Bombay High Court
Shivaji Vasang Bagale vs The State Of Maharashtra on 18 October, 2011
Author: V. M. Kanade
Bench: V. M. Kanade, A. M. Thipsay
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VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 101 OF 1991
Shivaji Vasang Bagale
residing at Bombay
At present convicted Prisoner
in Yerawada Central Prison
Yerawada, Pune ....Appellant.
Vs.
The State of Maharashtra
ig ... Respondent
--
Mr. Niranjan Mundargi i/b Mr. A. P. Mundargi, for the Appellant.
Ms. A. T. Jhaveri, APP for the Respondent-State
CORAM : V. M. KANADE, &
A. M. THIPSAY, JJ.
CLOSED FOR JUDGMENT ON : AUGUST 30, 2011
JUDGMENT PRONOUNCED ON : OCTOBER 18 , 2011
JUDGMENT [ PER : V. M. KANADE, J.]
1. The appellant Shivaji Vasant Bagale has filed this appeal
against the judgment and order passed by the Additional Sessions
Judge, Sawantwadi, Sindhudurga, dated 13th December, 1990. By the
said judgment and order the appellant was convicted for the offence
punishable under Section 302 of the I. P. Code and sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs. 500/- and in
default in payment of fine to suffer further three months simple
imprisonment. He is also convicted for the offence punishable under
Section 201 of the I.P. Code and sentenced to suffer one year rigorous
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imprisonment and to pay fine of Rs. 200/-; in default to suffer further
simple imprisonment for one month. The substantive sentences were
directed to run concurrently.
2. The brief facts in nutshell are as under-
. The deceased Sudha was residing at village Terse-
Bambarde, taluka Kudal. She was wife of Arjun Puralkar who was
residing in Mumbai. On 7-11-1988 deceased Sudha left her house to
purchase food grains and other articles from the fair price shop at
about 3.00 p.m. and after purchasing the required articles from the fair
price shop, she went to the house of maternal uncle Ankush Daji
Gawade (PW 6), had a cup of tea and left his place at about 5.30 p.m.
However, she did not return home and therefore, efforts were made
by her relatives to find her and a missing report was thereafter lodged
at the police station. The said missing report was reduced into writing
by the police and signature of PW 1 Govind Puralkar was obtained.
Thereafter on the next day, again PW 1 who was brother of the
husband of deceased Sudha along with others and while passing the
place, called Rede Galli they found broken pieces of bangles and
slippers of deceased Sudha and therefore information was given to the
police. Soon after the police arrived at the spot and at that time Daji
Gawade (PW 7) informed the police that Shivaji Bagale, the appellant
herein, was seen on the previous night besides the bushes at Redegalli
and accordingly, police went in search of Shivaji Bagale. He was
arrested in presence of witnesses and police made inquiry with the
accused and took search of his clothes and found a Mangalsutra. At
that time the accused confessed that he had committed the murder of
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Sudha and thrown her dead body in a well and thereafter accused took
them towards the well. Thereafter the dead body was recovered from
the well. FIR was registered and thereafter sari of the deceased was
recovered at the instance of the accused from another well. So also
the articles such as the bag and the tin in which rationing articles were
purchased by the deceased were recovered at his instance. The
prosecution examined 20 witnesses and closed its evidence. Statement
of the accused was recorded under Section 313 Cr. P. C. The trial
court held that the prosecution has established its case beyond
reasonable doubt and convicted the accused.
3. The learned counsel appearing on behalf of the appellant
submitted that case of the prosecution was based on the circumstantial
evidence. It was submitted that chain of circumstances on which
reliance was placed by the prosecution has not been established
beyond reasonable doubt by the prosecution and there was a missing
link in the prosecution case. It was submitted that the entire
prosecution case was based on the extra judicial confession of the
accused in presence of the witnesses when he was apprehended by the
police and that as a result of the said confession before the police he
had shown the place where the dead body was thrown in the well and
the said dead body was recovered at his instance. It was submitted that
the said extra judicial confession and the discovery which was made
at the instance of the accused has to be discarded, being hit by Section
25 of the Indian Evidence Act and being violative of Article 20(3) of
the Constitution of India. Secondly, it was submitted that there were
several discrepancies, contradictions and omissions in the evidence of
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the prosecution witnesses in respect of various circumstances and
therefore, no reliance could be placed on the evidence of said
prosecution witnesses. Thirdly, it was submitted that two different
versions have been given regarding the apprehension by the police
and admittedly no panchanama was made when search of the
appellant was taken. No panchanama was made at the time of
recovery of dead body by the accused and therefore, the
circumstances about the so called recovery of Mangalsutra and
Rs.67/- as well as the dead body, could not be relied upon. Similarly,
the recovery of ration articles allegedly purchased by deceased Sudha
at the instance of appellant on 9-11-1988, recovery of sari of deceased
Sudha on 10-11-1988 could not be relied upon. He also submitted that
the witnesses had suppressed the material fact that relation of the
deceased with her husband was strained. The learned counsel has
taken us through the evidence of the witnesses and also the impugned
judgment and order passed by the trial court.
4. On the other hand, learned APP appearing on behalf of
the respondent-State has submitted that the prosecution had
established the chain of circumstances which clearly point out to the
guilt of the accused. She submitted that upon the discovery of the spot
at which the incident had taken place, the police sprung into action
and name of the appellant cropped up as a person who was seen at the
spot on the earlier date by PW 2 and therefore, police went in search
of the accused and the accused was apprehended. He was searched
and a Mangalsutra was found in his pocket. He then confessed to the
police and showed the dead body which was removed from the well at
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his instance. Thereafter the sari was also recovered at his instance
from another well and the rationing articles which were kept behind
the bushes were also recovered. It is, therefore, submitted that these
circumstances clearly indicated involvement of the accused/appellant
in the commission of the said offence. He also relied upon the two
judgments of the Apex Court in support of his submission.
REASONS
5. Before we advert to the rival submissions made by the
learned counsel appearing on behalf of the accused and the State, it
has to be noted that entire case of the prosecution rests on
circumstantial evidence. It has to be kept in mind that in case where
evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn are in the first instance to be
fully established and all the facts so established should be consistent
only with the hypothesis of the guilt of the accused. Secondly, the
circumstances should be of a conclusive nature, and they should be
such as to exclude every hypothesis but the one proposed to be
proved. To put it in other words, there must be a chain of evidence is
so complete that it will not leave any reasonable ground for drawing a
conclusion consistent with innocence of the accused and it must be
such as to show that within all human probability the act must have
been done by the accused.
6. The Apex Court in a series of decisions has consistently
held that when a case rests upon the circumstantial evidence, such
evidence must satisfy the following tests-
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(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 there that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(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 only be consistent with the guilt of the
accused but should be inconsistent with his innocence [ see :
Gambhir v. State of Maharashtra (1982 Cri. L. J. 1243) ];
7. It is an admitted position that in the present case the
prosecution is relying on circumstantial evidence. It is necessary,
therefore, to lay down the circumstances on which the reliance is
placed by the prosecution to prove its case
(1). On the date of the incident i.e. on 7-11-1988 the deceased
Sudha left her house at about 3.00 p.m. to purchase articles
from a fair price shop which is situated at a distance of about
one & half miles from her residence. While going to the
rationing shop, she was wearing Mangalsutra, two ear rings, a
green coloured sari; she was also waring green colour bangles
and had a tin in her hand along with cotton bags;
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(2) she purchased the food-grains from the fair price shop;
(3) after purchasing food-grains, she went to the house of her
maternal uncle PW 7, had a cup of tea and left his house at 5.30
p.m. (confirm timing);
(4) she did not return home and therefore, her relatives made every
effort to find her. However, here whereabouts were not located
and therefore, a missing report was lodged by her maternal
uncle with the police station on the same date;
(5) on the next day, again all of them went in search of deceased
Sudha. At one place, they found broken bangles and it appeared
that there was scuffle at that place. Therefore, this information
was given to the police and police arrived at the scene;
(6) PW 7 Daji informed the police that PW 2 had told him that he
had seen the accused hiding in the bushes on the earlier date
and therefore, the police went in search of the accused;
(7) the police found accused, enquired with him, took search of his
clothes and found a Mangalsutra in his pocket. He thereafter
confessed that he had committed murder of deceased Sudha and
agreed to show the place where he had thrown her dead body in
a well;
(8) the accused along with police and another witnesses showed the
well where he had thrown the dead body and the said body was
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removed from the well with the help of a bamboo stick;
(9) the accused was arrested and remanded to the police custody
and on 9-11-1988 he agreed to show the place where the
rationing articles purchased by deceased Sudha were kept.
Accordingly, they were discovered at his instance and the
panchanama was made in presence of panchas;
(10) three days thereafter discovery of sari was made at his instance
from another well;
(11) a post-mortem was performed and the doctor gave his opinion
that it was a homicidal death.
These are the circumstances on which reliance was placed by the
prosecution to establish guilt of the accused in commission of the said
offence of murder.
8. The prosecution, therefore, has mainly relied on the
discovery of dead body at the instance of the accused; recovery of
Mangalsutra from his pocket; and subsequent recovery of rationing
articles and sari at his instance. The prosecution also relied on the
statement of PW 2 who alleged that he had seen the accused hiding
behind the bushes in the evening at about 5.30 p.m. on the said road
where the incident had taken place and the statement of the witnesses
to corroborate the search which was undertaken and the information
about pointing out spot to the police and the subsequent apprehension
of the accused in the village. Physical search has been taken by the
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police and the recovery is made at his instance and the statement of
the witnesses to the effect that she was wearing a Mangalsutra and ear
rings and identification of the Mangalsutra which was found in the
pocket of the accused. The police also relied on the spot panchanama,
inquest panchanama and recovery of rationing articles and
panchanama of recovery of sari and the evidence of the panch
witnesses.
9. Before we scrutinize and appreciate the evidence to see
whether the said circumstances mentioned hereinabove have been
established by the prosecution beyond reasonable doubt, it will be
necessary to take into consideration the legal position in respect of
(1) search of the accused by the police and seizure of the articles
from his person;
(2) evidentiary value of the things which are recovered at the
instance of the accused.
Section 51 of the Criminal Procedure Code lays down the provisions
in respect of search of arrested person which reads as under -
"S. 51. Search of arrested person - (1) Whenever a
person is arrested by police officer under a warrant which
does not provide for the taking of bail, or under a warrant
which provides for the taking of bail but the person
arrested cannot furnish bail, and
whenever a person is arrested without warrant, or
by a private person under a warrant and cannot legally be
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admitted to bail or is unable to furnish bail, the officer
making the arrest or, when the arrest is made by a private
person, the police officer to whom he makes over the
person arrested, may search such person, and place in
safe custody all articles, other than necessary wearing
apparel, found upon him and where any article is seized
from the arrested person, a receipt showing the articles
taken in possession by the police officer shall be given to
such person.
(2) Whenever it is necessary to cause a female
to be searched, the search shall be made by another
female with strict regard to decency."
Plain reading of the aforesaid provision clearly discloses that there is
no provision which requires the panch to be called in case of search of
the person. However, an obligation is to put on the police officer to
put all the articles which are on his person in police custody and give
receipt showing the articles taken in possession by the police officer
to such person.
10. Section 46 of the Criminal Procedure Code lays down
how an arrest is to be made. Section 46 reads as under-
"S.46 Arrest how made - (1) in making an arrest the
police officer or other person making the same shall
actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by
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word or action.
(2) If such person forcibly resists the endeavour to
arrest him, or attempts to evade the arrest, such police
officer or other person may use all means necessary to
effect the arrest.
(3) Nothing in this section gives a right to cause the
death of a person who is not accused of an offence
punishable with death or with imprisonment for life.
[(4) Save in exceptional circumstances, no woman shall
be arrested after sunset and before sunrise, and where
such exceptional circumstances exist, the woman police
officer shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first class
within whose local jurisdiction the offence is committed
or the arrest is to be made.]
The word 'arrested person' which is used in section 51, therefore, has
to be read in the context of provisions of section 46 of the Criminal
Procedure Code. It follows, therefore, that even if person is not taken
in custody in the police station when formally his body is confined by
the police by touching, it would amount arrest of the person.
11. Section 27 of the Indian Evidence Act provides that
confession of the accused when he is in custody of the police station
though it is not admissible under section 25 or 26, if such confession
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is supported by discovery of a fact, the confession has to be presumed
to be true to that extent of discovery. The Privy Council in the case of
- Pulukuri Kottaya and Ors. Vs. Emperor1 has observed as under-
"10. Section 27, which is not artistically worded,
provides an exception to the prohibition imposed by the
preceding section, and enables certain statements made
by a person in police custody to be proved. The condition
necessary to bring the section into operation is that
discovery of a fact in consequence of information
received from a person accused of any offence in the
custody of a Police Officer must be deposed to, and
thereupon so much of the information as relates distinctly
to the fact thereby discovered may be proved. The section
seems to be based on the view that if a fact is actually
discovered in consequence of information given, some
guarantee is afforded thereby that the information was
true, and accordingly can be safely allowed to be given in
evidence; but clearly the extent of the information
admissible must depend on the exact nature of the fact
discovered to which such information is required to
relate. Normally the section is brought into operation
when a person in police custody produces from some
place of concealment some object, such as a dead body, a
weapon, or ornaments, said to be connected with the
crime of which the informant is accused."
1 A.I.R. (34) 1947 Privy Council 67
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Various requirements of Section 27 of the Indian Evidence Act can be
summed up as follows-
(i) the fact of which the evidence is sought to be given, must be
relevant to the issue;
(ii) the fact must have been discovered;
(iii) the discovery must have been made in consequence of some
information received from the accused and not by accused's
own act;
(iv) a person giving the information must be accused of any offence;
(v) he must be in custody of the police officer;
(vi) the discovery of an act must be deposed to;
(vii) only that portion of the information which relates distinctly or
strictly to the fact can be discovered;
12. The doctrine, therefore, is founded on the principle that if
any act is discovered after the search is carried out on the search of
any information obtained from the prisoner, such discovery is a
guarantee that the information supplied by the prisoner is true. It goes
without saying, therefore, that recovery of articles at the instance of
the accused has to be proved by the independent witnesses and not
merely on the statement of the police officer, unless it is shown that
compulsion has been used in obtaining the information. The Apex
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1
Court in the case of - Prabhoo Vs. State of U.P. observed that
statement of the accused that axe with which the murder has been
committed and his blood stained and dhoti were in the house, - were
incriminating statements made to the police officer and were hit by
Sections 25 and 26 of the Indian Evidence Act, and these statements
were not admissible in evidence. It further held that the circumstantial
chain in the case of - State of UP Vs. Deoman Upadhyaya2 did not
depend merely on the production of the gandasa but on the other
circumstances as well and the decision did not proceed merely on the
production of a blood-stained weapon. Similarly, in the case of -State
of Haryana Vs. Ram Singh3, the Apex Court has held that "where all
disclosures, discoveries and even arrests have been made in the
presence of the same three totally interested witnesses and no
independent witness was found out for the said purpose, it creates
doubt, benefit of which must go to the accused". Similarly, in the case
of - Bakshish Singh Vs. State of Punjab4 it was held that "recovery of
the dead body on the information given by the accused, only raised
strong suspicion against the accused".
13. Keeping in view the aforesaid observations made by the
Apex Court on the aspects of recovery, search and seizure by the
police from the accused, it will have to be examined whether the
prosecution has conclusively proved each circumstance against the
accused.
1 AIR 1963 SC 1113
2 (1961) 11 SCJ 334
3 AIR 2002 SC 620
4 AIR 1971 SC 2016
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14. Prosecution has examined in all 20 witnesses. There are no eye
witnesses to the said incident. P.W.1 - Govind Bhiva Puralkar is the
brother of the husband of the deceased. He has stated that the
deceased Sudha went to bring ration from fair-price shop at about 3.00
P.M. and did not come back till about 6.30 P.M and that she was
wearing earrings and there was Mangalsutra on her neck and she was
wearing green coloured saree. He has also stated that she had worn
slippers while going out and when she did not return till 6.30 P.M., he
sent his son Rajan Govind to see her and one Amrut with Vishnu and
one other person also had accompanied his son. They made inquiry at
fair-price shop. However, they learnt that she had left after
purchasing the food-grains. They also learnt that deceased Sudha had
gone to the house of her maternal uncle Ankush Gawade. He,
however, informed P.W.1's son that she had left at about 5.30 P.M. He
has stated that, thereafter, all of them tried to find her. However, there
was no trace of Sudha and, therefore, he lodged a missing complaint
at the Police Station. According to P.W.1, on the next day morning, he
again went in search of Sudha alongwith his brother and maternal
nephew. They also met Ankush Gawade while they were searching
her. While they were passing from the place called Redegali, they
found broken pieces of bangles and slippers of Sudha. He, therefore,
identified those bangles and slippers. They felt that some mishapped
had taken place and they stayed there and sent Kashiram to the Police
Station and after some time Kashiram and Police returned to the place
within a short time. Police were shown bangles and slippers. At that
time, Daji Gawade came there. He informed the Police that the
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accused Shivaji Bagale was seen there at previous night and,
therefore, Police went in search of Shivaji Bagale. He identified the
accused before the Court. According to him, Police brought the
accused at the place where they were sitting and the Police made
inquiry with the accused and the accused confessed before them that
he had committed murder of deceased Sudha and when inquiry was
made by the Police about dead body, he informed them that he had
thrown the dead body in a well called Vinantale and that he would
show them the well. ig When they reached the well, the accused
informed them that the dead body was thrown in the said well.
Thereafter, Police brought one bamboo stick and took search in the
well with the help of bamboo and the dead body of Sudha came up
floating after the water was stirred by the bamboo. The dead body of
Sudha was identified. Some injuries were also seen. According to
P.W.1, panchanama was drawn and the dead body was then taken to
Pune. He identified the broken pieces of bangles and slipper and
also the plastic Can which deceased Sudha had taken alongwith her,
the cloth bag (Article 15) which she had taken alongwith her and also
the cotton bag (Article 10). He also identified Article-1 as
Mangalsutra of deceased Sudha.
It has to be noted here that the version given by P.W.1 regarding
version by the accused and the discovery of dead body at the instance
of the accused and also of drawing up of the panchanama is different
from the version given by other witnesses and also the version given
by the Investigating Officer and other Police Officers who were
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examined by the prosecution. In the cross-examination, he admitted
that he and the husband of the deceased were residing separately for
four years, though he was residing in the same house. A suggestion
was made to him that the relations between Sudha and her husband
were strained and that his brother Arjun was residing with another
woman at Bombay and, therefore, Sudha was residing in village. A
suggestion was also made that his relations with the accused were not
cordeal and that they had boycotted the accused.
P.W. 2 - Santosh Bagale has stated that he used to sell milk in
the village and on 7/11/1988, while he was passing through Redegali
at 3.30 P.M., he noticed deceased Sudha purchasing at the Ration
Shop. After he had delivered milk in the house of one Mr. Dalvi,
while returning back at 4.30 P.M., he saw the appellant/accused hiding
behind the bush on the way of Redegali. He has stated that, on the
next day, he informed one Daji Gawade and Ankush Gawade that
while he was returning from Dalvi's house after delivering milk to
him, he noticed that the accused was trying to hide behind the bush at
Redegali. In the cross-examination, a suggestion was made to him
that there were number of cases pending in the Kudal Court between
his father and father of the accused. He admitted that the accused was
his cousin and he was staying in the adjoining house.
P.W. 3 - Nakul Dewoo Dicholkar has stated that he was called
by the Police at Kudal Police Station on 8/11/1988 for panchanama.
He has stated that the Police took personal search of the accused in his
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presence and found one packet in his pants' pocket. The said packet
was containing golden Mangalsutra. The goldsmith was called who
weighed the Mangalsutra and found that it was of 38 Gms and 900
Ml.grms. He further stated that the accused took out currency notes
from the left pocket of his pants and the currency notes were of Rs
67/-. The shirt and pants were also seized by the police and he
(P.W.3) put his signature on the panchanama. The name of other
panch was Pingulkar who also put his signature on the panchanama.
P.W.3 also stated that they noticed buttons of the shirt of the accused
was untied and there were blood stains near button Nos. 2 and 3 of the
said shirt.
P.W. 4 - Harishchandra Dattaram Kharode, who was called as a
panch, had prepared the spot panchanama and the inquest panchanama
at Exhibits-17 and 18. This witness has stated that he was called by
the Police on 8/11/1988 at Redegali and he found pieces of green
bangles lying there. The Police had shown the place and that the
accused also showed the place. He has stated that they found one
slipper and that it was of left leg and then they found another slipper
of right leg. He has stated that the accused explained that the earth
there was disturbed because he had dragged Sudha from that place to
the well, known as Vinantale. They noticed dragging marks on the
earth upto the said well. The pair of slippers was seized. The pieces
of bangles were also seized and kept in the packet (Article-9).
According to him, after the spot panchanama, one more panchanama
near the well was drawn. According to him, there was a dead body of
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Sudha in the well and panchanama of the dead body was also drawn.
He noticed some injury marks on the dead body. Some abrasions
were noticed above the eye-brows and the abrasions were also noticed
at her lips. He also noticed abrasions to both the elbows of the dead
body and some injury like abrasions to the waist and also at the
bottom of the ankles. He noticed that there was red colour peti-coat
and green colour blouse on the dead body. The inquest panchanama
was signed by him as also by one lady panch by name Saraswati and
that there was also another panch by name Shantaram. In the cross-
examination P.W.4 has stated that number of persons had assembled
near the well before their arrival and the dead body was in the well
water. He has stated that no separate panchanama was drawn to show
that the body was in the well water. He has further stated that the
panchanama was drawn after taking out the dead body out of the well
water and, thereafter, the dead body was kept at a distance of 1 feet
away from the well.
P.W. 5 - Mangesh Fatu Gawade is also a panch witness. He
was examined to prove the panchanama of seizure of clothes of the
deceased which is at Exhibit-20.
P.W. 6 - Ankush Daji Gawade is another witness, who has
stated that the deceased Sudha was daughter of his sister. He has
stated that on 7/11/1988, the deceased had come to his house at about
5.00 P.M. after purchasing ration from rationing shop. She had stayed
there for about half an hour and left his house at about 5.30 P.M. He
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has stated that she was wearing Mangalsutra and earrings and that she
was wearing sky coloured saree and black blouse and green coloured
bangles and was having ration bag, one jute bag and one white Can
containing oil. He identified the articles which were shown to him.
He has stated that at about 7.30 P.M. to 8.00 P.M. Rajan Puralkar and
two to three persons arrived at his house and inquired about Sudha
and he informed them that she had left his house at about 5.30 P.M.
He, therefore, alongwith others went in search of Sudha and since
there was no trace of Sudha, P.W.1 Govind, Rajan and Daji Gawade
went to Police Station for lodging the missing complaint. He has
stated that, on the next day, when he had gone in search of Sudha
alongwith P.W.1 and one Uday, they found green coloured broken
pieces of bangles near Redegali and also found pair of slippers there.
According to him, he suspected some foul-play and, at that time,
Police arrived there since the complaint was already given to the
police. According to him, Police already had received the information
that one person was hiding himself besides the bushes near Redegali
and the Police, therefore, went alongwith Rajan to search the person
who was present there and who was known to Rajan Gawade, his son
and Daji Gawade and after some time Police returned with the
accused who confessed before them that he had committed murder of
deceased Sudha for money and then he had showed the place where
the dead body was thrown. According to him, Police brought one
bamboo stick which was given in the hand of the accused. The
accused then stirred the well water and Police thereafter took the
bamboo stick in his hand and stirred it and the dead body came up
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which was recognized by the witness. In the cross-examination, he
admitted that the husband of Sudha was working at Bombay and that
there might be some dispute between her and her husband.
P.W. 7 - Daji Anant Gawade has stated that, he returned home
at 9.00 P.M. on 7/11/1988 and he, alongwith P.W. 1- Govind, son of
Govind Rajan Puralkar, his uncle Ankush (P.W.6) went in search of
Sudha who was missing since evening and, on the next day, near
Redegali, they found pair of slippers and broken pieces of bangles.
According to him, he went to P.W. 2 - Santosh Bagale to make
inquiry about Sudha and he informed him that he had seen the accused
hiding behind the bush at Redegali and that he had seen him at about
5.30 P.M. According to him, he gain went to Redegali and, at that
time, Police Jeep arrived there and he informed the Police that P.W.2 -
Santosh had informed him about presence of the accused on the
previous evening and, therefore, he alongwith his brother Rajan and
Police went to search the accused. They found the accused while he
was proceeding to Kamler and the Police apprehended him.
According to him, Police asked the accused to show his belongings
and, at that time, accused took out one bag in which there was golden
Mangalsutra and also cash of Rs 67 from his pocket. He also stated
that the accused confessed that he had committed murder of Sudha
and had taken out her Mangalsutra. He stated that the Police made
inquiry with the accused as to what he had done on that day in his
presence and the accused replied that he had seen Sudha going to
bring ration and, therefore he hided himself behind the bushes and
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after she arrived, he apprehended her and committed her murder and
had taken her Mangalsutra and cash of Rs 67 and dragged the dead
body of Sudha and had thrown it in the well at Vinantale. Thereafter,
the accused was given a bamboo stick who put it in well water and
stirred it and the dead body came up. He identified the dead body and
found injury marks on the dead body. The injury marks were on the
head and to the anklet. In the cross-examination, he admitted that no
memorandum of statement of the accused was drawn nor was
panchanama of the personal search of the accused was drawn there.
He also admitted that Police had not mentioned in his statement that
he had informed the police that the accused had stated before them
that he had hidden himself behind the bushes. The said omission was
accordingly brought on record. Similarly, omissions about the
Mangalsutra and earrings not to be found on the body were also noted.
P.W. 8 - Shankar Gangaram Sawant is a panch witness in
respect of recovery of articles purchased by deceased Sudha at the
instance of the accused which he had concealed near the place of
offence. He has stated that he was called by the Police on 9/11/1988 at
Police Station Kudal and the accused made a statement before the
panch witness that he was ready to point out articles which were
concealed by him. The memorandum of statement of accused was
brought on record at Exhibit-26. According to him, the accused took
out one cloth bag full of grain and then he took out one gunny bag
made of jute and he also took out one white coloured plastic Can of
two litre capacity and one bag containing 2 kilograms sugar. He also
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took out one purse and that he also took out one ration card from
there. A panchanama was prepared and it was brought on record at
Exhibit-27.
P.W. 9 - Subhash Trimbak Kulkarni is the Medical Officer who
performed postmortem of the dead body. He has given external
injuries which were found on the dead body and stated that there was
no possibility of death by drowning and the cause of death was due to
shock by fracture of the skull bone. He has also stated that he took the
blood sample of the dead body and it was sealed and the phial was
handed over to the Police. The blood sample of Shivaji Bagale was
taken on 16/11/1988 and it was referred for chemical analysis.
P.W.10 - Balkrishna Narayan Manjrekar is the panch witness
and he was examined to prove the recovery of saree at the instance of
the accused. He has stated that the Police called him to the Police
Station on 10/11/1988 and the accused mentioned that after throwing
the dead body in the well, he came back to the spot where her saree
was left and then he took the saree and threw it in the well of Gundu
Nagvekar. He has proved the memorandum of statement of the
accused and it was brought on record at Exhibit-31. The accused
recovered the saree from the said well which is marked as Article-20.
P.W. 11 - Vijay Vasudeo Masurkar has stated that the deceased
Sudha was his mother's sister. He has stated regarding the inquiry
made by P.W. 7 - Daji Gawade, P.W. 1 - Govind Puralkar and his son
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Rajan Puralkar at about 11 P.M. on 7/11/1088 about disappearance of
Sudha after she had purchased ration at the fair-price shop. He has
further stated that, on the next day, in the morning, they went in a
tempo to village Bambarde alongwith P.W. 7 - Daji Gawade, P.W. 1 -
Govind Puralkar and his son Rajan Puralkar and Satyawan Gawade,
the maternal uncle of P.W.11. He has stated that that at about 9.00
A.M., they noticed some pieces of green bangles on the way of
Redegali and they also found pare of slippers. He has stated that after
some time Police came there and P.W. 7 also reached there, who
informed the Police that he had learnt from P.W. 2 that the accused
was hiding his presence at the same spot on the previous day at about
5.00 to 5.30 P.M. He has then stated that the Police thereafter went to
search the accused alongwith P.W. 7 - Daji Gawade and Rajan
Gawade and the said two witnesses came back at 12 noon alongwith
the accused. He has stated that the Police made inquiry with the
accused and the accused confessed in their presence that he had
beaten Sudha and then killed her and the accused, thereafter, led all of
them and the Police towards the well and the dead body of Sudha was
removed with the help of bamboo stick. He has stated that the Police
drew the panchanama of dead body.
P.W. 12 - Rajan Govind Puralkar, who is the son of P.W.1, has
also narrated the story regarding disappearance of Sudha after she had
purchased articles from the fair-price shop. He has corroborated the
statement of other witnesses in respect of missing report in the Police
Station. He has stated that on the next day morning, his father and
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Satyawan went to Redegali and he followed them after some time and
his father showed him the broken pieces of bangles and pair of
slippers at Redegali. He has narrated the incidence of the accused
being brought to the spot and the confession made by him and the
removal of the dead body from the well by the accused and the
panchanama being drawn by the Police.
P.W. 13 - Malini Bhiva Puralkar is the sister of the husband of
deceased Sudha. She has stated that she was residing with deceased
Sudha and she has narrated the incident which took place on
7/11/1988 till disappearance of Sudha and the dead body of deceased
being subsequently recovered at the instance of the accused. She
identified the saree and the Can and the cloth bag as well as
muddemal slippers and the purse as also the blouse which Sudha was
wearing.
P.W. 14 - Narayan Kaka Dabholkar has stated that the accused
was apprehended in his presence when they were sitting under the
Pimpal tree. He has stated that when he and Prabhakar Dicholkar,
Uttam Koregaonkar and the accused were sitting under the tree, Police
came there and they took search of the accused and one Mangalsutra
was found in the pocket of the accused. According to him, Police
asked the accused as to whom the Mangalsutra belonged to.
However, according to him, the accused did not give any answer. He
has stated that he could not identify whether the Mangalsutra which
was now shown to him was the same which was found in the pocket
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of the accused. He does not state that any panchanama was made at
that time or that the accused had confessed that he would show the
dead body of the deceased or that he had committed murder of Sudha.
P.W. 15 - Sadashiv Vithal Prabhu is the owner of the fair-price
shop. He has admitted that on the date of the incident i.e on
7/11/1988 deceased Sudha had been to his ration shop and he had sold
her food grain and that she had also purchased 4 gunny bags, besides
ration from his shop and that she left at about 4.45 P.M. He identified
the gunny bags at Article 16 which were purchased from him and also
the plastic Can.
P.W. 16 - Prabhakar Atmaram Dicholkar has also deposed
about the apprehension of the accused by the Police. He has stated
that the accused was standing under the Pimpal tree and upon inquiry
being made by the Police about the accused, he had pointed out the
accused to the Police. He has stated that the Police took personal
search of the accused in his presence and he alone was present at that
time since rest of the persons already left from Pimpal tree. He then
stated that the personal search of the accused was taken in his
presence and in the presence of Daji Gawade and Rajan Gawade who
had accompanied the Police and one Mangalsutra was found in the
rear pocket of the accused and the sum of Rs 67/- was found in the
pocket of his shirt. He has stated that when the Police inquired about
Mangalsutra, the accused was reluctant to state anything about 5 to 10
minutes and when Police gave 2 to 3 blows to the accused the accused
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confessed that the Mangalsutra belonged to deceased Sudha. He has
stated that the Police obtained his signature on the panchanama and
that the panchanama was scribed by the Police near the Pimpal tree.
Surprisingly, the panchanama had not been brought on record by this
witness. In the cross-examination, he has stated that the Police had
given blows to the accused with sticks.
P.W. 17 - Abhimanu Arjun Kadam, the Assistant P.S.I., was
attached to Kudal Police Station on 7/11/1988. He has stated that on
7/11/1988, P.W. 1 - Govind Puralkar lodged a missing report. He has
stated that on 8/11/1988 at about 10.00 A.M., he alongwith P.S.I.
Pardeshi, P.S.I. Panchal, Police Constable Sawant and P.C. Kadam
proceeded in search of Sudha. They, however, noticed some broken
pieces of gunny bags and ration articles besides bushes and they also
saw pair of slippers there. He has stated that the P.S.I gave an order to
make further inquiry and, therefore, he, alongwith the Head Constable
Panchal, P.C. Sawant, P.C. Kadam, Daji Gawade and Rajan Dicholkar,
went to Bagalewadi and while they were going there, P.W. 7 - Daji
Gawade told him that he had learnt from P.W. 2 - Santosh that the
accused was present at Redegali. Thereafter, they proceeded to
Pimpal tree near Zarap. The accused was apprehended by them and
they found one golden Mangalsutra in the pocket of the accused and a
sum of Rs 67 in the pocket of his pants and the accused confessed that
he has committed murder of Sudha and he showed them the well
where he had thrown the dead body and the dead body was recovered
and the Police drew the inquest panchanama. He has admitted in his
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cross-examination that the panchanama was not drawn at the time
when the personal search of the accused was taken.
P.W. 18 - Prakash Vithal Rasam has stated that he was attached
to Kudal Police Station and working as Police Constable. He met the
Medical Officer alongwith the accused with a letter for taking his
blood sample. He also carried the blood sample of Sudha and accused
alongwith the clothes to the Chemical Analyser.
P.W. 19 - Kashiram Bhiwa Puralkar has stated that the deceased
was his brother's wife and he has narrated about the earlier incident of
disappearance of the deceased and on the following morning
discovery of pieces of bangles and pair of slippers. He has stated that
the Police arrived at the place and, thereafter, the Police alongwith
P.W.7 - Daji Gawade and Rajan Dicholkar went in search of the
accused and they came back at 12 noon alongwith the accused. He
has stated that the Police made inquiry with the accused and the
accused agreed to show them the place where he had thrown the dead
body. He has stated that the panchanama of the dead body was drawn.
P.W. 20 - Liyakat Ali Shaikh Ismail Pardeshi is the
Investigating Officer. He was attached to Kudal Police Station and
was working as P.S.I. He has stated that missing report of Sudha was
lodged by P.W.1 and, on the next day, he has stated that he took the
matter in his hands for further inquiry and went to Redegali alongwith
his staff for inquiry and while he was passing through that place, he
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noticed pieces of bangles and pair of slippers. He learnt from P.W. 7 -
Daji Gawade that P.W.2 - Santosh had told him that he had seen the
accused at Redegali on the previous evening. Therefore, he sent his
staff to search the accused and he learnt from his staff at 11.00 A.M
that the accused was having Mangalsutra and cash of Rs 67/-. At that
time, he was convinced that the deceased must have been murdered.
Thereafter, the accused and Police came there. He made inquiries and
the accused confessed before him and others that he had committed
murder of deceased Sudha and agreed to show the place where the
dead body was thrown. He has stated that the dead body was kept
besides the well and, thereafter, FIR was registered at about 1.45 P.M
and the accused was arrested between 2.00 to 2.30 P.M and the cash of
Rs 67/-, muddemal Mangalsutra, the shirt and pants were seized under
the seizure panchanama. He has then stated that, thereafter, inquest
panchanama was drawn and also the panchanama of the scene of
offence. The statements of witnesses were also recorded. On
9/11/1988, accused made a statement that he would show the articles
which he had concealed under the tree and the statement was reduced
in writing and then the said articles were recovered at the instance of
the accused. Then, on the next day i.e on 10/11/1988, when the
accused was in police custody, he also disclosed that he would show
the place where he had thrown the saree and the saree was recovered
from the well. Memorandum of the statement of the accused was
prepared. Thereafter, blood sample and the blood stained clothes were
sent to Chemical Analyser and the report was brought on record. In
the cross-examination, P.W.20 admitted that no separate panchanama
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was drawn about statement of confession of the accused. He also
admitted that there was no reference in the FIR as to who had taken up
the dead body from the well. He also agreed that, at that time, no
panchanama was drawn. He further states that personal search of the
accused was taken on 8/11/1988 at Kudal Police Station and the
panchanama was drawn there and some Police Constable had called
P.W. 3 - Nakul to act as panch. The contradictions in the statements
of witnesses were shown to him and were proved and were brought on
record. He admitted that on 16/11/1988, the accused was produced
before J.M.F.C., Malvan for Police Custody and the complaint of ill-
treatment was made by him. He denied the suggestion that 10
policemen had beaten the accused by sticks and that the accused was
also beaten by belt. He also denied that he used to beat the accused
daily.
15. From the evidence which has come on record, it has to be seen
whether the prosecution has succeeded in proving each circumstance
and more particularly the circumstance regarding discovery of the
spot where bangles and slippers were found; arrest of the accused;
seizure of Mangalsutra and Rs 67/- from his pants and shirt pocket
respectively; his confession that he had murdered deceased Sudha,
which was made in the presence of Police and other witnesses;
discovery of the dead body at his instance and recovery of saree and
the rationing articles at his instance.
16. So far as the incident which had taken place on 7/11/1988 is
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concerned, the prosecution has established by examining P.W.1-
Govind Puralkar, P.W.6-Ankush Gawade, P.W.7-Daji Gawade, P.W.
11-Vijay Masurkar, P.W.12-Rajan Puralkar, P.W.13-Malini Puralkar,
P.W.15-Sadashiv Prabhu and P.W.19-Kashiram Puralkar that the
deceased Sudha left her house in the evening at about 3.30 P.M. for
purchasing food grains and other articles at the ration shop. She
purchased those articles and, thereafter, went to her maternal uncle's
place and, thereafter, did not return home and, therefore, a search
party was organized and they tried to search her at various places and,
on their failure to find her, a missing report was lodged. It is also
brought on record that when she left the house, she was wearing
slippers, sky coloured saree and that she was also wearing
Mangalsutra and earrings.
17. So far as the second circumstance is concerned viz. discovery of
spot where the alleged scuffle had taken place and her broken bangles
were found, two versions have been given by the witnesses and these
versions are contrary versions and, therefore, it is difficult to accept
the prosecution case as to who discovered the spot where the alleged
incident had taken place. According to P.W.1-Govind Puralkar, he,
alongwith P.W.6-Ankush Gawade, P.W.11-Daji Gawade and P.W. 19-
Kashiram Puralkar found broken pieces of bangles and slippers of
Sudha at a particular spot and then P.W. 19 - Kashiram was sent to the
Police Station to inform them about the clue and, after some time,
Police arrived there. P.W. 7 - Daji Gawade arrived there and
informed the Police that the appellant was seen at that place on the
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previous evening. On the other hand, P.W. 6 - Ankush Gawade
deposes that he and P.W. 1 - Govind Puralkar and P.W. 11 - Uday
(Vijay) noticed the said spot. He states that the Police arrived there
and they had already received an information that one person was
present on the earlier day and he was hiding himself behind the
bushes. This witness does not mention the presence of P.W.19-
Kashiram or P.W.7-Daji Gawade. Similarly, P.W. 7-Daji Gawade in
his evidence has stated that P.W.1-Govind, P.W.6-Ankush and P.W.11-
Vijay were present and he was informed about the bangle pieces and
pair of slippers by P.W.1 and P.W.11 and, thereafter, he went to P.W.2
- Santosh Bagale and that P.W. 2 informed him that he had seen the
appellant hiding himself behind the bushes at Redegali. Again, he
does not mention the presence of P.W.19 - Kashiram. Most important
fact is that he does not mention as to what prompted him to go and
meet P.W.2-Santosh to make inquiry about Sudha and to no one else.
P.W.11 - Vijay Masurkar, on the other hand, does not depose about
presence of P.W.19-Kashiram, who, according to P.W.1-Govind had
called the Police at the spot. He also does not mention about the P.W.
7 - Daji Gawade going away and returning to the spot after gathering
information about the appellant. P.W.12 - Rajan Puralkar also does
not mention the presence of P.W. 19-Kashiram and also does not
mention about P.W.7 - Daji Gawade going away and returning to the
spot after some time. P.W. 19-Kashiram states that he had gone to
Police Station but he states that the Police arrived at the place and
they went in search of the accused alongwith P.W.7 - Daji Gawade
and Rajan Dicholkar. A complete contradictory version has been
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given by two Police Officers viz. P.W. 17 Abhimanu Kadam and P.W.
20 Liyakat Ali. P.W. 17 - Abhimanu Kadam is the Assistant Sub-
Inspector who has stated that, he, alongwith other Police Officers,
noticed the broken pieces of bangles and slippers and also gunny bag
and rationing articles besides bushes. This witness does not mention
the presence of P.W.1-Govind, P.W.6-Ankush and P.W.19-Kashiram.
If version of this witness is to be accepted then the version of other
witnesses will have to be discarded particularly their version that P.W.
7-Daji Gawade had gone to make inquiries with P.W.2-Santosh who
informed him that the appellant, on the earlier day, was seen by him
(P.W.2) while he was hiding behind the bushes. The Investigating
Officer P.W. 20 - Liyakat Ali, on the contrary, states that he took the
matter in his hands for further inquiry on 8/11/1988 and went to
Redegali alongwith his staff for inquiry and while he was passing
through that place, he noticed pieces of bangles and pair of slippers
and he learnt from P.W.7 - Daji Gawade that P.W. 2 - Santosh had
told him about the presence of the accused on the earlier day. All
these statements of these witnesses contradict each other as to who
discovered the spot where the alleged incident had taken place. P.W.
17 - Abhimanu Kadam, the Assistant Sub-Inspector takes credit of
discovery of the spot to himself. Similarly, Investigating Officer P.W.
20 - Liyakat Ali also takes credit of discovery of the spot to himself,
whereas P.W. 1 - Govind Puralkar states that, he, alongwith P.W. 6 -
Ankush, P.W. 11 - Vijay and P.W. 19 - Kashiram found that the spot
and P.W. 7 - Daji Gawade came there thereafter. This evident,
therefore creates a serious doubt as to who was responsible for finding
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the spot where broken bangles and slippers were found. This also
creates doubt as to whether statement of P.W. 7 - Daji Gawade that he
went and met P.W. 2 - Santosh Bagale and learnt about presence of
the appellant at the place of incident is true or not.
18 The next most crucial circumstance is regarding the arrest of the
appellant by the Police. According to the Prosecution, the Police,
alongwith P.W.7 - Daji Gawade and P.W. 12 - Rajan went in search of
the appellant. The witnesses examined by the Prosecution to prove
the apprehension of the appellant are also not trustworthy. P.W. 14 -
Narayan Dabholkar has stated that on 8/11/1988, he was near the
Pimpal tree and, alongwith him, P.W. 16 - Prabhakar Dicholkar, one
Uttam Korgaonkar and the appellant were also sitting under the said
tree and, at that time, Police arrived there and took personal search of
the appellant and one Mangalsutra was found in his pocket and after
the appellant declined to tell whose Mangalsutra it was, the Police
took him with them towards Ubhadanda. It has to be noted that this
witness (P.W.14) admits that no panchanama was drawn when the
search of the appellant was taken and that he has failed to identify
muddemal Mangalsutra before the Court. On the other hand, P.W. 16
- Prabhakar Dicholkar gives a different version about arrest of the
appellant by the Police. According to him, while he was waiting near
the Pimpal tree, P.W. 7 - Daji Gawade, P.W. 12 - Rajan Puralkar
alongwith Police arrived there and inquired with P.W. 16 whether he
had seen the appellant and then P.W.16 showed the appellant to the
Police and, thereafter, the appellant was apprehended. The Police
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took personal search of the appellant and found one Mangalsutra and
a sum of Rs 67/- on his person. He has stated that the appellant was
reluctant to tell the police as to whose Mangalsutra it was and then the
Police gave 2 to 3 blows to the appellant and, thereafter, he admitted
that the Mangalsutra was of deceased Sudha. According to this
witness (P.W.16), a panchanama was prepared and he signed the
panchanama and it was prepared by the Police near the Pimpal tree
and it was read over to him and the contents were correct. This
panchanama has not been brought on record.
ig According to
Investigating Officer P.W. 20 - Liyakat Ali, no such panchanama was
prepared at that spot but, subsequently, the panchanama was prepared
in the Police Station. This witness (P.W.16) in his cross-examination
has stated that the Police had assaulted the appellant with sticks and,
thereafter, the appellant confessed about the murder of Sudha and
about disposal of her body by him in the well. He has also admitted
that his relations with the appellant were strained. P.W. 17 -
Abhimanu Kadam who is one of the Officers who apprehended the
appellant gave a different version about his arrest. According to him,
he, alongwith other police staff and P.W. 7 - Daji Gawade and P.W. 11
- Vijay Masurkar went to the house of the appellant where he was not
found and then P.W. 7 - Daji Gawade told P.W.17 that the appellant
was at the Pimpal tree and, therefore, they proceeded to go to the
Pimpal tree. This is contrary to the statement of P.W. 7 - Daji
Gawade since he does not claim to have informed him about the
appellant's presence at the Pimpal tree. The Investigating Officer
(P.W. 20) gives completely different version. P.W. 20 - Liyakat Ali
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claims that he sent his staff to search for the appellant and learnt from
his staff at about 11.00 A.M that the appellant was proceeding to
Kambleweer and also learnt from the same staff that the appellant was
holding Mangalsutra and cash of Rs 67/- and, at that time, according
to P.W. 20, he suspected that the deceased must have been murdered
and, according to him, when the inquiry was made by him, the
appellant confessed that he had committed murder of Sudha and had
thrown the deady body in the well of Raghunath Dicholkar. The said
contrary evidence of these witnesses also creates doubt regarding
recovery of Mantalsutra and cash of Rs 67/- from the
accused/appellant. Firstly, no panchanama has been carried out at the
time of apprehending the appellant and no care has been taken to
ensure that when the search of the clothes of the accused was being
taken, independent panchas were also present at that time. The
Investigating Officer P.W. 20 - Liyakat Ali in his evidence has
admitted that no panchanama was made at that place and that,
subsequently, after the accused was brought to the police station, a
separate panchanama was prepared. In his examiantion in chief, he
(P.W.20) has stated that the FIR was registered at about 1.45 P.M. vide
C.R. No.151/88 and, thereafter, the accused was arrested in between
2.00 and 2.30 P.M. and cash of Rs 67/-, muddemal Mangalsutra, shirt
and pants were seized under seizure panchanama. It is obvious that a
false panchanama at Exhibit-15 was prepared on 8/11/1988 between
2.00 P.M. & 2.30 P.M. when already the Police knew that the
appellant was holding one Mangalsutra and cash of Rs 67/- at about
10.30 or 11.00 in the morning. Though section 51 of the Cr.P.C does
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not mention that it is necessary to prepare a panchanama in the
presence of independent panchas when the search is taken, it is one of
the requirements of law under section 51 that receipt has to be given
to the accused. It has not come on record that any such receipt was
given to the accused when he was searched. All these circumstances
create doubt regarding seizure of muddemal Mangalsutra and cash of
Rs 67/- from the accused.
19 So far as discovery of the dead body of deceased Sudha at the
instance of the appellant is concerned, this is one of the most
important circumstance which ought to have been established beyond
the reasonable doubt by the prosecution. In the first place, P.W. 14
Narayan Dabholkar, P.W. 16 - Prabhakar Dicholkar, P.W. 17 -
Abhimanu Kadam and P.W. 7 - Daji Gawade have stated that they
apprehended the accused near the Pimpal tree and, therefore, the
appellant confessed in the presence of the Police Officers that he had
committed murder of Sudha and disposed of her body by throwing it
in the well. According to prosecution, thereafter, the accused was
taken alongwith others to the spot and there again, in the presence of
other witnesses and the Police, he confessed about commission of the
offence and expressed his willingness to show them the place where
the body was kept. Since discovery of the dead body of deceased
Sudha at the instance of the accused is one of the crucial
circumstance, it was the duty of the Police to have prepared the
memorandum panchanama, as the confession given by the accused to
other witnesses in the presence of Police is directly hit by section 25
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and 26 of the Indian Evidence Act and the said extra judicial
confession is, therefore, not admissible in evidence. That being the
position, it was the duty of the prosecution to have kept two
independent pahcnas ready, so that memorandum of the accused could
have been recorded. It is a matter of record that no such panchanama
or memorandum of his statement was prepared then or thereafter at
any time. Discovery of the dead body of Sudha, therefore, at the
instance of the accused becomes doubtful.
20
The spot panchanama was prepared in the presence of panchas
and P.W. 4 - Harishchandra Kharode has stated that he was called by
the Police on 8/11/1988 and he found pieces of green bangles lying
there and he has also stated that the accused showed the slippers
which were found at that place and the accused also showed how he
had dragged Sudha from that place to the well known as Vinantale.
He has stated that there was a dead body of deceased Sudha in the
well and the panchanama of the dead body was also drawn.
According to him, the panchanama was drawn after taking out the
dead body out of the well. The time of the said panchanama is stated
to be between 4.30 P.M. and 5.30 P.M., whereas the inquest
panchanama in respect of the dead body of the deceased Sudha was
prepared between 15 hours and 16 hours. This is directly contrary to
the evidence of all the witnesses who have stated that the dead body
was removed from the well in the morning. Under these
circumstances, it is difficult to rely on the version of the Police
regarding discovery of the dead body of deceased Sudha at the
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instance of the accused. Apart from that, it has come on record that
accused was assaulted by the Police and it is a settled position in law
that if it is established that discovery is made while the accused is
under duress, such discovery cannot be relied upon. The Division
Bench of this Court in Deoraj Deju Surana vs. State of Maharashtra1
has held that recovery of weapons made while accused were hand
cuffed and when there is no independent witness examined and when
there is no mention of sealing, cannot be relied upon. The Division
Bench in the said case has observed in its judgment in para 30 as
under:-
"30. It is unfortunate, that a gruesome double
murder is going unpunished. But we cannot be
swayed by the shocking and revolting nature of
crime. What we have to see is whether the
evidence adduced by the prosecution is cogent,
truthful and unimpeachable. This unfortunately is
not the case here. The result is that we are left with
no other option but to acquit the five appellants, in
the three connected criminal appeals, and reject the
reference made by the learned Additional Sessions
Judge for confirmation of their death sentences."
In another Division Bench judgment of this Court in Shankar Raju
Banglorkar vs. State of Goa2, the Division Bench observed that the
1 II - 1996 (1) Crimes 486
2 1992 CRI.L.J. 3034
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disclosure by the accused in Police Station while he was handcuffed
was not admissible in view of Article 20 of the Constitution since the
disclosure was held to be made under duress, pressure or threats given
by the Police. The Division Bench in its judgment in the said case in
para 8 has observed as under:-
"8. It follows therefore that the contradictions
pointed out by us in respect of evidence of the
witnesses relied by the prosecution seems to
justify the submission of Shri D'Souza that the
said evidence is not conclusive and sufficient
by itself to establish beyond doubt the fact of
recovery of the drugs allegedly done by raiding
party in the appellant's house, consequent upon
the disclosure made by the said appellant,
under Section 27 of the Evidence Act.
However, even assuming that the said
disclosure might have been made by the
appellant before the panchas from the evidence
given by P.W.2 Mahabaleshwar that the
appellant was handcuffed at the time he
purportedly expressed his willingness to show
the place where the charas had been kept in his
house somehow substantiates the contention of
the learned counsel for the appellant that this
disclosure was made under duress, pressure or
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threats given by the Police being therefore not
admissible in law in terms of Article 20, Part
III of the Constitution."
Under these circumstances, therefore, recovery which has been made
when the accused was in the custody of Police and was assaulted in
the presence of other witnesses becomes doubtful. No panchanama
was made at the time when the discovery of the articles was
made and, therefore, reliance cannot be placed on the said discovery
of the dead body at the instance of the accused and the said evidence,
therefore, is required to be discarded being hit by Article 20(3) of
the Constitution of India as well as section 25 of the Indian Evidence
Act.
21 So far as the recovery of rationing articles belonging to Sudha
at the instance of the appellant on 9/11/1988 is concerned, P.W. 17 -
Abhimanu Kadam, ASI, in his examination-in-chief, has himself
stated that the gunny bags and the rationing articles were found
besides bushes on 8/11/1988. This being the position, the so-called
recovery of the very same articles and gunny bags again on 9/11/1988
clearly shows that the said evidence was fabricated by the Police.
22 Then the next circumstance is recovery of saree belonging to
Sudha at the instance of the appellant on 10/11/1988. It is
unbelievable that the accused would, while in the police custody,
inform about the rationing articles being kept by him on 9/11/1988
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and, thereafter, on the next day, would inform the Police about
disposal of saree of the deceased on 10/11/1988, particularly when,
according to prosecution, he had disclosed to the Police when he was
apprehended near the Pimpal tree, the place where he has disposed of
the dead body. There is no reason why he would then withheld the
information about saree being thrown in the well.
23 The least that can be said from the material which is brought on
record is that an attempt has been made by the prosecution witnesses
to suppress the fact that relations between the deceased and her
husband were strained. The Investigating Officer P.W.20 - Liyakat
Ali has tried to create record about preparation of panchanama in
respect of seizure of articles, though he was aware about presence of
these articles on the person of the accused. Prosecution, therefore, in
our view has miserably failed in establishing its case against the
appellant beyond the reasonable doubt.
24 Apart from that, following inconsistencies have been found in
the evidence of prosecution witnesses:-
(i) There is discrepancy in the statement of witnesses
regarding preparation of inquest panchanama after body
was removed from the well at the instance of the accused.
Some of the witnesses state that the panchanama was
made. The Investigating Officer P.W.20 - Liyakat Ali,
however, does not state that the panchanama was made
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when the dead body was removed by the accused.
(ii) One of the Assistant Inspector of Police states that the
accused showed Rationing Bag and other articles at the
spot where bangles were found, whereas Investigating
Officer (P.W.20) states that the said recovery was made
after police remand and the panchanama was made and
memorandum of the accused was signed.
(iii) One of the witnesses P.W. 17 - Abhimanu Kadam,
ASI also has stated that on the first day itself rationing
articles were shown by the accused.
(iv) There is discrepancy in the statements of witnesses
regarding arrival of the police. P.W.1 - Govind Puralkar
has stated that they found broken bangles and the sleeper
of the deceased at the site and sent Kashiram to the
police and, thereafter, police arrived there. On the other
hand, Kashiram (P.W.19) does not state that he had
informed the police. He states that the police arrived at
the place. P.W.20 - Liyakat Ali as also the other ASI
P.W-17 - Abhimanu Kadam did not state that they were
informed by Kashiram (P.W.19) and that on their own
they stumbled across the broken bangles and pair of
sleepers. The Investigating Officer and the ASI
mentioned the name of P.W.1-Govind, P.W.3-Nakul, P.W.
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4-Harishchandra and P.W.5-Mangesh Gawade etc.
(v) The ASI states that Mangalsutra and Rs 67/- was
found on the person of the accused. P.W. 20 -
Investigating Officer states that he learnt from his staff
that Mangalsutra and Rs 67 were found on the person of
the accused and the panchanama was made in the police
station. If recovery of Mangalsutra and Rs 67/- were
made earlier during the day, there was no necessity of
making separate panchanama thereafter in the police
station. This creates serious doubt about recovery of
Mangalsutra and Rs 67 from the accused.
(vi) Most of the witnesses have stated that the accused
confessed to the police and recovery of Mangalsutra and
Rs 67/- was made near the pimpal tree. Some of the
witnesses have admitted in the examination in chief that
while making inquiry with the accused, police officers
had assaulted him. One of the witnesses in cross
examination has admitted that the accused was assaulted
with stick. No arrest panchanama was prepared and the
accused was apprehended near the pimpal tree while he
was proceeding to Kamblewadi. Injuries were noticed
on the person of the accused at the time of his arrest i.e.
on his back and on his hands. Discovery of dead body at
the instance of the accused, therefore becomes doubtful
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and the possibility of dead body being already found by
the police cannot be ruled out. It has come on record
that relationship between P.W.2 - Santosh Bagale and the
accused were strained.
(vii) Prosecution witnesses had tried to suppress the
fact about relation between the deceased Sudha and her
husband being strained and these contradictions have
been brought on record by the defence.
(viii) Since the testimony of most of the witnesses is hit
by the provisions of section 25 of the Evidence Act, the
only piece of evidence is recovery of dead body at the
instance of the accused and the recovery of mangalstura
and Rs 67/- from the person of the accused. Since there
is a discrepancy as to whether the panchanama was made
simultaneously at the time when dead body was found or
it was drawn thereafter as is evident from statement of
Investigating Officer himself, creates a serious doubt
about discovery of dead body at the instance of the
accused as also recovery of Mangalsutra.
(ix) The recovery of saree at the instance of the
accused had been made almost after accused was in
police custody for two days. Secondly, one witness
states that there was a sky coloured saree, whereas one
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witness states that it was a green coloured saree. The
saree which is recovered is a sky coloured saree. It is
therefore difficult to believe that immediately after the
accused was arrested, he would disclose about the place
where he had disposed of the dead body and disclosure
of saree would be made after three days after police
remand was taken and discovery of rationing articles
were made after one day on the next day after police
remand was taken. There is no reason why the accused
would not disclose all these things on the very first day,
whereas memorandum of panchanama has been made in
respect of discovery of saree and the rationing articles.
No such memorandum panchanama has been made
regarding discovery of dead body and recovery of
Mangalsutra and Rs 67/- from the pocket of the accused.
Accused in his 313 statement has stated that the
Mangalsutra belongs to his mother and has tried to give
explanation regarding Mangalsutra which was found.
No proper identification of Mangalsutra has been made.
(x) There are several lapses in the investigation and
different versions have been given by different witnesses
on many crucial aspects.
25 It has to be remembered that the person summoned as witness
during police investigation are called panchas. The panchanama is
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merely a record of what panchas see. The only use to which it can
properly be put is that where the panch goes into the witness box and
swears to what he saw and the panchanama can be used as
contemporary record to refresh his memory (1940) 43 BLR 163). In
the present case, no panchanama has been prepared when the dead
body was recovered and the spot panchanama appears to have been
prepared subsequently, though attempt has been made to show as if
the said panchanama was made when the dead body was removed
from the well. This creates serious doubt about recovery of the dead
body.
26 Whenever any search is made at the behest of the Investigating
Officer and something is found on the person of the accused, seizure
memo has to be prepared immediately. If the seizure memo is
prepared subsequently as it has happened in the present case, such
evidence does not inspire confidence and the possibility of tampering
in such cases cannot be ruled out.
27 The conviction cannot be based solely on the recovery of the
dead body at the instance of the accused as held by the Apex Court in
Anant Bhujangrao Kulkarni vs State of Maharahstra1 From the tenor
of the evidence adduced by the prosecution it can well be seen that
there has been deliberate venture and an attempt of the witnesses to
favour the prosecution and it becomes clear that witnesses did not
come out with the truth and tried to suppress the material facts to
deflect the court of justice for reasons best known to them. There is a
1 AIR 1993 SC 110
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long distance to be travelled between the expression "may be" and
"must be". However, strong emotional considerations may be, but the
same cannot take place of proof.
28 In dealing with circumstantial evidence, the rules specially
applicable to such evidence must be borne in mind. In such cases
there is always danger that conjecture or suspicion may take the place
of legal proof and, therefore, one has to remind oneself about the
warning addressed by Baron Alderson to the jury in Reg vs. Hodge1
where he states that "The mind was apt to take a pleasure in adapting
circumstances to one another, and even in straining them a little, if
need be, to force them to form parts of one connected whole; and the
more ingeniouses the mind of the individual, the more likely was it,
considering such matters, to overreach and misled itself, to supply
some little link that wanting to take for granted some fact inconsistent
with its previous theories and necessary to render them complete."
Similarly, the Apex Court in Padala Veera Reddy vs. State of Andhra
Pradesh and others2 has observed in paras 19, 20, 21 and 22 as
under:-
"19 There are series of decisions holding that no
one can be convicted on the basis of mere
suspicion, however, strong it may be. Though we
feel it is not necessary to re-capitulate a 11 those
decisions we will refer to a few on this point."
1 (1838) 2 Lew, 227
2 AIR 1990 SC 79
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"20. This Court in Palvinder Kaur v. The State of
Punjab MANU/SC/0038/1952 : 1953 CriLJ 154
has pointed out that in cases dening on
circumstantial evidence courts should safeguard
themselves against the danger of basing their
conclusions on suspicions how so ever strong."
"21. In Chandrakant Ganpat Sovitkar and Anr. v.
State of Maharashtra MANU/SC/0117/1974 : 1974
CriLJ 1044, it has been observed :
It is well settled that no one can be convicted on
the basis of mere suspicion, though strong it may
be. It also cannot be disputed that when we take
into account the conduct of an accused, his conduct
must be looked at in its entirety."
"22. In Sharad Birdhichand Sarda vs. State of
Maharashtra MANU/SC/0111/1984 : 1984 CriLJ
1738, this Court has reiterated the above dictum
and pointed out that the suspicion, however, great it
may be, cannot take the place of legal proof and
that "fouler the crime higher the proof".
29 We are of the firm view that the circumstances appearing in this
case, when examined in the light of the principles enunciated by the
Apex Court, do not lead to any decisive conclusion that the appellant
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has committed murder of deceased Sudha. Hence, finding given by
the Additional Sessions Judge, Sawantwadi cannot be sustained. The
appellant, therefore, will have to be acquitted.
30. In the result, following order is passed:-
ORDER
Appeal is allowed. The judgment and order of the Additional Sessions Judge, Sawantwadi is set aside. The appellant is acquitted of the offences with which he was charged. Appellant is on bail. His bail bonds, stand cancelled.
[ A. M. THIPSAY, J.] [ V. M. KANADE, J.]
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