from his evidence, it has come on record that accused no.7 Yashodabai is sister of his father-in-law, while accused no.8 Durga is her daughter.
On perusal of missing report (Exh.127), dt.25.10.2012, it would reveal that same is lodged against unknown person as nobody is suspected in this report as kidnapper of Sapna and apart from physical description of Sapna, description of her clothes which were on her person when she went missing since 24.10.2012 at 7 O' clock, ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 52 conf1.17.odt refers to red coloured frock and white shirt; while description of clothes as referred in Seizure Panchanama (Exh.122) by which, in the presence of PW-2 Adikumar, Investigating Officer, seized clothes refer to seizure of one Heena coloured frock having pink coloured floral design and blue coloured knicker and there is no reference to any white coloured shirt to have seized. Said seizure is effected almost 7 ½ months later on 21.5.2013 at Zudpi jungle situated at village Choramba near the field of Liyakat Tanwar.
Similarly, evidence of PW-2 on this limited aspect when perused refers to seizure of one green coloured frock having floral design and is silent about seizure of any white blouse or about identification of said clothes by parents of Sapna.
37. In the background of above evidence of PW-3 Gopal, on considering his further evidence, he has admitted that, after lodging of his missing report, Pandurang Khaire and Vijay Chavan of Murli Tanda met him and told that in village Murli hidden treasure was found and they have heard voice of a girl. Admittedly, neither Pandurang Khaire nor Vijay Chavan are examined. Though PW-3 Gopal, on the basis of information received from Pandurng and Vijay ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 53 conf1.17.odt Chavan, admits of lodging of report against Ashok Darshanwar, Bapu Yambadwar and Raju Taksande, from his evidence nothing can be established as to why such report is lodged by him against these persons which was recorded by PSO Ambadkar in presence of API Gurnale in Police Station. Prosecution has not examined any of these Police Officers. PW-3 Gopal has admitted that all the three persons suspected by him in his police report were arrested and were released from jail after three months and further admitted that Pandurang Khaire is having liquor business and good relations with police. He further admits that accused no.7 Yashodabai is member of Gram Panchayat and on his request, she had accompanied him along with Pandurang Khaire, Seetaram Shirbhate, accused no.8 Durga Shirbhate and 5 to 6 others to meet Superintendent of Police at Yavatmal and has admitted that this fact was informed by Pandurang Khaire to Police Officer Ambadkar. PW-3 Gopal has further admitted that, due to his meeting Superintendent of Police, Officer Ambadkar got angry and has extended threats to accused no.7 Yashodabai to involve her in a false case. He has further admitted that due to such threat accused no.7 Yashodabai complained of said fact to Superintendent of Police. In the background of his evidence as aforesaid, he has further admitted that ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 54 conf1.17.odt due to quarrel that had taken place between Police Officer Ambadkar and accused no.7 Yashodabai, accused are falsely implicated in this case and contrary to case of prosecution of accused no.2 Devidas informing of lying of skull and pieces of clothes in gaothan of Mapi, PW-3 Gopal admitted that no such fact was disclosed to him by accused no.2 Devidas and in fact, he has stated that one Sakhubai of their village had said that she will bring his daughter Sapna if she is paid for it and therefore, has deposed that he feels that his daughter is alive.
38. In view of evidence of PW-3 Gopal as aforesaid, involvement of none of the appellants is found in the present crime who, in fact, from the above discussed evidence, appears to be falsely implicated as PW-3 Gopal along with accused no.7 Yashodabai, accused no.8 Durga Sitaram Shirbhate, Pandurang Khaire and 5 to 6 other persons had contacted Superintendent of Police, Yavatmal as there was no progress in missing report lodged by PW-3 Gopal in respect of his daughter Sapna, due to which Police Officer Ambadkar got annoyed and is found to have threatened accused persons to involve them in a false case.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
55 conf1.17.odt
39. Evidence of PW-3 Gopal as aforesaid in fact appears to be reliable as even clothes, of which description was given by him in his missing report, which were on the person of deceased on the day when she went missing, does not tally with the evidence of independent witness PW-2 Adikumar, the panch and the contents of Seizure Panchanama (Exh.122), according to which one frock along with other articles came to be seized from zudapi jungle near field of Liyakat Tanwar.
40. This takes us to consider evidence of PW-1 Sharda, mother of deceased, which would reveal that she knows all the accused and that her daughter Sapna is no more alive, who was missing since the day of Dussera in the year 2012, of which report was lodged on the following day by PW-3 Gopal. PW-1 Sharda has deposed of her going to Superintendent of Police, Yavatmal 15 to 20 days thereafter and further stated of one Pandurang Khaire informing her that, at village Murli one villager informed him that he heard sound of weeping of one girl and therefore, Pandurang told her to lodge report against three persons namely Ashok Darshanwar, Bapu Yambadwar, Raju Takshande. However, she did not recollect name of third person and accordingly, lodged report. On being ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 56 conf1.17.odt confronted with her report, she deposed that same was also lodged against one Darshanwar and admitted same to be on record at Exh.112. From her above evidence, it is thus established beyond doubt that report on the basis of which offence came to be registered vide Crime No.95 of 2012 for the offences punishable under Sections 363, 364 r/w. 34 of the Indian Penal Code came to be lodged by Sharda on the say of one Pandurang Khaire and in fact, said Pandurang appears to have insisted Sharda to lodge report against Ashok Darshanwar, Bapu Yambadwar and Raju Taksande and had taken Sharda to Police Station. Admittedly, all three suspects named as aforesaid are discharged and nothing is placed on record establishing reasons for their discharge which apparently appears to be of false implication of above named persons by Sharda due to insistence of Pandurang Khaire who is admittedly not examined as a witness. In the background of above stated facts, when her report (Exh.112) is perused, she has stated therein that, 2-3 days prior to lodging of such report, three persons named therein as aforesaid, who were armed with weapons, took her daughter to the field of one Vijay Chavan, resident of Murli with an intention to cause her murder and on arrival of Viju Chavan there, on hearing of cry of a girl, above named persons fled away. Report (Exh.112) also refers to ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 57 conf1.17.odt Viju Chavan lodging report of said fact in Police Station, Ghatanji, of which reference is found in Column No.15 of printed F.I.R. (Exh.113) that, on 17.11.2012, at 8.15 hours, near Maroti temple, he saw one pit was dug and there was one stone on which two lemons sprinkled upon it with yellow turmeric powder and one coconut were kept, where Bapur Yambadwar and Ashok Darshanwar were found present armed with pickaxe and spade, while three persons fled from the spot when he heard cry of a girl. Further reference in column 15 of F.I.R. is with regards to missing report lodged by PW-3 Gopal, dt.24.10.2012. What is outcome of report lodged by Viju Chavan is not brought on record and PW-13 Chandansinh, Investigating Officer admitted that, as per Exh.112, PW-1 Sharda had lodged report against Ashok Darshanwar and two other suspects, upon which offence is registered when investigation of this crime was with Police Officer Ambadkar. He has further deposed that said Officer Ambadkar had arrested accused Ashok Darshanwar and two others and that, after he took over investigation from Ambadwar, he had discharged said persons under Section 169 of the Code of Criminal Procedure. Nothing is on record establishing discharging of above named accused, though PW-1 Sharda in her report (Exh.112) ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 58 conf1.17.odt had suspected them to have taken away one girl and was sure that the girl who was at village Murli was her daughter.
41. On considering further evidence of PW-1 Sharda, it has come on record that accused no.2 Devidas is her brother who had informed that while he was at Mapi jungle to graze cattles, he had located one human skull, one knicker and piece of frock, of which information was given to Local Crime Branch Officials and accordingly, she along with her husband visited said spot with other villagers where she was shown one piece of frock. However, according to her, said piece of frock did not belong to her daughter Sapna and therefore, she did not receive any information about her daughter. Evidence of PW-1 Sharda about accused no.2 Devidas informing about lying of human skull in the jungle as deposed by her is not convincing in view of specific evidence of PW-3 Gopal when he has admitted that accused no.2 Devidas had not informed about his finding of any skull or piece of frock in jungle. Evidence of PW-1 Sharda and PW-3 Gopal is, therefore, contradictory on this material piece of evidence.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
59 conf1.17.odt
42. PW-1 Sharda though is mother of Sapna, has also not supported the case of prosecution and has denied to have stated in her statement recorded by police that, in her presence, all accused confessed in the house of accused no.7 Yashodabai of their beheading Sapna offering her human sacrifice and of their burying her dead body by the side of bathroom in the house of accused no.7 Yashodabai. PW-1 Sharda admits that accused no.1 Manoj is son of sister of her father, accused no.2 Devidas is her real brother, accused no.3 Yadavrao is cousin of her maternal uncle, accused no.4 Punaji is her father, accused no.5 Ramchandra (deceased) is brother of her grand father, accused no.6 Motiram is cousin of her mother, accused no.7 Yashodabai is sister of her father and accused no.8 is daughter of accused no.7 Yashodabai and has denied that since all the accused are related to her, she is deposing falsely and as also admitted that since complaint was made by her and PW-3 Gopal to Superintendent of Police, Yavatmal by visiting said Police Officials and Special I.G. at Amravati along with accused no.7 Yashodabai who was member of Gram Panchayat, dispute arose between accused Yashodabai and Police Officer Ambadwar as complaint was made against said Officer to Superintendent of Police, Yavatmal and therefore, it is admitted that Officer Ambadkar had threatened ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 60 conf1.17.odt accused Yashodabai. According to her, complaint was required to be made with S.P., Yavatmal and Special I.G., Amravati as investigation was carried out as per whims and fancies of Investigating Agency. It is admitted that she has no grievance against accused persons and she is unable to say if Sapna is dead or alive.
43. As such, evidence of PW-1 Sharda and PW-3 Gopal, parents of Sapna reveals that they are not even sure if Sapna is dead or is alive and in fact, PW-3 Gopal had also deposed that one Sakhubai of village had said to him that, if money is paid to her, she will bring Sapna. No investigation is carried on this aspect nor statement of Sakhubai is recorded. In the background of evidence of above witnesses, we have further scrutinized evidence of PW-9 Shakuntala, who is neighbour of accused no.7 Yashodabai, who has deposed that, due to quarrel with Yashodabai, she had left her house and is residing with her brother, which evidence appears to be by way of material omission. However, even by examining this witness, case of prosecution does not proceed in any manner since she too did not support the case of prosecution and has admitted accused no.7 Yashodabai to be member of Gram Panchayat and that she knows one Raju Navghare of village Choramba who was having his panel ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 61 conf1.17.odt against panel of one Dnyaneshwar Wagre, from whose panel she was contesting elections and as such, she along with Yashodabai were having political rivalry. By examining this evidence as such, prosecution could not achieve anything.
44. In the background of above discussed evidence of PW-1 Sharda and PW-3 Gopal, parents of deceased, who, from the tenor of their evidence, are doubtful even with regards to death of their daughter, since Sharda deposed that she is unable to say even if Sapna is dead or alive, while, according to her father Gopal, one Sakhubai had informed him that she will bring his daughter if money is paid to her, we have scrutinized evidence of PW-2 Adikumar, the panch witness, who is relied by prosecution to establish link with regards to clothes on the person of Sapna and muddemal articles recovered in forest area at Choramba on 21.5.2013 even prior to arrest of accused, whose evidence reveals that, on that day he, along with one Ravi Khawas were called by police in a forest at 6.45 a.m. and were requested to act as panch when, in their presence and in presence of PW-3 Gopal, some bones, hairs, one piece of frock of green colour having floral design and skull came to be seized under ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 62 conf1.17.odt Seizure Panchanamas (Exh. Nos.121 and 122), while Spot Panchanama is at Exh.120.
45. Admittedly, said document is of dt.21.5.2013 i.e. after seven months of registration of F.I.R. on the basis of report by PW-1 Sharda dt.19.11.2012. Moreover, in the missing report, the frock is referred as red coloured frock and white shirt; while, according to PW-2 Adikumar, what was seized in his presence is green coloured frock. While, in Spot Panchanama (Exh.120), we find description of frock mentioned of Heena colour along with blue coloured knicker, bone, skull and hair. In that view of the matter, case of prosecution of seizure of frock on 21.5.2013 appears to be full of doubts as against the specific case of PW-3 Gopal of deceased wearing red coloured frock since the day she is missing. Even otherwise, evidence of PW-2 Adikumar is not at all convincing to be acted upon since he admits that Seizure Panchanamas and Spot Panchanamas were already written, upon which he has signed and has also admitted that he is not aware of contents of any of these documents, which evidence appears to be convincing in view of said witness admitting that police did not read over these documents to him. In view of his evidence and since he also admits that he was called by police as he ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 63 conf1.17.odt was Up-Sarpanch of village, his evidence creates doubt if any articles as stated in the Panchanamas were really found on the spot and were seized in presence of these witnesses. Prosecution has not examined second panch on any of these documents. Moreover, evidence of PW-2 Adikumar, panch is also silent of PW-3 Gopal identifying frock on the spot to be of Sapna. In fact, PW-3 Gopal is also silent on his identifying any clothes of Sapna which were found along with skull and piece of bone by police. PW-2 Adikumar did not support the case of prosecution. Even, in the cross-examination, it is nowhere suggested that, at the time of seizure of frock, he was confronted with the same which he admitted to be of Sapna. As already stated aforesaid, recovery of skull, blue coloured knicker, heena coloured frock, bones etc. is effected on 21.5.2013 i.e. four days prior to arrest of all the accused, who are arrested on 25.5.2013. It is material to note that the spot from where above articles came to be found and seized was shown by PW-3 Gopal which is zudpi jungle at village Choramba and in the Spot Panchanama, we find no reference of sealing of any of the articles found on the spot. In view of above facts, case of prosecution of recovery of above articles on 21.5.2013 does not lead case of prosecution any further; more particularly, when we further found ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 64 conf1.17.odt that though the muddemals were seized on 21.5.2013, at 9.00 a.m., from evidence of PW-13 Chandansinh, Investigating Officer, seized muddemal vide Exh. Nos.121 and 122 are deposited in Malkhana of Police Station, Ghatanji on 2.6.2013. No explanation is putforth by prosecution for not depositing muddemal articles for 12 days. In view of absence of mention of sealing of articles in Spot Panchanama and deposit of muddemal after 12 days, case of prosecution is doubtful on this count also.
46. As submitted by appellants, we find PW-2 Adikumar even otherwise to be a stock panch of police as, on perusal of summons issued to him (Exh.124), his services were required for drawing of Inquest Panchanama over the body of Sapna, and nothing more.
Similarly, at this juncture, perusal of evidence of PW-8 Ramesh Mendhe, Naib-Tahsildar would reveal that, on 15.7.2013, on visiting Government E-Class Land with Panchas, Talathi, Kotwal, he drew sketch (Exh.152) and forwarded it to the Investigating Officer. Perusal of this document would reveal that he, on drawing such sketch, has referred to various spots mentioned there and on those ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 65 conf1.17.odt different spots, articles like rib bones, leg bones, skull, knicker, frock, hair from head are shown lying. His evidence is silent as to who pointed said spots where such articles are stated to be lying. In fact, PW-8 Ramesh has admitted that the sketch does not reveal as to who had shown such spots to him. In view of his evidence as aforesaid and as the sketch since is admittedly drawn on 15.7.2013 i.e. after two months of drawing Spot Panchanama dt.21.5.2013, we do not find it safe to act upon this document as the case of prosecution is silent as to how, so many details came to be mentioned in sketch (Exh.152). For the reasons as aforesaid, therefore, we find the case of prosecution of drawing of Spot Panchanama, seizure of articles and inquest to be doubtful.
47. After considering evidence in respect of articles seized from the spot on 21.5.2013 as aforesaid, which were already found four days prior to arrest of accused and on commenting on various aspects with regards to evidence of PW-2 Adikumar, spot panch as well as Spot Panchanama, Seizure Panchanamas of articles seized from the spot and Inquest Panchanama, we have considered evidence of witnesses relied by prosecution to prove its case of recovery of various articles at the instance of accused persons and ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 66 conf1.17.odt thereby making an attempt to establish their involvement in the present crime. For that purpose, we have considered evidence of PW- 4 Rajendra Shukla, who has acted as a panch on Memorandum Statement (Exh.No.130) of accused no.1 Manoj, Demonstration Panchanama (Exh.131) and Discovery Panchanama (Exh.132). From his evidence, it is revealed that he was called in Ghatanji Police Station on 25.5.2013 along with Amol Bhoyar (not examined) to act as a panch, where they reached at 3.45 p.m. when, in their presence, accused no.1 Manoj while in police custody, made statement where dead body was buried, which Memorandum is on record (Exh.130). As per his further evidence, accused led police and panchas to one place, which spot was dug by police, wherefrom human bones and pieces of green coloured bangles were found, which were seized under Seizure Panchanama (Exh.132). He has deposed that then accused no.1 Manoj led police to bushes in one field which place was further dug, wherefrom small bones of human body were seized under Panchanama (Exh.131). PW-4 Rajendra has admitted that, before calling him to act as a panch, he was not issued with any summons and has admitted that he is resident of Yavatmal; while his services were requisitioned for investigation carried out at Ghatanji which is 45 kms. away. In that view of the matter, we find substance ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 67 conf1.17.odt when it is suggested to this witness that he made himself available for investigation by police since he was having friendly relations with police, as prosecution has not putforth any reason to not to arrange any panch from Ghatanji itself, though PW-4 Rajendra admits said place to have Municipal Council having population of about 40,000 people. Presence of PW-4 Rajendra creates doubt when he has denied having been called by Police Inspector Chandansinh Bais, but, according to him, Omprakash Ambadkar, P.S.O. was at Police Station, Ghatanji; while, according to evidence of PW-12 Nilesh Bramhane, API, who had carried out part of investigation, from 20.8.2013 till 8.1.2014, PW-13 Chandansinh, P.I. had investigated the matter while the date as deposed by PW-4 Rajendra is 25.5.2013. Evidence of PW-4 Rajendra of his claim to know accused no.1 Manoj is also doubtful as there is nothing on record to show as to how he knows said accused when admittedly PW-4 Rajendra is resident of Yavatmal, while accused no.1 Manoj is resident of village Choramba. In fact, PW-4 Rajendra has also admitted that the name of accused who was in custody was Manoj Atram.
Perusal of Arrest Memo of accused no.1 Manoj reveals that he came to be arrested on 25.5.2013 at 3.35 p.m., while ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 68 conf1.17.odt Exh.130 is his memorandum recorded on that day between 4.00 p.m. to 4.15 p.m. in presence of PW-4 Rajendra, panch witness. Along with accused no.1 Manoj, accused no.2 Devidas is arrested on that day at the same time under Arrest Memo (Exh.200) at 3.35 hours by PW-13 Chandansingh, Investigating Officer. Thus, there appears sufficient substance when it is submitted that case of prosecution of recording of Memorandum Statement of accused no.1 Manoj within 20 minutes of his arrest is doubtful as, after effecting arrests of accused no. 1 Manoj and accused no.2 Devidas, their Arrest Panchanamas are also drawn, for which reasonable time must have been required before interrogation and recording of Memorandum Statement of accused no.1 Manoj. In fact, it is material to note that under Memorandum Statement of accused no.1 Manoj, what is recovered and seized under Exh. Nos. 130 and 131 is already seized on 21.5.2013 i.e. even prior to Memorandum Statement of accused no.1 Manoj.
48. Services of PW-6 Sunil are obtained by Investigating Agency to act as a panch on 27.5.2013 between 2.45 p.m. to 3.00 p.m. for recording Memorandum Statement and discovery for drawing panchanama of articles discovered at the instance of ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 69 conf1.17.odt accused no.7 Yashodabai and also on Memorandum Statement and discovery of articles on the Memorandum of accused no.6 Motiram from 5.15 p.m. to 6.30 p.m. and of accused no.3 Yadavrao on 29.5.2013 between 12.30 to 12.45 in respect of recovery of towel in pursuance to his Memorandum Statement. No explanation is putforth by prosecution for availing services of PW-6 Sunil alone on two different dates for recording Memorandum Statements of three different accused persons and for recovery of articles. In the background of above stated facts, perusal of evidence of PW-6 Sunil on the point of Memorandum Statement of accused no.7 Yashodabai would reveal that, on 27.5.2013, he had gone to Yavatmal Rural Police Station with another panch Shende (not examined) when, in his presence, accused no.7 Yashodabai made a statement of police to discover plate and big sized knife, which is recorded as per Exh.136 and in pursuance to same, accused no.7 Yashodabai discovered one steel plate from open space near her house concealed beneath earth which came to be seized under Discovery Panchanama (Exh.137). Admittedly, no recovery of knife of any kind is effected in pursuance to Memorandum of accused no.7 Yashodabai.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 :::
70 conf1.17.odt
49. According to further evidence of PW-6 Sunil, after effecting recovery of plate at the instance of accused no.7 Yashodabai, while they were returning to the vehicle, accused no.6 Motiram expressed his desire to make a statement to police and was thus taken to nearby Zilla Parishad School, where his Memorandum Statement Exh.139 is recorded, in which he is stated to discover one crow bar (sabbal) and spade, and then he led Investigating team with PW-6 Sunil near bathroom inside the house of accused no.7 Yashodabai, where he was asked to dig a place and thereafter, he led them to boundary of one field where he was asked to dig that place, where one steel lamp, human bones and coconut shell were found. It is no case of prosecution that, as per Memorandum Statement of accused no.6 Motiram, he made statement to discover any of these articles nor there is separate Memorandum Statement of said accused giving statement to police to discover any of these articles. Memorandum Statement of accused no.6 Motiram (Exh.139) only refers to discovery of crow bar and spade. As such, we find seizure of other articles as aforesaid to be not material since its reference is nowhere in the Memorandum Statement of accused Motiram. PW-6 Sunil further deposed that accused no.6 Motirm then came to his house and produced one small crow bar and spade ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 71 conf1.17.odt which came to be seized under Seizure Panchanama (Exh.140) and has identified the same. Similarly, no explanation is putforth by prosecution why accused Motiram was made to dig at two places, as deposed by PW-6 Sunil.
PW-6 Sunil was again called in Police Station on 29.5.2013, when in his presence accused no.3 Yadav Tekam made statement to discover one towel which was recorded as per his Memorandum Statement (Exh.142) and then on leading Investigating Officer and Panch to his house said accused produced one yellow colour towel from one nylon bag which was hanging to a nail upon wall in his house which is seized under Exh.142. Exh.139 Memorandum Statement of accused no.6 Motiram is recorded between 5.00 p.m. to 5.15 p.m. on 27.5.2013 and in the Demonstration Panchanama (Exh.140) in respect of Discovery of articles at the instance of accused no.6 time of commencement of this document is at 5.15 p.m. and is concluded at 6.30. It is material to point out that, on that day, till 4.45 p.m., PW-13 was drawing Memorandum Statement of accused no.7 Yashodabai. We, therefore, find that till 4.45 p.m. PW-13 was drawing Recovery Panchanama (Exh.137) of Yashodabai. Similarly, case of prosecution is unfolded ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 72 conf1.17.odt if accused no.6 Motiram was with accused no.7 Yashodabai and Investigating team when she led police to discover steel plate as, according to evidence of PW-6 Sunil, panch, after accused no.7 Yashodabai police and panch returned back to their vehicle accused no.6 Motiram expressed his willingness to make statement for which prupose he was taken to Zilla Parishad. In that view of the matter, there is no link evidence on record to establish how accused no.6 Motiram arrived at the vehicle as aforesaid.
50. Perusal of Memorandum Statement of PW-6 Motiram would reveal that same is drawn on 27.5.2013 between 5.15 p.m. to 6.30 p.m., in pursuance to which, crow bar and spade are recovered. Demonstration Panchanama (Exh.140) in respect of muddemal discovered at the instance of accused Motiram in pursuance of his statement (Exh.139) would reveal that accused no.6 Motiram while effecting said discovery first led the Investigating agency to the house of accused no.7 Yashodabai where he dug some place from where nothing was recovered and so he led police by road towards village and came near zudpi jungle. It is to be noted that Memorandum Statement of accused no.7 Yashodabai and Seizure Panchanama (Exh. Nos. 136 and 137 respectively) are also of the same day, time ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:40 ::: 73 conf1.17.odt and place i.e. house of said accused Yashodabai wherefrom she discovered one steel plate. But, there is no reference to accused no.6 Motiram visiting said place. Memorandum Statement of accused no.6 Motiram (Exh.139) is in respect of recovery of crow bar and spade, which articles are referred as seized in Demonstration Panchanama (Exh.140) as one crow bar and spade having no blood stains upon it. While, according to Seizure Panchanama (Exh.141), one steel lamp, one piece of broken shell of coconut and small pieces of human bones are stated to be seized, of which there is absolutely no reference in the Memorandum Statement of accused no.6 Motiram for discovering any such articles as, according to his Memorandum Statement (Exh.139), he has referred only to discovery of crow bar and spade alone. In fact, Seizure Panchanama (Exh.141) is silent about seizure of spade and crow bar as is mentioned in the Memorandum Statement of accused no.6 Motiram, which fact, in fact, has been admitted by PW-6 Sunil.
51. Further evidence of PW-6 Sunil is with regards to recording of Memorandum Statement of accused no.3 Yadavrao on 29.5.2013 and discovery of one towel which is recorded as per Exh.142 and seized under Panchanama (Exh.143) having no blood ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 74 conf1.17.odt stains. In the absence of any other substantial evidence against accused no.3 Yadavrao, recovery of towel at his instance by itself is not sufficient to establish his guilt in present set of facts. Similarly, from the evidence of PW-7 Dinesh Karmarkar, though knife came to be seized under Panchanama (Exh.146) at the instance of deceased accused no.5 Ramchandra as per his Memorandum Statement (Exh.145), said accused since died pending trial, said piece of evidence requires no serious consideration. However, even if evidence of PW-7 Dinesh is considered for this limited purpose, it would establish seizure of one knife having no blood stains, which came to be seized from the house of deceased accused no.5 Ramchandra.
52. Having discussed evidence of above witnesses, evidence of PW-4 Rajendra and PW-6 Motiram, who have acted as panch on Memorandum Statement of accused no.1 Manoj and discovery of articles and of PW-6 Sunil whose services as aforesaid are taken to act as panch for recording Memorandum Statement of accused no.3 Yadavrao, accused no.6 Motiram and accused no.7 Yashodabai on 27.5.2013 and 29.5.2013, whose evidence for the doubts already raised hereinabove, does not appear to be convincing. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
75 conf1.17.odt
53. In the background of case of prosecution of alleged recovery of articles at the instance of accused no.1 Manoj, accused no.3 Yadavrao, deceased accused no.5 Ramchandra, accused no.6 Motiram and accused no.7 Yashodabai, as per their Memorandum Statements, in presence of panch witnesses PW-4 Rajendra Shukla, PW-6 Sunil and PW-7 Dinesh respectively, we find that, except for said evidence under Section 27 of the Indian Evidence Act, nothing is on record to connect the accused persons with the present crime. On this aspect, Mr.Anand Deshpande, learned Additional Public Prosecutor pointed out the judgment in the case of Raju Manjhi .v. State of Bihar (cited supra). In the cited decision, it was the case of dacoity and an amount of Rs.400/- was recovered from the possession of accused. It is observed in para 13 of the said judgment as under :-
"13. In the case on hand, before looking at the confessional statement made by the accused - appellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 76 conf1.17.odt Chief/Head of the team of assailants and the crime was executed as per the plan made by him. It is also came into light by his confession that the accused broke the doors of the house of informant with the aid of heavy stones and assaulted the inmates with pieces of wood (sticks). He categorically stated that he and Rampati Manjhi were guarding at the outside while other accused were committing the theft. The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act."
54. From the judgment of Apex Court in the case of Raju Manjhi .v. State of Bihar (cited supra), it is revealed that the important Judgments of Apex Court and Privy Council are not considered. In the case of Pulukuri Kottaya and others .v. Emperor (reported in AIR (34) Privy Council, 67), it is held as under :-
"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 77 conf1.17.odt consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. ... That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by, the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that is practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 78 conf1.17.odt object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
55. The Division Bench of this Court in the case of Vinayak Sitaram Barje .v. State of Maharashtra (reported in 2018(4) Mh.L.J. (Cri) 4331), has observed as under :-
"Conviction of appellants for murder, kidnapping for ransom and causing disappearance of evidence of crime - Appeal against conviction - Case based on circumstantial evidence - Appreciation of - Prosecution will have to establish each and every circumstance beyond reasonable doubt - Suspicion howsoever strong cannot take place of proof - Mere fact that, dead body was discovered from place on basis of memorandum of accused under Section 27, that ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 79 conf1.17.odt by itself would not be sufficient to lead to conclusion that appellants are guilty of committing murder of deceased."
56. In the recent Judgment of Hon'ble Apex Court in the case of Ansar Mohammad and Others .v. The State of U.P. (Criminal Appeal No. 1617 of 2011, decided on October 24, 2018), it is held as under :-
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya .v. King Emperor has held thus :
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 80 conf1.17.odt words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
24. In Mond. Inayatullah .v. State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that :
"11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says :
"27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
57. From the decision of Privy Council in the case of Pulukuri Kotayya and others .v. Emperor (cited supra) upto the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 81 conf1.17.odt Judgment of Ansar Mohammad and others .v. The State of UP (cited supra), it is clear that incriminating statement made by the accused while making memorandum under Section 27 cannot be taken into consideration. Only the statement in respect of discovery is admissible and nothing more. Learned trial Court has wrongly relied on the memorandum in respect of admission of guilt of the accused and only on that basis accused Nos.1 to 8 came to be convicted.
58. Learned trial Court has taken into consideration the following circumstances :-
(i) Report regarding Missing of Sapna Palaskar;
(ii) Circumstances of motive, preparation and previous conduct of accused persons;
(iii) Evidence of Criminal Conspiracy;
(iv) Evidence relating to kidnapping of victim Sapna by the accused;
(v) Evidence of recovery of bones, skull, pieces of frock etc., and other articles u/s. 27 of Evidence Act;
(vi) Evidence of C.D. and Videography regarding recovery u/s. 27 of Evidence Act;
(vii) C.A. report and D.N.A. report to corroborate the entire incident; and ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 82 conf1.17.odt
(viii)Presumption of factum of murder of Sapna on the part of accused persons.
As already stated aforesaid, on perusal of evidence of material witnesses, it is clear that PW-1 Sharda and PW-3 Gopal i.e. mother and father of deceased girl have not supported the prosecution case. On the other hand, they have stated that accused persons have not killed their daughter. PW-1 Sharda has stated in her cross-examination that still she believed that her daughter is alive. In the background of said facts, we have considered evidence to satisfy if the circumstances as follows, which are considered by the trial Court as afore-said, are sufficient to establish guilt of accused.
(i) Report regarding Missing of Sapna Palaskar.
59. There is no dispute that Sapna Palaskar was missing from 24.10.2012. PW-3 Gopal, father of Sapna, lodged report (Exh.127). Investigating Officer did not find Sapna. This report itself cannot be taken into consideration as a circumstance against the accused persons. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
83 conf1.17.odt
(ii) Circumstances of motive, preparation and previous conduct of accused persons; and (iii) Evidence of Criminal Conspiracy :
60. Learned trial Court has relied on the Memorandum Statements and has come to the conclusion that there was conspiracy between accused Nos.1 to 8. Accused No.8 Durga told that human sacrifice is necessary for the benefit of their family and village.
Therefore, they made a plan and committed murder of Sapna by giving human sacrifice to the Goddess. It is pertinent to note that there is no evidence in respect of kidnapping of Sapna by any of the accused. There is no evidence to prove that there was conspiracy between accused Nos.1 to 8 to give human sacrifice to the Goddess and, therefore, this circumstance cannot be said to be proved against the accused persons.
(iv) Evidence relating to kidnapping of victim Sapna by the accused :
61. Learned trial Court observed that there is no direct eye witness to the said incident. It has taken into consideration evidence of PW-6 Sunil, who has stated that accused Yadavrao, while he was in custody, gave memorandum on 29.05.2013 vide Exh. 142 and stated ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
84 conf1.17.odt that he kidnapped Sapna and lifted her on his shoulder. It is pertinent to note that the incriminating material in the memorandum cannot be taken into consideration. As per Section 27 of the Indian Evidence Act, the information which relates to discovery of fact is only admissible and, therefore, kidnapping of Sapna by accused persons is not proved by the prosecution.
(v) Evidence of recovery of bones, skull, pieces of frock etc. and other articles u/s. 27 of the Indian Evidence Act :
62. It is pertinent to note that, as per information given by accused No.1 Manoj on 21.5.2013, panchanama was prepared in presence of PW-2 Adikumar. Bones, skull, hair, frock etc. were found on the spot and those were seized as per Seizure Panchnamas (Exhs.121 to 123). It is pertinent to note that those panchnamas were not as per Section 27 of the Indian Evidence Act. Therefore, the same cannot be taken into consideration. In fact, it is material to note that above articles were seized on 21.5.2013 i.e. much prior to arrest of accused on 25.5.2013 by PW-13 Chandansing Bais, Investigating Officer.::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
85 conf1.17.odt
63. In view of the Judgment of Division Bench of this Court in the case of Vinayak Sitaram Barje .v. State of Maharashtra (cited supra), discovery of dead body itself cannot take place of proof. Discovery of dead body on the basis of memorandum of accused under Section 27 of the Indian Evidence Act itself would not be sufficient to lead to the conclusion that accused persons are guilty of committing murder of deceased. Therefore, this circumstance is also not proved by the prosecution.
(vi) Evidence of C.D. and Videography regarding recovery under Section 27 of Indian Evidence Act :
64. This circumstance also can be said to be not proved beyond reasonable doubt as evidence of PW-10 Ashok Kalmegh is doubtful, whose evidence would reveal that, while working as a Photographer for police, on 27.5.2013, he was called for video- shooting investigation in this Crime No.95 of 2012 by P.I. L.C.B. and accordingly, in his presence, various events involving accused persons and recovery of different articles at their instance came to be recovered of which he took video-shooting. He admits to have saved copy of video-shooting in the hard disc of computer of Police Headquarter, Yavatmal and had also prepared C.D. of said shooting ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 86 conf1.17.odt and handed it over to Investigating Officer which, according to him, can be seen/played in V.L.C. Media Player and admits that second C.D. having shooting involving accused Yashodabai, however, cannot be seen as the C.D. is corrupted. PW-10 Ashok further admitted to have not obtained any Certificate of video-shooting being saved in the hard disc of computer at Police Headquarter nor about his copy of video-shooting being given to the Investigating Officer and has also admitted that, in the video-shooting, he himself is seen at many places. In view of his admission as aforesaid, case of prosecution of PW-10 Ashok himself obtaining video-shooting is doubtful and from his evidence, it has also come on record that primary evidence of hard disc is admittedly not produced before the Court nor prosecution has produced Certificate as required under Section 65-B of the Indian Evidence Act, 1872. In view of evidence of PW-10 Ashok and provisions of Section 65-B of Indian Evidence Act, though hard disc or Certificate as contemplated under this provision is on record, said circumstance also is not found to be proved. Even the trial Court has observed that the C.Ds. and video-shooting were corrupt and its visual presentation was not possible. ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
87 conf1.17.odt
(vii) C.A. report and D.N.A. reports to corroborate the entire evidence :
65. On this count, perusal of evidence of PW-12 Nilesh would reveal that, during investigation, he received letter from Regional Forensic Laboratory, Nagpur for collecting D.N.A. Kit.
Accordingly, he deputed PW-11 Ashish Bhusari, P.C. B.No.2243 to collect D.N.A. Kit and after he collected the same, he issued requisition (Exh.183) to Medical Officer, Government Hospital, Yavatmal for collecting blood sample of parents of deceased in the DNA Kit.
Evidence of PW-11 Ashish Bhusari, Police Constable would reveal that, on 10.1.2014, he went to Government Medical College, Yavatmal along with parents of deceased along with requisition letter (Exh.183) to Medical Officer and D.N.A. Kit and obtained blood samples of PW-1 Sharda and PW-3 Gopal and thereafter, as per duty pass issued by PW-12 Nilesh Brahmane, deposited said blood samples to the Office of C.A., Nagpur on the same day and obtained acknowledgement as per Exh.185. PW-11 Ashish, Police Constable has admitted that there is no Malkhana in L.C.B. Yavatmal and therefore, the blood samples were stored in ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 88 conf1.17.odt Malkhana of Police Station, Ghatanji located at the distance of 35 kms. Apart from above evidence, PW-11 Ashish has also deposed that, under requisition memo (Exh.179) by PW-13 Chandansinh, the Investigating Officer to C.A., Nagpur, he deposited Muddemal articles involved in this case on 10.6.2013 and obtained acknowledgment as per Exh.180 and submitted his duty report as per Exh.181. It is material to note that Muddemal articles seized on 21.5.2013 and 25.5.2013 are, therefore, deposited after lapse of sufficient time to C.A. on 10.6.2013 and in fact, in Panchanama dt.21.5.2013, there is no mention of sealing of articles. Similarly, evidence of PW-13 Chandansingh, Investigating Officer is silent on the point where bones etc. were stored which were seized on 25.5.2013. Though, as per D.N.A. report (Exh.218), PW-1 Sharda and PW-3 Gopal are concluded to be biological parents of Exh.2, 3, 4 and 5 i.e. bones, nothing is on record to establish that bones which are referred as Exh. Nos. 2 to 5 are seized on 21.5.2013 or 25.5.2013. In the circumstances, this by itself cannot be taken as circumstances against the appellants. In view of above evidence, we find that prosecution is completely silent on the point where and in what condition muddemal articles were lying from the date of their seizures till its dispatch to C.A. No record in that behalf is produced ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 89 conf1.17.odt before the Court. In absence of any evidence, thus, much importance cannot be attached on this aspect to the case of prosecution, more particularly when, in absence of evidence of sealing, possibility of tampering of muddemal cannot be ruled out.
(viii) Presumption of factum of murder of Sapna on the part of accused persons :
66. Admittedly, the case of prosecution is based on circumstantial evidence. Therefore, prosecution was obliged to fully prove the circumstances on which prosecution was relying so that conclusion of guilt can be drawn. The facts established are not consistent with the hypothesis of guilt of accused persons as we find that the chain of evidence is not complete and is found broken at various places. It is pertinent to note that PW-1 Sharda has specifically admitted in her cross-examination that accused no.7 Yashodabai was a member of Gram Panchayat. She was taking active part for search of missing Sapna. Accused no.7 Yashodabai took her to Superintendent of Police, Yavatmal and Inspector General of Police, Amravati. Therefore, there was dispute between P.S.O. Ambadkar and Yashodabai. Yashodabai made complaint against P.S.O. Ambadkar and, therefore, P.S.O. Ambadkar had ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
90 conf1.17.odt threatened to see her. This specific plea of the accused is proved by evidence of PW-13 Chandansingh, Deputy Superintendent of Police, Investigating Officer as he has admitted in his cross-examination that there was dispute between accused Yashodabai and P.S.O. Ambadkar and Yashodabai made complaint to S.P., Yavatmal regarding dispute between her and P.S.O. Ambadkar. This itself shows that the probable defence of false implication of accused persons by Officer Ambadkar, as putforth is more probable than the case of prosecution.
67. None of the circumstances recorded by the trial Court is proved by the prosecution. It is held by Hon'ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (reported in (1984) 4 SCC 116) that prosecution must prove each and every circumstance beyond reasonable doubt. Hon'ble Apex Court has given panchsheel to prove the circumstantial evidence, as under :-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 91 conf1.17.odt say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
68. Learned trial Court has not properly followed the decision of Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (cited supra). There is no evidence against the appellants except the evidence under Section 27 of the Indian Evidence Act. Learned trial Court has wrongly taken into consideration the Memorandum Statements i.e. Confessional Statements in respect of guilt. As per Section 25 of the Indian Evidence Act, any statement made before police is not admissible except under Section 27 of the Indian Evidence Act in respect of information given to discover the ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 92 conf1.17.odt facts/articles and the articles/facts discovered. Incriminating statements made in Memorandum Statements are not admissible. Learned trial Court has wrongly taken into consideration Confessional Statements admitting guilt of the accused and only on that basis, the accused are wrongly convicted.
69. All the material panch witnesses PW-2 Adikumar, PW-4 Rajendra, PW-6 Sunil and PW-7 Dinesh are from Yavatmal. Police Station, Ghatanji is a big town rather a taluka place, but local panch witnesses not taken by the Investigating Officer. Therefore, evidence of PW-4 Rajendra, PW-6 Sunil and PW-7 Dinesh is not reliable. They are brought by police from Yavatmal.
In the circumstances, the law relied by prosecution in the case of Trimukh Maroti Kirkan (cited supra) of accused committing murder in complete secrecy cannot be applied in any manner for want of any evidence on record even to establish that any of the accused had conspired in secrecy and in pursuance to their conspiracy, after kidnapping Sapna, committed her murder nor the law relied to establish involvement of appellants in this crime based on their Memorandum Statement under Section 27 of the Indian Evidence Act ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 93 conf1.17.odt can be used in favour of prosecution in absence of ample other material on record to corroborate said corroborative piece of evidence, which, for the reasons already recorded aforesaid, is even otherwise not reliable. In the circumstances and at the cost of repetition, we may reiterate that, from the evidence adduced by the prosecution, it is clear that mother and father of Sapna namely PW-1 Sharda and PW-3 have not supported the prosecution case. On the other hand, they have stated that accused persons are not author of crime. It is brought on record in the evidence of PW-1 Sharda that she came to know from Viju Chauhan that three persons were having girl. Viju Chauhan also lodged report in the Police Station stating that accused namely Ashok Darshanwar, Bapu Yambadwar and Raju Taksande had dug a pit near his field. Viju Chauhan heard cry of girl. He rushed there. Those persons ran away with that girl. Prosecution has neither examined material witness Viju Chauhan nor has explained as to why those three persons are discharged as per the provisions of Section 169 of the Code of Criminal Procedure.
70. Deceased Sapna was missing from 24.10.2012. In the month of May, 2013, accused Manoj told his sister PW-1 Sharda that he found some bones and other articles in the forest of Choramba. The ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 ::: 94 conf1.17.odt said information was given by PW-1 Sharda and accused Yashodabai to the Investigating Officer. Thereafter, on 21.5.2013, panchanamas were drawn in presence of PW-2 Adikumar vide Exhs.121 to 123. At the time of Spot Panchnama, bones, hair, one piece of frock of green colour and one skull were found. Those were seized vide Panchnama (Exhs.121 to 123). Thereafter, accused Nos.1 to 8 were taken into custody. Their Memorandum Statements were recorded and some articles/bones etc. were recovered. Those were seized in presence of PW-4 Rajendra Shukla, PW-6 Sunil Bhele and PW-7 Dinesh Karmarkar.
71. Except for above discussed evidence, there is no evidence led by prosecution to establish that accused persons hatched any conspiracy to give human sacrifice to the Goddess on the day of Dussera. Learned trial Court wrongly took into consideration inadmissible evidence of Memorandum Statements of accused and only on the basis of same, convicted accused holding them to be guilty of the offences as stated above, which Judgment thus cannot sustain in the eye of law.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
95 conf1.17.odt 72 It is material to state that, Original accused no.8 Durga Sitaram Shirbhate who is convicted for the offence punishable under Section 120(B) r/w. 34 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a term of five years and to pay a fine of Rs.3,000/- and in default of payment of fine, to suffer rigorous imprisonment for two months, has not challenged her conviction. However, in the facts of appeal in hand, we find it useful to refer to law laid down in the case of Sahadevan and another .vs. State of Tamil Nadu reported in (2012) 6 SCC 403, wherein in paragraphs 46 and 47 of its Judgment, Apex Court has observed thus:
46. It is very difficult to set any universal principle which could be applied to all cases irrespective of the facts, circumstances and the findings returned by the Court of competent jurisdiction. It will always depend upon the facts and circumstances of a given case. Where the Court finds that the prosecution evidence suffers from serious contradictions, is unreliable, is ex facie neither cogent nor true and the prosecution has failed to discharge the established onus of proving the guilt of the accused beyond reasonable doubt, the Court will be well within its jurisdiction to return the finding of acquittal and even suo moto extend the benefit to a non-::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
96 conf1.17.odt appealing accused as well, more so, where the Court even disbelieves the very occurrence of the crime itself. Of course, the role attributed to each of the accused and other attendant circumstances would be relevant considerations for the Court to apply its discretion judiciously.
47. There can be varied reasons for a non-appealing accused in not approaching the appellate Court. If, for compelling and inevitable reasons, like lack of finances, absence of any person to pursue his remedy and lack of proper assistance in the jail, an accused is unable to file appeal, then it would amount to denial of access to justice to such accused.
The concept of fair trial would take within its ambit the right to be heard by the appellate Court. It is hardly possible to believe that an accused would, out of choice, give up his right to appeal, especially in a crime where a sentence of imprisonment for life is prescribed and awarded. Fairness in the administration of justice system and access to justice would be the relevant considerations for this Court to examine whether a non-appealing accused could or could not be extended the benefit of the judgment of acquittal. It has been further held as under :
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
97 conf1.17.odt "Intention of benefit of acquittal to the accused who has not challenged the judgment - under Indian criminal jurisprudence, an accused is presumed to be innocent until proven guilty and his liberty can be curtailed by putting him under imprisonment by due process of law.
Appellants succeeded in appeal and acquitted, same role had been specifically assigned to non-appealing accused. If entire prosecution case has been found to be unreliable and prosecution as a whole has not been able to prove its case beyond reasonable doubt, then benefit should accrue to all accused persons and not merely to accused who have preferred an appeal against conviction. Powers can be exercised by Court even suo motu."
73. In that view of the matter, though accused no.8 Durga has not preferred any appeal, on evaluating evidence, since we are satisfied and have reached to the conclusion that no conviction of any of the accused can be based, benefit of this decision is also necessary to be extended to said accused as she is also similarly situated co-accused, even though she has not challenged her conviction in appeal. In the circumstances, the Judgment of conviction against accused no.8 Durga is also liable to be quashed and set aside.
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
98 conf1.17.odt At this stage, we place on record our appreciation for valuable assistance rendered by Mr.R.M.Daga, learned Counsel for the appellants/accused and Mr.Anand Deshpande, learned Additional Public Prosecutor for State, who, we found had thorough preparation on facts and law and they, thus, deserve recognition.
In the result, we pass the following order :
Criminal Appeal No. 515 of 2017 is allowed.
Impugned Judgment and Order of conviction and sentence, dt.14.8.2017 passed by the learned Additional Sessions Judge, Yavatmal is quashed and set aside.
Original accused no.1 Manoj @ Lalya Vasantrao Atram, Original accused no.2 Devidas Punaji Atram, Original accused no.3 Yadavrao Tukaram Tekam, Original accused no.4 Punaji Mahadev Atram, Original accused no.6 Motiram Mahadev Meshram, Original accused no.7 Yashodabai Pandurang Meshram and Original accused no.8 Durga Sitaram Shirbhate (non-appealing) are acquitted of the offences charged with. They are directed to be set at liberty forthwith, if not required in any other case.::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::
99 conf1.17.odt Fine amount, if any, paid by Original accused nos.1 to 4, 6 and 7 and Original accused no.8 Durga Shirbhate, be refunded to them.
Consequently, Criminal Confirmation Case No. 01 of 2017 stands dismissed.
JUDGE JUDGE
[jaiswal]
::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:49:41 :::