A.P. Bhangale, J.@mdashAll these appeals arise out of the Judgment and order dated 13-06-2005 passed in Special Case No. 10 of 2001 tried before the learned III Additional Sessions Judge, Raigad at Alibaug. Eight accused (hereinafter referred to as A-1 to A-8) were facing trial upon the charges of Kidnapping, double murder and destroying evidence of the commission of double Murder as also offences of atrocities on members of Scheduled Caste. Eight accused were facing Special sessions trial no. 10 of 2001 upon multiple accusations. It is alleged that A-1 to A-3, not being members of the Scheduled Caste and Scheduled Tribe had on 29-03-2001 intentionally insulted and humiliated Mr. Vasant Kamble and Mrs. Alka Kamble in the office of the Amit Gas Agency within public view, wrongfully interfered with and deprived the deceased of their legal right over Amit Gas Agency belonging to deceased Kamble couple. Incidentally as Kamble couple was belonging to Scheduled Caste, the offences punishable u/s 3(1)(v) and 3(1) (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were also imputed against the accused. The A-1 to A-4 were facing prosecution on the charge that they had entered into criminal conspiracy on or about 30-03-2001 at the office of the Noble Builders to commit Murder of Vasant and Alka Kamble and A-1 to A-4 along with the absconding Accused no. 9 Santosh Ganpat Shinde, in furtherance of their common intention abducted Kamble couple on 30-03-2001 at about 11 a.m. at Goregaon knowing beforehand that they may be murdered and further the accused no. 1 to 8 along with the absconding accused committed murder of Vasant and Alka Kamble and in furtherance of their common intention to screen themselves from legal punishment, caused certain evidence of Murder to be destroyed by burning the dead bodies. Brief facts stated are as under:-
It is case of the prosecution that the Deceased Vasant Kamble and his wife Alka Kamble were parents of Amit Vasant Kamble (PW-1). Deceased Vasant Kamble was President of RPI at Goregaon. Smt. Alka Kamble used to look after Gas agency at Goregaon. A-1 was interested in getting dealership of LPG Gas agency. A-2 Kunda is wife of A-1. There was a dispute about the Gas agency between them and litigation had taken place in respect of it. A-1 Babubhai and his wife, A-2 had made an application depending upon the deceased as they were members of scheduled Caste for seeking appointment as LPG dealer. A-1 Babubhai and his wife A-2 knew that the Hindustan Petroleum Corporation had reserved the Agency for a member of Scheduled caste. Requisite infrastructure and/or funds were not available with the deceased who were desirous of the benefit of the scheme. Under these circumstances an agreement was executed in writing between A-2 Kunda Sheth and Deceased couple Kamble; whereby A-2 Kunda agreed to finance and provide infrastructure to Kambles on certain terms and conditions. Deceased Kambles had applied for the Gas agency and dealership and they succeeded to get the same as they were appointed as Dealer by M/s. Hindustan Premium Corporation Limited for which investment/funds were provided by A-1 Babubhai and his Wife Kunda. Relations were strained between Accused Sheth couple and Kamble couple and Writ Petition was filed by Mr. and Mrs. Sheth in the Bombay High Court seeking cancellation of allotment of dealership to Mr. and Mrs. Kamble. The Writ Petition did not fetch any relief to Mrs. and Mr. Sheth, hence they filed Special Civil Suit in the Court of Civil Judge Senior Division at Alibaug to establish their investments and to recover the same from Kamble couple. But the Writ as well as suit did not yield any fruits to the A-1 and A-2 Sheth Couple and then they hatched criminal conspiracy with A-3 an A-4 to eliminate Mr. and Mrs. Kamble. Then pursuant to the Conspiracy hatched, on 30-03-2001 the Kamble couple was invited along with A-4 Satish Shinde to inaugurate a dealership of Hindustan Lever at Ambet. Accordingly the Kamble couple was hijacked to Shirke Tamhane Ghat where the accused Sheth couple and absconding accused Santosh Ganpat Shinde had already reached separately. Sheth couple wanted the Kamble couple to sign typed documents on the stamp papers but Vasant Kamble refused to sign any such documents. In the result Kamble couple was assaulted and strangulated by means of nylon rope tied with holes at the center through wooden pegs. The dead bodies of Kambles were then tried to be destroyed by pouring kerosene/petrol over them and setting them ablaze burning them with a view to destroy evidence of Murder.
2. When Mr. and Mrs. Kamble did not return home, PW-1 their Son Amit Kamble after making inquiry, lodged a missing Complaint report at Goregaon Police station on 30-03-2001. The FIR was lodged on 31-03-2001 against Satish Shinde who had accompanied with the parents of PW-1. Investigation followed and the Accused were arrested as also alleged incriminating articles including remains of dead body were recovered at the instance of the accused. Since deceased Kambles belong to Scheduled Caste, the case was investigated and as lodged as special case no. 10 of 2001, tried in the Court of III Additional Sessions Judge at Raigad, Alibaug. After the accused had pleaded not guilty to the charges framed, 53 witnesses were examined in support of the Prosecution case. The accused nos. 1 and 4 were found guilty and convicted for the offence punishable u/s 120B read with section 364 as also u/s 302 read further with Section 34 of the Indian Penal Code. A-1 and A-4 to A-8 were also convicted for the offence punishable u/s 201 read with Section 34 of the Indian Penal Code, while A-2 and A-3 were acquitted of all charges and all the accused were acquitted of the charge u/s (1) (v), 3(1) (x) and 3 (2) (v) of S.C./S.T. (Prevention of Atrocities) Act 1989. The accused no. 1 and 4 were sentenced to undergo imprisonment for life and to pay fine in the sum of Rs. 1500/- each in default to undergo further imprisonment for six months more for each of them for the offence of criminal Conspiracy to murder Kamble couple. While they were also found guilty of the offence of abduction punishable u/s 364 read with section 34 of the Indian Penal Code and each of them were sentenced to undergo R.I. for 10 years and to pay fine in the sum of Rs. 1500/- in default to undergo further R.I. for six months. The accused nos. 1 and 4 to 8 were found guilty of offence of double murder of Mr. Vasant and Mrs. Alka Kamble; punishable u/s 302 read with Section 34 of the Indian penal code and were sentenced to undergo R.I. for life and to pay fine in the sum of Rs. 1500/- payable by each of them. The accused no. 1 and 4 to 8 were also held guilty for offence punishable u/s 201 read with section 34 of the Indian penal Code and were sentenced to undergo R.I. for 5 years and to pay fine in the sum of Rs. 1000/- payable-by each of them or in default to undergo R.I. for each of them.
3. The prosecution has placed reliance upon the direct evidence of the incident as deposed to by PW-33 Shri Keshav Hate and circumstantial evidence in the form of motive for the crime, the identification of the dead bodies of Vasant and Alka Kamble discovered during the course of evidence at the instance of the A-1 under the Panchanama, identification by some of the witnesses of the articles including the ornaments as belonging to the deceased Kamble couple. The prosecution has also placed reliance upon expert opinion of the examiner of the skull of both the deceased. The prosecution also relied upon the identification of the uneven and protruding tooth of deceased Vasant Kamble and tooth with cement/silver filling of deceased Alka kamble. Prosecution has examined as many as 53 witnesses. We have heard submissions at the Bar at length by giving full opportunity to the parties to advance oral as well as written submissions considering the seriousness of accusation of double murder in the case.
4. The main questions for our determination are:
i. Whether the prosecution has proved beyond reasonable doubt that Vasant Kamble and his wife Alka Kamble met with homicidal Deaths?
ii. Whether the Prosecution has proved beyond reasonable doubts that on 30-03-2001 the Kamble couple was kidnapped and murdered in the forest as alleged?
In order to answer the above questions arising in these appeals for our determination we may consider the evidence on record in three-phased manner.
(A) The direct ocular Evidence of Sole eye witness Shri Keshav Hate (PW-33)
To prove that the deceased Vasant and Alka Kamble (we would for convenience refer them as ''Kamble couple'') met with homicidal deaths, their murder and consequent penal liability of the accused before the Court, Sole eye witness is Keshav Lahu Hate (PW. 33). It appears from this evidence that he is presently resident of Mumbai with modest financial means. He is also Vice President of Republican Party of India (Athavale Group). He is native of Veer Village situated between Lonare Phata and Mahad off Bombay-Goa High way. It appears that he was known to deceased couple late Mr. Vasant Kamble and Mrs. Alka Vasant Kamble as they were also activists of Republican Party of India. Deceased Alka according to Mr. Hate was dealer of Hindustan Petroleum. The accused were also running business of LPG Cylinders of Hindustan Petroleum Company in the name and style as "Amit Gas Agency" which was business situated in the premises of one Hamid Bhai. Deceased Vasant Kamble and Mrs. Alka Kamble had telephone connection bearing no. 71363. According to Mr. Hate, the incident happened on 30th March, 2001. He deposed that on 29.3.2003 when he was at house he had received telephone call from Vasant Kamble at about 9 p.m. Vasant Kamble had requested Mr. Keshav Hate to accompany with him in the next morning at about 10 a.m. for going to village Ambet for inauguration of some gas agency shop. According to the Prosecution, Mr. Keshav Hate had declined initially due to his pre-occupation but when Vasant Kamble insisted, he consented to join with him. Thus, on 30th March 2001 in the morning at about 9.30 a.m., Mr. Keshav Hate went to the residence of Vasant Kamble at Goregaon. Then he accompanied with Vasant Kamble to bring vegetables from Market at Goregaon. After purchasing vegetables, Vasant Kamble returned to his residence while Mr. Hate went to meet Hamid Bhai. 10 to 15 minutes later, Vasant Kamble had called Mr. Hate and informed him that vehicle arranged for going to Ambet had arrived. Thus, it is in evidence of Mr. Hate that he along with Vasant Kamble and Alka Kamble sat in white tempo tracks which was parked in front of Vasant Kamble''s house. At that time Mr. Hate had seen Amit (son of Vasant and Alka Kamble) at the gate of their house. It is in evidence that Mr. Keshav Hate, Mr. Vasant Kamble and Mrs. Alka Kamble sat in the vehicle and in that vehicle two unknown persons were sitting on the rare seat, as also one person sitting by the side of the driver. The Driver was also unknown to Mr. Hate. According to Mr. Hate the person occupying rare seat had some material of puja in his hand. Alka Kamble was sitting on the seat next behind the driver and on her left hand side Vasant Kamble was sitting while Mr. Hate was sitting towards the left door of the vehicle. The accused Satish Shinde was driving the vehicle. The accused no. 4-Satish was wearing Bush Shirt with checks. He had asked Vasant Kamble to drop Mr. Hate from the vehicle on the pretext that some others were to join. However, Mr. Vasant Kamble told the driver that they will adjust. Thus at about 11 a.m., vehicle left Goregaon for Ambet via Wadavali diversion. When the vehicle had crossed Wadavali Phata and went via Kudal diversion in order to proceed towards Ambet, at Kudal diversion the driver Satish Shinde had again asked Vasant Kamble to drop Mr. Hate from the vehicle but Mr. Hate and Kamble did not pay any heed to him. When the vehicle had reached near Ambet, the driver drove the vehicle on left side although it was right hand road which was leading towards Ambet. After climbing the steepy road, there was descending road leading to Ambet but the vehicle was driven towards a right hand side on a kaccha road although the road on the right hand side did not lead to Ambet but to some other village. Immediately Mr. Hate told Vasant Kamble that the right hand side road would not go to Ambet and the vehicle was on the wrong track. Vasant Kamble questioned the driver about the same, who replied that driver wanted to collect sums from some persons from the other village. The vehicle was driven to the distance of about 1.5 km. on that kaccha road when the vehicle was stopped. Another vehicle either Tracks or sumo was already there which was Ash Grey in colour and three persons had got down from that other vehicle and came towards the vehicle in which Kamble couple and Hate etc. were sitting. One of those three persons was known to Mr. Hate as Babusheth (accused no. 1) who had opened left side door of the tracks vehicle. Babusheth had pulled out the person sitting by the side of the driver and he himself took that seat. The accused no. 1-Babusheth then took Gupti wrapped in a paper and pointed out the same below chin of Vasant Kamble. The accused no. 1 had some material typed on the stamp paper. He directed Vasant Kamble to sign those stamp papers and Vasant Kamble refused to sign those typed documents. At that time, his wife Alka began to cry when Vasant Kamble persuaded Alka and encouraged her by saying that he would prefer to die but he would not sign those documents. Thereafter, the persons sitting on the rare seat of the vehicle put up a rope around neck of eye witness Mr. Hate. While another rope was put around the neck of Vasant Kamble. At that time Mr. Keshav Hate intervened and told Babushet-accused no. 1 that if at all he had dispute with Vasant Kamble it can be sorted out amicably and the way he was adopting was not correct. He also told Babusheth that he is least concerned as he had son and a wife. At that time Driver of the vehicle asked the concerned person on the rare seat to relieve Mr. Hate. Therefore, the smear of the thread/rope was taken away from his neck but the person who was sitting on the rear side tightened the noose around the neck of Vasant Kamble. Vasant Kamble died as a result of strangulation and collapsed towards back side of Keshav Hate. Alka Kamble also felt unconscious due to the incident. Accused no. 1-Babushet thereafter said that mortal body of Mr. Vasant Kamble has to be thrown out. Vehicle was therefore taken up little ahead towards the steep road. Then the smear of thread/rope was tightened around the neck of Alka Kamble and she was done away. The mortal bodies of Vasant and Alka were pulled out of the vehicle and thrown in a "Dari" (nearby valley). Accused no. 1-Babushet reiterated that Mr. Hate''s disposition is also necessary while he was literally trembling having seen the brutality. The driver told Babushet that he was paid for killing two persons only and not the third one. While the driver-accused no. 4 told Babusheth that Mr. Hate had no issue at all with him. Therefore, the vehicle was turned towards Nandavi and proceeded towards Kaccha Road. The witness Keshav Hate was made to occupy the middle seat while one person was sitting by his left hand and other was sitting by his right hand. Before leaving towards Nandavi Phata, Babushet-accused no. 1 warned Mr. Hate that if he discloses the event to any one he would be killed as also his entire family because the boys sitting in the vehicle are gangsters. After about 2 kms, the two persons who were occupying the rear seat got down from the vehicle and went towards Dargah. Then vehicle was driven towards Nandavi Phata. When it came to Tol Phata on Mahad road, accused no. 1 Babushet got down from the vehicle and one more person who was sitting on his right hand side also got down carrying plastic carry bags with them. The witness Keshav Hate identified the persons in the court who had got down. When Hate got down from the vehicle accused no. 1 Babushet offered a sum of Rs. 200/- to Mr. Hate, but he refused to accept the amount. Then vehicle proceeded towards Mumbai.
(B) Circumstantial evidence led to corroborate the ocular evidence
5. The prosecution has relied upon the evidence of PW-1 Amit Kamble who is Son of the deceased Kamble couple (Exh. 86). Amit had lodged complaint that his parents were missing (at Exh. 90). His evidence disclosed that there was a dispute about the dealership of the Gas agency between the deceased and the A-1-Babubhai. There was past history of the complaint dated 25-03-1999 lodged by Smt. Kamble before the police. Another complaint dated 07-02-2001 was lodged by Shri Ramdas Athavale before police. It is in evidence that Amit had identified dead bodies of his parents-deceased Kamble couple as also articles belonging to them. A-1 Zaverchand @ Babubhai and Mrs. Kunda and Kamble family were known to each other as they were neighbourers and were tenants of one Faruq Kamran at Goregaon. Amit Gas Agency of Mrs. Kamble was situated at shop no. 13 in Madina Complex. It started from 1998. There was a dispute about the Gas agency and rate of gas cylinder between the A-1, his Wife Kunda, A-2 and Kamble couple. A-1 and A-2 wanted the Gas Agency and so they had dispute. They had started the litigation by filing a civil suit in the Alibaug Court. They had started pressurizing the Bank officials so that Mrs. Kamble should not get loan from the Urban Bank, Goregaon for business purpose. Mrs. Kamble had however availed of loan from the Konkan Mercantile Bank at Nagothane. A-1 to 3 had filed Writ Petition in Bombay High Court. A-3 Amit had given threat in Marathi to Mr. Kamble "Mee Tumhala Baghun Ghein" (I will see you). It is in cross examination of PW-1 that his Father had lodged complaint to the police station, but he do not know whether police had made inquiry about the incident. (vide Para 20) The evidence reveals that the loan in the sum of Rs. 9.88 lakh was obtained by the deceased Shri Vasant Kamble to start the Gas agency. PW-1 in cross examination admitted that he came to know about the business of Zaverchand and Mrs. Kunda after the murder of his parents. He also came to know about the interest of A-1 and A-2 to start Gas Agency which his Father had decided to get. A-1 and A-2 had issued notice through Advocate to his Father in connection with the Gas Agency and his Father had replied that notice through Advocate Savant (Art. 24/1). Thus it is brought out in cross examination that a Civil suit was pending in connection with the gas agency dispute between accused Zaverchand, Kunda and PW-1''s Mother and Father. The amount of 10 to 15 lakhs was claimed by Kunda in that Civil suit, on the allegation that Mrs. Alka Kamble had taken finance from the accused for running the business of the gas agency. PW-1 also admits that his Mother used to sign in English and had given her address as c/o. Kunda Sheth in correspondence with the Gas agency. The fact that there was a dispute between the A-1 and A-2 and parents of PW-1-Amit Kamble is thus brought out in the course of his cross examination. A-1 was running the business as Noble enterprises. It is also brought out in the cross examination of PW-1 that he had not gone through the police statement before he deposed. (Para 16). In such situation minor discrepancies were bound to occur in his deposition as according to him nobody read over his statement to him.
6. Thus the evidence of Amit Kamble revealed that on the pretext of inauguration of the Hindustan lever Agency at Ambet at the hands of late Mr. Vasant Kamble on the following day, one Mr. Shinde had contacted Mr. Vasant Kamble by phone on 29-03-2001 at about 9 p.m. Mr. Vasant Kamble was informed by Mr. Shinde that he will come by the special vehicle to take Mr. Vasant Kamble and Mr. Vasant Kamble shall be ready. It is thus Vasant Kamble had contacted Mr. Keshav Hate to inform him about the program of inaugural function of Shinde''s agency from Hindustan Lever Company and had asked him to come to the house at about 9 a.m. Accordingly Keshav Hate had come at about 10 a.m. on 30-03-2006. Shinde came at about 11 a.m. and was welcomed by Mr. Vasant Kamble inside the house. Amit Kamble (PW-1) had served water to Shinde (identified as A-4 Satish Shinde in Court). A-4 Satish Shinde wanted Mr. Vasant Kamble to start early. Mr. and Mrs. Kamble started with Shinde. Amit Kamble, (P.W-1) also gave evidence about the articles and the ornaments worn by his parents on that day, when Shinde along with Keshav Hate and parents of PW-1 started by vehicle Trax Jeep. Shinde had occupied the driver''s seat and one unknown person aged about 17 to 18 year old had occupied the seat by the side of Shinde. Thereafter, on that day PW-1 went to attend his computer class when he returned from the class at about 6 p.m. he found that his parents had not yet returned/reached home. He then started making inquiry with relatives etc. about phone number of Shri Keshav Hate who had accompanied with his parents. PW-1 Amit came to know during his inquiry, that Shinde had asked Keshav Hate to get down from the vehicle at Vadavali diversion. PW-1 Amit also came to know that infact there was no any inaugural function held at Ambet on that day. Then PW-1 contacted Police station to first lodge a missing report (Ex. 90). When parents of PW-1 did not return despite his waiting for them, he lodged the complaint (Ex. 91) in respect of the incident of kidnapping against Accused Zaverchand, Kunda, Amit Sheth and Shinde (full name was not known).
7. Amit Kamble (PW-1) came to know on 2nd April 2001 about the dead bodies of his parents in burnt condition, traced in the Jungle (Forest). He saw wrist watch of his Father lying there at the spot as also spectacle of his Father, "Jodavis" (ornament worn by married woman on the toe of her feet) in the toe of feet of his Mother. Metal bangles were seen in the hands of the dead body of his Mother. The articles i.e. Pieces of glass bangles, footwear (''Chappal'') were seen lying nearby which were belonging to his Mother. This is how dead bodies were identified by him as that of his parents. Later after about a month from the date of incident a test identification parade was held in the office of Tahasildar at Mangaon, Keshav Hate was also called for to attend test identification Parade. PW-1 had identified Shinde (A-4) who had come to his house to call his parents. Test identification was also held about the articles found and seized such as wrist watch, Mangalasutra of his Mother, earring of his Mother, foot wear of his Mother, Spects of his Father, metal Bangles and pieces of black bangles, pair of jodavi of his Mother. PW-1 had produced a receipt (Ex. 94) in respect of purchase of Mangalasutra from Shraddha Jewelers. It is pertinent to note the fact that the last rites over the dead bodies were performed by Amit Kamble, PW-1 after the dead bodies were brought in vehicle. This fact is also elicited in the course of cross examination (vide Para 26). It is argued on behalf of the prosecution that, grief stricken Amit Kamble (PW-1) was not expected to tell whether Shri Keshav Hate was present or not at the time of last rites of his parents.
8. PW-2 Abhijit Tapkire deposed about the incident when delivery boy from the Amit gas agency came on 29-03-2001 to deliver the gas cylinder and took amount of Rs. 235/- while receipt was for sum of Rs. 223/- only. It is in evidence that at the instance of his friend Amit Sheth, they contacted Gas agency on phone and then they were told to contact dealer of the Gas agency in the office to put up their grievance. Thereafter they went to the office of the Gas agency and contacted Arun Surve (PW-4) with whom they had talk on phone. PW-2 Abhijit was directed to talk with Madam (Mrs. Alka Kamble). He made inquiry with Mrs. Kamble as to how Rs. 12/- were overcharged. She told him about the Xerox copy of the letter received from the collector, but the letter was not available with her at that time. She searched but it was not found. In the meantime Mr. Vasantrao Kamble who was present in the cabin came there. Abhijit had talked with him. Vasant Kamble told Abhijit that he knows his Father and he will talk to his Father. Amit Sheth (A-3) was present during this discussion. Abhijit was satisfied with the discussion and left the office but Amit Sheth (A-3) was still there and had exchange of words with Vasant Kamble and threatened Mr. Kamble that he would see him. . Thus Mr. and Mrs. Kamble were questioned about the overcharging the Gas cylinder. Then sum of Rs. 10/- was refunded by the delivery Boy. This incident happened just a day or so prior the alleged incident of double Murder. Evidence of PW-4 Arun Surve revealed that he was employee of Amit gas Agency since 22-06-2001. He had received phone from Shri Tapkire (PW-2) in connection with the supply of gas cylinder and the complaint was made about the rate of the Gas cylinder that the amount of Rs. 233/- was received from him for giving home delivery of Gas cylinder. He deposed that on 29-03-2001 Vasant and Alka Kamble were present. He also deposed about the inquiry made about the rate of gas cylinder from Shri Abhijt Tapkire (PW-2) and that Amit Sheth (A-3) had threatened Kamble (I will see you"). On 31-03-2001, he met Amit Kamble when he came to know that Mr. and Mrs. Kamble had left with a person by name Shinde to Ambet for inaugural ceremony of Hindustan Liver Agency shop and they did not return to the house since then. PW-4 Arun deposed that on 31st march the office of the Gas agency was closed and efforts were made to search for as Mr. and Mrs. Kamble had not returned to their house. Later on 2nd April, PW-4 Arun attended the office and on that day he came to know that the dead bodies of Kamble couple were traced at jungle at Tamhane Phata. PW-4 Arun who saw the dead bodies when the spot Panchanama was going on deposed that he saw the Dead bodies were in burnt condition, in the Shirke-Tamhane Jungle. On 2nd April PW-4 Arun had along with delivery boys and Driver Kadir had gone to the spot by the Tempo in Shirke-Tamhane Jungle when the Panchanama was already going on. He also deposed that the dead bodies were of Mr. Vasant and Mrs. Alka Kamble. Evidence of PW-4 Arun revealed that he had identified the article a wrist watch of Citizen Company (Art. 3), spectacle (Art. 4) as belonging to Mr. Vasant Kamble. A chappal (footwear Art. 2), a burnt Chappal (Art. 1) Ear ring (Art. 5) were identified as belongings of Mrs. Alka Kamble. Article no. 41 a Mangalasutra was also identified as belonging to Mrs. Kamble. It is pertinent to know that defence Advocate in the course of cross examination brought on record the fact that Police as well as CID Police had recorded the previous statement of the PW-4 Arun Surve as per his narration. He knew Kunda Sheth (A-2) as Kunda Bhabhi and Knew Zaverchand Sheth (A-10). In cross examination he confirmed the correctness of the fact stated to the police that he came to know that Zaverchand, his wife, Son and colleague had killed the Kamble couple and he did not know them (It remains obscure as to whom the word "them" refers whether to Sheth family or Kamble couple). In our view an attempt was made by the cross examiner to put the previous statement made to police and directly introduce it as evidence in a manner not warranted under law i.e. Section 162 of the Cr.P. Code read with Section 145 of the Indian Evidence Act. It was wrong on the part of the cross examiner Advocate to put to the witness as to what he had told the Police. Before a witness can be cross-examined with reference to his previous statement made to the Police with what has been stated before the Court, attention of the witness has to be drawn to the "portion" with which the cross examiner wants to contradict the witness with what has been deposed or stated before the Court. Attention of the witness has to be drawn to that specific portion of the police statement which is intended to be used to contradict the witness. If witness admits portion of the statement made before the Police, no further proof is necessary. But if witness denies the portion or the passage put to him in cross examination, then that portion has to be marked for identification subject to further proof by questioning the investigating Police officer concerned who recorded the previous statement of the witness as to whether the witness had in fact stated before the police "the portion or passage" of the statement which witness says he had not. The record of the trial Court must indicate as to which specific extracted portion of the alleged previous statement before the police was put to the witness in his cross examination by the cross examiner intending to use it for the purpose of contradicting the witness with what has been deposed before the trial Court. Omissions in the police statements may also be put to witness in the course of cross examination and if denied by the witness, investigating officer can be questioned whether witness had made a statement before the police which witness says he had not. Such omission/s may also amount to contradiction if it/they are significant and otherwise relevant having regard to the context in which they have occurred. The trial Courts need to bear in mind that statement of the witness made before the police cannot be used as evidence against the accused. It is only that specific portion or passage extracted from the statement made to the police recorded u/s 161 of the Cr.P. Code, if duly proved (bearing in mind the restriction u/s 162 of the Cr.P. Code) according to law may be used by the defense to contradict the witness concerned in a manner as provided by the Section 145 of the Indian Evidence Act. We feel the trial Court should have taken more precaution to have the record perfect in this regard. The Trial Court ought to have followed the leading ruling in the case of
9. Evidence of PW-3 Shekhar Gokhale, who was a Clerk serving in the Gas agency of Kamble''s since 01-06-2000 is about the inquiry which he along with Amit Kamble (PW-1) had made on 30-06-2001 (the correct relevant date in the context of the entire evidence should be 30-03-2001) as parents of Amit Kamble had not returned home after they had left the house for the reason told of inaugural function of the Gas agency at Ambet. After Kamble couple went missing, PW-3, Shekhar had gone to the house of Amit Kamble and assisted him in inquiry to trace whereabouts of his parents. According to him, Kazi and Patel made inquiry at Ambet and they disclosed that there was no any function at Ambet of inauguration of the Gas agency. When Report of Kidnapping was to be lodged at the Police Station, the police officer Shri Savant told them that at this stage the report as to the kidnapping cannot be recorded and hence, missing report was lodged. Later at about 10.15 a.m., a Complaint of kidnapping was recorded by the police official. Dead bodies in burnt condition were traced at Tamhane Ghat where Panchanama was going on when the PW-3 Shekhar went there. He also identified Satish Shinde A-4 as the person who had on 24-03-2001 inquired about availability of Mr. Kamble at the Mangaon Office. His evidence is criticized on the ground that he had not identified Mr. Satish Shinde (A-4) at the time of the Test identification Parade, but had identified him before the Court. PW-3 Shekhar''s evidence by itself may be considered as weak but it needs to be appreciated with caution in the context of entire evidence on the record.
10. PW-5 Shri Vinayak Savant is owner of Commander Jeep Mh-04-1698. He deposed about the fact that Amit sheth (A-3) wanted to hire a vehicle to go to Ambet and called it at Sundar Bungalow on 30-03-2001. Amit Sheth (A-3) and Babusheth (A-1) had boarded in the vehicle for to go too Ambet at about 12:30 to 1:00 p.m. The vehicle was driven by him at their instance of A-1 Babusheth to Lonere toll Road. On the way on instruction of A-1 it was taken to Tamhane Road and not to Ambet. The vehicle was stopped at the Tomb (Durgah) before the starting of Tamhane Phata. The A-1 and A-3 got down from the vehicle and went towards the side of Durgah and they had conversation with one person. Then they boarded on the in the jeep and then vehicle went about 200 meters to Tamhane Ghat. When it was not possible to drive the vehicle as it was steep kaccha road. Babubhai had asked PW-5 to take the vehicle in reverse direction. Then they returned to kundan Bungalow. He had received hire charges of Rs. 350/-. He also deposed about one marshal vehicle seen near Kundan Bungalow. The circumstantial evidence is about the conduct of the accused Babusheth and his Son Amit Sheth on 30-03-2001 prior to the incident.
11. PW-6 Sanjay Wadke is seller of wooden pat, steel plate and copper Jar (Art. 26 to 28) for Rs. 130 to the accused Satish Shinde (A-4). He admits that before deposing in the Court he had talk with Advocate Bhise in the veranda of the Court. He also admits material omission in his statement made to the police that there was no mention of his identifying the articles. He admits that similar types of articles are available in the Market as shown to him. He admits that he used to come in contact with the Police on account of his business to accept old articles in exchange of the purchase of new articles. Tahasildar had not called him for the test identification Parade.
12. PW-7 Vishwanath is also a servant who had handed over articles of wooden pat having sunmica, stainless steel plate, and copper jar Art. 26 to 29 to accused Satish Shinde. He admits visits by many persons to the shop daily and he cannot tell the nature of articles purchased by each customer.
13. PW-8 Bharat Goregaonkar is a Pancha witness who was a witness to Panchanama Ex. 112 about the spot wherefrom the Kamble couple was kidnapped. He also deposed about the arrest Panchanama (Ex. 113) of A-1 to A-3 Babubhai, Kunda, and Amit Sheth. PW-8 also deposed about the statement recorded of the accused Zaverchand @ Babusheth (A-1) that he would produce dead body of the deceased Vasant and Alka and would show the spot. Memorandum Panchanama Ex. 114 was drawn pursuant to which Zaverchand (A-1) had led police and Panchas to the spot in jungle where the dead bodies were discovered lying in burnt condition under the Panchanama (Ex. 115).
14. PW-9 Gorakhnath deposed as a pancha witness for recording of the statement of Bitya@ Sham (A-5) and the recovery of articles nylon rope (art. 34 and 36)from the spot near Durgah at the instance of the A-5 Sham under the Panchanama Exh. 121.
15. PW-10 deposed as to the Panchanama (Exh. 124) drawn at the instance of A-4 Satish Balu Shinde. He had led police and Panchas to Vadpale boundary where weapons (Art. 33) and a bag containing puja articles (Art. 25 to 28) wooden pat, steel plate, Niranjan and copper jar (Gadu) were sized under Panchanama Exh. 125. Admission of witness in cross examination is that police were not possessing anything else except pen and paper which would indicate that police had not made any preparation to carry the material for packing and sealing.
16. PW-11 deposed as a pancha in respect of the vehicle Trax bearing registration no. MH14 M 803 in Panchanama Exh. 127 and in respect of the chance finger prints found on the vehicle.
17. PW-12 Chandrakant is pancha regarding the inquest held over dead bodies of Vasant Kamble and Alka Kamble. (Exhs. 129 and 130).He deposed in cross examination that the dead bodies were completely in burnt condition and had turned black. PW-12 did not raise any objection when police recorded in Panchanama, the express opinion of police and Panchas to the effect that Accused had burnt dead bodies which is portion marked ''A'' in Panchanama (Exh. 129).
18. PW-13 Nitin Joshi is illiterate person chosen by Police as a Pancha for the Panchanama (Exh. 135) when at the instance of A-4 Shinde, office of the Babusheth was pointed out. It was closed. It was opened by a Watchman. A diary (Art. 39) was seized. According to PW-13, he had not read the contents of Panchanama as he was unable to read.
19. PW-14 is a pancha witness who deposed about the recovery of chain (Art. 38) bought by Accused Bhausaheb Sampat Bahule for Rs. 8529/- under the Panchanama Exh. 137. This witness admitted in cross examination that he did not know as to what inquiry was made by the police with the accused. He also admitted that in his presence, the accused was taken out from the lock up. Other accused were also present in the lock up.
20. PW-15 Shabbir Pardeshi deposed about the recovery of the sum of Rs. 13500/- balance with Mother of A-4 Satish Shinde under the Panchanama Exh. 139. Panchas had not offered their own search before the alleged house search. Witness had admittedly talked with Adv. Bhise before he deposed in Court.
21. PW-16 Siddik Havaldar deposed that the statement of the accused Dinesh Chapade (A-8) was recorded and the accused had recovered the WIMCO match box containing 8 live sticks which were seized from the spot pointed out by the said accused under the Panchanama Ex. 142. PW-16 admitted that the fact that police had brought the accused to Mahad police station is not correct. Police officials were sitting by both sides of the accused when he made the statement. This has placed question mark on voluntariness of the statement of the accused in memorandum particularly when the Panch was known to PSI Bhagwat and Shri Bhagwat had personally went by Jeep to bring the witness from his shop.
22. PW-17 is Pancha witness who deposed about the statement of the accused A-1 Zaverchand recorded under the Panchanama Ex. 146 whereby he had led Police and Panchas his house which led to discovery of Article no. 15 to 18 plastic Cans smelling of petrol and Kerosene under the Panchanama Ex. 147. During search of the house of the A-1, Articles 22 to 24 containing papers, file connecting Mr. Shinde, papers of gas agency, pertaining to the complaint to Tahasildar and Mr. Ramdas Athavle were also found. The recovery revealed tell-a-tale circumstances against the A-1 Zaverchand@ Babusheth. Nothing adverse could be elicited from cross examination of this witness to discredit him.
23. PW-18 is pancha witness regarding Panchanama Ex. 150 and 151 when the amounts of Rs. 14500/- and 10000/- were recovered from the accused Mohite and Shinde respectively. The accused were correctly identified before the Court by the witness.
24. PW-19 Pravin Pawar who had worked as supervisor with A-1 Babusheth in his office of Noble builder, deposed about the contact between the A-1 and Satish Shinde (A-4,) who used to work in the office of the Noble Builders.
25. PW-20 Raju Karkare was a servant in the Hotel "Farag". He deposed about six customers who came by Tempo Trax from Pune who visited the hotel. They had booked four bedrooms and one double bed room. They were Balu Shinde, R.V. Rode, S.S. Mohite, S.G. Shinde and B.S. Yadav and one more person who had left the lodge. Entry was made at Ex. 174. R.V. Rode had left the lodge on 23-03-2001 and others continued to stay in the lodge till 29-03-2001. The witness deposed on the basis of the alleged documents but could not tell as to in which room, who had stayed.
26. PW-21 Sayyad Kazi a garage owner had repaired the Jeep MH--14-803 brought by the A-5 to 7.
27. PW-22 Ramchandra Rode is Father of Rajendra who is the owner of the Trax Jeep. He deposed that on 22-03-2001 Accused Satkar had hired his jeep for ten days @ Rs. 500/- per day. Witness admitted that there is neither documentary evidence to show that his vehicle was not hired nor he had any tourist vehicle permit.
28. PW-23 Mohan Parmer is a Sweeper who took out Mangal sutra from Khed Police toilet septic tank under the Panchanama. At rear side of the Khed police station, he had emptied the septic tank of the toilet used by the policemen only. In cross examination, this witness admitted that policemen had explained to him on earlier day as to what he should depose on the next day and also to identify the Mangal sutra. He deposed how he stepped in the septic tank and could not find Mangal sutra earlier. After pouring two or three buckets full of water in the tank, he had found one Mangal sutra (Art. 41). This evidence is vehemently criticized on behalf of the prosecution as falsely created evidence to rope in the accused falsely in serious criminal case. We do not find this evidence of recovery of Mangal sutra as trustworthy. We must discard it as unreliable.
29. PW-24 is Rohidas Mulak a Pancha in respect of the Panchanama regarding recovery of Mangalasutra. According to him the toilet was shown by the boy who was handcuffed. He is illiterate witness, unable to read and write. On 14-04-2001 he had gone to police station to lodge a complaint against his relative. He admitted that police had obtained his signature. He also admitted that the Panchanama was drawn after the Mangalasutra was examined and weighed by the goldsmith.
30. PW-25 Jainuddin Tamboli is Driver of the Trax Jeep. According to him during the period between 25-03-2001 to 28-03-2001, he had accompanied with the accused Satish Shinde (A-4), and his companions to Harihareshwar, Diveagar and Shreevardhan, Murud Janjeera, Birla Mandir. But he has not deposed anything so as to throw light on the conspiracy as to the alleged incident of double murder. He had returned back to Peth, as on 02-04-2001, he wanted to go to Shirur to celebrate Moharrum.
31. PW-26 Hamidbhai is a witness who knew both the accused as well as deceased Kamble couple. He had sold the place in Madina Complex for the Gas Agency. He stated that there was a dispute between Vasant Kamble and A-1 Babusheth. His evidence is assailed by defense for material omissions which witness admitted in his earlier statement to police. He did not disclose to the Police that Keshav Hate had met him on 30-03-2001. He did not disclose to Police that he had called on Vasant Kamble on phone and Vasant Kamble told him that he wanted to visit Ambet to attend inaugural function. He admits that Keshav Hate (PW-33) was also taken in custody in this case by the Police.
32. PW-27 Shantaram Bothare is illiterate Servant of A-1 and A-2. He stated that two years prior to his deposition in the court he had purchased Kerosene in 15 litres Can. (Article 15)
33. PW-28 Pandurang Tembhe was working at a Petrol Pump by name "Hari Vijay Automobiles". His evidence is on the point that A-8 Dinesh Kapade had purchased 5 litres of petrol in Can.
34. PW-29 Chandrakant Pawar was Room boy of Apsara Lodge, Mahad. He deposed that on 29-03-2001, out of 18 rooms, 7 rooms were booked by different customers and in room no. 9 five customers were occupying. PW-29 refers to handwriting of the Manager Shri Kulkarni in Photostat copy (Ex. 192) and gave evidence that customer A.P. Jadhav paid bills of Rs. 185/-. It is argued on behalf of the defense that PW-29 has admitted that he would not be able to identify the customers who stayed in the lodge during the period between 29-03-2001 to 12-04-2001. The prosecution did not examine Ramesh Kulkarni, then Manager of the lodge who is attributed the role making the entries in Exh. 192 relied upon, although according to PW-29, he was serving in another lodge in Mahad. It is argued that on 12-04-2001, the accused were shown to the witness. The witness was confronted with his previous statement made to the Police as portion marked ''A'' for which the witness had no explanation to offer as to why it is so mentioned in his statement made to the Police.
35. PW-30 is Mangesh Sutar. He knew A-4 and had gone to Pratapgad He identified A-4 to A-6. He is an acquaintance of A-4 Satish Shinde. According to him Satish Shinde who had earlier served in the poultry Farm with him had also served with Babusheth (A-1). He identified Satish Shinde (A-4), and his friends introduced to him as Chota Pintya and Motha Pintya (A-5 and A-6 respectively). The suggestion that PW-30 identified the accused at the instance of Advocate Bhise was denied by him.
36. PW-31 Rasiklal Gandhi is a grocery shop-keeper who deposed about the entry recorded in note-book (Ex. 202) dated 24-03-2001 in respect of sale and delivery of 15 litres Kerosene in tin box to Shantaram, an employee of the A-1 and A-2. PW-31 admitted that the kerosene can be sold to only card holders. According to Rasiklal, note book is required to be produced in the Tahsildar''s office; otherwise he would not have maintained the note book. This evidence would indicate that an employee of A-1 and 2 had bought the kerosene on 24-03-2001.
37. PW-32 Sanjeev Chaudhari is HPCL''s Executive Sales officer who deposed the manner in which the distributors are selected. Alka Sahadeo Bhise (Alka Kamble''s maiden name) was selected as distributor for Mangaon in 1998. According to PW-32, the business was conducted in the name and style of M/s. Amit Gas Agency at Goregaon. PW-32 deposed that a complaint was made by Smt. Kunda Sheth (A-2). She was taking interest in the distributorship of Smt. Alka Bhise (Kamble). The complaint by Alka was supported by an agreement between Kunda Sheth and Alka Bhise with one Mr. S.K. Rao, the Deputy Manager. PW-32 had inquired in to the complaint of A-2 Kunda Sheth. Alka Bhise was questioned and her explanation was also recorded (Photostat copy of the inquiry papers were tendered as Art. ''A'') Original documents were not produced in the Court. The date of the complaint is not on record.
38. PW-34 Bhagwat Geete, is an Employee of Geeta Lodge, Budhwar peth, Pune. He deposed about the Register in the Hotel and the relevant entry on page 87 (Ex. 220). It is regarding stay of the accused Madhukar Satkar (A-7) and Sham Mohite (A-5)
39. PW-35 Vijay Gandhi is running a Medical and General Store from where the police Sub inspector Shelke and PSI More had purchased 7 Torches on 01-04-2001 at about 12 midnight, after they had requested him to open the shop and sell torches.
40. PW-36 Ramsanahi Sharma is a Carpenter. He knows A-1 as he had worked with him on daily wages of Rs. 150/- in the workshop of Noble Builders in Mangal Wadi Mahad. He turned hostile and was cross-examined by the prosecution. His evidence is no of any assistance to the prosecution case.
41. PW-37 is Ramesh Paskar, then Tahasildar of Mangaon deposed about the Test Identification Parades (for short TIP), (Ex. 239) held on 28-04-2001 at about 12.30 noon time in his chamber in Tahasil office. Upon requisition letter Ex. 237 from the investigating officer the TIP was held which reveals that PW-1 Amit Kamble, PW-33 Keshav Hate had identified Accused Satish @ Balu Shinde (A-4) from amongst seven persons (dummies). PW-37 also deposed about the fact that rest of the witness Shekhar Gokhale did not identify the accused Satish@ Balu Shinde. Other three accused were also not identified by the witnesses. The evidence is criticized on the ground that Mangaon Police station and, Tahasil office and Police lock up are situated in the same ''C'' shaped building with common courtyard at the center. The criticism from the defence is that the TIP held was meaningless as witnesses who had allegedly identified the accused had opportunity to see the accused before the TIP and it was possible that the witnesses may have identified the accused at the instance of police.
42. PW-38 is a Panch witness who deposed about seizure of the amount of Rs. 5000/- from Suresh Pathak (PW-39) under Panchanama dated 26-06-2001 (Ex. 242.) Suresh Pathak was driver of Sumo Jeep bearing registration no. MH-06-M-3412 belonging to Zaverchand. The testimony by PW-39 Suresh Pathak, driver revealed the fact that he was in the employment of A-1 as driver of the said Sumo Jeep which was hired by K.S.F. Company. While Dinesh Kapade (A-8) was driver of Mahindra Jeep, another vehicle owned by A-1. On 31-03-2001 at about 3.00 a.m., Accused Dinesh Kapade had visited the house of PW-39 Suresh Pathak to hand over the sum of Rs. 5,000/- for delivering the same to one Mr. Rasik Gandhi (Brother in law of the A-1). PW-39 had delivered the amount to Rasik Gandhi accordingly. House of A-1 was found locked on 31-03-2001 and 01-04-2001, when Police wanted to recover this amount during the investigation. PW-39 had contacted Rasik Gandhi before the Police, in presence of PW-38 Panch witness and who produced the same under the Panchanama.
43. PW-40 is proprietor of the "Poonam Jewelers", jewelry shop in Shukrawar Peth in Pune. He deposed that the Accused Pintu Bahule had bought gold chain with pendal (Art. 38) ornaments worth Rs. 8,829/- from his shop on 31-03-2001. Transaction is evidenced by the document quotation-(Ex. 245). It is pertinent to note that in the document name of Pintu Wable Nashik (Pune) was mentioned by PW-40 as name of customer at his instruction. The witness explained during the cross examination that there is no mark of his shop on the article, as he used to purchase gold articles from other gold smiths. PW-40 also admits that such gold chains are available in the Market.
44. PW-41 is branch Manager of the Bank of Maharashtra, in MIDC area at Birwadi, Tal. Mahad. He deposed about the record of the Bank and letter dated 09-04-2001 (Ex. 247) issued by then branch Manager Shri Salvi regarding the fact of withdrawal of the amount of Rs. 1, 67,000/- on 29-03-2001 from his current accounts by Zaverchand Harjeevan Sheth (A-1) from his accounts held by him in the names of Vaibhav Enterprises, Vaijayanta Services, Noble Builders, Noble Traders and Vishal Services. The transaction evidenced by the extracts from the Ledger (Ex. 248). This was major withdrawal by A-1 Zaverchand.
45. PW-42 is Dr. Anandrao Shankar Patil; Medical officer of the Primary Health Center Khamgaon gave evidence regarding the Post mortem examinations conducted along with Dr. Mehta, over two dead bodies, one of Male and another of Female in Shirke Tamhane Forest. The dead bodies according to Doctor were 100% burnt and process of decomposition had started as maggots were seen. He deposed about the correctness of P.M. Notes (Exh. 253 and Exh. 254). He had also found fracture on Femur bones of the deceased Kamble couple. Viscera collected were sent to C.A. According to Doctor if living person is burnt carboxy hemoglobin is found, but in case of Alka Kamble no carboxy hemoglobin was found indicating that Alka was burnt when she was already dead. Doctor candidly admitted that as the dead bodies were 100% burnt and there was heavy decomposition, the evidence as to strangulation was not found as no injuries were traceable. Doctor expressed his opinion that the fracture to femur bone may be possible due to resistance offered while sitting in the vehicle or due to blow of hard and blunt object on the said bone or possible by fall on hard and rough object. Doctor also gave opinion that in case of strangulation, instant death is possible by device like Articles no. 34 and 36 (Nylon thread woven in two wooden handles) as result of strangulation is asphyxia. The Doctor admitted the fact that the bodies were in burnt condition it was not possible to examine the bodies by each and every organ, legs and arms. He admitted that due to high decomposition and identification of the dead bodies was difficult. Doctors had expressed his opinion as to cause of death as "probably, death due to 100% burns still opinion is reserved for the report of the Chemical analysis". He admits about his difference of opinion with the investigating officer as for the cause of death of the persons concerned.
46. Shri Diwakar Shelke, API Alibaug (PW-43) gave evidence about the complaint dated 30-03-2001 (Ex. 90) lodged by Mr. Amit Kamble (PW-1) as his parents were missing since 11 a.m. on that day. PW-43 Mr. Shelke had initially interrogated Mr. Keshav Hate as he had accompanied with Mr. and Mrs. Kamble on the fateful day, in a white coloured jeep to Ambet for inauguration of the gas agency office. Mr. Shelke had tried to trace the Jeep but could not. On 31-03-2001 Amit kamble (PW-1) lodged another complaint about the kidnapping of his parents (Ex. 91). The offence was registered as C.R. no. 17 of 2001 at Goregaon Police Station. He drew spot Panchanama (Ex. 112) in respect of the spot wherefrom the Kamble couples along with Keshav Hate and others had boarded the white coloured Jeep. Cross examiner has brought on record the statement made by Shri Keshav Hate on record as Exh. 260 to Exh. 265. Initially Keshav Hate had feigned ignorance as to where Vasant and Alka Kamble had gone telling police that he had got down from the trax and went to his Veer village; Mahad. PW-44 Mr. Shaikh PSI assisted in the investigation from 01-04-2001 till 24-04-2001. He had arrested the accused Dinesh Kapade and arrested A-4 Satish Shinde, Madhukar Satkar, Sham Mohite, Bhausaheb Bahule and seized vehicle MH-14-M-803. He had visited hotel where according to him the accused had stayed. He also seized amount of Rs. 13500/- at the instance of the two accused and also visited shop Poonam jewelers wherefrom the accused had brought ornaments (vide Panchanama Ex. 280). Extracts from the ledger were collected from the bank of Maharashtra branch (Ex. 281) He also deposed that Mangalasutra (Art. 41) was recovered from the nearby area of latrine near Khed Police station at the instance of the accused Sham Mohite. Ex. 296 report from FSL indicated that the human heir was found on Ex. 9 Nylon rope attached to two sides of small wooden blocks. Viscera reports (Ex. 297 and 298) in respect of dead bodies found did not reveal any poison in Exhibit no. 1 and 2. Possibility of deaths by poisoning was thus overruled by expert opinion from FSL. No ethyl alcohol was detected. On 03-04-2001, PW-49 had invited finger print experts Shri Khandare and PW Shri Kelkar. They had taken chance fingerprints by examining Motor vehicle Tempo Trax bearing no. MH-014-M-803. Ex. 303 is the expert opinion regarding the chance prints obtained under the Panchanama (Ex. 127) from the drivers side rear view mirror of Motor vehicle MH-14-M-803 which matched with the right thumb finger impression in the finger impression slip of Accused no. 4 Satish Murlidhar Shinde. PW-52 Shri Mahavarkar also corroborated this evidence in Para 9 of his testimony, stating that expert were called upon by letter sent by Shri P.N. Patil Police Inspector (Ex. 353) to compare those chance prints with the specimen finger prints of all the accused in the case.
47. PW-46 is a licensed stamp vendor, who had on 18-03-1996 sold original five Stamps each in the denomination of Rs. 10/- and one stamp Paper in the denomination of Rs. 100/- under his signature''s (Art. A), Consent letter Art. B, Files containing agreement signed by him and A-1 (Art. 24), Photostat copy of consent letter dated 30-09-1998 (Art. B-1). Original Stamp papers were signed by him as vendors and by the A-1 as purchaser.
Evidence of Police officers concerned with the investigation
48. PW-47 is API Vishnu Pawar who assisted in the investigation to Shri Mahavarkar. PW-48 is Shashikant Savant PSI, Mahad City. He found on investigation that A-4 Satish Shinde had purchased some puja articles from the shop Of Sanjay Wadke at Mahad. He had also recorded statement of Vishwanath Pawar, an employee from the said shop who had delivered Puja articles. PW-49 Shri Pandurang Patil is another Police officer concerned with the investigation. Pw-49 Shri Patil deposed about the arrest Panchanama (Ex. 151) cash amount of Rs. 10000/- recovered from the A-4 Satish Shinde. Cash amount Rs. 14500/- recovered from accused Bitya@ Sham Mohite (A-5), Cash amount of Rs. 14000/- from Pintya@ Bahausaheb Sampat Bahule (A-6). PW-50 Shri Bhagwat, API deposed about the memorandum statement made by the Accused Dinesh under the Panchanama (Ex. 141). Accused Dinesh (A-8) had led police and Panchas to the spot in Shirke Tamhane Road wherefrom the match box of WIMCO Company (Art. 40) was found. It was seized under the Panchanama (Ex. 142). PW-50 Shri B.A. Dhas, Police Inspector had also assisted in the investigation. On 01-04-2001, he had arrested A-1 Zaverchand, his wife and Son in C.R. no. 17 of 2001, registered at Mangaon Police station. He deposed about the fact that A-1 had volunteered to point out the dead bodies of Vasant and Alka Kamble. Thus a memorandum statement was made by A-1 Zaverchand under the Panchanama (Ex. 114). The A-1 had led police and Panchas to the spot towards Shirke-Tamhane Road by Vehicle and had asked them to stop the vehicle and led police and panchas to the spot where two human burnt bodies were lying. Accordingly Panchanama (Ex. 115) was prepared. Separate inquest Panchanamas in respect of both the dead bodies were also drawn as per Ex. 129 and 130. Panchanama (Ex. 115 and 116) regarding the spot was also drawn in respect of recovery of articles i.e. one wrist watch of citizen company make, half burnt ladies footwear, old spectacle, one ear ring. The articles were identified by Amit Kamble (PW-1) as belonging to his parents. After the postmortem examination on the spot itself as the dead bodies were in burnt condition they were handed over to the custody of Amit Kamble (PW-1) for their last rites. Death entries made by Goregaon Grampanchayat (Ex. 341) on 010-04-2001. A gold chain was seized from the accused no. 6 Bhausaheb Bahule under the Panchanama (EX. 137) and reported to Dy. S.P. Mahavarkar by letter (Ex. 337) dated 10-04-2001. Investigating officer ACP, Thane Shri Mahavarkar gave evidence that he was monitoring the investigation in C.R. no. 17 of 2001 reported by Amit Kamble (PW-1). He gave evidence about the memorandum statement made by the A-1 Zaverchand recorded under the memorandum Panchanama (Ex. 146) and the fact that the A-1 led police and the panchas to his house wherefrom Four plastic Cans one of 20 litre capacity and three of 5 to 10 litre of capacity (Art. 15 to 18) were seized under the Panchanama (Ex. 147). Shri Mahavarkar also deposed about the Panchanama drawn by him in respect of the search of the house of A-1 Zaverchand during which three files (Articles 22 to 24) pertaining to the Gas agency and the dispute between the accused no. 1 and the deceased Kamble couple were traced in the house of A-1. The files contained the document of school leaving certificate of Satish Shinde (A-4), Xerox copy of the driving license of A-4 Satish Shinde seized under the Panchanama Ex. 148. PW-52 in Para 10 of his evidence deposed that on 04-04-2001, A-4 Satish Shinde made statement under the Panchanama (Ex. 124) for to produce the article of Puja as well as weapons concealed at Wadpale in the premises belonging to the A-1 Zaverchand. The A-4 led police and Panchas to the spot abutting Bombay-Goa Highway, where there was an open space having barbed wire fencing and gate. The articles were concealed under the Mango tree, wrapped in paper daily "Sakal "dated 25-03-2001. The articles no. 25 to 33 identified before the Court were wooden board, Steel plate, copper jar etc. which were seized under the Panchanama (Exh. 125) All articles were contained in the polythene bag. It is also in evidence of PW-52 that the accused Bittya@ Sham (A-5) had made confessional statement recorded under the memorandum Panchanama (Ex. 120) and led Police and Panchas to the recovery of Nylon rope/thread fixed in two wooden pegs with a hole at the center concealed under the thorny bushes at the spot near Huzurbaba Durgah, on Ambet Road. Long hair was found attached to the nylon rope. The hair was separated. Articles no. 34 and 36 were seized under the Panchanama (Ex. 121). During the course of cross examination, PW-52 was questioned at length. According to him on 31-03-2001 Keshav Hate had not disclosed the offence. He admits that the case was a topic of hot discussion in the Assembly as activists of Republican Party of India had insisted on breakthrough in the investigation. He also stated during the course of his cross examination that he had gone to the spot where the dead bodies were lying and they were 100% burnt but not totally decomposed. Dead bodies were delivered to the relatives of Vasant and Alka Kamble. PW-52 was also confronted with entry dated 30-03-2001 at Ex. 375 which revealed the outbreak of the dispute between Buddha and Muslim communities and the said incident pertained to burial land at village Ambet. PW-52 explained that it was an altogether separate incident at village Ambet. PW-52 is questioned about the portion marked ''D'' in police statement of Keshav Hate dated 19-04-2001 which revealed that PW-1 Amit Kamble had inquired with PW-33 Keshav Hate as to whereabouts of his parents. (Vide Ex. 438). Shri Keshav Hate had also stated portions marked as E, F and G (Ex. 439 to 441 respectively). These portions of contradictions are material and vital to indicate that Amit Kamble (PW-1 had telephoned Keshav Hate (PW-33) that his parent had not returned back and they had left the residence telling him that they are going to Ambet for inauguration of the shop at Ambet. Keshav Hate told Amit that his Father had asked him to get down at Vadavali Fata after giving him a note in the denomination of Rs. 50/-. It also indicates that Keshav Hate had had searched for Vasant and Alka Kamble on the night of 30-03-2001. The contradictions also indicated that Amit (PW-1) told Keshav Hate that Shinde driver, Zaverchand (Babu Sheth), Kunda Sheth, and Amit Sheth had taken away his Parents on 31-03-2001 at Morning and he had lodged complaint at Goregaon Police station. Thereafter Keshav Hate had along with Amit and villagers searched for Vasant and Alka. Furthermore, according to Keshav Hate he came to know on 02-04-2001 when he had visited residence of Kambles that they were kidnapped by the Trax vehicle on the pretext of inaugural function of the shop at Ambet and were strangulated and their bodies were burnt with the help of rockel and Petrol in the Tamhane shirke forest.
Submissions at the Bar-
49. Learned Counsel Mr. Chitnis who took us through the evidence of PW 33 Shri Hate, an eyewitness of the alleged incident of Murder submitted that the police statement of PW-33 was recorded after delay of about three months and has shown tendency to blow hot and cold during the examination-in-chief. Learned counsel criticized the evidence of alleged eye witness as false and imaginary. He made grievance of improperly led evidence by the Prosecution on the ground that leading questions were allowed by the trial Court to be asked to the witness during his examination-in-chief and this has caused grave prejudice to the case of the accused and vitiated the fair trial. He placed reliance upon the ruling in
11. .... The prosecutor shall not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner to which the witness by answer merely "yes" or "no" but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness''s mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and, obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.
12. Suspicion is not the substitute for proof. There is a long distance between, may be true'' and ''must be true'' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence.
50. Shri Chitnis reading evidence of PW. 33-Shri Hate before us contended that the evidence can be categorized as wholly unreliable. He submitted that the oral evidence, generally is either wholly reliable or wholly unreliable or in the third category of neither wholly reliable nor wholly unreliable. Thus the oral evidence may be accepted wholly or partially because some evidence may be disregarded in case there are certain infirmities noticed in the oral testimony. The trial Court is expected to attach the appropriate weight to the evidence of oral testimony using its experience, strong common sense and the knowledge of human affairs.
51. Shri Chitnis while making reference to
52. Shri Chitnis made reference to the ruling in
53. Reference is then made to the ruling in
54. Shri Chitnis also referred to the ruling in
55. Shri Chitnis then invited our attention to the ruling in Manohar Shankar Chavan vs. The State of Maharashtra (Cri. Appeal no. 586 of 1991 decided on 26-07-2012 by Division bench of this Court) as also to the ruling in Lahu Kamlakar vs. State of Maharashtra in Cri. Appeal no. 114 of 2008 to argue that the evidence if untrustworthy and impeachable cannot be relied upon to convict the accused. The clinching evidence is necessary to convict the accused. The Apex Court taking in to consideration the earlier rulings held thus:
26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded.
56. Shri Chitnis submitted that the major discrepancies which remained unexplained in the evidence of the prosecution ought to be considered to give benefit thereof to the accused so as to acquit them for want of clinching evidence. He referred to the ruling in
57. Shri Chitnis submitted that all the parameters to sustain the conviction ought to be satisfied. Prosecution must have led evidence beyond reasonable doubt to prove that the accused alone are responsible for the crime committed. He made a reference to the ruling in
58. Learned Advocate Mr. Yug Chaudhary submitted that the evidence as to the Test identification parade is not reliable as it was held contrary to guidelines in criminal manual (guidelines laid down by this Court). He placed reliance upon the ruling in
59. Reference is also made to the ruling in
60. Learned A.P.P. on behalf of the State placed reliance upon the rulings on the point of discrepancies occurring in the evidence due to inaction or lapse by the I.O. to inquire in depth for to collect evidence cannot be fatal to the prosecution case if available direct and circumstantial evidence rings true to establish the offence in question.
In Dharmendra Singh vs. State of Gujarat 2002 ALL MR (cri) 2605 (SC) in para 15-
As observed earlier the discrepancy in regard to the lodging of the FIR is certainly there and the conduct of the Investigating Officer in carrying out the investigation of the case has also been commented upon by the trial court but we are of the view that the consequences of such discrepancies or defective or doubtful investigation is not necessarily only one leading to discredit the main prosecution case if the prosecution evidences inspires confidence and circumstances lead to such a conclusion and the prosecution story rings true. No doubt that in that event it would be necessary to evaluate as to what extent such faulty investigation or discrepant statement on certain facts relating thereto, shall cause damage to the prosecution case as a whole
61. On the point of the lack of evidence as to the identification of the dead bodies, learned A.P.P. argued that it is no doubt important evidence for the prosecution to bring on record but it is not a sine qua non as the prosecution case can be established on the basis of available evidence to prove offence beyond reasonable doubt. She made a reference to the ruling in Laksmi vs. State of U.P. 2002 ALLMR (cri) 2290 In Para 16 and 17 the Apex Court observed thus observed thus-
16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence u/s 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of body and cause of the death.
17. The present case falls under this latter category. We would assume in favour of the accused persons that the prosecution had failed to conclusively prove as to which the body of deceased Ratan was and which that of Ramesh was. The trial court and the High Court, as earlier noticed, have disbelieved PW3 Usha wife of Ratan. The theory of his identification from muffler has not been accepted. It is also possible that the Police or the complainant thinking that identification of the dead bodies would be one of the important aspects to be established may have introduced the theory of muffler. The mere fact that in this regard, the case of the prosecution is not believed by itself does not lead to the conclusion that the accused persons are to be let off when the charges against them otherwise stand established on the basis of the other reliable and trustworthy evidence. Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies.
It is further summed up in Para 20 as under:
20. The reasons given above would equally apply to the absence of cause of death. The bodies had been extensively burnt and for that reason, it could not be ascertained whether the cause of death was shooting or burning. That also explains non-recovery of the pallets which would have lost in the burning pyre. The fact that the investigating team was not vigilant and did not take the trouble of searching pallets in the pyre would not be destructive of the prosecution case when it has been otherwise proved. It is not open to the accused persons to first make an attempt to destroy the evidence by throwing the two in fire and then contending that they are entitled to be acquitted for want of proof of identification of bodies and cause of death. There is unimpeachable evidence of PW1, PW2 and PW5 as to the manner in which the accused persons shot Ratan and Ramesh and threw them in the burning pyre of Ishwar Chand. The FIR was recorded within about an hour and half naming Roshan and his sons and brother-in-law of Ishwar Chand as accused and also narrating the manner of committing the crime.
In
8. Coupled with the evidence of PW-4, the evidence of PWs 2 and 3 who claimed to have seen the deceased and the accused shortly before the occurrence is of significance. Even if the High Court kept out of consideration PW-4''s evidence, the last seen theory was a factor which was not duly considered by the High Court. The dead body was found in the field of the accused and evidence on record also shows that the accused initially prevented PW-1 and others from searching his field, but after lot of persuasions he permitted the persons searching for the dead body to go to his field and in fact the dead body was recovered there from. The said solid circumstance is sufficient, coupled with the initial repulsion exhibited by the accused to substantiate the guilt of the accused.
62. Regarding the Motive to commit crime, Learned A.P.P. submitted that it relevant factor as it prompts a person to form an intention to do some illegal act to achieve that intention. She has made reference to the ruling in
21. At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
63. Learned A.P.P. argued that delay occurred in examination of the prosecution witness does not necessarily make the prosecution evidence untrustworthy. She referred to the ruling in
7. No doubt, in cases of party factions, there is generally speaking, a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with the guilty ones, but normally where the general substratum of the occurrence cannot be held to arouse any reasonable doubt or suspicion about its having taken place, then the prosecution witnesses, provided they are held to have witnessed the occurrence and to be in a position to identify the assailants, are ordinarily not to be assumed to have left out the actual offenders or the guilty persons. Although the witnesses for the prosecution are in such circumstances prone to exaggerate the culpability of the actual assailants as also to extend the participation in the occurrence to some possible innocent members of the opposite party as well, the court has to sift the evidence and after a close scrutiny with anxious care and caution to try to come to a judicial conclusion as to who out of the accused persons can be safely considered to have taken part in the assault. As pointed out in Deep Chand v. State of Haryana (1), the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country and therefore, it is the duty of the Court in cases where a witness has been found to have given reliable evidence in regard to certain particulars, to scrutinize the rest of his evidence with care and caution. If the remaining evidence is trust-worthy and the substratum of the prosecution case remains intact, then the court should
64. Regarding delay in recording the police statement of eye witness, learned A.P.P. argued that the investigating officer must be questioned about it and if he give satisfactory explanation, the delay can be inconsequential as held in
In the evidence led by the prosecution the clear, cogent and satisfactory explanation has been given why the statement of Haradhan Das was recorded after the lapse of 56 days. The learned Additional sessions Judge has carefully considered the explanation and accepted it and so has the High Court and we see no reason to interfere with this concurrent finding.
In
20... But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karrsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.
65. Regarding the evidence of the recovery of dead bodies in this case it is contended that it is most relevant evidence as held in
11. For recovery of the dead-body also, it has come on record that it was recovered at the instance of Vikas on the basis of his disclosure statement while he was in custody, which is proved by the evidence of PW18 Narender Mohan, Dy. S.P., Banswara, who has stated that accused Vikas led the police party to Gammon bridge. He pointed out the place from where he pushed Neeta in the river and they found the dead-body at a distance of 1 km. At that time also, Vikas admitted that dead-body which was found from the river was that of Neeta. This discovery of the dead-body at the instance of accused is most relevant circumstances in the present case.
In
35.....The decision of Privy Council in Pulukuri Kottayya vs. Emperor AIR 1947 PC 67. is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle.
37. How the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motor cycle of A2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A2 Guruji had carried the dead body on that particular motor cycle up to the spot.
38. In view of the said discovery of the fact, we are inclined to hold that the information supplied by A2 Guruji that the dead body of Dipak was carried on the motor cycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the above-mentioned extent.
66. In
24. The identification of appellants by PW-29, PW-34, PW-42 and PW-45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by PW-42 and PW-45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of appellants by PW-29 and PW-34 had been accepted by both the trial court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material.
67. In
20. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof.
21. In
The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin.
Evidence of Motive if available can assist the trial Court to arrive at logical and correct conclusion.
68. According to learned A.P.P. the criticism that Shri Hate is interested witness and his evidence is not reliable is unacceptable in view of the observations in the ruling in
15. Once, the presence of PW2 and PW3 is shown to be natural, then to doubt their statement would not be a correct approach in law. It has unequivocally come on record through various witnesses, including PW4, that there was a ''Satyanarayan Katha'' at the house of Chetu Ram which was attended by various villagers. It was on their way back at midnight when PW2 and PW3 had seen the occurrence in dark with the help of the torches that they were carrying. The mere fact that PW2 happens to be related to PW1 and to the deceased, would not result in doubting the statement of these witnesses which otherwise have credence, are reliable and are duly corroborated by other evidence. In such cases, it is only the members of the family who come forward to depose. Once it is established that their depositions do not suffer from material contradictions, are trustworthy and in consonance with the above-stated principles, the Courts would not be justified in overlooking such valuable piece of evidence.
69. We have carefully considered the submissions advanced at the Bar as also the rulings cited at the Bar. PW. 33 Keshav''s evidence brought on record in the course of the cross examination of the investigating officer has posed a serious question mark over the evidence of alleged Eye witness Keshav Hate (PW-33). But evidence of PW-53 Shri Londhe revealed that he had interrogated Keshav Hate (PW-33) on 23-06-2001 and 24-06-2001 and he opened up after initial reluctance and gave a Police statement. The evidence of PW-53 also revealed as to how he entered into correspondence with Civil Surgeon of Alibaug for seeking opinion on the point of cause of deaths of Vasant Kamble and Alka Kamble from 15-06-2001 and how late on 01-10-2001 the Civil Surgeon had replied the queries from PW-53. PW-53 states that he had on 21-06-2001 sent viscera contents for re-analysis. Police had questioned Keshav Hate thrice on 30-03-2001, 31-03-2001 and on 19-04-2001. Having seen the brutality of double murder in his presence, he was horrified and reluctant to tell the truth because he was also sought to be eliminated. Fortunately for him the offender who accepted the contract for killing Kamble couple said he was given money for to do away with Kamble couple only and not the third person and threat was given to Keshav Hate not to disclose any thing he had seen to any body or else he would also be killed. This is how we have to appreciate that the fear from the accused, made him reluctant initially to disclose anything about the incident of double murder. Till 24-06-2001, he had not even disclosed the incident to his wife.
70. Such witness who is resident of village is normally frightened and may avoid the police questions due to threats from the accused and may also try to avoid frequent attendances in the trial court proceedings. If and when assured of protection from the offenders, he may gather courage to depose the truth. PW-33 Keshav Hate was in psychological trauma which restrained him earlier to give ocular narration earlier than 24-06-2001. PW-33 in the course of cross examination explained the reason of fear from the accused as the reason for not disclosing the truth initially. A-1 Zaverchand wanted to kill Keshav Hate also but the A-4 Shinde refused to kill him on the ground that he was paid for two killings only and not for third and further that Hate had no issue with A-1, Keshav Hate was spared with the threat on that fateful day. These are inferences raised from the evidence of Keshav Hate, sole eyewitness and entire evidence. We think that the Learned Trial Judge who had an advantage observing the eyewitness deposing live before him, rightly chose to rely upon his direct evidence in the peculiar facts and circumstances of the case.
71. In our view, regarding the test identification Parade, the precautions as contained in the guidelines issued by the High Court in the criminal Manual are required to be observed to make the exercise of holding the TIP meaningful and reliable. If there is inordinate delay in holding TIP, the delay ought to be explained by the prosecution. A witness of fact who is required to attend the test identification to identify the unknown offender from the assemblage of accused intermingled with group of dummies at the TIP must not have any prior opportunity to see the suspect or the accused after his arrest or while the accused is continuing in custody pending investigation, before the TIP is held. If TIP is held in jail, the responsible authority holding TIP will have the facility to take precautions including the selection of the appropriate similar dummies in age, appearance, dress etc. to stand along with the suspects. At the same time it must be remembered that the TIP belongs to the stage of investigation and essentially governed by Section 162 of the Criminal Procedure Code and does not constitute the substantive evidence. Hence cannot be decisive factor for recording conviction. There is no provision in the Code of Criminal Procedure to make it compulsory for the investigating agency to hold test identification Parade because the substantive evidence is identification of the culprit before the Court. Failure to hold the TIP would not make the evidence of identification in the Court absolutely meaningless or inadmissible. The evidence of TIP provides only corroboration to the main evidence before the Court when required by way of the abundant precaution in view of Section 9 of the Indian Evidence Act. The object of holding TIP at the stage of investigation is to help the investigating agency to assure itself that the investigation is proceeding at right direction, on correct lines. The purpose of the holding prior test identification is to test trustworthiness of the witness at the stage when investigation is still at its preliminary stage. The holding of the TIP is felt necessary in a case wherein the accused were not known to the accused since prior to the incident. The accused cannot as of right claim that the test identification parade must be held at the stage of investigation. The trial Court is not precluded from accepting the evidence of the identification of the offender on the basis of sworn testimony in the Court without insisting upon the corroboration. Though safe rule of prudence is to look for corroboration. It is for the learned trial judge, as a Court of fact, who has opportunity to see & have live experience of watching demeanor of the witness while he or she is deposing before the Court, to attach the appropriate weight to the evidence of the witness. In an appropriate case the trial Judge may accept the evidence of identification in the Court even without insisting upon the corroborative evidence. In case the trial Judge find it unsafe to rely upon the substantive evidence of actual identification of the offender before the trial Court, it may look upon the evidence of the TIP for the purpose of corroboration and may then find it out whether corroborative evidence adduced is dependable and reliable to base conviction. Merely because the sole eye witness is branded as an interested witness his evidence in our view cannot be discarded particularly when corroboration to the main evidence may be found from the evidence led on record. If it is established that the sole eyewitness was present at the time of occurrence and his testimony appears natural, free from blemish and reliable, the conviction can be based upon his evidence. There cannot be a dispute over the settled proposition of law that when two views are possible on the evidence adduced in the trial one pointing to the guilt and other pointing to the innocence, the view which is favourable to the accused ought to be preferred to ensure that miscarriage of justice shall be prevented and an innocent person shall never be convicted. Therefore the prosecution is obliged to prove the offence beyond reasonable doubt to establish that the accused are the real culprits. But the principle which is other side of the same coin must also be borne in mind that the miscarriage of justice which may arise from the acquittal of the guilty can be no less than that of the conviction of the innocent. In case where the admissible evidence is ignored the duty is cast upon the Appellate Court to re-appreciate the evidence for the purpose of ascertaining as to whether any of the accused really committed the offence or not.
72. Discovery of dead bodies at the instance of the accused may not by itself lead to the conclusion but the articles belonging to the victims at the instance of the accused must be considered important circumstance or circumstances to raise presumption of the participation of the accused in offence. As a general rule confessions or statements made to police are not admissible in evidence due to bar u/s 25 and 26 of the Indian Evidence Act. By way of an exception discovery of fact as contemplated u/s 27 of the Indian Evidence Act is relevant only when evidence is given that the accused while in police custody supplied or gave information which is the immediate or direct cause of the a relevant "fact discovered". Such disclosure statement or information supplied whether amounting to confession or not is not wholly admissible in evidence, but is restricted in its admissibility to the extent it distinctly relates to the fact thereby discovered. The expression "fact discovered" includes within its ambit the place from which the object is produced as also the knowledge of the accused as to the object produced and the place wherefrom the thing or object is produced. Thus portion of the disclosure statement or information which relates distinctly or strictly to the fact discovered is provable because some guarantee of truth or assurance is attachable unmistakably to such portion only; rest of it is inadmissible in evidence.
73. Section 120A of the Indian penal Code defines criminal conspiracy as an agreement between two or more persons to commit an illegal act or to do an act which though by itself not illegal but the same is done or executed by illegal means. Mere proof of an agreement between the accused to commit offence is enough to bring about the conviction for the offence punishable u/s 120B of the IPC, in such case proof of any overt act by the accused or by any of them would not be necessary. Conclusion is to be drawn from the circumstantial evidence available in the case, because Criminal conspiracy is often hatched in complete secrecy and it is impossible or rare to get direct evidence. It is not necessary that each of the conspirators must not know each and every detail of the conspiracy nor it is necessary that every one of the conspirators must take part in the commission of each and every conspiratorial act. The prosecution may prove from the circumstances on record that the agreement existed to commit crime by necessary implication. It is said that men may lie but the circumstances do not. How criminal conspiracy was formed, when and who were the participants as also the manner in which the criminal conspiracy is carried out are the matters of inference, legitimately deducible from the acts and conduct of the accused persons.
74. When circumstances are cogently and firmly established, considered cumulatively, they form a chain so complete to unmistakably point out towards guilt of the accused and none else then conviction is sustainable. There would be no justification for the Court to cull out the one circumstance from the rest of them to give different meaning to it. The test is whether the combined effect of the proved facts taken together is conclusive to establish that within all human probabilities the accused must have committed the crime. One of these facts may not by itself be decisive. "Last seen" theory can lend credence to the prosecution theory to connect the accused in the absence of any other links in the chain of circumstantial evidence. The accused ought to explain facts within his knowledge to create dent in the prosecution story. Non-explanation of the accused in his defence statement u/s 313 of the Criminal procedure Code as to what happened on the fateful day can furnish a missing link to connect accused to the crime. Conduct of the accused before and after the incident is relevant u/s 8 of the Indian Evidence Act. When it is shown unreasonable and unnatural, it is pointer towards guilt of the accused in the absence of cogent explanation from the accused in their defence statement.
75. Right from the stage of FIR which set the law in motion in the present case, we have considered the entire evidence along with evidence of Shri Keshav Hate with care and caution, with due regard to the common course of natural events and human conduct. The testimony of PW-33 Shri Keshav Hate is criticized by the defence as that of a false or interested witness on the ground that he was acquaintance of the deceased Kamble Couple. But merely because of this reason that he was acquainted with deceased Kamble couple, his evidence cannot be discarded as untruthful, especially when he supported the prosecution case in material particulars. There is no evidence of his enmity of any kind towards the accused which can motivate him to rope them in for serious offence of Murder. It must be emphasized The maxim "falsus in uno, falsus in omnibus" has no application in India. The witness in our country may not be of sterling quality to present unvarnished truth, he may have tendency to indulge in embroidery of untruth though his evidence is true in the main. When deposing after long gap of time from the date of incident of double Murder, the witness is not expected to give a parrot like exact version of the incident. Normal discrepancies are bound to occur due to lapse of time, or due to mental disposition caused by shock and horror at the time of the incident, howsoever the honest and truthful the witness may be. Contradictions of minor nature are bound to occur. Variation or improvement made by the witness, from his earlier statement made before the police cannot by itself be sufficient to hold such evidence given in the court as infirm and discardable. The Court is duty-bound to separate the grain from the chaff and accept what appears to be true. When that is done it is open for the criminal court to record conviction. A witness may stand discredited by cross examination by bringing contradictions or inconsistencies on record which may go to the root of the matter in issue. Convincing evidence must be brought on record to assail or uproot credibility of an eye witness. In the absence of material contradiction, improvement and inconsistency, there is no impediment to base conviction upon the testimony of solitary eye witness if such sole eye witness is found reliable, and if his evidence is sufficiently corroborated by other evidence brought on the record, his testimony must be considered as credit-worthy and satisfactory.
76. We find that the learned trial Judge had analyzed in details the circumstantial evidence, medical evidence and the evidence of forensic expert in the present case which were found sufficiently corroborative to the ocular version of the incident of fraudulent abduction, double murder and attempts to destroy evidence. We may conveniently list them as under:-
(i) Accused no. 1 Zaverchand @ Babubhai and Mrs. Kunda Sheth were known to Kamble family as they were staying as neighbors while they were tenants of one Faruq Rehman. PW-26 Hamidbhai who had sold the shop of Gas agency in Medina Complex deposed that there was dispute between Vasant Kamble and A-1 Zaverchand @ Babusheth. Panchnama (Ex. 146) is a memorandum statement of A-1 Zaverchand, pursuant to which under Panchnama (Ex. 147) was drawn and three files (Art. 22 to 24) were recovered pertaining to the Gas Agency and the dispute between A-1 and deceased Kamble Couple. Xerox copy of driving license of A-4 Satish Shinde was also seized under this Panchnama.
(ii) Kamble couple started "Amit Gas agency" at shop no. 13 in Madina Complex at Goregaon. A-1 and A-2 wanted the Gas agency and they had pressurised the Bank officials so that the Kamble couple should not get loan. There was dispute about the dealership of the Gas agency between the deceased Kamble couple. The Civil suit at Alibaug was instituted by A-1 Zaverchand@ Babubhai, claiming sum of Rs. 10 to 15 lakhs on the allegation that Alka Kamble had taken finance from the accused no. 1 Zaverchand @ Babubhai. A-1 to A-3 had also filed Writ Petition in Bombay High Court. PW-32 Sanjeev Chaudhari, Executive Sales Officer of HP deposed about the selection of Alka Sahadeo Bhise (Mrs. Alka Kamble''s maiden name) as distributor for the Gas Agency at Mangaon and the fact that Kunda Sheth (wife of A-1 Zaverchand) was staking claim in the distributorship of Alka. The dispute had past history of the complaint dated 25-03-1999 lodged by Smt. Alka Kamble to the Police and complaint dated 07-02-2001 lodged by one Shri Ramdas Athavale as deposed by PW-1 Amit Kamble. (Circumstances brought out in the course of cross examination of PW-1 Amit Kamble). There was a dispute about the rate of Gas cylinder between the A-1, his wife Kunda on one hand and Kamble couple. On 29-03-2001, A--3 Amit Sheth gave threat to Mr. Kamble in marathi language "Mee Tumhala Baghun Ghein" (I will see you) on the pretext that Gas cylinder was sold for Rs. 235/- while receipt was given for Rs. 223/- only. PW-2 Abhijit deposed that the Kamble couple was questioned about the overcharging and a sum of Rs. 10/- was refunded by the delivery boy. PW-4 Arun Surve gave evidence that he was present when on 29-03-2001 threat was given by Amit Sheth as aforesaid. Deceased Vasant Kamble had lodged complaint regarding the incident as stated in cross examination by PW-1 Amit Kamble. PW-3 Shekhar Gokhale, Clerk serving in Gas Agency of Kamble stated that A-4 Satish Shinde had inquired with him at Mangaon office on 24-03-2001 about availability of Vasant Kamble.
(iii) Evidence of PW-27 Shantaram Bothare, Servant of A-1 Zaverchand an A-2 Kunda, read with the evidence of PW-31 Rasiklal Gandhi, a grocery shopkeeper reveals that 15 liters of kerosene was bought in a Can on 24-03-2001. (Vide notebook entry Ex. 202).
(iv) PW-41 Branch Manager of Bank of Maharashtra deposed that Zaverchand (A-1) withdrew sum of Rs. 1,67,000/- on 29-03-2001 from the bank accounts held by him (Exh. 248 is statement of Bank transaction) on the pretext of inaugural function of Shinde''s Gas agency to be opened as new Gas agency of Hindustan Lever Company at Ambet, A-4 Shinde told Vasant Kamble that inaugural function is to be done at the hands of Vasant Kamble, the accused Satish Shinde (A-4) had contacted late Vasant Kamble on Phone on 29-03-2001 at 9 p.m.. Accused Satish Shinde had informed Vasant Kamble that he will come by the special vehicle at morning at about 10 a.m. on 30-03-2001 and Vasant Kamble shall be ready. Satish Shinde (A-4) had purchased Puja articles from shop of Sanjay Wadke (PW-6) at Mahad (vide evidence of PW-48 Shashikant Savant) then came at the residence of Kamble couple at about 11 a.m. On 30-03-2001. PW-1 had served water to him. Satish Shinde wanted Vasant Kamble to start early. Mr. Keshav Hate had came as invited by Vasant Kamble to accompany with him. A-4 Satish Shinde along with Mr. Vasant Kamble, Mrs. Alka Kamble, Keshav Hate went by vehicle driven by A-4 Satish Shinde. One unknown young person aged about 17 to 18 year old person had occupied the seat by the side of Driver Satish Shinde. PW-1 Amit Kamble had '' last seen '' the A-4 Satish Shinde visiting his house and taking his parents and Shri Keshav Hate (PW-33) by Motor Vehicle away on the pretext to inaugurate a Gas Agency Shop at their hands at Ambet. PW-1 later came to know that there was no such function at village Ambet on that day. The theory of ''last seen together'' is one where two persons were ''seen together'' alive and after an interval of time, one of them is found alive and the others dead. If the period between the two happenings is short, presumption as to the person alive being the author of death of the other can be drawn depending upon the happenings and circumstantial material collected during the course of evidence. Time gap should be of such duration so as to rule out the possibility of somebody else committing the crime. Last seen together principle is one of the latest principles of the law of evidence which is taken into consideration to safely reach the guilt of the criminal. In the absence of eyewitnesses and tangible evidence, it is the last resort of the prosecution in a murder case-the person last seen with the victim is presumed to be the murderer, thus, shifting the onus on to the accused to tender plausible explanation which unless it point out otherwise or establish an alibi may help the prosecution to establish the guilt. The foundation of the theory is based on principles of probability and cause and connection. Where a fact of fraudulent abduction has happened with a series of acts, preceding or accompanying it, it can safely be presumed that the fact of double Murder of Kamble couple was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends. In the present case however the ocular evidence of Keshav Hate has the effect to bolster up further the prosecution''s chain of circumstantial evidence.
(v) PW-5 Vinayak deposed that Amit Sheth (A-3) hired a vehicle for Rs. 350/- on 30-03-2001 and had called it at Sundar Bungalow on 30-03-2001. Amit Sheth and Babubhai had boarded the vehicle for going to Ambet at about 12:30 to 1:00 p.m. But the vehicle was driven to Lonere Road and then turned to Tamhane Road and not to Ambet Road. Evidence of PW-5 revealed that the A-1 and A-3 had got down from the vehicle and went towards side of Durgah and talked with one person. Then Vehicle was taken about 200 Meters towards Tamhane Ghat. As it was Steep kutcha Road. Babubhai had asked the PW-2 to take the vehicle in reverse direction. Then they returned to Kundan Bungalow.
(vi) Evidence of PW-6 Sanjay Wadke, shop-keeper and PW-7 Vishwanath servant in shop reveals that Wooden Pat, Steel plate, used as weapon of offence from the shop and Copper Jar (Art. 26 to 28) was bought by A-4 Satish Shinde. These very article were recovered under the Panchnama (Ex. 124 and Ex. 125) at the instance of A-4 Satish Shinde, who led police and Panchas to Vadpale boundary. (vide Evidence of PW-10). At the instance of A-1 Zaverchand (memorandum statement recorded Ex. 146) Plastic Cans smelling of Kerosene were recovered under the Panchanama (Ex. 147). PW-18 Pravin Supervisor with A-1 stated that A-1 and A-4 were acquainted with each other.
(vii) PW-1 when his parents did not return inquired and came to know that there was no any inaugural function at Ambet, lodged missing report (Ex. 90) at the Police station. Amit, PW-1 lodged complaint (Ex. 91) of abduction when his parents did not return despite waiting.
(viii) PW-8 Bharat, a Pancha witness deposed about statement recorded of the A-1 Zaverchand @ Babusheth (Ex. 112) that he would point out dead bodies of deceased Vasant and Alka and would show the spot. Pursuant to which A-1 led police and Panchas to the spot in Jungle where from the dead bodies in burnt condition were recovered under Panchnama (Ex. 115) Dead bodies of Vasant Kamble and Alka Kamble were recovered in burnt condition at the instance of at Tamhane Ghat. The circumstance that the A-1 knew of the dead bodies of Vasant and Alka and the spot where dead bodies were lying in burnt condition is vital in the composite chain. Medical evidence of Doctor A.S. Patil who had conducted post mortem on the spot over dead bodies noticed fracture of femur bones in respect of both dead bodies, (indication of physical violence). Doctor also noticed carboxy hemoglobin on dead body of Alka indicating that Alka must have been set on fire after she was already dead. Dr Patil expressed opinion that fracture of femur bone was possible due to resistance offered while sitting in vehicle or due to blow of hard and blunt or possible by fall on the hard and blunt object. Two Nylon ropes were recovered at the instance of A-5 (Statement recorded in Panchnama Ex. 120). One of the Nylon rope (Art. 10) was found tied to the wooden Pat having hole at the center. Bunch of human hair was found on Nylon rope. C.A. Report Exh. 391 indicated that on examination of the Can Seized and referred for examination kerosene residues were found. Exh. 296 report from FSL indicated that the human heir was found on ex. 9 Nylon rope attached to two sides of small wooden blocks. Viscera reports (Exhs. 297 and 298) in respect of dead bodies found did not reveal any poison in exhibit no. 1 and 2. Possibility of deaths by poisoning was thus overruled by expert opinion from FSL no ethyl alcohol was detected. On 03-04-2001 PW-49 had invited finger print experts Shri Khandare and PW Shri Kelkar. They had taken chance fingerprints by examining Motor vehicle Tempo Trax bearing no. MH-014-M-803 Ex. 303 is expert opinion regarding the chance prints obtained under the Panchanama (Ex. 127) from the driver side rear view mirror of Motor vehicle MH-14-M-803 which matched with the right thumb finger impression in the finger impression slip of Accused no. 4 Satish Murlidhar Shinde. PW-52 Shri Mahavarkar also corroborated this evidence in Para 9 of his testimony, stating that expert were called upon by letter sent by Shri P.N. Patil Police Inspector (Ex. 353) to compare those chance prints with the specimen finger prints of all the accused in the case.
(ix) PW-50 Shri B.A. Dhas, Police Inspector had also assisted in the investigation. On 01-04-2001 he had arrested A-1 Zaverchand, his wife and Son in C.R. no. 17 of 2001 reported at Mangaon Police station. He deposed about the fact that A-1 Zaverchand @ Babusheth had volunteered to point out the dead bodies of Vasant and Alka Kamble. Thus a memorandum statement was made by A-1 Zaverchand under the Panchanama (Ex. 114).The A-1 had led police and Panchas to the spot towards Shirke-Tamhane Road by Vehicle and had asked them to stop the vehicle and led police and panchas to the spot where two human burnt bodies were lying. Accordingly Panchanama (Ex. 115) was prepared.
77. Non-explanation of the incriminating circumstances against the A-1 and A-4 by them do furnish the missing link to the actual commission of heinous act of double murder of first strangulating the Kamble Couple, then attempts to destroy the evidence of heinous act of double Murder by burning the dead bodies with intention to make them unidentifiable and thereby escape from the clutches of law. There would be no justification for the criminal Court to cull out one of the circumstance from the rest of them to give different meaning to it. The test is whether the combined effect of the all the proved facts taken together is conclusive enough to establish that within all human probabilities the accused must have committed the crime. One of these facts may not by itself be decisive. Last seen theory can also lend credence to the prosecution theory to connect the accused in the absence of any other links in the chain of circumstantial evidence. Faced with above incriminating circumstances against them the accused no. 1 and 4 were bound to explain facts within their knowledge to create dent in the prosecution story. Non-explanation of the accused in their defence statement u/s 313 of the Criminal procedure Code as to what happened on the fateful day can furnish a missing link to connect accused to the crime. Conduct of the accused no. 1 and 4 before and after the incident is relevant u/s 8 of the Indian Evidence Act. If it is shown unreasonable and unnatural, it is pointer towards guilt of such accused in the absence of cogent explanation of their acts in evidence. Right from the stage of FIR which set the law in motion in the present case, we have considered the entire evidence along with evidence of Shri Keshav Hate with care and caution, with due regard to the common course of natural events and human conduct. The testimony of PW-33 Shri Keshav Hate is criticized by the defence as that of a false or interested witness on the ground that he was acquaintance of the deceased Kamble Couple. But merely because of such criticism, his evidence cannot be discarded as untruthful, especially when there appear ring of truth in his evidence and he has substantially supported the prosecution case in material particulars. There is no evidence that Mr. Keshav Hate had enmity of any kind towards the accused persons which can motivate him to rope them in for serious offence of double Murder. His evidence may not be free from some blemish here or there. The maxim "falsus in uno, falsus in omnibus" has no application in India. The witness in our country may not be of absolute sterling quality to present unvarnished truth, he may have tendency to indulge in embroidery of untruth though his evidence is true in the main. When deposing after long gap of time from the date of incident of double Murder, the witness is not expected to give a parrot like exact version of the incident. Normal discrepancies do occur due to lapse of time, or due to mental disposition caused by shock and horror at the time of the incident, howsoever the honest and truthful the witness may be. Contradictions of minor nature are bound to occur. Variation or improvement made by the witness, from his earlier statement made before the police cannot by itself be sufficient to hold such evidence given in the court as infirm and discardable. The Court is duty-bound to separate the grain from the chaff and accept what appears to be true. When that is done it is open for the criminal court to record conviction. A witness may stand discredited by cross examination by bringing contradictions or inconsistencies on record which may go to the root of the matter in issue. Convincing evidence must be brought on record to assail or uproot credibility of an eye witness. In the absence of material contradiction, improvement and inconsistency, there is no impediment to base conviction upon the testimony of solitary eye witness if such sole eye witness is found reliable, and if his evidence is sufficiently corroborated by other evidence brought on the record, his testimony must be considered as creditworthy and satisfactory. Bearing the settled principles in mind, We find that the circumstantial evidence, medical evidence and the evidence of forensic expert presented in the case were sufficiently corroborative to the ocular version of M. Keshav Hate (PW-33) about the incident of double murder. In the present case the material do exist to identify the motive and the cumulative evaluation of the links in the chain of circumstances leading to sure conclusion of guilt of the accused. Whole testimony of Shri Keshav Hate cannot be rejected on the ground that he is speaking untruth in some aspect because it is impossible to present proof with rigid mathematical demonstration. If such test of absolute waterproof evidence is to be insisted upon, it would be a dead stop for the criminal administration of justice. We are aware of the rule that an innocent person shall never be convicted. But at the same time no guilty persons can be allowed to escape the clutches of law and go unpunished. Wrong acquittal would send wrong signals to the society. There was no reason for Shri Keshav Hate (PW-33) to falsely implicate the accused or to shield the real culprits. In our opinion his testimony was not shattered, in as much as, to ignore and throw it overboard at least as against the A-1 and A-4 who were clearly involved in the incident of double Murder of Kamble couple. Hate has given vivid description of the whole incident. In his cross examination, it is brought on record that noose on the neck of Vasant was tightened by the A-1. It is true that in the earlier statements of Mr. Hate recorded by the police, he has not implicated the accused. However, he implicated the accused in his statement recorded on 24th June, 2001 by CID. He has stated in paragraph no. 23 of his deposition that he was threatened immediately after the incident. He has categorically stated that he was reeling under fear even when he visited the police station with activists. He stated that he was feeling like disclosing the incident, but due to fear, he could not muster sufficient courage. This has all come on record in his cross examination. It is further brought in the examination-in-chief that CID officers took him into confidence. Thus, the evidence of Mr. Hate (PW. 33) shows that he was under constant threat and fear and therefore, he did not come out with truth in his earlier statements. Thus, there is sufficient explanation for the delay on his part in coming out with true version. Hence, substantial part of his evidence has to be believed.
78. In the present case the material do exist to identify the motive and the cumulative evaluation of the links in the chain of circumstances leading to sure conclusion of guilt of the accused. Whole testimony of Shri Keshav Hate cannot be brushed aside on the ground that he is speaking untruth in some aspect because it is impossible to present proof with rigid mathematical demonstration. If such absolute waterproof evidence is to be insisted upon, it would be a unfortunate dead stop for the criminal administration of justice. We are aware of the rule that an innocent person shall never be convicted. But at the same time no guilty persons can be allowed to escape the clutches of law and go unpunished. Wrong acquittal would send wrong signals to the society. There was no reason for Shri Keshav Hate (PW-33) to falsely implicate the accused or to shield the real culprits. In our opinion his testimony was not shattered, in as much as, to ignore and throw it overboard. We find that the PW-1 Amit Kamble gave evidence as to the incident when A-4 Satish Kamble had been to his house, to whom he had served water. A-4 Satish had taken Kamble couple on the pretext of going to Ambet for inaugural function of opening of the Gas agency. This evidence of ''last seen'' circumstance deposed by PW-1 Amit Kamble remained unexplained by the accused no. 1 and 4 and therefore lends strong support to the ocular version of the incident. Keshav Hate (PW. 34) knew both A-1 and A-4 and has clearly deposed about their participation. When we examine the combined effect of the proved facts and chain of circumstances including the evidence of motive of the accused in the present case, discovery of dead bodies of Kamble couple, identification evidence of various articles belonging to Kamble couple by prosecution witnesses mainly PW-1 Amit Kamble, and Eye witness Mr. Keshav Hate, it is clear that there are strong circumstances which are clear pointers to prove the actual participation of the A-1 Babusheth, A-4 Satish Shinde in horrendous crime of double murder of Kamble couple. We find in evidence that the A-1 Zaverchand @ Babu sheth and A-4 Satish Shinde had conducted themselves in unreasonable and unnatural manner before, at the time and after the incident of double murder and they did not bother to explain their unreasonable and unnatural conduct although they owe explanation for each of the circumstantial evidence led against them. Hence they were definitely involved in the incident of double Murder of Kamble couple, in pursuance of the criminal conspiracy hatched between them to cause death of Kamble couple. The trial Court have scrutinized the entire evidence closely as it had opportunity to see the witnesses actually deposing before it and it has closely appreciated their evidence, finding them credit worthy; bearing the principle in mind that the guilty men shall not go unpunished and innocent person shall never be convicted. We find circumstances are cogently and firmly established, considered cumulatively along with ocular evidence of Keshav Hate, in our opinion they form a chain so complete to unmistakably point out towards guilt of the accused No. 1 and 4 and therefore conviction is sustainable as ordered by the trial Court against them.
79. Discovery of dead bodies at the instance of the accused no. 1 Zaverchand may not by itself lead to the conclusion of his guilt but the articles belonging to the victims were also found pursuant to the statement by A-1 which led to discovery of the dead bodies of the victims. (The articles were identified by Son of victims) Hence these circumstances against the accused no. 1 Zaverchand in particular must be considered important circumstance or circumstances to raise presumption of his participation in double Murder.
80. Section 120A of the Indian penal Code defines criminal conspiracy as an agreement between two or more persons to commit an illegal act or to do an act which though by itself not illegal but the same is done or executed by illegal means. Mere proof of an agreement between the accused to commit offence is enough to bring about the conviction for the offence punishable u/s 120B of the IPC, in such case proof of any overt act by the accused or by any of them would not be necessary. Conclusion is to be drawn from the circumstantial evidence available in the case, because Criminal conspiracy is often hatched in complete secrecy and it is impossible or rare to get direct evidence. It is not necessary that each of the conspirators must not know each and every details of the conspiracy nor it is necessary that every one of the conspirators must take part in the commission of each and every conspiratorial act. The prosecution may prove from the circumstances on record that the agreement existed to commit crime by necessary implication. It is said that men may lie but the circumstances do not. How criminal conspiracy was formed, when and who were the participants as also the manner in which the criminal conspiracy is carried out are the matters of inference, legitimately deducible from the acts and conduct of the accused persons. We have ample inferences against the A-1 and A-4 as to their guilt on the basis of listed circumstances as above-mentioned. Combination of circumstances read together with evidence of PW-33 Shri Keshav Hate, lead us to the conclusion of guilt of at least A-1 Zaverchand @ Babu Sheth and A-4 Satish Shinde, with reasonable certainty as human affairs admit it. We can not agree with the defence contention that two views one as to their guilt and the other as to their innocence are possible against them. In our view no criminal case is free from shortcoming, but when the direct and circumstantial evidence brought on record is sufficient beyond reasonable doubts, unexplainable except with the hypothesis of the guilt then guilty/offender cannot be allowed to escape the clutches of the law. To punish the criminal is as much important as is the acquittal of an innocent. For the reasons aforesaid, we must record our conclusion that the prosecution has succeeded to prove the offenses of abduction and double Murder of Vasant Kamble and Mrs. Alka Kamble (Kamble couple) and attempt to destroy evidence of heinous criminal act, committed pursuant to criminal conspiracy secretly hatched between A-1 and A-4, beyond reasonable doubt as against A-1 Zaverchand @ Babu sheth and A-4 Satish Shinde. We find that the conclusions against the A-1 and A-4 by learned trial Judge were well reasoned and must be upheld. However we cannot record same conclusion as against rest of the accused. There is no evidence adduced by the prosecution to show that the A-2 and A-3 were parties to the conspiracy. They have not participated in the actual crime as even Keshav Hate has not deposed to that effect. Therefore, both have been acquitted by the Trial Court. As regards the A-5 to A-8, the witness Keshav Hate did not identify them in Test Identification Parade. He did not knew them personally. As against this, Hate knew A-1 and A-4 before the incident. There is corroborative evidence against A-1 and A-4. But, as far as A-5 to A-8 are concerned, it is unsafe to convict them only on the basis of identification of the said accused by witness Hate in the Court. While identifying them in Court, he has not attributed any specific role to A-5 to A-8. Hence, benefit of doubt deserves to be extended to them. We find that the conclusions against the A-1 and A-4 by learned trial Judge were well reasoned and must be upheld. However, we cannot record same conclusion as against rest of the accused. Hence A-2, 3, 5 to 8 are given benefit of doubt. Regarding the appeal by the State of Maharashtra in our view apart from above discussion, presumption of innocence becomes stronger by an order of acquittal, we are not therefore inclined to interfere with the well reasoned acquittals recorded by the trial Court. In sequel to our discussion, we pass the following order-
ORDER
I. Criminal Appeal no. 661 of 2005 by Accused No. 1 Zaverchand@ Babusheth @ Babubhai Sheth is dismissed.
II. Criminal Appeal no. 832 of 2005 in relation to Satish@ Balu Muralidhar Shinde (Accused no. 4) is dismissed.
III. Criminal Appeal No. 832 of 2005 in relation to Madhukar Ramchandra Satkar (Accused no. 7) is allowed. He is acquitted of all offences with which he was charged and given benefit of doubt. He shall be released forth with if not required in any other case.
iv. Criminal Appeal no. 747 of 2006 by the State of Maharashtra is dismissed. Conviction and sentence of the Accused No. 1 Zaverchand and Accused no. 4 Satish Shinde is confirmed on all counts for offences punishable u/s 302, 364, 201, read with Section 120B of the Indian Penal Code as recorded by the trial Court against them.
v. Criminal Appeal no. 686 of 2005 by Pintya@ Bhausaheb Sampat Bavale (Accused no. 6) and Criminal Appeal no. 777 of 2005 by Dinesh Sitaram Kapade (Accused no. 8) and Criminal appeal no. 1084 of 2005 by Sham @ Bittya Shrirang Mohite (Accused no. 5) are allowed. The appellants-accused in these appeals are given benefit of doubt and shall be released forthwith if still in custody in this case and if their custody is not required in any other case. Their Bail bonds shall stand discharged.
vi. Muddemal articles cash amount seized during the course of investigation remaining unclaimed shall be forfeited to the State of Maharashtra. Muddemal articles, valuables identified by PW-1 Amit Kamble as articles identified as belonging to the deceased Kamble Couple shall be returned to PW-1 Amit Kamble (Son of deceased Kamble Couple) after the appeal period is over and if no appeal is filed.
vii. Rest of the muddemal articles being valueless, useless, remaining unclaimed be destroyed after the appeal period is over and if no appeal is pending in the case.
