F.I. Rebello, J.@mdashThe Appellant herein was charged for the offence of murder of Hiravati @ Hiru Shankar Narkar by assaulting her with
sickle and thereby committed an offence punishable u/s 302 of the Indian Penal Code. The charge was framed on 11th March, 2005. The learned
Sessions Judge after examining the witnesses by his judgment dated 15th July, 2005 convicted the Appellant for the offence punishable u/s 302 of
the I.P.C. and sentenced him to suffer imprisonment for life. It is this against this order that the Appellant is in Appeal before this Court.
2. On behalf of the Appellant his learned Advocate submits that there are no eye witnesses and the prosecution case is based entirely on
circumstantial evidence. The prosecution it is submitted before the Sessions Court relied on the following incriminating circumstances:-Motive; Last
seen; Seizure of blood stained underwear; Recovery of blood stained clothes belonging to V and of a blood stained sickle; Extra judicial
confession and Injuries on the accused person. It is further submitted that the prosecution has not led any evidence of any witness to prove the
motive. As so far as the circumstances of last seen, according to the learned Counsel P.W. 6 has deposed that she saw the deceased on Monday
(2-8-2004) at 6.00 p.m. in the house of the accused when both the Accused and his wife were present. According to the prosecution the incident
occurred at 11.00 p.m. on 2nd August, 2004. The evidence on record does not prove the last seen theory or of incriminating the accused or
advancing the prosecution case. In so far as seizure of blood stained underwear which was seized vide Panchanama Exhibit 15, the C.A. report
shows that no blood or semen was found on the said underwear. Therefore, this cannot be considered as an incriminating circumstance against the
accused. In so far as recovery of blood stained cloths it is submitted that the cloths were recovered on 9th August, 2004 as per the prosecution
case on the statement of the accused. The evidence of P.W.5 would, however, show that the cloths and sickle were seen by her at the Police
Station when the statement was recorded on 6th August, 2004. It is further submitted that no witness has identified these cloths in evidence before
the Court as belonging to the deceased or the sickle as the one used for the offence. It is also pointed out that the seized articles were not sealed
and on this ground also the evidence could not have been considered. In so far as extra judicial confession is concerned, it is submitted that in the
evidence of P.W.8 the omission in his statement was put to him. Apart from that the purported extra judicial statement was made to P.W. 8l when
the appellant was in the custody of the police at the police station. Considering Section 26 of the Indian Evidence Act the extra judicial confession
would not be admissible. In so far as the injuries on the person of the accused is concerned, it is submitted that though it is contended that the
accused was arrested on 7th August, 2004, he was already in the custody of the Police from 6th August, 2004. That has not been explained. In
these circumstances that evidence also is of no consequence. At any rate it is submitted that the chain of circumstantial evidence which had to be
established to prove that the involvement of the appellant had not been established and consequently the Appellant should be acquitted of the
offence.
3. On behalf of the Respondent State, learned P.P. has sought to contend that there is no infirmity with the findings recorded by the learned
Additional Sessions Judge and in these circumstances the conviction ought to be sustained.
4. At the outset we may point out that the law as settled is that all proved circumstances must form a chain of which no link must be missing and
they must unequivocally lead to the guilt of the accused. We may refer to the law as decided. In Ashish Batham Vs. State of Madhya Pradesh, the
Supreme Court once again reiterated the law and referred to the judgment in Hanumant Vs. The State of Madhya Pradesh, where the Court
observed as under:
In dealing with the substantial evidence the rules specially applicable to such evidence must be borne in mind in such cases there is always the
danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to
the jury in Reg. v. Hodge (1838) 2 Lewin 227 where he said:
The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little. If need be, to force them to form
parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and
mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render
them complete.
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be
drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the
one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been
done by the accused.
5. We have heard the learned Counsel for the Appellant as also the learned Public Prosecutor. In so far as motive is concerned, though the
prosecution examined 13 witnesses no evidence on that aspect has come on record. The prosecution has been unable to establish the motive. On
the contrary it has come on record that the deceased was known to the Appellant and his wife. P.W. 6 in fact states on the day of the incident she
had seen the deceased sleeping in the house of the appellant at about 6.00 p.m. This would show that the Appellant and his family were on friendly
terms with the deceased. Nothing contrary has been brought on record to show any motive. Motive has not been established. Motive may not be
relevant in a case where the evidence is overwhelming, but it is a plus point for the accused in cases where the evidence is only circumstantial. See
Sakharam Vs. State of Madhya Pradesh, . The prosecution in this case has not been able to establish any motive.
6. We next come to the issue of circumstances of last seen. The evidence on record is of P.W.6 Bhagirathi Vishnu Kokare, who had deposed that
she had seen the deceased sleeping in the house of the Appellant at 6.00 p.m. and the appellant and his wife both were present at the house. The
prosecution case is that the incident had happened on 2nd August, 2004 at 11.00 p.m. In terms of the evidence of the Doctor who did the Post-
mortem P.W. 7 it is in his evidence that the deceased must have died more than 24 hours before the P.M. The P.M. was conducted between 4 to
6 p.m. on 4th August, 2004. The death, therefore, could have occurred any time previous to 4.00 p.m. of 3rd August, 2004. Therefore, between
the appellant being seen with the deceased at 6.00 p.m. on 2nd August, 2004 and 4.00 p.m. on 3rd August, 2004 there is a gap of 44 hours. It is
true that in the evidence of P.W. 5 Sharmila Shankar Bodekar it has come on record that at 12.00 p.m. that day the accused came to her house on
bicycle and demanded liquor which she refused. There is no explanation coming from the prosecution about the deceased�s whereabouts after
6.00 p.m. till the complaint filed by P.W. 1 Kamalakant Krishna Kamat who was informed on 3rd August, 2004 that one dead body was lying
near the electric pole. He has also deposed that the face was practically smashed. The body was naked and the hairs were missing. As explained
earlier on that very night the appellant had been to the house of P.W.5 after midnight.
7. In so far as seizure of blood stained underwear of the Accused is concerned though it was seized under a Panchanama. The article was at item
No.5 of the report of the C.A. The result shows that there was no blood detected on Exh.5 and similarly no semen was detected on exhibits 5, 7,
8 and 9. The purported recovery of the underwear of the appellant is, therefore, of no consequence.
8. The next circumstance is recovery of blood stained cloths belonging to the deceased and the blood stained sickle. The first infirmity in this
seizure is that neither the Panchanama Exh.17 nor Panch P.W. 3 have stated that the articles were sealed upon seizure or any time soon thereafter.
The I.O. in his evidence has admitted that he did not seal the articles after recovery. In the matter of circumstantial evidence failure to seal the
articles must be viewed with suspicion. Reliance if at all if required can be placed on the judgment of the Supreme Court in Sahib Singh Vs. State
of Punjab, and in Salim Akhtar alias Mota v. State of Utter Pradesh 2003 All M.R. (Cri.) 1167. The second aspect of the matter is that the
recovery was effected on 9th August, 2004. P.W. 5 Sharmila, however, deposed that she had identified the articles belonging to the accused
which were shown by her to the police at the time of recovery of her second statement including sickle. In other words the evidence of this witness
will show that the articles were already in possession of the Police on 6th August, 2004 on which day her second statement was recorded. The
recovery, therefore, effected on 9th August, 2004 at the purported instance of the Appellant will have to be rejected. The third aspect of the
matter is that the identity of the clothes as belonging to the deceased was not established through any witness before the Court. This is one more
circumstances for rejecting the purported recovery.
9. Lastly on behalf of the Appellant learned Counsel pointed out that the Panch who was present when the Panchanama was drawn was staying 24
Kms. away from the Police Station at different village. No explanation has been given as to why a person was called to act as a Panch staying 24
Kms. away. In our opinion it is not necessary to consider this aspect considering our finding that the recovery has to be rejected.
10. The other major circumstantial evidence is the extra judicial confession purported to have been made by the Appellant to the P.W. 8. P.W. 8
Jagdish Jaywant Kadam in his evidence has deposed that the Appellant was working as a servant for him and that he had confessed to the killing
of the deceased. In the cross examination it was put to him that in the statement recorded, this was not so recorded. His only answer was that he
cannot assign any reason why it is not appearing in the statement. If such a statement had been made in our opinion as an extra judicial confession it
would have found a place in the statement recorded by the Police. Apart from that we have to consider Section 26 of the Indian Evidence Act,
which sets out that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person. Admittedly on that day as per the evidence of P.W. 8 himself he visited the appellant when in
police custody and met him with the permission of P.I. Bhosale. Considering the mandate of Section 26 in our opinion this evidence also will have
to be rejected.
11. In our opinion as from the evidence it is clear that the prosecution has been unable to prove motive, or establish the last seen theory, or prove
the recovery of the sickle and clothes of the deceased and the purported extra judicial confessional statement of the appellant. In our opinion it is
not necessary to consider the various other contentions raised on behalf of the appellant by the learned Counsel. The prosecution has not been able
to show any evidence linking the guilt of the appellant to the accused. In our opinion, therefore, the Appeal will have to be allowed.
12. In the light of that the conviction of the Appellant u/s 302 of the I.P.C. is set aside. The Appellant is directed to be released forthwith, if he is
otherwise not required in any other offence.
13. Muddemal articles to be disposed of according to law.
