Bombay High Court
Santhosh Manohar Chavan vs The State Of Maharashtra on 27 April, 1994
Equivalent citations: 1995 A I H C 3025, (1994) 4 BOM CR 590
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant Santosh Manohar Chavan was convicted and sentenced to imprisonment for life under section 302 of Indian Penal Code by the learned Additional Sessions Judge, Ratnagiri vide order dated 6th December, 1991 passed in Sessions Case No. 37 of 1989. Feeling aggrieved, he has come up in appeal before us.
The deceased in this case is an unmarried girl Lata, who it appears was callously done to death sometimes on 2nd November, 1988 in Bhosteghat, village Verar, Police Station Khed, District Ratnagiri.
2. The case for prosecution is that the deceased used to reside with her father P.W. 12 Ekanath Tatoba Naik at Bhandup, Bombay. It is said that she was working in a factory. The appellant who was an autho rickshaw driver was also a resident of Bhandup. It is alleged that both of them fell in love and often the appellant used to take her in the authorickshaw to her factory and leave her there. It has also been alleged by the prosecution that once the appellant had borrowed Rs. 1000/- (one thousand) from her but, only paid back Rs. 200/- (Two hundred) to her. Prosecution further alleges that appellant refused to marry her and told her that he was involved in an affair with another girl.
3. The prosecution case further is that on 2nd November 1988, D.S.P. Shri Anand Byankatpat Mandya (P.W. 16) of Chiplun, Sub-Division, while returning from Chiplun to Khed in a police jeep at about 1.30 p.m. found a constable standing near Bosteghat and on enquiring from him as to why he was standing there, was told that a corpse of a female was lying in Bhosteghat. Mr. Mandya on receiving the aforesaid information, personally went to the place where the corpse was lying and found that the same was of a girl who had been strangulated with a piece of cloth (odhani). A wireless set had been installed in the jeep of Mr. Mandya and on wireless, he sent information about this to police station Khed and on receiving the aforesaid information, P.W. 15 P.S.I. Nagappa Kalappa Mali proceeded for the place of incident and registered Crime No. 175 of 1988 under section 302 of the Indian Penal Code at police station, Khed. Wheels of investigation were set in motion.
4. As we have mentioned earlier, Lata the (deceased) had been working in a factory. On morning of 1st November, 1988, she had gone to her factory informing her family members that she would return late at night. When till 9 p.m. she did not return, understandably her parents started worrying. On making inquiries, they came to know that Lata had not gone to her factory at all that day. Next morning, they enquired from another friend of Lata and were informed that on 1st November, 1988, Lata had not gone to the factory. Consequently, the parents contacted Bhandup police station (that was the police station within the limits of which, their place of residence fell) and a report to the effect that their daughter was missing was lodged there.
5. Meanwhile, investigation came in full swing at police station Khed. It is said that certain pieces of a torn letters were found near the corpse and after arranging them properly, it came to be inferred that there was some connection between those letters and Bhandup. Consequently, police personnel were despatched in different directions, including Bhandup, with the photographs of deceased. It is said that some police personnel from Bhandup police station contacted P.W. 12 Eknath Tatoba Naik, father of the deceased on the night of 3rd November, 1988 and after P.W. 12 and his wife came to the police station, certain photographs of an unknown female corpse were shown to them. As ill luck for the parents, would have it, one of the photographs turned out to be that of the deceased.
6. Next morning P.W. 12 and his wife came to the police station, Khed, where on seeing clothes on the person of deceased and chappals found near the spot, they identified them to be that of the deceased (their daughter Lata). Thereafter, they were taken to the mortuary at Primary Health Centre, Khed, where the aforesaid corpse was lying awaiting performance of autospy and they identified the same to be that of their daughter.
7. The autospy of the dead body was performed by P.W. 7 Dr. Kisanrao Ramchandra Karale on 2nd November, 1988 between 5 to 6 p.m. The autopsy surgeon found two ligature marks present over the neck of the aforesaid dead body. Those marks were 1" in breadth all around the neck adjacent to each other continuous horizontal in directions just below thyroid cartilage. Subcutanious tissues under the neck i.e. ligature marks were found congested. There was blood effusion in the internal walls of both carotid arteries. Mucus membrances were dark red and larynx intensively congested. According to the autospy surgeon, death of deceased was due to asphyxia on account of strangulation. According to the doctor, deceased must have died within 24 hours. In his cross-examination, the doctor says, it may be within 24 to 48 hours. The lowest limit of time, which the doctor gave was 22 hours.
8. According to the prosecution, three other suspects were also arrested but, they were discharged.
9. On 12th November, 1988, the appellant was arrested. It is alleged that the appellant informed the police that he could get the jewellery which the deceased was wearing at the time of the incident, recovered. On 18th November, 1988, in the presence of P.W. 13 Vijay Maruti Dule and some police personnel, the appellant went to the shop of Ambika Jewellers in Bhandup and from that shop, the jeweller on his asking brought a pair of 'Zhumkas' and a pair of 'Fullys'.
It is also alleged that the appellant took police to Shanti Jewellers where he is alleged to have given golden mal for conversion into a gold chain. P.W. 14 Shantilalji Devilalji Kothari told police that on 5th November, 1988, he had given a chain made of golden mal to the appellant. The appellant in turn is said to have given the chain to one Sudesh Sawant who has not been examined by the prosecution. Consequently, in the presence of Vijay Maruti Dule (P.W. 13), from the place of Sudesh Sawant, aforesaid chain was recovered. In the usual course, the appellant was charge-sheeted and his case was committed to the Court of Sessions under section 302/201 of Indian Penal Code. In the trial Court, charges were framed both under section 302 and 201 of Indian Penal Code to which, the appellant pleaded not guilty and claimed to be tried.
10. The prosecution adduced evidence in the trial Court of seventeen witnesses to prove its case. At the very outset, we may mention that in the instant case, there is no eye witness of the incident and the case hinges purely on circumstantial evidence. Stringent tests have been laid down as to when courts of law should convict on circumstantial evidence. As we understand, the law is, that a conviction on circumstantial can and should only be recorded if the circumstantial evidence adduced by the prosecution is only compatible with the inference of guilt of the accused, is wholly incompatible with the inference of innocence of accused; and is incapable of being explained on any other reasonable hypothesis. In the instant case, four circumstances have been pressed into service by the prosecution, namely :-
(A) Motive;
(B) (i) Appellant was last seen with the deceased on 1-11-1988 at 11 a.m.
(ii) At about 5.30 to 6 p.m. on 1-11-1988, the appellant was seen at Pethe Khanaval, rickshaw stop in Khed and practically, immediately thereafter, he was seen boarding a truck at Bharananaka, which going towards Bombay. (C) Recovery of the jewellery which the deceased was putting on at the time of the incident at the pointing out of the appellant; and, (D) a piece of cloth of the pant which the appellant was putting on was found in shrubs near the place of incident.
To prove the aforesaid circumstances, prosecution examined a large number of witnesses.
11. The defence of the appellant was that of denial and false implications. The learned trial Judge believed the circumstances (A), (B) and (C) and passed the impugned order by which, feeling aggrieved, the appellant has come up in appeal before us. We have heard Shri Suresh Kumbhar, counsel for appellant and Shri S.D. Rupavate, learned Additional Public Prosecutor, at considerable length. Both of them have argued the case with great vehemence and all fairness. Shri Kumbhar's contention is that the evidence adduced by the prosecution to prove various circumstances is not trustworthy and reliable and hence, we should reject it and acquit the appellant. Shri Rupavate on the other hand urges that the entire circumstantial evidence which has been adduced in this case is cogent and reliable and unmistakenly leads to the inference that it was the appellant alone who was the author of the crime and consequently this appeal should fail. Apart from hearing the aforesaid learned Counsel, we have also meticulously gone through the depositions of the witnesses recorded in the trial Court and also perused various Exhibits and the impugned judgment.
12. We now propose to take up the circumstantial evidence which has been relied upon by the learned trial Judge.
The first circumstance on which the learned trial Judge has placed reliance is 'Motive'. Evidence in respect of that circumstance has been given by P.W. 6 Mangala Ramchandra Sawant. Her evidence is that the appellant and deceased were having an affair. Appellant who was a rickshaw driver used to take the deceased on his rickshaw. Sometimes before the incident the appellant lost interest in the deceased and started loving another girl. P.W. 6 also deposes that the appellant told the deceased that he would not marry her. It is also stated by P.W. 6 that appellant had borrowed Rs. 1000/- from the deceased out of which, he paid back only Rs. 200. We have carefully examined this evidence of 'Motive' and in our considered opinion, it fails to inspire confidence. It is true that Mangala Ramchandra Sawant is an independent witness, but the settled norms of appreciation of evidence are that the evidence of independent witnesses is not mechanically accepted as 'gospel truth'. Before evidence of such a witness is accepted by a Court, it has to pass the test of truthfullness and has to be in consonance with probabilities. To our mind, it does not seem probable that the appellant after losing interest in the deceased and after commencing an affair with another girl would have been so cruel and callous that he would have done away with her. Similarly the story that the appellant did not want to pay back Rs. 800/- (Eight hundred) and hence did her to death does not cut much ice, either. There is no evidence on record that the deceased was demanding back Rs. 800/-. The golden rule in criminal cases is to prefer the probable to the possible and applying that golden rule, we cannot persuade ourselves in accepting that there was a plausible motive for the appellant to commit murder of deceased. Consequently, we find that prosecution has failed to prove the circumstances of 'Motive' against appellant.
13. We next come to the circumstance of 'last seen'. Shri Rupavate, learned Additional Public Prosecutor says that it is the most clinching circumstance against the appellant and should be accepted by us, for the evidence of P.W. 10 Dashrath Ganpat Kadam who has been examined to prove it, inspires confidence. We regret that we cannot accept Shri Rupavate's contention. In the trial Court, he P.W. 10 deposed that on 1st November, 1988, at 11 a.m. at Pen, he took over as conductor of the bus which was coming from Borivili to Guhagar. When the bus was about to start, he checked and found that two passengers were short in it. In the meantime, two passengers are alleged to have come running. One of them, was a male and the other a female. It is alleged that the male person sat near him on Seat No. 31, whereas the female passenger sat on the bench besides his seat. Evidence of P.W. 10 is that the female passenger was putting on a Pink punjabi dress and a 'odhani'. Those articles were produced by the prosecution and numbered as Articles 8, 9, 10 and 12 and this witness on seeing them said that they were the same articles which the female passenger was putting on. His evidence further is that on 17th November, 1988, he was called to police station, Khed where he recognised the appellant. We have meticulously examined the evidence of this witness and for the reasons enumerated hereinafter, we do not think that his evidence inspires confidence. In the first line of his cross-examination, he stated that since the last nine years, he has been working as a conductor and in that time span, he must have carried about 50,000 passengers. We are not prepared to believe that his memory was so good that he remembed the deceased and the appellant. There are good reasons for us to feel this way. The learned cross examiner in the trial Court rightly tried to test the veracity of this witness in the context of his claim that he could remember faces and features of the appellant and the clothes of the deceased. In reply to the question as to how many passengers got down on 1-11-1988, he replied that he could not tell the number. We further find that in his statement under section 161 of Cr.P.C., there is no mention that the appellant was sitting on Seat No. 31. It is true that he recognised clothes of deceased but, then was fair enough to admit that such clothes are easily available in the market. We also find that there was considerable delay in recording his statement under section 161 of Cr. P.C. We fail to understand that when this witness was called to police station Khed, on 17-11-1988, then why his statement under the aforesaid section was not recorded the same day, but, instead was recorded on 30-11-1988, that is thirteen day later. In view of the aforesaid infirmities, in our opinion, it would not be prudent and safe for us, to place reliance on his testimony. We feel that in the instant case, the proper thing would have been if instead of this witness being called to police station to identify the appellant, a test identification parade of the appellant should have been arranged in jail and this witness should have been sent to identify him there.
14. We next come to the testimony of P.W. 8 Manojkumar Dadajirao More and P.W. 9 Constable Visharam Ghadashiv, who are alleged to have seen the appellant at about 6 p.m. on 1-11-1988. Taking up the evidence of P.W. 8 Manojkumar More, we find that his evidence is to the effect that he plies a rickshaw. At about 5.30 to 6.00 p.m. on 1-11-1988, when this witness was at Pethe Khanaval stop, appellant came to him and enquired whether at that time, there was a bus for Bombay. This witness is alleged to have told the appellant that at that time, there was no bus for Bombay, but he could go there by a truck. Consequently, the appellant on his rickshaw went to Bharana Naka. There both of them had tea together in a hotel and after they were coming out of the hotel, a truck stopped on the highway, and the appellant and a constable by the name of Vishram Mahadeo - Ghadashi boarded the aforesaid truck. We have also evaluated very thoughtfully the testimony of this witness and having done that, we feel that it would not be safe for us to place reliance on his testimony. The witness frankly admitted that being a rickshaw driver, he had come to keep acquaintance with the police. The submission of Shri Kumbhar, learned Counsel for appellant, is that on account of pressure of police, this witness had voluntered to become a witness in the instant case. Shri Kumbhar also submitted that it is extremely improbable that the appellant would have had tea in a hotel with this witness. He also submitted that it is unhappy coincidence that just at the time when P.W. 9 Visharam Mahadeo Ghadashi had to board the truck he and appellant also came out from the hotel. Shri Kumbhar contended that this witness admitted that daily he carries about 80 passengers and what was there so special in the appellant that he remembered him. This witness also said that at the police station on 12th November, 1988 that appellant was shown to him. It was in the background of the aforesaid infirmities, that Shri Kumbhar submitted that the proper thing would have been that instead of this witness being called at the police station and identifying the appellant there the test identification parade of the appellant should have been arranged in the jail and P.W. 8 should have been sent to identify the appellant there. For the aforesaid reasons, we do not find his evidence to be of a reliable nature and accordingly we reject it.
15. The next witness is Constable Visharam Mahadeo Ghadashi, P.W. 9 who was attached to Shrivardhan police station and on 1st November, 1988 had gone to a Court in Ratnagiri for giving evidence and after giving evidence, while he was returning back home at Bharnanaka, boarded a truck which the appellant also boarded along with him. This witness was searchingly cross-examined and in our opinion, he is not a dependable witness. We have to assess his testimony in the background of the fact that he is a police witness and understandly the police must have been hard-pressed to work out this murder case. Hence, we are exercising caution in evaluating his testimony. There are circumstances to show that he is not a truthful witness and that his presence at Bharnanaka at the time given by him was not probable. In the first instance, he says that he did not remember the number of the sessions case in which he had gone to depose on the date of incident. The prosecution has not produced any documentary evidence to prove that this witness had actually gone to the Court to give evidence. Secondly, he admitted that his work in the Court was over by 3 p.m. and instead of choosing the direct bus which was available from Ratnagiri, he chose to go to Bharnanaka and take a truck from there. Shri Kumbhar submitted that the story of this witness going from Ratnagiri to Bharna naka on a bus and boarding a truck there at 6 p.m. is a cooked up one. He submits that in the cross-examination, this witness first started that he did not find out as to whether there were buses from Ratnagiri to Bharnanaka between 2 to 5 p.m. and then went on to say there was a bus for Bharnanaka at about 2.30 p.m. Shri Kumbhar urged that if the work of this witness in the Court got over at 3 p.m. he could not have reached in time to catch that bus. We further find that it is a unhappy coincidence that he and the appellant boarded the same truck at Bharnanaka. This witness also admitted that he had seen the appellant at police station, Khed. In the background of these infirmities, the proper thing would have been for the investigating agency that instead of asking this witness to identify the appellant at police station, to arrange appellant's identification parade in jail and to send this witness to identify him there. For the aforesaid reasons, we reject him testimony. We feel being a police personnel the investigating agency found it most convenient to induct his as a witness in the instant case.
16. We next come to the evidence of recovery of jewellery which the deceased was putting on at the time of the incident. The aforesaid recoveries are said to have been effected at the pointing out of the appellant and the contention of Shri Rupavate is that on its basis the appellant at least can be convicted under section 411 I.P.C. In support of his submission he cited the decision of the Apex Court in the case Surjit Singh & another v. State of Punjab. The recoveries at the pointing out of the appellant are a pair of Zhumka and Fullys from Ambika Jewellers and a golden chain which was converted from Mohanmal by Shantilalji Devilalji Kothari of Shanti Jewellers and was recovered from the house of Sudesh Sawant to whom the appellant had given the aforesaid chain. The public panch in respect of recovery of jewellery is P.W. 13 Vijay Maruti Dule. Exhibit 31 and 32 is recovery memo pertaining to recovery of jewellery from Ambika Jeweller. In the aforesaid recovery memo, we find there is no mention of the name of Ambika Jewellers and we also find that in it, there is no mention of a pair of Fully. Further, we find that P.W. 13 Vijay Maruti Dule in his statement in the trial Court deposed that recovery of Zhumkas and Fullys at the pointing out by the accused took place from the shop of Ambika Jewellers but, in the recovery memo Exhibit 32, what has been mentioned is that the aforesaid recovery took place from Alankar Jewellers. Naturally, all this throws a cloud of doubt on the aforesaid recoveries and makes it fishy. The learned Additional Public Prosecutor Shri Rupawate, could not explain to us this contradiction between the recitals in the recovery memo and the statement of this witness in the Trial Court. The least which can be said is that in view of the aforesaid infirmities the evidence with respect to recovery of Zhumkas and Fullys fails to inspire confidence. Consequently we reject the aforesaid recovery evidence.
17. We next turn to the evidence of P.W. 14 Shantilalji Devilalji Kothari who deposed that on 2nd November, 1988 the appellant had come to his place with a 'Mohanmal' and asked him to have the same converted into a chain. This witness is said to have told him that he would give him chain on 5th November, 1988. Evidence of this witness is that on 5th November, 1988, he issued a receipt to the appellant for Rs. 70/- (Seventy) as labour charges. The aforesaid receipt is Exhibit 34. We feel pained in observing that the evidence of this witness does not inspire confidence and Exhibit 34 is a document which was subsequently prepared. This witness says that on 2nd November, 1988, it was the appellant who came and gave him 'Mohanmal' and on 5th November, 1988, he issued a receipt to him but, in the receipt (Exhibit 34) we find that name of the person in whose favour it was given was one Nandkishore Chavan. We examined the original Exhibit 34 also. We find that it has been prepared on a piece of paper on which even the name of Shanti Jewellers has not been printed and it appears that an effort has been made to erase something earlier written on it. The learned trial judge in para 36 of his judgment has conceded that this has been done. In the teeth of the fact that in Exhibit 34, name of Nandkishore Chavan is mentioned, the whole story that it was the appellant who came on 2nd November, 1988 and gave to P.W. 14 Shantilalji Devilalji Kothari the 'Mohanmal' for getting it converted into a golden chain and on 5th November, 1988 took that chain and it was the same chain which was recovered from Sawant's house becomes doubtful and suspicious. It is a matter of common knowledge that jewellers, if they are to conduct their business, have to keep the police on their right side and what appears to us that this document Exhibit 34 has been subsequently manufactured at the instance of the investigating agency. Since the evidence of recovery fails to inspire confidence, Mr. Rupavate's submissions that the appellant, at any rate is guilty of an offence under section 411 I.P.C. is rejected.
18. Coming to the last piece of circumstantial evidence, namely that on 26th November, 1988 in the presence of P.W. 16 Deputy S.P. Anand Mandya, from the business near the place of incident, a piece of cloth was found and texture of that cloth was the same as that of the pant which the accused was putting on and which was taken into possession by the police. We find that public panch P.W. 5 Manoj Anant Ghude who was examined to prove this recovery stated in the trial Court "nothing was seized from there". Prosecution did not even get the witness declared hostile and cross-examined him. Consequently, the trial Judge was left with no other option but, to reject this piece of circumstantial evidence and he did that in our opinion, very rightly.
19. In view of the aforesaid infirmities, we hold that the prosecution has failed to proved its case against the appellant beyond reasonable doubt. In our opinion, the maximum which can be said in favour of the prosecution is that a strong suspicion has been created against the appellant and that the prosecution case may be true. But strong suspicion and may be true are not good enough to record a finding of guilt in a criminal case. Gajendragadkar, J., (as he then was) in the case Sarwan Singh v. State of Punjab, observed that suspicion howsoever strong, can never take the place of proof. In the same decision, Justice Gajendragadkar further observed that between 'may be true' and 'must be true', there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence. We regret that this distance has not been travelled by the prosecution in the instant case, by legal, reliable and unimpeachable evidence. In the result, this appeal succeeds. The judgment and order dated 6th December, 1991, passed by the Additional Sessions Judge, Ratnagiri convicting the appellant under section 302 I.P.C. and imposing life imprisonment on him is hereby set aside and the appellant is acquitted of the offence under section 302 of the Indian Penal Code. The appellant is in jail and shall be released forthwith unless wanted in some other case.