Bombay High Court
Satish Ramchandra Bavbande vs The State Of Maharashtra on 28 April, 2010
Author: B.H.Marlapalle
Bench: B.H.Marlapalle, Mridula Bhatkar
1
srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.471 OF 2002
Satish Ramchandra Bavbande Appellant
Vs.
The State of Maharashtra Respondent
Mr.S.V.Kotwal with Mr.A.R. Kapadnis i/b. Mr.M.S.Mohite for
appellant.
Ms.S.V. Gajare, APP for State.
CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ.
Reserved on : April 7, 2010.
Pronounced on: April 28, 2010
JUDGMENT (PER B.H.MARLAPALLE,J.)
1. This Criminal Appeal filed under Section 374 of Cr.P.C.
arises from the order of conviction and sentence passed by the learned Additional Sessions Judge, Pune on 2nd April 2002 in ::: Downloaded on - 09/06/2013 15:53:53 ::: 2 Sessions Case No.536 of 1999 and the accused has been convicted for the offence punishable under Section 302 of IPC and sentenced to suffer life imprisonment. He has been acquitted of the charges punishable under Sections 363 and 366 of IPC. He is presently undergoing the sentence.
2. As per the prosecution case, briefly stated, the accused and deceased Neeta, daughter of PW 1 - Sham Murlidhar Hendre as well as PW 2 - Leena Gokhale and PW 26 - Ashish Patankar were the residents of Rakshalekha Society in Dattawadi area of Pune city and all of them were known to each other. The deceased Neeta was aged about 16 years and was a student of Garware College in 11th standard in the academic year 1999-2000. She had joined Dake Coaching Classes which she used to attend along with PW 2- Leena Gokhale. The accused was in love with deceased Neeta and he had proposed to marry her. On 23/9/1999 the deceased and PW 2 left Rakshalekha society at about 5.15 p.m. so as to go for the tuition classes which were to start at 5.30 p.m. and after the class was over at 6.30 p.m. the accused along with PW 26 reached the premises of the tuition class on his scooter. The accused and the deceased went together as was demanded by ::: Downloaded on - 09/06/2013 15:53:53 ::: 3 the accused and PW 2 and PW 26 waited in the premises of the tuition classes. When the deceased did not return for about one hour, PW 2 returned home at about 7.45 p.m. and met the father of the deceased who was waiting and informed him that the deceased went in the company of the accused at about 6.30 p.m. and did not return. PW 1 fainted and fell down. PW 26 -
Ashish searched for the accused on the scooter and could not locate him and, therefore, returned to Rakshalekha Society at about 9.15 p.m. on the scooter of the accused.
ig He saw that some persons had gathered in the society and they enquired with him. He informed them that the accused and the deceased after the coaching class was over at about 6.30 p.m. went together and did not return. Some members of the society, therefore, approached the Dattawadi Police chowki at about 9.30 p.m. where PW 13 - Ajit Joshi was the PSI and they informed him that the deceased was taken away by the accused and both were the residents of Rakshlekha society. Though they did not file any written complaint, PW 13 swung in action for tracing the deceased and the accused. He also asked the police teams to visit the residence of the accused and keep a watch on his whereabouts. Between 11 to 11.30 p.m. he got a report from the police that the accused was not found. At about 11.30 ::: Downloaded on - 09/06/2013 15:53:54 ::: 4 p.m. PW 1 reached the police chowki and lodged his FIR (Exhibit
28) under C.R.No.294 of 1999. A morcha was taken on 24/9/1999 to the Dattawadi Police Chowki condemning the incident and urging the police to arrest the accused at the earliest.
On 24/9/1999 at about 6.15 p.m. the Swargate Police Station received a telephonic message from the Khadak Police Station that a dead body of a girl was lying in the lane behind the Ration office in Swargate area and, therefore, PW 15 - Dilip Jagdale went to the spot with Police Personnel and in the lane between the compound wall of police line and ration shop he saw the dead body of a female aged about 16 to 18 years and with injuries on her person. He also noticed that her mouth was gagged and was facing the sky and she was half naked. Two panchas were called along with the photographer and spot panchanama at Exhibit 57 was drawn. Then the dead body was taken to the hospital where inquest panchanama at Exhibit 46 was drawn. After the dead body was sent for post mortem, some articles scattered around the dead body were seized under panchanama Exhibit 59. On the same day i.e. on 24/9/1999 a copy of the FIR was sent to the Judicial Magistrate ::: Downloaded on - 09/06/2013 15:53:54 ::: 5 First Class through the Police Constable PW 22 - Balu Shnde.
P.M. was conducted by Dr. Milind Wable and P.M. Report at Exhibit 104 was received by the Swargate Police Station. The dead body was identified by the complainant and it was handed over to him after the post mortem for cremation.
On 26/9/1999 the accused was located by PW 19 -
Atmacharan Shinde, Police Inspector of Talegaon Dabhade Police Station at about 5.45 p.m. while he was on patrolling duty along with his staff and on that day the local newspapers had already carried the news of Neeta being kidnapped and killed by the accused. As soon as the accused had seen the police jeep near the IBP Petrol Pump on Mumbai - Pune highway, he had started running and, therefore, the police chased him and took him in custody. PW 19 recalled the newspaper report and suspected that the boy taken in custody was involved in crime No.294 of 1999 registered with the Swargate police station. PW 24 -
Nandkumar Suryavanshi was the PSI attached to the Swargate Police Station who received a message from PW 19 and, therefore, he reached Talegaon Dabhade police station and took the accused in custody along with the articles which were recovered from his person. He was brought to the Swargate ::: Downloaded on - 09/06/2013 15:53:54 ::: 6 Police Station and was arrested under arrest panchanama (Exhibit 88). The clothes of the accused along with the articles received from the spot of the incident were sent for C.A. and the C.A. Reports were received at Exhibits 110 to 113. On 25/9/1999 the investigation was taken over by PW 27 Baburao Patil, Police Inspector of Swargate Police Station from PW 13 -
Ajit Joshi.
3. On completion of investigation charge-sheet came to be filed for the offences punishable under Sections 363, 364, 302 and 404 of IPC and as the case being triable exclusively by the Sessions Court, it was committed. Charge was framed on 11/7/2000.
4. The prosecution examined in all 28 witnesses which included three doctors. PW 23 - Dr. Mukund Paranjape was examined to prove that the deceased was born on 20/10/1983 in his hospital, PW 25 - Dr. Milind Wable had conducted the post mortem of the dead body and PW 28 - Dr. Narayan Kamble who was attached to the Sassoon Hospital as Casualty Medical Officer had examined the accused on 28/9/1999 and issued injury certificate at Exhibit 124. He had noticed the following ::: Downloaded on - 09/06/2013 15:53:54 ::: 7 three injuries on the person of the accused:
1. Linear abrasion on left hand dorsal 2x1/2 cms. with chocolate colour scab.
2. Abrasion on left elbow 2x1/2 cms.
3. Abrasion on left scapula ½ x ½ cm.
5. There was no eye witness to the incident and the prosecution case was entirely based on the circumstantial evidence. The learned Additional Sessions Judge had noted the following circumstances on the basis of the prosecution case:
(A) The accused was in love with Neeta and he had threatened her if she did not marry.
(B) In the evening of 23/9/1999 he took Neeta with him from Dake classes and she did not return.
(C) Complaint of kidnapping was filed against him.
(D) He was seen coming out of a lane behind a ration shop at about 10-30 p.m. by PW - Gajanan Mulgund.::: Downloaded on - 09/06/2013 15:53:54 ::: 8
(E) In that night at about 11 p.m. he told PW-Raju to read next day's newspaper.
(F) On 24/9/1999 at 6.30 p.m. dead-body of Neeta was found in the lane near ration shop.
(G) Neeta died homicidal death.
(H) He pledged gold chain with PW - Baby Jadhav in the night of 24/9/99.
(I) Gold chain belonged to the deceased.
(J) He was absconding upto 26th and was apprehended by the police wandering on the highway.
(K) He was found in possession of I-card of the deceased.
(L) Clothes were found stained with blood.
(M) Recovery of gold chain at his instance.
(N) Recovery of hexa-blade and ear ornament at his instance.
(O) He was having injuries on his person.
(P) Soil on his clothes and shoes tallied with the soil ::: Downloaded on - 09/06/2013 15:53:54 ::: 9 on the spot.
(Q) No explanation / false explanation of the circumstances.
6. The learned Additional Sessions Judge on sifting the evidence held that the prosecution could not prove the circumstances at E, L. N, O and P. However, the learned Additional Sessions Judge held that on the circumstances proved by the prosecution the chain of circumstances was complete so as to leave no doubt that it was the accused alone who had committed the murder of Neeta in the night of 23/9/1999 by strangulation and inflicting incised wounds on her wrists which had resulted in heavy bleeding.
7. PW 25 - Dr. Milind Wable, who had conducted the autopsy on the dead body of Neeta, was attached to the Sassoon Hospital at Pune at the relevant time as professor in Forensic Medicine, D.J. Medical College. He stated before the trial court that on 25/9/1999 at about 1.30 a.m. dead body of Neeta was brought to Sassoon Hospital by the Khadak Police Station for post mortem examination ::: Downloaded on - 09/06/2013 15:53:54 ::: 10 and he conducted the same between 6.15 a.m. to 7.30 a.m. on the same day. He noted the following external injuries on the dead body:
(1) Left black eye.
(2) Horizontal linear abrasion 3/4'th inch below left eye, measruing 1 1/2" x 1/4th inch.
(3) Ligature mark on neck above thyroid cartiledge horizontal incomplete, measuring 8 x 2" absent for 3" on posterior aspect underline skin brown and parchment like. (4) Ligature mark starting from Inj. No. 3 in the middle running obliquely upwards upto level of ears, 1 1/2" below Rt. Ear and 2" below Lt. Ear, underline skin brown and parchment like size 5x1/2".
(5) 7 incised wounds, superficial on the middle of neck, 5 horizontal and parallel to each other measuring 2x1/2", 2-3/4x3/4", 1x1/4th" and 1 1/4", one verticle intersecting above injuries perpendicuraly size 1x1/4" and one obliquely size 1 1/2"x1/4", muscle deep.
(6) 4 horizontal incised wounds on Rt. Writs anteriorely and parallel to each other size varying from 1 1/2" to 2-3/4 x 1/2"
separated by a distance of 1/3" from each other, tailing bone deep.
(7) Horizontal incised woulds on Lt. Writs size 3x3/4" bone ::: Downloaded on - 09/06/2013 15:53:54 ::: 11 deep tailing medically.
(8) Horizontal incised wounds 3" above and parallel to Inj. 7, size 2 1/2x1/4" tailing medically, bone deep.
(9) Linear abrasion, lower margin of Rt. Buttuck size-1x1"
1/4".
(10) Linear abrasion lower margin of Ltd. Buttuck 3/4" long.
(11) Contusion of inner aspect of lower lip against incisers, size - 1 1/2x 1/4".
(12) Ants bites over face and chin.
He noted the following internal injuries:
(1) Corresponding to Ext. Inj. No.3 - Minute subtutanious, harammrgesgin neck tissues, peritracheal, haematoma, anteriorly, 2 1/2x 1 1/2".
(2) Corresponding to Ext. Inj. No. 6 - tendons of underlying muscles, vessels including radial, ulnar and median vessles and nerves served.
(3) Corresponding to Ext. Inj. No.7 - tendons of underlying muscles, vessles including raidla, ulnar and median vessles and nerves severed.
(4) Corresponding to Ext. Inj. No. 8 - tendons of u nderlying muscles, vessles including radial, ulnar and median vessles and nerves severed.::: Downloaded on - 09/06/2013 15:53:54 ::: 12
As per him all the above mentioned injuries, except injury of ants bites were ante mortem and injury no.12 of ants bites was post mortem. External Injury Nos. 3, 6 to 8 and corresponding internal injuries were sufficient to cause death in the ordinary course of nature, individually and collectively. In his opinion, the cause of death of Neeta was due to asphyxia as a result of strangulation associated with haemmorohagic shock as a result of incised wounds of wrists. He had preserved the blood for grouping, nails from both hands, pubic hair and vaginal swab as per police request. He verified the contents of post mortem report at Exh.104 and the advance certificate at Exh.105 regarding the cause of death. He also stated that the ligature marks were possible due to strangulation and injuries to the wrists (Injury Nos.5 to 10) were possible with Muddemal Article 24 collectively. In his opinion, the cause of death of Neeta was due to asphyxia as a result of strangulation associated with haemmorohagic shock as a result of incised wounds of wrists. He had preserved the blood for grouping, nails from both hands, pubic hair and vaginal swab as per police request. He ::: Downloaded on - 09/06/2013 15:53:54 ::: 13 verified the contents of post mortem report at Exh.104 and the advance certificate at Exh.105 regarding the cause of death. He also stated that the ligature marks were possible due to strangulation and injuries to the wrists (Injury Nos.5 to 10) were possible with Muddemal Article 24 exhau-blade shown to him. In his cross-
examination he clarified that Injury Nos.5 to 10 were possible by a sharp edged weapon as well, as they would be caused necessarily by sharp weapon. He admitted that Article 24 shown to him, at that time, could not be termed as a sharp weapon.
The evidence of this witness clearly established that Neeta died a homicidal death.
8. We have, therefore, to examine whether the prosecution proved, beyond a reasonable doubt, that the homicidal death of Neeta was caused by the accused alone on re-appreciation of the evidence adduced before the trial court.
9. It was submitted by Mr. Kotwal the learned counsel for the appellant that the accused was falsely implicated and the ::: Downloaded on - 09/06/2013 15:53:54 ::: 14 prosecution case implicating the accused was based on suspicions.
Vital missing links were not noticed by the trial court and it could not be proved beyond reasonable doubts that the accused had done Neeta to death. He submitted that the registration of FIR at 11.30 p.m. on 23/9/1999 was itself doubtful and in all probabilities the FIR was recorded belatedly but was shown to have been registered at 11.30 p.m. on 23/9/1999. It was unnatural and, therefore, unbelievable that PW 1 would wait for about four hours to register the FIR even if it is accepted that it was registered at 11.30 p.m. on the date of the incident. The prosecution could not prove that the accused was in love with Neeta, he had proposed to marry her and she had turned down the said offer. The evidence of P 2 - Leena and PW 26- Ashish did not inspire confidence on material circumstances and even if their testimony is accepted, it could not be held that the deceased was reluctant to go in the company of the accused after the tuition class was over at about 6.30 p.m. and she had willingly gone with him. Her dead body was located after 24 hours and, therefore, the theory last seen together advanced by the prosecution could not have been accepted by the trial court, in view ::: Downloaded on - 09/06/2013 15:53:54 ::: 15 of the time gap and the failure of the prosecution to explain the same. As per the learned counsel, it could not be ruled out that the deceased was in love with someone else and her death was caused by some third person. The police fabricated the evidence and produced got up witnesses like PW 3 - Gajanan Mulgund, PW 7 -
Raje Ingale and PW 4 - Ganesh Kamble, PW 5 - Ganesh Salunkhe and PW 6 - Babi Jadhav. The alleged recovery of golden chain from PW 6 - Babi Jahdav could not support the prosecution case in as much as the chain did not have any specific feature so as to held that it was the very same golden chain which was on the person of the deceased and purchased by her father from the shop of PW 12 -
Ashok Ranka. In short, the prosecution could not place before the trial court any reliable evidence to connect the accused with the crime of causing homicidal death of Neeta. He also submitted that in all probabilities Neeta did not attend the tuition class on 23/9/1999 and she bunked the class and went in the company of some third person who was her lover. The injuries noticed on the dead body of Neeta could not be connected or attributed to the accused. The accused was not absconding and either PW 23 - Dr. ::: Downloaded on - 09/06/2013 15:53:54 ::: 16 Mukund Paranjape or PW 27 - Baburao Patil could not prove the said circumstance. The evidence of PW 18 - Ulhas Dake did not establish that Neeta was present in the tuition class between 5.30 to 6.15 p.m. He relied upon the decisions in the case of Matru alias Girish Chandra vs. State of Uttar Pradesh [AIR 1971 SC 1050] and State of Maharashtra vs. Annappa Bandu Kavatage [AIR 1979 SC 1410]. It was urged by Mr. Kotwal that the facts in the instant case are similar to the facts of Annappa's case (Supra) and mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The following observations in the case of Matru (Supra) were relied upon:
"15. ........Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime:
such is the instinct of sell-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value ::: Downloaded on - 09/06/2013 15:53:54 ::: 17 would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."
Mr. Kotwal also relied on the following observations made in the case of Annappa:
"2. ........It appears from the circumstances proved by the prosecution that the respondent had taken away Dhanpal with him and hired a cycle and then had gone to a grocer's shop and bought some sweets for the boy.
Thereafter, the boy was found missing. The respondent appears to have taken away the ear-rings from the boy and they were sold in the market to P.W. Shaha for a ::: Downloaded on - 09/06/2013 15:53:54 ::: 18 sum of Rupees 35. On a search of the person of the accused Rs.34.50 were recovered from him. The body of the deceased was recovered next day from a well situated in the field of PW Kalo. This was the evidence led against the respondent. The High Court found that although the circumstances proved against the respondent created a good deal of suspicion against the respondent, ig it was unable to find that the circumstances were of such a conclusive nature so as to exclude every possible hypothesis of innocence in so far as the death of the boy was concerned. It is well settled that before a court can act on circumstantial evidence the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused. It was pointed out by learned counsel for the respondent before us that even accepting all the circumstances, the possibility that after having ::: Downloaded on - 09/06/2013 15:53:54 ::: 19 snatched the ear-rings the respondent may have left the boy near the field, cannot be excluded. In our opinion, the contention is well founded and must prevail. As there was sufficient interval between the death of the boy and the recovery of the body, the link in the chain of the circumstantial evidence does not appear to be fully complete..."
10. Lastly, it was contended by Mr. Kotwal that the investigation was faulty and some of the major witnesses like police constable Shinde from the Khadak Police Station, who was the person who come to know about the dead body lying in the lane behind the rationing office, was not examined. The recovery of identity card Exh. 85 from the person of the accused on his arrest was a very weak circumstance. It was pointed out that when the charge-sheet was submitted, this Article Exh. 85 was not placed before the trial court and it was produced only during the trial. The violate, in which the said identity card was found did not come before the trial ::: Downloaded on - 09/06/2013 15:53:54 ::: 20 court and with the time gap it was possible for the prosecution to introduce such an identity card by way of an after thought. Mr. Kotwal, therefore, urged that the impugned order of conviction and sentence is required to be quashed and set aside and the appellant deserves to be acquitted of the offence punishable under Section 302 of IPC.
11. Ms. Gajare the learned APP has supported the order of conviction and sentence on all counts. She urged that the allegation of faulty investigation by itself cannot be a reason for acquittal. If the chain of circumstances was fully established by the evidence of the prosecution, the defective investigation, if any, would not come in the way to uphold the order of conviction. She submitted that in the case of alleged defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective [AIR 1995 SC 2472]. As per Ms. Gajare, the prosecution placed before the trial ::: Downloaded on - 09/06/2013 15:53:54 ::: 21 court cogent, reliable evidence of material witnesses who were known to the accused and the deceased and the prosecution case did not suffer from any exaggeration or concealment of material evidence. There was no missing link in the chain of circumstances in the prosecution case. She submitted that the lane from where the dead body was recovered on 24/9/1999 was an isolated place and 24/9/1999 was a public holiday on account of Anant Chaturthi, on account of which the PWD Office and Rationing Office in the neighbourhood were closed and, therefore, there was hardly any possibility of a human being getting into the said lane in normal course. The delay caused in recovering the dead body by itself would not be fatal to the prosecution case based on last seen together. She also pointed out that in addition to the theory of last seen, the prosecution has established some other material circumstances which would connect the accused to the death of Neeta and it was the accused alone who murdered her.
12. Having considered the rival submissions made by the defence, the prosecution as well as the reasoning set out by the trial Court in support of the order of conviction impugned in this ::: Downloaded on - 09/06/2013 15:53:54 ::: 22 appeal, the following circumstances are re-framed in support of the prosecution case:
A) The accused, deceased, PW 2 - Leena Gokhale and PW 26 - Ashish are the residents of the same Co-operative Housing Society viz. Rakshlekha Housing Society and known to each other for quite some time. The deceased and PW 2 were friends and similarly the accused and PW 26 were also friends.
B) The deceased and PW 2 had joined Dake coaching classes where they used to go together in the evening (between 5.15 p.m. to 6.30 p.m.) C) The accused was in love with the deceased and had proposed to marry her. The deceased did not agree to the same.
D) On 23/9/1999 the deceased and PW 2 left the society together by rickshaw and went to Dake ::: Downloaded on - 09/06/2013 15:53:54 ::: 23 coaching classes. They attended the classes between 5.30 to 6.30 p.m. E) The accused and PW 26 - Ashish also reached Dake classes at 6.15 p.m. by scooter of the accused.
F) The deceased and PW 2 came out of the classes around 6.30 p.m. and accused went to the deceased, both of them went together and PW 2 and PW 26 kept waiting in the premises for the deceased and the accused.
G) PW 2 Leena waited upto 7.15 p.m. in the premises of the coaching classes for the deceased and returned home at about 7.30 p.m. and informed PW 1 that the deceased had gone with the accused.
On hearing this PW 1 was shocked and fainted.
H) PW 26 - Ashish reached Rakshlekha Society on the scooter of the accused at about 9.15 p.m. after waiting and searching for the accused. He informed some members of the society that the ::: Downloaded on - 09/06/2013 15:53:54 ::: 24 accused and the deceased had gone together.
I) Around 9.30 p.m. some members of the society reached Dattawadi Police Chowki and met PW 13 - Ajit Joshi, PSI and gave oral information that the accused had disappeared with the deceased.
J) PW 13 - Ajit Joshi assigned police constables to look out for the accused.
ig At 11.30 p.m. PW 1 went to the police chowki and his complaint was recorded in writing and registered as an FIR (Exhibit
28). The police went to Dake classes as well as old house of the accused and police was posted to keep a watch on the arrival of the accused at Rakshlekha society.
K) PW 3 - Gajanan Mulgund, who knew the accused had parked his Tata Sumo jeep near Swargate at 9 p.m. so as to look for passengers and saw the accused coming out of the lane of PWD office between 9.30 to 10 p.m. and asked him why he was there.
::: Downloaded on - 09/06/2013 15:53:54 ::: 25L) PW 7 - Raje Ingale, a neighbour of the accused in Ghorpade Peth (old house) met the accused at 515, Ghorpade Peth at about 11 p.m. and asked the accused the purpose of his visit.
They had pan together.
M) On 24/9/1999 recovery of gold chain was made from PW 6 Babi Jadhav, who was introduced to the accused by PW 4 and PW 5.
N) The gold chain was of the deceased and it was purchased by PW 1 from the jewellery shop of PW 12 - Ashok Ranka.
O) Recovery of the body of the deceased on 24/9/1999 at about 7 p.m., on the basis of the information received at 6.15 p.m. from Khadak police station by Shri Dilip Jagadale, API - PW 15.
P) On 24/9/1999 all the Government offices in Pune were closed on account of Ganpati immersion ::: Downloaded on - 09/06/2013 15:53:54 ::: 26 and the lane from where the dead body was recovered was only of 1 ½ ft. width and was a secluded place.
Q) The accused was absconding till he was detained on 26/9/1999 by Talegaon Dabhade police station at 5.55 p.m. by PW 19 - Atmacharan Shinde.
R) Identity card of the deceased was recovered from the person of the accused.
S) PW 24 - Nandkumar Suryawanshi, API from Swargate Police Station picked up the accused from Talegaon Dabhade police station at about 9 p.m. and arrested him on 11 p.m. He noticed the injuries on the person of the accused.
T) As per PW 26 the accused was working as an electrician and he always used to keep a working knife in his trouser pocket. Near the dead body of Neeta one such small sharp knife was found and was recovered under the panchanama Exhibit 42-B. ::: Downloaded on - 09/06/2013 15:53:54 ::: 27 The dead body had incised wounds on chest and wrists.
13. When a case rests upon circumstantial evidence, such evidence must satisfy the following 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 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;
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not ::: Downloaded on - 09/06/2013 15:53:54 ::: 28 only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(5) great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
(6) the court has to decide the effect of proved
facts and in deciding the sufficiency of the
circumstantial
ig evidence for the purpose of
conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is or are not decisive. It is not necessary that before the prosecution succeeds in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be.::: Downloaded on - 09/06/2013 15:53:54 ::: 29
14. The evidence of PW 1 - Sham Hendre, PW 2 - Leena Gokhale and PW 26 - Ashish Patankar, as recorded before the trial court, goes to show that they are all residents of Rakshlekha Society. PW 1 - Sham with his wife, father and three daughters, namely, Deepti, Neeta and Snehal was residing in Building "A-1" for about 15 years and Neeta was 16 years of age. Whereas accused was staying in Building "A-4" on the ground floor and the distance between the two buildings i.e. A-1 and A-4 is about 150 ft. Whereas PW 26 was staying in Building A-4 on the first floor for 10 to 11 years. PW 26 also stated that he knew the accused and he was his friend, though he was not his school or college mate. There are 18 buildings in Rakshlekha Society and some buildings consist 32 flats and others have 8 to 16 flats. PW 2 - Leena stated before the trial court that she was a student of Hujurpaga school, whereas deceased Neeta was a student of Garware college in 11th standard (Commerce), as per PW 1 and both of them had joined Dake's Coaching Classes for English subject. The deceased was enrolled in the said Classes on 14/7/1999 (Exh.29). They used to leave for the Classes at about 5.15 p.m. and the Class timings were between 5.30 to 6.30 p.m. PW 2 stated before the trial court that Neeta was her ::: Downloaded on - 09/06/2013 15:53:54 ::: 30 friend from childhood and she knew PW 16 - Ashish as well.
There were about 100 students in the tuition class and some of them were from her college. Dake Coaching Classes was situated in busy locality and near S.P. College and Ayurved College and the building consists of ground plus two floors. A guard of the Classes used to sit near the entrance gate. She also admitted that the place used to be crowded by students after the classes got over. She further stated that about 5 to 6 days prior to the incident, Neeta had told her that the accused had asked her to marry and threatened to kill her if she would refuse. PW 26 - Ashish stated in his depositions before the trial court that about 7 to 8 months prior to the date of the incident, accused had told him that he was in love with Neeta. PW 1 stated before the trial court that about 15 days prior to the incident, accused had obstructed Neeta when she was returning home from the classes and Neeta had reported this incident to PW 1. She had also informed him that the accused always used to say that he wanted to talk to her. PW 1 had advised his daughter to neglect him.
15. PW 2 - Leena stated before the trial court that on 23/9/1999 she along with Neeta reached Dake Classes by auto-
::: Downloaded on - 09/06/2013 15:53:54 ::: 31rickshaw at about 5.30 p.m. and Neeta was wearing gray colour punjabi dress with a black colour sack. The dress Articles 13, to 15 were identified by her. She also stated that accused was wearing blue jean pants, white shirt with blue strips. She identified Articles 20 and 21 before the trial court. She further stated that at about 6.30 p.m. when both of them came out of the classes, they saw the accused and PW 26 - Ashish standing in front of the building of the classes and accused and Ashish came near them. The accused told Neeta that he wanted to talk to her and he took her away from her. The accused told her that she should wait there as he wanted to talk to Neeta. She and Ashish waited there but the accused did not return with Neeta and, therefore, both of them searched for the accused and Neeta for half an hour. Ashish told her to return home as it was too late and, therefore, she returned home by auto-rickshaw at 7.45 p.m. PW 26 stated before the trial court that on the date of the incident he had returned home by about 5.30 p.m. and thereafter he met the accused. The accused asked him to accompany him for scooter riding and come to Dake Classes. At about 6.30 p.m. Neeta and PW 2 came out of the classes. He further supported the evidence of PW 2 and stated that the accused and Neeta went together while he remained with PW 2 ::: Downloaded on - 09/06/2013 15:53:54 ::: 32 along with scooter of the accused. After he asked PW 2 Leena to return home, he waited and searched for the accused and Neeta on the scooter but they were not found and, therefore, he returned on the scooter to Rakshlekha Society between 8.30 to 9 p.m. He saw that some persons had gathered and enquired about Neeta. He told them whatever had happened and went home. He noticed that some of the persons gathered looked annoyed when he given the information that Neeta and Satish had gone together and they were missing. His statement was recorded by the police on 24/9/1999.
The evidence of PW 18 - Ulhas Dake, as recorded before the trial court, revealed that he was running tuition classes in English, Maths and Science for the students between 8th to 12th standards. The identity cards were given to all these students along with their details like name, number and time of the batch along with their photograph. The identity card also bore the seal of the classes. He stated that in the year 1999-2000 the deceased was a student of English tuition classes in the batch of 5.45 p.m. to 6.30 p.m. He identified the identity card of the deceased shown to him and stated that it was issued by his classes. It was in the hand writing of Mandar Joshi, a Clerk ::: Downloaded on - 09/06/2013 15:53:54 ::: 33 working with his establishment. Roll number of the deceased was 101 (Exh.85), whereas Roll number of PW 2 - Leena was
100. He referred to Exh.86 extract of the attendance register and stated that it indicated the number of the students who were absent and on 23/9/1999 the roll number of the deceased as well as PW 2 was not mentioned in Exh.86 which indicated that both of them were present in the class. He also stated that on 23/9/1999 at about 11.30 p.m. the police from Khadak Police Station had gone to him and made enquiry about the deceased and he provided the address and phone number. He also stated that there were about 1300 to 1500 students in the institution with 5 - 6 teachers and 5 - 6 other employees. We are not impressed by the submissions of Mr. Kotwal that Exh. 86 was not reliable. Just because the extract at Exh.86 was not signed by a particular person would not by itself be a reason to discard it. It is reasonably possible that the private tuition classes record the numbers of those who did not attend the classes and no exception could be taken to such a practice being followed. This witness has, therefore, proved that Neeta and PW 2 were the students for the English Coaching Classes in the batch between 5.45 p.m. to 6.30 p.m. and they were present in the class on 23/9/1999. His evidence corroborates that of PW 1, PW 2 and ::: Downloaded on - 09/06/2013 15:53:54 ::: 34 PW 26.
16. PW 13 - Ajit Joshi was the P.S.I., attached to the Dattawadi Police Chowki under Swargate Police Station from December, 1997 to December, 1999. He stated before the trial court that on 23/9/1999 some persons from the Rakshalekha Society had come to his police chowki at about 9.30 p.m. and informed him that a girl by name Neeta Hendre and resident of the said society was taken away by the accused who was also a resident of the said society. He had asked them to file a complaint but they requested that she should be first searched by the police and, therefore, he formed three teams of one or two police constables and the persons from the society and sent them for search at all probable places where the accused would be found.
Between 11 to 11.30 p.m. some policemen returned and informed him that the accused could not be searched at his residence in the society as well as his old place in Ghorpade Peth. At that point of time, PW 1 - Sham Hendre, the father of the missing girl, came to the police chowky and his complaint was recorded (Exh. 28). He prepared a report forwarding the said complaint to the Swargate Police Station for registration of crime (C.R. No. 294/99) and it was returned to him for further ::: Downloaded on - 09/06/2013 15:53:55 ::: 35 investigation at about 3 a.m. on 24/9/1999. A copy of the said report was also submitted to the learned JMFC on 24/9/1999 and on the same day he recorded the statement of PW 2 - Leena Gokhale. He was busy in bandobast for Ganpati immersion upto 11.30 p.m. on 24/9/1999 and the police teams were directed to keep watch on the probable places where the accused would be found. On 25/9/1999 he again directed for the search of the accused at his old house in Ghorpade Peth and it was found to be locked.
ig In the morning on 25/9/1999, he received information from the Khadak Police Station that dead body of Neeta was found near the Swargate Police line and in the evening he received the inquest panchanama, post mortem report as well as muddemal in a sealed condition. The C.R. Was amended and offence under Section 302 of IPC was added. On 25/9/1999, morcha was brought to his police chowky by some of the residents of Rakshalekha Society. On 25/9/1999, under the instructions of his superior, he handed over the investigation papers to Shri Patil, Police Inspector for further investigation.
On 26/9/1999 Shri Gajanan Mulgund of Dattawadi met him at police chowky and told him that he wanted to give information in respect of the murder of Neeta. PW 13, therefore, ::: Downloaded on - 09/06/2013 15:53:55 ::: 36 sent Gajanan Mulgund to Shri Patil, Police Inspector and along with a constable. In his cross-examination, he denied the suggestion that there was fierce criticism on the failure of the police in the investigation by the press and the people at large and that he was unduly pressurized by his superiors. He admitted that he was charge-sheeted in connection with the investigation in this crime and he was imposed penalty against which his appeal was pending. It is evident that he failed to register the crime when some persons from the Rakshalekha society had met him at 9.30 p.m. on 23/9/1999 and disclosed a cognizable offence. He also stated that Rakshalekha Society is about ½ kms. to 3-4 kms. away from the police chowky and he did not visit the said society immediately. He also stated that the distance between Swargate Police Station and Dattawadi Police Chowky was about 4 kms. and the FIR was recorded as per the statement provided by the complainant. He also admitted that during the course of investigation, Shri Dighaonkar, Assistant Commissioner of Police, had visited the police chowky and also endorsed the FIR Exh. 28. He denied the suggestion that Exh. 28 was not recorded on 23/9/1999 and it was prepared subsequently, by making it anti dated. Mr. Kotwal the learned counsel reiterated the allegation that the FIR at Exh.
::: Downloaded on - 09/06/2013 15:53:55 ::: 3728 was not recorded at 11.30 p.m. but it was recorded on 24/9/1999 or 25/9/1999 and it was shown to have been recorded, as claimed by PW 22. These submissions are based on conjectures. PW 1 - Sham Hendre has corroborated the evidence of PW 13. He stated before the trial court that at about 11.30 p.m. on 23/9/1999, after he recovered from his giddiness, he went to the Dattawadi Police Chowky and filed a complaint. It took about one hour to lodge the complaint, which was reduced in writing and was read over to him. It was signed by him. He identified the signature on Exh. 28. We do not find sufficient material to disbelieve the evidence of both these witnesses that the FIR was recorded at 11.30 p.m. on 23/9/1999.
17. PW 3 - Gajanan Mulgund stated before the trial court that he owned Tata Sumo vehicle bearing registration No. MH-12/PA 1926 and it was purchased in 1997 for Tourism business. Prior to the year 1997 he was running a laundry by name "Mulgund Dry Cleaners" at Dattawadi which subsequently was run by his brother Pramod. Rakshalekha Society was adjacent to his laundry and the accused was his customer. On 23/9/1999 at about 9 p.m. he had taken his vehicle to Swargate in search of passenger and he parked it in front of the PWD office. Rationing ::: Downloaded on - 09/06/2013 15:53:55 ::: 38 Office is also near the PWD office and both facing the East with a open space between two offices. After parking his vehicle, he went to Swargate Bus Stand and waited for about one hour but did not get passengers. He returned to his vehicle, which was facing towards the North and while he was cleaning the same, he saw accused coming from the lane. He, therefore, asked the accused as to why he was there and the accused stated nothing and started going away quickly. He further stated that he saw red colour stains on his shirt (on the chest portion) and he asked the accused about it. The accused said "nothing" and explained that it was a stain of ink. After some time he made one round of the S.T. Stand and and he got passengers of Indapur and Patan.
He carried them to Indapur in his vehicle and reached there at 4 p.m. He parked his vehicle in front of ST Stand at Indapur and slept there. He stayed overnight on 24/9/1999. His vehicle developed a mechanical fault and, therefore, after it was repaired in the evening on 25/9/1999, he returned to Pune by midnight. In the morning on 26/9/1999 he read the news of murder of a girl out of love affair in the newspapers and along with the photographs of the deceased and the accused. He remembered the incident of the night of 23/9/1999 and the meeting with the accused and, therefore, went to Dattawadi ::: Downloaded on - 09/06/2013 15:53:55 ::: 39 Police Chowky to inform about the incident. He was directed to Swargate Police Station by PW 13 and his statement was recorded at the Swargate Police Station. In the cross-
examination he admitted that he did not go to the Swargate area for search of passenger but on account of Ganpati festival there was a rush of people coming from out station to Pune and wanting to return to their destination. Many tourist vehicles were parked at Swargate road from Natraj Hotel to Nehru Stadium and PWD office is located at a distance of 150 mtrs.
from the Swargate Bust Stand but it is not visible from the Bust Stand. He also stated that after seeing the stained shirt of the accused, he felt that it was a dirty shirt with a big stain of the size of pocket approximately of size of 4 x 4 inch. and he did not stop the accused. He also stated that he read the news on 26/9/1999 in Sakal Newspaper but did not go to the house of the accused to make enquiry after seeing the photographs.
However, he had discussed this with some persons and approached the police chowky at about 9 a.m. He denied the suggestion that he was acquainted with PW 13 - Ajit Joshi.
18. PW 7 - Raju Sitaram Ingale was working in the shop of Shri Sarada and was residing at House No. 515, Ghorpade ::: Downloaded on - 09/06/2013 15:53:55 ::: 40 Peth as a tenant. He stated before the trial court that the family of the accused was residing at House No. 515 and from there they had shifted to Rakshalekha Society and kept the premises at Ghorpade Peth under lock and key (in their possession). At about 9 p.m. on 23/9/1999 he had returned home and after his dinner, while he was sitting outside of his house, he saw the father of the accused along with some persons and policemen at about 9.30 p.m. and they had asked him as to whether he had seen the accused. ig After he gave a negative reply, they had gone away. However, at about 11 p.m. on the same day the accused visited his old house and at the request of the accused, he went with him to a paan shop. He told the accused that his father had visited the old house along with the police and asked him the reason. The statement of this witness was recorded by the police for the first time on 29/9/199 and he told before the trial court in his cross-examination that till his statement was recorded by the police, he did not inform anybody about his meeting the accused in the night on 23/9/1999. This witness has been disbelieved by the trial court. However, his evidence that he met the accused at about 9 p.m. on 23/9/1999 remained intact in his cross-examination and to that extent the prosecution case deserves to accepted.
::: Downloaded on - 09/06/2013 15:53:55 ::: 4119. The evidence of Pws 4 to 6 is regarding the recovery of gold chain at the instance of the accused on 28/9/1999 and he had received an amount of Rs.500/- from PW 6 - Baby Jadhav on 24/9/1999 at about 8.30 p.m. in return of the said chain. PW 4 -
Ganesh Kamble was running a food stall near Sarasbaug between 6 to 11 p.m. and he knew the accused who used to visit his stall to have food. He stated before the trial court that on 24/9/1999 he was at home and about 8 p.m. ig while he was standing in front of his house along with PW 5 - Ganesh Salunkhe. The accused met him and demanded money from him. He told the accused that he did not have the money but the accused produced a god chain from his pocket and stated that he wanted to pledge it. The accused was introduced to PW 5 - Ganesh Salunkhe. But PW 5 also did not have money and stated that he was acquainted with somebody who would give money to the accused in return of the gold chain. Hence Ganesh and the accused went on the motorcycle of Ganesh. He identified Muddemal Article 29 gold chain before the trial court and stated that it was the same which was shown to him by the accused on 24/9/1999. In his cross-examination he stated that PW 5 was black smith and his economical condition was so-so.
::: Downloaded on - 09/06/2013 15:53:55 ::: 42He as well as Ganesh were not involved in money lending business and did not act as middleman in any such transaction.
His statement was recorded by the police on 28/9/1999.
20. PW 5 - Ganesh Salunkhe stated before the trial court that he was a resident of Dnadekar Pool, Pune and was the Black Smith. While he was in the company of PW 4 - Ganesh Kamble in the night of 24/9/1999, the accused had met them. The accused had shown him a gold chain and told that he wanted money by pledging it. Therefore, he took the accused to Holkar Bridge near Parvati on his motorcycle to the house of Baby Jadhav - PW 6. He introduced the accused to Baby Jadhav - PW 6 and told her that the accused was a friend of Ganesh Kamble and was in need of money. The accused also asked Baby Jadhav to give money and when she said that she did not have the money, the accused took out the gold chain from his pocket and gave to Baby Jadhav, demanding Rs.700/-, but Baby Jadhav gave him only Rs.500/-. Both of them came to hotel Sajan near Holkar bridge and the accused asked him whether he consumes liquor and for that accused gave him Rs.100/- and went away.
This witness identified the accused in the court as the same person whom he had taken to Baby Jadhav and collected Rs.
::: Downloaded on - 09/06/2013 15:53:55 ::: 43500/- on pledging the gold chain. In his cross-examination, he stated that the accused was carrying the god chain in his pocket and there was no paper work done when Baby Jadhav gave him Rs.500/- in exchange of the gold chain and there was no talk about the interest to be paid. His statement was recorded by the police on 28/9/1999 and he did not meet Baby Jadhav after the transaction took place and till his statement was recorded.
PW 6 - Baby Jahdav stated before the trial court that she had a handcart selling Vada Pav for 4 to 5 years and she used to do the said business between between 9 a.m. to 10 p.m. at Parvati. She knew Ganesh Salunkhe - PW 5 since childhood as both of them were residing near Dandekar Bridge area. She stated before the trial court that at about 8.30 p.m. on 24/9/1999 while she was doing her business near Parvati bridge, Ganesh Salunkhe came there on his motorcycle with another boy and demanded Rs.700/- from her and the demand of money was for the other boy who as with him and she was informed that the boy was friend of Ganesh Kamble. The boy took out a gold chain from his pocket and demanded Rs.700/- in exchange.
She had only Rs.500/- and the boy accepted the said offer, took the money and handed over the gold chain in exchange and ::: Downloaded on - 09/06/2013 15:53:55 ::: 44 went away on the motorcycle of Ganesh Salunkhe. She identified the accused before the court as well as the gold chain Muddemal Article 29. She further stated that she had seen the accused twice, once when he came with gold chain and for the second time when he was brought by the police on 28/9/1999 at about 10.30 a.m. He was brought by the police officers, two of whom were in civil clothes, in a private jeep and when the jeep reached her handcart, the accused pointed out towards her. The police asked her whether she was still in possession of the chain and she produced the same before the police and it was seized. She further stated that the accused had told her that he would return within two days to collect the chain. In her cross-
examination, she admitted that amount of Rs.500/- was a big amount considering her income and the accused was a stranger to her. She did not know his name and address and did not approach any gold smith to verify the purity of the gold. She also stated that she was not doing the business of money lending. She also stated that there was no special identification mark on the chain. She denied the suggestion that she was a witness put up by the police.
Thus, the evidence of Pws 4 to 6, as recorded before the ::: Downloaded on - 09/06/2013 15:53:55 ::: 45 trial court, proved that on 24/9/1999 the accused along with PW 5 - Ganesh Salunkhe and at the introduction of PW 4 - Ganesh Kamble had met PW 6 - Baby Jadhav, received an amount of Rs.
500/- and in exchange had handed over the gold chain to her.
The same was recovered after recording his disclosure statement while he was under arrest on 28/9/1999. Recovery panchanama at Exh. 49-B has been proved by panch witness PW 11- Balkrishna Sathe.
21. PW 12 - Ashok Ranka was the Director of Ranka Jewellers Pvt. Ltd. which was engaged in the manufacture and sale of gold and silver ornaments since 1991 with registered monogram in letter "R" of mirror image with crown over it. On all the ornaments manufactured and sold by the said company this monogram was embossed for identification and on the gold chain, the said monogram would appear at the joint of both ends. Article 29 gold chain was shown to him in the court and he identified that it bore the monogram of his company at both the ends. He showed before the court some other jewellery which he had brought and it had the monogram of his company. He also stated that the monogram in the chain which he had brought with him was similar to the monogram on Article 29 and ::: Downloaded on - 09/06/2013 15:53:55 ::: 46 he verified before the court that Article 29 was manufactured and sold by his company. He had brought before the court, bill book of February, 1998 and office copy bill No. G-30142 dated 10/2/1998 was shown before the court and as per the same a gold chain and a Badam (pendulum) were sold from his shop for Rs.6468/- and the office copy had his signature Article "B". The said bill was in the name of Neeta Hendre and the original of the bill was given to the said customer. He further stated that on 5/10/1999 police had visited him and on their request a print out of the said bill was taken from the computer and handed over to the police as a duplicate bill but under his signature. He verified the said duplicate bill at Exh.51. He stated that there were 30 salesmen in his shop and he and his brother used to sit in the shop. He stated that the bill was not traced out on the basis of the chit Exh.52 only. He also admitted that imitated jewellery ornaments were available in the market which look like gold, but Article 29 was sold from his shop. His statement was recorded by the police on 5/10/1999 and the chain under Article 29 was not shown to him during investigation. Through the evidence of this witness, it is proved by the prosecution that Article 29 was purchased by the deceased from Ranka Jewellers Pvt. Ltd. on 10/2/1998 along with a pendulum for an amount of ::: Downloaded on - 09/06/2013 15:53:55 ::: 47 Rs.6468/- and the said Article was recovered from PW 6 - Baby Jadhav at the instance of the accused by the police during the course of investigation and this circumstance of recovery also proved that the deceased was wearing the gold chain when she had gone with the accused on 23/9/1999 at 6.30 p.m.
22. PW 15 - Dilip Jagadale, API, was attached to the Phadgate Police Chowky in September, 1999 and he stated before the trial court that on 24/9/1999, while he was on duty at about 6.30 p.m., had received a telephonic information, from Khadak Police Station that a dead body of a female was found behind the rationing shop near the Swargate Police line. He, therefore, went to the spot with the staff immediately and the spot was a lane between the compound wall of police line and rationing shop (facing towards the East). Height of the compound wall of the rationing shop was about 7 ft. and the width of the lane where the dead body was found was about 16 and ½ inch. At the spot the dead body of a female of the age between 16 to 18 was lying with her mouth gagged and facing the sky. Two pachas along with photographer - Sharad Kshatriya (PW - 17 ) were called and photographs of the dead body were taken. Spot panchanam at Exh. 57 and inquest panchanama at Exh. 46 were ::: Downloaded on - 09/06/2013 15:53:55 ::: 48 drawn. Near the dead body some articles were found and they were seized. On the next day the clothes on the dead body along with articles were brought to the police station and seized under the panchanama at Exh. 59. The said articles were one undergarment of 34-85 cm. Size, one piece of cloth with some embroidery (handkerchief), one salvar, one odhni stained in blood, one scarf of blueish colour with blood stains, one shoes of right foot, one white colour metal latch, one ear ring of yellow metal and one ig wrist watch of Escort Company. The spot panchanam at Exh.57 and inquest panchanama at Exh. 46 have been proved through the evidence of panch witness PW 14 -
Balaji Kini. As per the spot panchanama at Exh.57 wall of the rationing shop was about 53 ft. long (South North) and adjacent to the said wall, in the lane of about 16 and ½ inch width one dead body of a female was lying. Her mouth was gagged with a cotton cloth and on her chest a sharp blade knife like was lying, near her head one black colour regzine bag (school bag) was also lying, one black hair band near her head and near her neck one black colour shoe-less, whereas near her leg one yellow colour underwear were lying. The body was lying on a cardboard. A dogs squad was also called along with police constable - Ambekar (Buckle No. 1607). The dog went upto ::: Downloaded on - 09/06/2013 15:53:55 ::: 49 Rameshwar Chowk and stopped there. Chemical Analyzer collected the blood sample from beneath the body and all the articles were seized. The dead body was identified by PW 1 after it was brought to the hospital and after its post mortem, it was handed over to him. In his cross-examination, he admitted that the entry regarding the information received from Khadak Police Station was not taken in the occurrence book. But an entry was made in the station diary as well as the weekly diary. He had given direction to trace out police constable Shinde but he did not meet him on 24th or 25th September, 1999. When he reached the spot, police constable Surve and Jagtap were there and they associated him. He had reached the spot within 10 minutes from receipt of the information on phone from constable Shinde and a police ambulance had reached within half an hour. He also admitted that marks of scuffling were not seen on the spot, blood stains were seen on the hard paper but there was no blood seen on the ground and the relations of the deceased had reached the Sassoon Hospital at about 1 a.m. on 25/10/1999.
Much was made about the statement made by this witness that the female was lying in injured condition. To a specific question asked by the court, he stated that whether the female was dead or alive could be ascertained only by the doctor and, therefore, ::: Downloaded on - 09/06/2013 15:53:55 ::: 50 he was not sure whether to write that a dead body was found there, but he confirmed that when he reached the spot, he found the female was dead.
23. The lane from where the dead body of Neeta was recovered by PW 15 Dilip Jagdale is behind the ration shop and the compound wall of the police lane and it is about 16 ½ inch in width. It is, therefore, not a lane where persons coming to the PWD office or ration shop or the police lane are likely to visit or could pass through. It is also pertinent to note that on 24/9/1999 there was a local holiday on account of Ganpati immersion and all the Government offices were closes. This has been proved by the prosecution through the evidence of PW 22
- Balu Shinde, Police Constable B.No.4332. He stated before the trial Court that he was attached to the Swargate Police Station in September 1999 and on 24/9/1999 as per the written directions of PSO Sampat Dagale, a copy of the FIR in Crime No. 294/1999 of his police station was handed over to him so as to place it on record before the learned Judicial Magistrate, First Class (Shri Chhahel), Court No.8, Shivaji Nagar, Pune. He went to the Court at about 11.15 a.m. and Shri Chhahel, the learned JMFC was at his residence as the Court was closed on account of ::: Downloaded on - 09/06/2013 15:53:55 ::: 51 holiday and, therefore, he handed over the copy of the FIR to the learned Judge at his residence and submitted a report accordingly in writing by 9 p.m. on the same day.
24. PW 19 - Atmacharan Shinde, PI who was attached to Talegaon Dabhade police station between November 1998 to August 2001 stated before the trial Court that while he was on patrolling duty on 26/9/1999 by a jeep along with his staff, he reached near IBP Petrol Pump on Mumbai-Pune Highway and at 5.45 p.m. he saw a boy running towards South on seeing the police jeep. On the same day in the morning newspapers he had read the report regarding the death of a missing girl and resident of Rakshlekha Society, Dattawadi, Pune. He, therefore, suspected and followed the accused and took him in custody.
On enquiry he gave his nae as Satish Ramchandra Vavbandhe, resident of Rakshlekha Society, Dattawadi, Pune and looked frightened. The witness remembered to have read the same name in the newspaper in connection with the death of Neeta Hendre. The articles found in possession of the accused were taken in custody under the panchanama at Exhibit 88. Shri Suryavanshi (PW 24), PSI attached to Swargate police station came to Talegaon Dabhade police station and took the custody ::: Downloaded on - 09/06/2013 15:53:55 ::: 52 of the accused along with the articles. Entries were taken in the station diary of all the articles including the identity card at Exhibit 85. In his cross-examination he stated that the accused was in his police station for about 4 ½ to 5 hours and there is no lock up room at his police station and stated that his statement was recorded on 14/10/1999. He admitted that PSI Suryavanshi did not make any entry in the station diary though he was at the police station for about three hours and though the articles recovered from the accused were required to be sealed, it was not done so and the articles came to be handed over to Shri Suryavanshi. The panchanama at Exhibit 88 has been proved through the evidence of PW 21 Shri Mallesh Birajdar. He stated before the trial Court that a wallet was found in the trouser pocket of the accused and it was brown in colour. An identity card and a hand written note was also found in the said wallet.
He also stated that the accused was wearing a white coloured T-
shirt. He identified the T-shirt (Article 20) and the identity card (Exhibit 85) before the trial Court. In his cross-examination he admitted that the trouser of the accused was also seized and he denied the suggestion that he was deposing falsely about the identity card having been found in the pocket of the accused.
::: Downloaded on - 09/06/2013 15:53:55 ::: 53PW 24 Nandkumar Suryavanshi confirmed before the trial Court to have received the message from PW 19 Shinde that a person by name Satish Vavbandhe was taken in custody by him and asked whether that person was required by Swargate police station. Shri Shinde was informed that the boy taken in custody was requried in Crime No.294/99 registered with Swargate police station and that he would reach to take the custody of the boy and that he reached the Talegaon police station at 9 p.m. He identified the accused to be the same person who was taken in custody from Talegaon Dabhade police station on 26/4/1999 and brought to Swargate police station. The panchas were called and his personal search was taken in their presence. The panchanama was drawn at Exhibit 99 and the articles seized were listed in the said panchanama. The identity card (Exhibit
85) was one of the articles along with T-shirt as Article 20 and trouser as article no.21. The accused was arrested at 11 p.m. and entry was made in the police diary accordingly. He submitted a report in writing to the4 Inspector of Swargate police station at Exhibit 101. He admitted in his cross-
examination that he did not make an entry about the telephone call he had receive3d from PW 19 - Shinde and admitted that he had gone by a private vehicle to the said police station. He ::: Downloaded on - 09/06/2013 15:53:55 ::: 54 noticed healed injuries on the left elbow and on the left shoulder of the accused but did not obtain any certificate from the Medical Officer regarding the age and cause of the said injuries.
Videoshooting of the panchanama at Exhibit 99 was done and video cassette (article no.31) was placed before the Court. The video shooting was done by Chitrasen Jadhav.
Thus from the evidence of these two police Officers and the panch witnesses it is proved that the accused was caught by PW 19 on 26/9/1999 from Mumbai-Pune highway at about 5.45 p.m. and till then he was absconding. PW 13 - Ajit Joshi stated before the trial Court that a police watch was kept at place near the residences of the accused (old as well as new) immediately after the complaint was received from the residents of Rakshlekha Society at about 9.30 p.m. on 23/9/1999 and the accused was reported to be missing.
25. Mr.Kotwal submitted that the identity card which was issued by Dake Coaching Classes to the deceased was not produced before the trial Court along with the charge-sheet and it was produced only when the evidence was being recorded.
He alleged that this late production itself could be a reason to ::: Downloaded on - 09/06/2013 15:53:55 ::: 55 suspect the prosecution case and as per him this fabricated identity card was produced belatedly only to support the prosecution case. It is the consistent case of the prosecution through the evidence of PW 19 Shinde, PW 21 - Birajdar and PW 24 - Suryawanshi that the identity card was one of the articles recovered from the possession of the accused and even if the wallet in which the identity card was kept was not produced before the trial Court, there can be no reason to suspect the prosecution case.
ig In fact the video recording of the panchanama drawn was placed before the trial Court at Article 31 and even in the panchanama at Exhibit 99 it has been proved before the trial Court that the said identity card was one of the articles recovered from the accused. Hence it cannot be accepted that the prosecution fabricated this identity card by way of an afterthought only to fill in the gaps in its case. It was also submitted by Mr.Kotwal that the time gap between the last seen of the accused along with the deceased i.e. 6.30 p.m. on 23/9/1999 till the dead body was recovered on 24/9/1999 was about 24 hours and, therefore, the prosecution could not rely upon the last seen theory. We have no doubt that the lane from where the dead body was recovered was too narrow and secluded and 24/9/1999 was a public holiday and there was ::: Downloaded on - 09/06/2013 15:53:55 ::: 56 hardly any chance of the dead body being seen by any person prior to the information received by PW 15 - API Jagdale communcated by Shri Shinde Police Constable. Shri Kotwal also pointed out that Shri Shinde, Police Constable was not examined by the prosecution and this was a major deficiency. In our opinion, even though Shri Shinde was not examined that by itself has not weakened the prosecution case. The circumstances leading to the recovery of the dead body of Neeta at about 6.30 p.m. on 24/9/1999, though belatedly, cannot defeat the prosecution case having regard to all other relevant circumstances and if the prosecution is, as we have noted earlier, unable to explain the time gap. In this regard we may refer to the observations made by the Supreme Court in the case of State of Goa Vs. Sanjay Thakran [(2007) 3 SCC 755], "... The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the ::: Downloaded on - 09/06/2013 15:53:55 ::: 57 evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, ::: Downloaded on - 09/06/2013 15:53:55 ::: 58 the proof of last seen together would be relevant evidence...."
26. Shri Kotwal also reffered to the evidence of Dr.Milind Wable who had conducted the post mortem and before the Court the said Medical Officer had stated that the injuries noted on the dead body were "recent". By relying upon the statement of the doctor it was contended by Shri Kotwal that it could not be said with certainly that the death of Neeta was caused in the night of 23/9/1999 and it could have been caused at any time just before the dead body was recovered by PW 15. Though this aspect has been rightly dealt with by the trial Court, we have reconsidered the evidence of the said doctor and having regard to the PM notes it cannot be believed that the injuries noticed on the dead body of Neeta were recent with reference to the time of PM examination. In the case of Madan Gopal Kakkad v.
Naval Dubey [(1992) 3 SCC 204] on the aspect of the medical evidence being considered by the Courts, it was stated as under, "A medical witness called in as an expert to assist the Court is not a witness of fact and the ::: Downloaded on - 09/06/2013 15:53:55 ::: 59 evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."
In the instant case just because the doctor while in the witness box stated that the injuries noticed on the dead body were recent, that by itself cannot be an evidence to believe that the death was not caused in the night of 23/9/1999. In fact it has come on record that ants had eaten away the face when the dead body was recovered at about 6.30 p.m. on 24/9/1999. The post mortem was conducted between 6.15 a.m. to 7.30 a.m. on 25/9/1999 and, therefore, having regard to the spot panchanama (Exhibit 57) as well as inquest panchanama ::: Downloaded on - 09/06/2013 15:53:55 ::: 60 (Exhibits 46), the prosecution case has not weakened by this off the cuff statement of the Medical Officer and the trial Court has rightly rejected the same.
27. The submissions of Shri Kotwal that the time gap of 24 hours would support the defence that it was not the accused and someone else had caused the murder of Neeta, cannot be accepted in the circumstances brought before the Court and discussed hereinabove.
ig PW 26 in his depositions had stated before the trial Court that the accused was wearing white T-shirt and jeans trouser when both of them had reached the premises of Dake Coaching Classes on the scooter of the accused at about 6.30 p.m. on 23/9/1999. It has come in the evidence of Mallesh Birajdar (PW 21) that when the accused was taken in custody by PW 19 Shinde and the police officer took his personal search the accused was wearing a white colour T-shirt. PW 2 -
Leena described the clothes worn by the deceased while they had gone to the coaching classes on 23/9/1999. She stated that Neeta was wearing a punjabi dress and was with a black scarf.
Articles 13 to 15 were the clothes recovered from the dead body of Neeta and they were identified by PW 2 before the Court.
She also stated that the accused was wearing blue jeans trouser ::: Downloaded on - 09/06/2013 15:53:55 ::: 61 and a white T-shirt with blue straps. These articles nos. 20 and 21 were also identified by her as well as by PW 26 before the Court.
In addition PW 26 had stated that the accused used to work as an electrician and used to keep with him a pincer and a piece of hexa blade for his work. It is pertinent to note that in the spot panchanama drawn at Exhibit 57 indicated that a sharp blade like hexa blade was seen near the dead body of Neeta.
28. All these circumstances cumulatively proved by the prosecution unerringly pointed out the complicity of the accused in causing the homicidal death of Neeta. The identity card (Exhibit 85), the gold chain (article 29) are the two articles which belonged to the deceased and they were recovered from the person of the accused or at his instance. The gold chain -
article 29 was exchanged by him on receipt of Rs.500/- from PW 6 - Babi Jadhav and these two articles directly connected the accused to the homicidal death of Neeta, along with the sharp edged knife like article found near her dead body. Her death was caused by strangulation and cut injuries on her wrists by a sharp weapon. It is well said that human agency may be faulty ::: Downloaded on - 09/06/2013 15:53:55 ::: 62 in expressing picturisation of actual incident but the circumstances cannot fail and "men may tell lies but circumstances do not". In our opinion the circumstances from which the conclusion is required to be drawn against the accused have been fully established by the prosecution so as to connect him to the homicidal death of Neeta and the prosecution case that no one other than the accused caused the said crime has been rightly accepted by the trial Court, despite certain circumstances could not be proved by the prosecution.
There is some scope to believe that the prosecution was not to the expectations. Shri Shinde, police constable who was the first informant to locate the dead body was not examined, the ownership of the scooter driven back home by PW 26 on 23/9/1999 was not brought before the Court and the medical opinion regarding the approximate time of Neeta's death was not brought before the trial Court. However, There are no material missing links in the prosecution case. It is also well settled that it is not essential that each of the links must appear on the surface of the evidence adduced and some of the links may have to be inferred from the proved facts. In drawing these inferences the Court must have regard to the common course of natural events and to human conduct and their relation to the ::: Downloaded on - 09/06/2013 15:53:55 ::: 63 facts of the particular case. In deciding sufficiency of circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts each one of which reinforces the conclusion of the guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis, except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be [(2010) 2 SCC 353]. Having reappreicated the evidence of the prosecution case and the reasoning set out by the trial Court, we are satisfied that the prosecution proved its case beyond reasonable doubt against the accused that he caused the murder of Neeta.
29. Hence, for the reasons stated hereinabove this appeal must fail and the same is hereby dismissed. The order of ::: Downloaded on - 09/06/2013 15:53:55 ::: 64 conviction and sentence passed by the Court below in Sessions Case No.536 of 1999 dated 2/4/2002 is hereby confirmed.
(MRS.MRIDULA BHATKAR) (B.H.MARLAPALLE,J.) ::: Downloaded on - 09/06/2013 15:53:55 :::