Bombay High Court
Anandrao vs State Of Maharashtra on 14 January, 2000
Equivalent citations: 2000CRILJ2930
Author: J.N. Patel
Bench: J.N. Patel
JUDGMENT J.N. Patel, J.
1. In Sessions Trial No. 2/90, the learned Additional Sessions Judge, Pusad by his judgment and order dated 28-1-1994 found the appellant guilty of having committed offence under Section 302 of I.P.C. and convicted and sentenced him to undergo default of payment of fine to suffer R.I. for six months. The Court also found the appellant guilty of having committed offence under Section 201 and convicted him to suffer R.I. for one year and to pay fine of Rs. 1000/- and in default of payment of fine to suffer R.I. for three months. The substantive sentences of imprisonment were ordered to run concurrently. The trial Court however, acquitted the accused No. 2 Sau. Anusuyabai wife of Anandrao Falke of having committed the offence under Sections 302 and 201 read with Section 34 of I.P.C. The appellant Anandrao Dhondba Falke has appealed against the conviction.
2. The facts were these : On 28-4-1984 at about 7.00 a.m. one Ganpatgir Vishwanath Giri P.W. 1 who is resident of Marsul and was in the employment of Govind Sadashio Patil found one person lying dead in the heap of dried sticks of cotton near the embankment in the agricultural field named "Khari" of one Govind Sadashiv Patil while he was taking bullock-cart filled with manure from the field. On noticing the dead body, he left the Bullock-Cart there and rushed to the house of police patil to inform him of the fact. He informed the said fact to Sakharam Raghoji Maradkar, Padmakar Govind Patil, Niwrutti Krushnaji Waghmare, Rajaram Kondba Mahajan, Govind KeshaoWanre all residents of Marsul and along with Sakharam he returned on the spot where the dead body was lying; he noticed that the dead body was medium built; height about 5'.6"; hair on head short and slightly grey; mark of old injury above left eye; teeth are visible; moustache thick beard shaved 1-2 days prior; forehead was swollen; dead body was lying supine with its head towards the east and feet towards the west; hand is pressed below the back; one hand was by the side of his person. As Ganpatgir suspected that it is a case of murder he went doubtless on bicycle with Sakharam Raghoji Maradkar to Police Station Umarkhed and gave oral report which came to be recorded and his left thumb impression was obtained. This oral report lodged by Ganpatgir had been marked as exhibit 87; the same was recorded in the prescribed form under Section 154 of Criminal Procedure Code and is marked as Exhibit 29 before the trial Court.
3. On receiving first information report exhibit 87, P.I. Bhagvanrao Patekar (P.W. 8) registered crime No. 67/86 at the police station for offence under Section 302 of I.P.C. He then sent wireless message to C.I.D. Dog Squad, Nanded and proceeded to the spot at village Marsul. P.I. Patekar found that the dead body was lying under bunch of cotton sticks in the agricultural land bearing survey No. 69 belonging to one Govindrao Patil. As the dead body was of unknown person he issued a "Dawandi" in the village for identification of the dead body. In response to the "Dawandi" one Vilas identified the dead body to be of his father Anandrao Sambhaji Matalkar. P.I. Patekar had taken a photographer along with him. He directed the photographer to take the photographs of the dead body in presence of two panchas and relatives of the deceased. He prepared inquest panchanama exhibit 32. He also prepared spot panchanama exhibit 47 of the place where the dead body was lying and then sent the dead body for post-mortem examination under requisition exhibit 32. P.I. Patekar then started making enquiry from the persons, who gathered there under a Mango Tree and noticed that though number of persons had collected at the place; a close friend of the deceased by name Anandrao had not come. He learnt that the said Anandrao was present in his house and therefore he sent for him by sending a constable. Anandrao son of Dhondiba Falke (appellant) came to the place. The police officer asked him as to why he did not come and noticed that the appellant-accused was frightened and could not give proper answers. P.I. Patekar therefore suspected the appellant-accused to be the person responsible for committing murder of his close friend Anandrao and therefore caused his arrest and prepared an arrest panchanama exhibit 95. On the arrest of the appellant-accused he made a statement which came to be recorded under the memorandum in the presence of panchas which is exhibit 102. The appellant-accused volunteered to produce certain articles from his house. Thereafter the appellant-accused took the police and the panchas to his house and produced the articles namely two ropes, dhoti, saree, polpat and marriage invitation which were found stained with blood and came to be seized under the panchanama exhibit 101. 4. It appears that in the meantime the dog squad had arrived at the village. A trained dog named Jet was brought by Head Constable Kazi of C.I.D. The dog was given smell at the spot of the stick - Article 19. Further taking smell the dog moved at various places and ultimately tracked down the house of the appellant-accused and entered the house and barked at "Kangi" (used for storing and preserving grains). This was between 1850 hours to 1915 hours. Thereafter, the identification parade was held in which the appellant accused was placed along with 13 persons and the dog Jet identified the appellant-accused in the parade. The police prepared a detail panchanama exhibit 99 under which the cotton gunny bags and sticks came to be seized. The police noticed that the appellant accused was wearing a banyan having blood stain; it was also seized by the police. P.I. Patekar thereafter recorded the statement of Sambhaji Matalkar the father of the deceased; Bhagirati (P.W. 2) widow of the deceased; Vilas son of the deceased. He forwarded the blood samples and nail clippings of the deceased received from the medical officer and recorded the statements of witnesses in the course of investigation and the articles attached were sent to the Chemical Analyser. The Patwari was asked to prepare a plan of the place of the incident. In the course of investigation one Marriage Invitation card Article 23 was seized; therefore the police recorded the statement of Champat Jadhao owner of the press who printed the invitation card and attached one register from him. 7/12 extract of the land where the dead body was lying was obtained. He obtained the document in relation to the ownership of the house of the accused. In the meantime P. I. Patekar was transferred and the investigation was handed over to P.S.O. Ponna.
5. According to prosecution the appellant accused is supposed to have committed murder of his friend Anandrao Sambhaji Matalkar as the accused that there were illicit relationship between the deceased and the wife of the accused i.e. Anusuyabai. After the conclusion of the investigation the charge sheet came to be filed in the Court of Judicial Magistrate First Class on 13-3-86. On 8-8-86 the case came to be committed to the Court of Session at Yavatmal for trial and ultimately it was taken up by the Additional Sessions Judge, Yavatmal. On 2-11-88 the Additional Sessions Judge, Yavatmal framed the charge exhibit 7 against the appellant-accused and his wife Sau. Anusuyabai for having committed offence under Section 302 read with Section 34 of I.P.C. so also under Section 201 of I.P.C. The case thereafter was transferred to the Court of Additional Sessions Judge, Pusad who took up the trial of the case.
6. The appellant and the co-accused pleaded not guilty to the charge and claimed to be tried; their defence was of false implication. The prosecution examined in all 8 witnesses namely : Ganpatgir Vishwanathgir Giri P.W. 1 who was first to notice the dead body and informed the police; Bhagirathibai widow of deceased Anandrao Matalkar P.W. 2; Panchas Nagorao Rajaram Kadam P.W. 3 and Anantrao Champatrao Bendke P.W. 4; Anantrao Bajirao Kadam the panch witness P.W. 5; Ajgar Ali Kazi P.W. 6, P.S.I., C.I.D., Dog Squad Nanded; Dr. Hukmat Sujanmal Premchandani P.W. 7, Medical Officer who performed autopsy on the dead body; Bhagwanrao Shioramji Patekar, P.W. 8 Investigating Officer.
7. During the trial most of the documents were admitted by the accused persons. The trial Court found the appellant-accused guilty of having committed offence under Section 302 and 201 of I.P.C. but acquitted his wife co-accused Anusuyabai. Relying on the circumstantial evidence the trial Court arrived at a finding that the prosecution has proved that the deceased Anandrao Sambhaji Matalkar met homicidal death and that he was murdered by appellant accused who was also responsible for causing disappearance of the evidence by disposing the dead body of the deceased Anandrao with an intent to screen himself from legal punishment and on the conclusion of the trial convicted the appellant.
8. Mr. Daga, learned counsel for the appellant-accused submitted that the trial Court has based the conviction of the appellant-accused on certain circumstances like that the appellant accused and the deceased Anandrao were close friends, and that prior to the discovery of the dead body of Anandrao the appellant accused had came to residence of deceased Anandrao and that they had left the house together, considering this as a circumstance of last seen together further that the police dog has traced out the house of the accused by tracking it down and also identified the appellant accused in the parade. In addition to this the learned trial Court relied upon the discovery of incriminating articles from the house of the appellant accused, such as Polpat, ropes; marriage invitation card Article 23 and so on which were found stained with blood. Another circumstance relied upon by the trial Court is that in spite of the fact that there was "Dawandi" (Promulgation) in the village to identify the dead body the appellant did not come though several other villagers had gathered, which created suspicion in the mind of the investigating officer and led to arrest of the appellant and on the appellant being arrested the police found that he was wearing banyan stained with blood. The next circumstance is finding of blood stained gunny bag; babhul tree thorn and teak wood (Article 19) log with pair of chappal of deceased which were found near the dead body and that the bloodstains were noted in the house of the accused and on the other articles found therein; including the Kangi where the dead body is alleged to have been concealed after the victim was done to death by the appellant were of group 'A' and the fact that the medical evidence has shown that the deceased died due to asphyxia due to strangulation or throttling and that the injuries to that effect were seen around the neck of the deceased.
9. According to Mr. Daga, as far as the circumstance of "last seen together" is concerned, the prosecution relied upon the oral evidence of Bhagiratibai P.W. 2 the widow of Anandrao Matalkar. Mr. Daga submitted that the evidence of Bhagiratibai P.W. 2 does not inspire confidence for the very reason that the prosecution has improved its case before the Court as regards the material facts stated by Bhagiratibai Mr. Daga submits that if these omissions are taken into consideration; it only goes to show that Bhagiratibai has tried to implicate the appellant accused by stating before the Court for the first time that the appellant accused called out her husband and took him away. Further that her father-in-law has sent her son Vilas to the house of the accused to call her husband and that on the next day i.e. on Monday in the morning her son Vilas was sent to the house of the accused to enquire whereabouts of her husband and that he was told that her husband went away after taking tea and has not returned. Mr. Daga submitted that in addition to this the prosecution has also tried to show that the appellant accused had the necessary motive to kill her husband by coming up with a story that the appellant accused was indebted to her husband. Mr. Daga submitted that considering these omissions it will be most unsafe to rely on the oral testimony of Bhagiratibai as she is an interested witness being the wife of the deceased. Mr. Daga submits that the prosecution has failed to examine Vilas son of deceased who could have very well stated that he had been to the house of the appellant accused to enquire about his father; but failed to return home, after he had left with the appellant accused in the morning. Therefore, according to Mr. Daga the circumstance of last seen together has not been sufficiently established by the prosecution.
10. Mr. Daga has also assailed the prosecution case on account of seizure of article from the house of the appellant accused. It is submitted by him that prosecution has tried to show that the seizure of articles from the house of the accused were pursuant to the statement made by him; to show the articles and an attempt is made to bring the case within Section 27 of the Evidence Act. According to Mr. Daga if one examines the memorandum of statement of the appellant accused alleged to have been recorded by the police in presence of panchas which is exhibit 102 it can be safely gathered that seizure of articles from the house of the appellant accused can not be said to be made after the accused volunteered to discover them and therefore in fact the seizure of articles from the house of the accused at the most be said to be pursuant to the search of the house of the appellant. Mr. Daga submits that even this part of the evidence will have to be examined with due caution by the Court particularly when the panch witnesses to the seizure has specifically stated that when they visited the house of the appellant along with the police these articles which came to be seized were all lying in open. It is submitted that the police has seized an invitation card Article 23 from the house of the appellant accused, which is supposed to have been with the deceased. Mr. Daga, submitted that this is the only article which can be said to be incriminating against the accused and connect him to the crime. But if one considers the recovery and seizure of the marriage invitation card Article 23; from the house of the appellant accused it only creates a suspicion in one's mind that the marriage invitation card which was supposed to be with the deceased Anandrao has been planted by the investigating agency in the house of the accused by recording its recovery and seizure in the panchanama. Mr. Daga submitted that no person having committed a crime would retain any incriminating article belonging to the deceased with him so as to get himself implicated. Mr. Daga submitted that all these articles which were seized from the house of the appellant accused namely the Polpat; ropes, invitation card and such other things; though are stained with blood do not further the prosecution's case and it does not connect the appellant accused with the crime in any manner. Mr. Daga submitted that as per the Chemical Analyser's report, articles seized from the house of the accused were stained with blood of group A which even according to the prosecution is that of the appellant accused and the prosecution has not led any evidence to show that the blood group of deceased Anandrao was also of group A and therefore there is a missing link in the case and even assuming that the articles which were seized from the house of the appellant accused were stained with blood; do not show that the blood stains found on the articles were that of the deceased Anandrao.
11. In respect of the evidence of Dog tracking and identification of the appellant accused by the police dog Mr. Daga submits that the police took assistance of a trained dog in tracking the house of the appellant accused as well as for the purpose of identification of the appellant accused by the dog, at a stage where the arrest of the appellant accused and most part of the investigation was over. It is, therefore, submitted that it is not the case of the prosecution that the police detected the crime committed by the appellant accused with the help of dog tracking; but at the most this exercise of dog tracking to the house of the appellant accused by the dog was carried out by the police after the scene of offence where the dead body of deceased was found, was tampered and the teak wood plank article 19 was already removed by the police. It is very obvious from the admission given by Asgar Ali P.W. 6 the Dog Master and therefore the possibility of tampering and getting the appellant accused identified through a trained dog in order to impress villagers can not be ruled out.
12. Mr. Daga submitted that the prosecution has failed to ascertain the time of death of the deceased Anandrao by leading medical evidence on the point as it was very material in the facts and circumstances of the case. Dr. Premchandani, P.W. 7 while conducting the autopsy on the dead body of the deceased Anandrao has not fixed the time of death. On the other hand the reading of the evidence of Dr. Premchandani P.W. 7 and the postmortem report exhibit 37 indicates that Anandrao did not suffer any bleeding injury on his body as the post-mortem report does not disclose so. Further the doctor has given his opinion as to probable cause of death being asphyxia due to strangulation or throttling. Mr. Daga submitted that this is very important from the point of view of finding the blood stains in the house of the appellant accused and on the article seized from the house of the appellant. It is submitted that this evidence led by the prosecution that the walls of the house of the appellant accused were found blood stained as well as the articles seized from the appellant accused were stained with the blood can not be accepted particularly when the medical evidence on record does not show that the deceased Anandrao suffered from bleeding injury and if the deceased has died due to asphyxia due to strangulation or throttling; then there was no question of sprinkling of blood on the articles seized by the prosecution from the house of the accused and therefore the medical evidence led by the prosecution rather negatives the prosecution's case on this count.
13. Mr. Daga further submitted that the Chemical Analyser's report does not help the prosecution in any manner whatsoever; particularly in the background that blood stains found on the banyan of the appellant accused was of group A which was the blood group of the appellant accused and merely because the appellant accused has failed to offer any explanation for the same no adverse inference can be drawn against him. Mr.Daga has pointed out to the Court that in his statement under Section 313 of Criminal Procedure Code the appellant accused has specifically alleged that the police assaulted him with belt and therefore possibility of having blood stain on the banyan of the appellant accused is well explained.
14. Mr. Daga, concluded his arguments by submitting that the prosecution's case being based on circumstantial evidence only the prosecution has failed to establish any of the circumstances against the appellant accused as none of the circumstances alleged to have been proved by the prosecution by itself is of any help in establishing the guilt of the accused. Further there is no link in the chain of the circumstances to show that the appellant accused is responsible for the death of deceased Anandrao. Mr. Daga submitted that the whole investigation is done in a manner so as to implicate the appellant accused and the investigating officer went on to allege that the appellant-accused killed the deceased Anandrao because he had illicit relations with his wife i.e. the co-accused Smt. Anusuyabai.
15. Mr. Daga submitted that in view of the fact that the appellant and his wife Smt. Anusuyabai who were tried together for having committed an offence under Section 302 read with Section 34 as also under Section 201 of I.P.C. the co-accused Smt. Anusuyabai having been acquitted based on the same set of circumstance showing that she was not guilty of having committed the offence; then the prosecution can not rely on the same circumstances to establish the guilt of the appellant-accused. Mr. Daga has cited the case of State of West Bengal v. Vindu Lachmandas Sakhrani to show that acquittal of one of the accused on the same set of evidence can not lead to conviction of the co-accused.
16. Mrs. Bodade, learned A.P.P. submitted that the prosecution has proved its case against the appellant accused beyond reasonable doubt. According to the learned A. P. P. the prosecution has been able to show and establish all the circumstances on which it has based its case and having established all the circumstances and the same considered in its totality would definitely show that it is the appellant accused and none else who has committed the crime. The learned A.P.P. submitted that in so far as the circumstance of last seen together is concerned, the prosecution has examined Smt. Bhagiratibai widow of deceased Anandrao and though she might have made some improvement in her case before the Court; but the fact remains that on earlier day, her husband Anandrao left with the appellant accused after having breakfast and tea at her place and since then her husband has not returned home. It is submitted that it was for the appellant accused to have at least stated in his statement before the Court under Section 313" as to where the deceased Anandrao had gone after they left his house together; but on the other hand the appellant accused failed to explain this circumstance against him. It is submitted that even if the prosecution has not examined Vilas the fact that the enquiries were made from the appellant accused about the whereabouts of her husband, can not be ignored as Bhagiratibai in her evidence has specifically stated that her son was sent by her father in law to enquire about her husband; when he did not return home for long time and that on the next day morning the appellant accused told her son Vilas that the deceased Anandrao had left his house after taking tea; it shows that the deceased Anandrao had reached the house of the appellant accused with him and thereafter nobody has seen him till his dead body was noticed by Ganpatgir P.W. 1, in the field of Shinde and therefore according to learned A.P.P. this circumstance of last seen together is clearly established by prosecution against the appellant accused.
17. It is submitted by learned A.P.P. that the appellant accused did not respond to "Dawandi" and failed to turn up at the place where the dead body of the deceased Anandrao was lying though all the villagers had gathered there. P.I. Patekar therefore became suspicious of having come to know that the appellant accused was a good friend of the deceased and it was unnatural on his part to have not come to the spot where his friend was lying dead, unless the appellant had guilty mind and therefore he sent for the appellant accused. When the appellant accused came to the place, it was noticed by the investigating officer that he was in disturbed state of mind and could not. properly reply to the queries made by the police officer and it is on the strength of this the Investigating Officer was right in suspecting the appellant accused in committing murder of the deceased and therefore caused his arrest. When the appellant accused was interrogated he volunteered to show the articles used by him in committing the offence and led the police party along with the panchas to his house where certain articles like polpat, two ropes; handkerchief, invitation card article 23 came to be seized by the police and it was stained with blood. It is submitted that dog barked so as to point out at the "Kangi" (container used for storing grains) and that it was stained with blood will also showed that the victim was done to death at the house of the appellant. It is submitted that the appellant accused having failed to explain this circumstance of having blood stains in his house and on the articles like polpat, ropes, handkerchief, invitation card being found stained with blood; it is sufficient to infer that the appellant accused had used these articles for committing the heinous crime.
18. The learned A.P.P. submitted that much has been stated about the evidence led by the prosecution in relation to dog tracking and identification. It is submitted that tracking of the house of the accused by a trained dog and identification of the appellant accused by dog Jet lends assurance to the prosecution case that the appellant accused is the person who is concerned with the murder of deceased Anandrao. It is submitted that the evidence of panch witnesses Nagorao P.W. 3, Anantrao P.W. 4; clearly shows that the police dog Jet after being given the smell of the teak wood plank lying near the place where the dead body was found was able to move at the places from where incriminating articles came to be seized such as Gunny bags stained with blood and the place where the dead body was found lying and the manner in which the dog tracked down the way to the house of the appellant accused inspires confidence that ghastly crime of murder is related to the house of the appellant accused. It is submitted that the police dog Jet successfully picked up the appellant accused in the identification parade after being given smell of teak wood plank and as it is the prosecution's case that the dead body of deceased Anandrao was carried with the help of teak wood plank article 19 by the appellant accused; this circumstance of dog tracking and identification clearly establishes the case of the prosecution. It is therefore submitted that by this evidence the prosecution has clearly established that the dead body of the deceased Anandrao travelled from the house of the appellant accused to the place where it was found lying and that the appellant accused is responsible for it.
19. It is submitted by the learned A.P.P. that the prosecution has also established the fact that the deceased Anandrao was assaulted and strangulated with the help of rope which is evident from the medical evidence. The learned A.P.P. has drawn our attention to the inquest panchanama exhibit 32 and spot panchanama exhibit 47. It is submitted that inquest panchanama and the spot panchanama had been admitted by the appellant accused. The inquest panchanama clearly recorded that the deceased had two deep injuries in the portion measuring about 2 and 1/2 inches above the left eyebrow and the said portion has become blackish; injuries measuring about 5 'sut" and 2 'sut' are visible on the cheek below the left eye; there is mark of injury on the left eyebrow also and blood is coming out through the nostril and therefore it can be very well seen that when the victim was assaulted by the appellant accused blood had come out from the injuries. The learned A.P.P. submits that it is unfortunate that the post-mortem came to be conducted on the dead body of the deceased after much delay and the body of the deceased Anandrao was highly decomposed that is the reason why the injuries were not noticed by Dr. Premchandani P.W. 7. It is submitted that from the inquest panchanama it can very well be gathered that the appellant accused used polpat for causing injuries to the victim and the rope for strangulation. It is submitted that seizure of Dhoti, Saree belonging to the appellant accused and his wife Anusuyabai which were found stained with blood and polpat and rope along with handkerchief and invitation card; would show that the victim was assaulted in the house of the appellant accused.
20. It is submitted by the learned A.P.P. that the C .A. 's report clearly shows that on all the articles seized by the police there were blood stains of group A on the articles except for article 1, 4, 15, 16, 27 and 31 all other articles were blood stained and as per the result of analysis of chemical Analyser in his report exhibit 28 blood detected on articles 2,3,5,7,8,9,10, 11,13,14,24 and 25 is human. It is submitted that these articles related to seizure made from the spot where the dead body of deceased was lying as well as from the house of the appellant accused and out of them except 5,8,10,11,19,20,23,24 and 25 are stained with blood group A. The learned A.P.P. submits that the clothes of the deceased were also found to be stained with blood; i.e. Articles 23 and 24 gunny bag Article 19 and wooden stick Article 20.
21. Balli, gunny bag, wooden stick, pyjama, exhibit 23, cut-shirt exhibit 24, and underwear exhibit 25 and particularly the pyjama, cutshirtand underwear which were seized in seizure panchanama are belonging to deceased were also found stained with blood of group A and therefore, according to the learned A.P.P. the blood of deceased was also of group A and under these circumstances all blood stains found on various articles seized from the house of the accused as well as from the spot where the dead body was lying being of group A, can be very well connected to the deceased as there was no reason for such stains being from the blood of the appellant, as the appellant accused had no injuries on his person and therefore, even the forensic report corroborates the prosecution's case.
22. It is therefore submitted by learned A.P.P. that if all these circumstances which are proved and established against the appellant accused, are considered in its totality the cumulative effect of it leads us to the appellant accused as a culprit and therefore, the appellant has been rightly found guilty by the trial Court and convicted and sentenced for having committed offence under Sections 302 and 201 of I.P.C.
23. The undisputed facts are that the deceased Anandrao Sambhaji Matalkar died a homicidal death. His dead body was found under cotton sticks in the field of Govind Sadashiv at Marsul which was discovered by Ganpatgir P. W. 1. The various seizures made by the investigating officer; photographs taken during the investigation and the spot panchanama exhibit 47. The appellant accused has also not challenged the inquest panchanama exhibit 32. Further the appellant accused has not challenged the seizure of articles, chemical analyser's report and post-mortem report of the deceased.
24. The case of the prosecution is admittedly based on circumstantial evidence. It is well settled that when the case rests on circumstantial evidence such evidence must satisfy three tests : 1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. We therefore, proceed to examine the circumstantial evidence led by the prosecution so as to find out whether the prosecution has established the case against the appellant accused beyond the shadow of doubt.
Last seen together: The first and foremost circumstance by which the prosecution claims to have established its case against the appellant accused is that the appellant accused and the victim were last seen together. No doubt the evidence of Bhagiratibai P.W. 2 goes to show that the appellant accused and her husband deceased Anandrao were friends and that on the earlier day the appellant accused had been to her place at about 10.00 a.m. and at that time her husband, father-in-law; mother-in-law and son Vilas were present. She gave Murmure (puffed rice) and tea to her husband and appellant accused. Therefore, her husband left the house along with the accused. Before leaving the house, her son Vilas gave the marriage invitation card Article 23 to her husband; which he had kept in his shirt pocket. It is her case that on that date her husband did not return for lunch and therefore her father-in-law sent her son Vilas to search her husband; Vilas returned and told that the door of the house of accused was closed and front side portion of the said door was cleaned by cowdung. On that day or in the night her husband did not return. On the next day morning her son Vilas was again sent to the house of the appellant accused to call her husband. But he returned and told that the appellant accused told him that his father left his house after having tea and did not return. It has come in her evidence that on the next day when there was a "Dawandi" in the village her father-in-law and Vilas had gone to the land of Govindrao Patil to see the dead body and found that it was of her husband of which she was informed and she also went there and saw the dead body and identified that it was her husband Anandrao and therefore she suspected that the appellant must have caused death of her husband. We find that though this witness has made some improvemerits in her case, they are not material as we have examined the omissions recorded in her evidence in reference to her statement under Section 161 of Criminal Procedure Code. It is unfortunate that the prosecution did not examine Vilas son of deceased Anandrao who could have been the best witness to show that after the deceased Anandrao left with appellant; queries were made as regards the whereabouts of the deceased from the appellant accused. The evidence of Bhagiratibai is so far as what Vilas told her or what they came to know from Vilas would come within sphere of hearsay evidence and therefore this part of the evidence of Bhagiratibai can not be accepted. By examining Bhagiratibai the prosecution has merely placed on record the fact that from the house of Bhagiratibai her husband deceased Anandrao and the appellant accused Anandrao who were friends went together at about 10.30 a.m. Thereafter Bhagiratibai has no knowledge as to where her husband had gone. The prosecution has not brought on record any evidence to show that the appellant accused as well as the deceased went straight to the house of the appellant accused. It is not the prosecution's case that the house of the appellant accused is situated in the village in an isolated place and therefore, we find that this is one of the missing links in the prosecution case and the mere fact that the deceased and the appellant together left the house of the appellant does not by itself lead to an irresistible inference that the appellant accused must have murdered the deceased. While considering the circumstance of last seen together we may also refer to the case of the prosecution as regards the motive attributed to the appellant accused to have committed such heinous offence. A feeble attempt is made by the prosecution in bringing on record through Bhagiratibai P.W. 2 that the appellant accused was indebted to the deceased Anandrao and probably this may be the reason for the appellant accused to have done away with deceased Anandrao; but then we find in the evidence of Bhagiratibai, she has clearly accepted that in her presence or on the relevant day when they left together her husband did not demand money from accused and there was no complaint on account of money at that time. In her evidence before the Court the prosecution has not brought on record the amount of debt and such other factors which would have thrown some light so as to scertain that whether for such a debt the appellant accused could have committed murder of deceased. Further the investigating officer has tried to bring on record another motive for the appellant accused to have committed murder of the deceased. In his evidence the investigating officer P.I. Patekar P.W. 8 has stated that in the investigation it was revealed to him that deceased had illicit relations with the accused No. 2 i.e. wife of the appellant accused; in his cross-examination he has stated that he has recorded the statement of one witness who told that there was rumour of illicit relations between the deceased and the accused No. 2. But no such witness has been examined or relied by the prosecution and therefore we find that except for the bare words of Bhagiratibai that the appellant accused was indebted to the deceased, there is nothing on record to show that the appellant had any motive to do away with the deceased.
In the case of Tarseem Kumar 0 The Delhi Administration the apex Court has observed (at Pages 472-473; of Cri LJ :
Normally there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution.
Therefore the circumstance of last seen together alone would not be sufficient to bring home the offence against appellant accused, particularly when there is no proof of motive and therefore in our judgment we do not find that the circumstance of last seen together by itself is sufficient to conclude that the appellant accused is responsible. At this stage while we are considering that appellant and victim were last seen together, there is one more aspect in the prosecution case which is not considered by the trial Court that is the deceased had consumed alcohol before he was murdered which can be so inferred from the chemical analyser's report Exhibit 26 relating to viscera and blood samples of the deceased which was found to be containing methyl alcohol. It is not the prosecution's case that the deceased and appellant/accused consumed alcohol at any stage after deceased left his house at 10.30 a.m. till he was done to death. This can also be considered as a missing link in the prosecution case. Therefore, we find that though the prosecution has been able to place before the Court the circumstance of last seen together, in absence of any substantial motive being established it will be very difficult for us to conclude that this circumstance by itself is enough to show that the appellant accused has committed the crime.
Conduct of the accused : In his evidence P.I. Patekar, P. W. 8 who was the investigating officer stated that after he reached the spot and found the dead body of Anandrao lying in the bunch of cotton sticks in agricultural land survey No. 69 belonging to one Govind Patil; he issued a Dawandi (promulgation) in the village in order to identify the dead body. He stated that the dead body was identified by one Vilas as that of his father. According to him the villagers had gathered on the spot. But he came to know that the close friend of Anandrao (i.e. the appellant accused) of the deceased did not come to the spot. He learnt that the appellant accused was present in his house and therefore by sending a constable he called him. He asked him as to why he did not come and found that the appellant was in frightened position and could not give proper answer. The officer deposed that the appellant accused admitted the guilt and showed willingness to produce the article. It is this conduct of the appellant accused which created suspicion in the mind of the Investigating officer. The investigating officer has not placed before the Court as to how he was able to get the knowledge that the appellant accused had not come to the place. A villager may respond to a Dawandi or not, we do not know as to whether all the villagers have gathered there or not or whether the appellant accused came to know that the dead body has been identified. There may be so many persons in the village who may not be aware of Dawandi or would be otherwise busy so as not to respond. We mean to say that the failure on the part of the appellant accused to come to the spot where the dead body of his friend was lying inspite of knowledge of Dawandi may create a strong suspicion in the mind of the police; but this conduct of the appellant accused by itself can not lead to the conclusion that the appellant accused committed crime. It is but natural that if a person is summoned by a police officer; he may be frightened. The officer has not elaborated as to what questions were asked to the appellant accused; when he was called by him on which he could not give proper answer. No evidence has come on record to show that the appellant accused got knowledge of Dawandi; nor it has come as to how and who informed the police officer that a close friend of the deceased has not come to the place in response to the Dawandi.
Recovery of incriminating articles from the residence of the accused :
The learned trial Court has placed much reliance on the fact that the appellant accused made a statement in presence of panchas that he would produce the articles which he has kept in his house and that thereafter the police party along with panchas went to the house of the accused along with him and where the appellant accused showed grain container locally known as Kangi in his house; he produced wooden polpat; ropes, marriage invitation card Article (23) and other articles and that the panchas noticed blood stains on the wall of the house of the accused where the foodgrains were stored and that the police seized all these articles and collected sample of blood stained earth from the wall as well as from the earth from front door of the house of the appellant and that these are the articles No. 1, 2, 6, 7, 8, 9, 10 and 11 before the Court. We find that this has greatly influenced the trial Court as the trial Court observed in its judgment that "the articles seized from the house of the accused and the samples of two blood groups; one dhoti; marriage card; one gunny bag; handkerchief; etc. all the articles were sent to the Chemical Analyser and that the articles sent by the police to the chemical Analyser had been examined and the chemical analyser's report exhibit 25 to 28 had been admitted by the appellant accused and therefore the fact is clear that at the instance of the accused some articles stained with blood were seized from the house; may be as a discovery as contemplated under Section 27 of the Evidence Act may be the articles were found openly lying or not in the house; but the fact is these articles were referred; this fact has not been challenged in the cross-examination". We find that this fact itself does not in any manner show the complicity of the appellant accused in the crime and all these articles have been found by the chemical Analyser to be having blood stains of group 'A' which is also that of the appellant accused. The learned A.P.P. has tried to convince the Court that even the blood group of the deceased was of group A. It is most unfortunate that such a valuable piece of evidence is not further analysed so as to ascertain blood found on articles seized from the house of accused and those from the dead body and place where it was lying was of the deceased or accused particularly when blood found on these articles was of the same group and admittedly of group 'A' which is also the group of blood sample of appellant accused. If the investigating agency found that the blood group of the appellant accused as well as deceased was same; it ought to have seen that the chemical Analyser carried out further analysis so as to find out the distinct properties in the two blood samples of group A which could have helped the Court in arriving at a conclusive finding that the blood stains detected on the articles seized from the spot where the dead body was found and that at the house of the appellant accused were of the deceased or that of the appellant accused. As what emerges from the analysis of the samples at the Forensic Science Laboratory is that the blood samples of the deceased Anandrao Sambhaji Matalkar in the Chemical Analyser's report exhibit 28 on analysis is that "blood group of blood in exhibit 21 can not be determined as the results are inconclusive". Whereas pyjama exhibit 23 and cutshirt exhibit 24 were found stained with blood of group 'A'. As this pyjama and cut-shirt were admittedly on the body of the deceased and it could have been inferred that the blood of deceased was also of group 'A'; in that case it was necessary to carry out further test so as to distinguish between the blood found on the clothes worn by deceased and that of the appellant accused which appeared to be of group A. In absence of such finding, it can not be definitely said that the blood stains found on the articles seized from the house of the appellant accused and samples of earth mixed with blood drawn from his house were that of the deceased, this lapse on the part of the investigating agency has resulted in uncertainty and it cannot be conclusively said that the recovery of incriminating articles from the house and the earth samples drawn from his house found to be having stains of blood of group A was of the deceased Anandrao and therefore, this circumstance by itself does not implicate the appellant accused in the crime. As rightly submitted by Mr. Daga the learned counsel for the appellant it would be most unlikely that the appellant accused will take out the invitation card from the pocket of the deceased and such other articles of victim and retain them at his residence. Therefore, the prosecution's attempt to show that the marriage invitation card Article 23 was given to the deceased by his son at the time when he left his house along with the appellant accused and same being found in the house of the appellant accused stained with blood, does not help the prosecution in establishing its case against the appellant accused. We expect that in future whenever the scientists of the forensic science laboratory comes across blood of similar groups belonging to two different persons, it is always safe and necessary to carry out further investigation and analysis is done so as to bring out the points of distinction between the blood sample of same groups in order to identify that it belongs to different persons and this would help the Court in appreciating the forensic evidence placed before it. Therefore we find that the whole effort on the part of the investigating agency in conducting the search and seizure of the house of the appellant accused and the recovery of incriminating articles and samples of earth stained/ mixed with blood, are lost in vain.
Dog tracking : We appreciate that the investigating officer P.S.O. Bhagwanrao Patekar P.W. 8 on receiving the first information report that the dead body of unknown person is found lying in the agricultural field promptly took steps in sending wireless message of C.I.D. Dog Squad Nanded before proceeding to village Marsul to the spot for the purpose of investigation. The dog squad reached the place after the appellant accused was arrested as a suspect in the crime and even the search of his house was conducted and investigating officer was able to seize certain incriminating articles from his house; which was almost concluded by 1800 hours on 28-4-86. Whereas the police dog Jet was utilized for tracking in the evening between 1815 hours to 1915 hours. Asgar Ali Kazi P.W. 6 who was at the relevant time on the job at C.I.D. Dog Squad Nanded has deposed before the Court that he reached the village Marsul with trained dog on the place of incident. The police dog named Jet was a trained dog. Police had collected one wooden stick of about 5 ft. length and having 6" circumference and the smell of the said wooden stick in presence of panchas, was given to the dog; thereafter he was ordered to go and find and the dog went where the stick was lying near the place of murder and started roaming and moving thereafter the trained dog went to the bushes where the dead body was thrown and then went to the house No. 58 of accused Anandrao and he was followed by police and panchas. He has also spoken about the identification parade in which the trained dog Jet identified appellant accused in presence of panchas; where he was placed amongst 13 persons. In his cross-examination this witnesses has admitted that it is true that when the smell of the stick was given to the trained dog Jet in the land; there was no dead body lying. Police had also collected the stick of which smell was given to the trained dog and that he has no personal knowledge from where stick was collected by the police and that the possibility of the police having collected it from the house of the appellant accused can not be ruled out. It is accepted position that evidence of dog tracking is admissible owing to his ability to track by disturbance and smell but, it is not ordinarily of much weight, Abdul Razzak v. State , Surinder Pal Jain v. Delhi Administration , Babu Maqbul Shaikh v. State of Maharashtra 1993 Mah LJ 1118 : (1993 Cri LJ 2808). Dog tracking and identification by the dog of the suspect are steps in the detection and investigation of crime. The investigation officer can, therefore, at best use the results given by the trained Dog as if they are information given by informant, on the basis of which he has to collect independent and admissible evidence. Therefore, all necessary precautions should be taken by the investigating officer, while requisitioning the services of the dog. In this case as admitted by Asgar Ali Kazi P.W. 6, the police had already collected the stick of which smell was given to the trained dog Jet at the time, he tracked down the house of the appellant accused as well as when he identified the appellant accused in the parade. Therefore, it will be most unsafe to attach any weight to the evidence led by the prosecution as regards the tracking down as well as the identification parade of the appellant accused by the trained dog Jet. There is one more thing we would like to point out that it was the prosecution's case that the appellant accused along with his wife Smt. Anusuyabai have committed offence and removed the dead body of Anandrao Matalkar from their house and left it in the field of Govindrao Patil with the help of the teak wood stick Article 19 in order to cause the evidence to disappear with intention of screening themselves from punishment. In that event we fail to understand as to why the police officer did not place the co-accused Smt. Anusuyabai in the test identification parade. Considering the fact as tried to be proved by prosecution that Anandrao Matalkar was killed by the appellant accused and his wife in their house and the dead body was shifted with the help of teak wood plank Article 19; we can well visualise that it was not possible for the appellant accused alone to have brought the body out of his house and place in the field of Govindrao Patil by lifting it by himself, and if he had taken assistance of his wife the police dog would have definitely sensed the smell of Smt. Anusuyabai co-accused who was also responsible in assisting her husband in shifting the dead body from their house to the field of Govindrao Patil. Therefore, in our judgment the circumstance relied upon by the prosecution that the house of the appellant was tracked by police dog as well as he was identified in the identification parade can not be accepted as a conclusive proof of the fact that it was the appellant accused who was responsible for committing murder of the accused.
25. In our judgment these circumstances on the basis of which the prosecution tried to prove its case against the appellant accused do not by themselves establish any case against the appellant. The learned trial Court appears to have been morally convinced of the involvement of the appellant accused influenced by the fact that incriminating articles stained with blood and that stains of blood were detected in the house of appellant of which the appellant accused had given no explanation. It is a settled law that the rules of evidence can not be departed from because there may be a strong conviction of guilt, for a Judge can not set himself above the law, he has to administer or make out important material to suit exigency of a particular occasion. The conviction must be based on the sufficient evidence and not merely on moral conviction.
26. We therefore find that the appellant accused can not be held guilty on the basis of the circumstances and materials which were not enough to bring home the guilt against the co-accused Smt. Anusuyabai wife of the appellant accused, who according to the prosecution was very much present in the house with him on the two crucial days, the appellant accused is alleged to have killed victim, and his dead body was thrown in the field of Govindrao Patil. Therefore, we find that the prosecution has not proved the charge against the appellant beyond the shadow of doubt.
27. For the reasons stated above, without hesitation we have reached the conclusion that the appellant accused is not guilty of having committed offence under Section 302 and 201 of I.P.C. Therefore his conviction and sentence is quashed and set aside. The appellant be set at liberty if not required in any other case. Appeal is allowed.