Sattatiya
@ Satish Rajanna Kartalla Vs. State of Maharashtra [2008] Insc 43 (16 January 2008)
G.P.
Mathur & G.S. Singhvi
Per
G.S. Singhvi J.
This
appeal by special leave is directed against the judgment of the Bombay High
Court, which upheld the conviction of the appellant under Section 302 I.P.C.
and sentence of life imprisonment awarded to him by Additional Sessions Judge,
Greater Bombay in Sessions Case No.28/1995.
On
1.10.1994, PW1 Dr. Rasiklal Dwarkadas Dani, a resident of Pratap Building 173, Dadiseth Agyari Lane, Mumbai, telephonically informed
Assistant Police Inspector (API), PW14 R.R. Gaekwad of Police Station Tilak Nagar
that a man, who was later on, identified as Satish, was lying on the right side
of the stairs of the building in a pool of blood. API Gaekwad reached the spot
and removed that person to G.T. Hospital, where he was declared brought
dead. PW14 recorded the information given by Dr. Dani as Ex.P6 and treated the
same as FIR. He then handed over the investigation to PW13 Shamsherkhan Wazirkhan
Pathan, who was acting as night Police Inspector at L.T. Marg Police Station.
The latter prepared Panchnama of the dead body.
From
the papers found in the pocket of the clothes of the deceased, the police
contacted his brother, PW3 Rajaiyya Pochyya Bandapalli on 1.10.1994 itself and
recorded his statement. After two days, the appellant and one Devabhuma Badapatti
were arrested. On the day of his arrest i.e. 3.10.1994, the appellant is said
to have made a statement and then took the police to Room No.45 of the third
floor of the building known as Ganesh Bhuvan Dadiseth Agyari Lane,
Mumbai and got recovered his pant and shirt which are said to be having stains
of blood. On 4.10.1994, the appellant was medically examined by PW10 Shiv Narain
Daund, who found that the thumb and index finger of the appellants right
hand had been injured sometime back. On the next day i.e., 5.10.1994, the
appellant took the police to PW7 Mohd. Farid Abdul Gani, who claims to have
sold the handkerchief, which was found near the body of the deceased. On
6.10.1994, the appellant is said to have given some more information to the
police and got recovered half blade (marked as Article 7) which was lying under
the wooden platform in front of Ganesh Bhuvan. The clothes of the
deceased, the pant and shirt belonging to the appellant and blade were sent for
chemical examination. As per the Chemical Examiners Report, the clothes of
the deceased were having human blood of O group. The pant and shirt,
allegedly recovered at the instance of the appellant also had blood stains, but
it could not be established whether the same was human blood of O
group. The stain on the blade was also said to be of human blood but its
identity could not be established by the chemical examiner.
After
completing the investigation, the police submitted challan in the Court of the
Metropolitan Magistrate who committed the case to the Court of the Sessions,
Greater Bombay.
The
prosecution examined PW1 Dr. Rasiklal Dwarkadas Dani, PW2 Dinesh Dubey, with
whom Devabhuma Badapatti is said to have worked till September 1994, PW3 Rajjaiyya
(brother of the deceased), PW4 Hari Oval and PW8 Ranjit Bishram Jaiswal, who
acted as panches for recovery of the clothes from Room No.45 of Ganesh Bhuvan,
PW5 Salim Sheikh, who acted as panch for recovery of half blade beneath wooden
board in front of Ganesh Bhuvan, PW6 Shankar Shripati Ulalkar, who
was engaged in the work of shaving and cutting hair outside shop No.1 of Ganesh
Bhuvan, Dadiseth Agyari Lane, PW7 Mohd. Farid Abdul Gani, who claims to
have sold the handkerchief to the appellant, PW9 Balu Shivram Nalwada, who is
said to have witnessed the sale of handkerchief by PW7 to the appellant, PW10 Shivraj
Narayan Daund, who examined the appellant on 4.10.1994, PW11 Raju Chandu Poojari,
who claims to have seen the accused persons with the deceased on the night of
the incident i.e. 30.9.1994, PW12 Dr. Avinash Janardan Pujari, who performed
the autopsy on the dead body, PW13 PI, Shamsherkhan Vazirkhan Pathan and PW14
API, R.R. Gaikwad. Thereafter, the statements of the appellant and Devabhuma Badapatti
were recorded under Section 313 Cr.P.C. Both of them denied having committed
the crime.
The
motive of the crime, as projected by the prosecution, was that the appellant
was having illicit relation with Lakshmi wife of the deceased and Devabhuma Badpatti
was having animosity with the latter because of the alleged murder of his
father. The prosecution relied on the circumstantial evidence of last scene,
recovery of blood stained pant and shirt from Room No.45, Ganesh Bhuvan Building,
blood stained half blade and handkerchief found near the body of the deceased
to prove the appellants involvement in the crime.
The
learned Additional Sessions Judge did not accept the prosecutions theory
regarding motive but relied on the circumstantial evidence and convicted both
the accused under Section 302 read with Section 34 I.P.C. and sentenced them to
life imprisonment. On appeal, the Division Bench of the High Court upheld the
conviction of the appellant and confirmed the sentence of life imprisonment
awarded to him, but acquitted Devabhuma Badpatti on the premise that there was
no evidence to show that he was a party to the crime.
Shri Ajit
Kumar Pande assailed the findings recorded by the learned Additional Sessions
Judge, which as mentioned, were confirmed by the High Court by arguing that the
entire story was fabricated by the police to falsely implicate the appellant.
Learned counsel invited our attention to the serious discrepancies in the
statement of PW 11, Raju Poojari, who claims to have seen the appellant with
the deceased at 10.45 p.m. on 30th September 1994 and argued that the
deliberate attempt made by the witness to conceal the fact that he was engaged
in the business of illicit liquor and was arrested by the police in connection
with the said business should have been treated by the learned Additional
Sessions Judge and High Court sufficient for discarding his testimony. Shri Pande
then argued that the recovery of the blood stained pant and shirt from Room
No.45 of Ganesh Bhuvan and half blade from under the wooden board in
front of Ganesh Bhuvan, are highly suspicious and no credence should
have been given to such recoveries for holding the appellant guilty of serious
offence like murder because they were not proved to be stained with human blood
of O group. He lastly argued that version of PW7 Mohd. Gani regarding
sale of handkerchief to the appellant is unbelievable because there was nothing
from which he could identify the handkerchief allegedly sold more than one
month before the alleged murder. Shri Sushil Karanjakar, learned counsel for
the State supported the judgment under challenge and argued that the High Court
rightly upheld the conviction of the appellant and the sentence awarded to him.
We
have thoughtfully considered the entire matter. It is settled law that an
offence can be proved not only by direct evidence but also by circumstantial
evidence where there is no direct evidence. The Court can draw an inference of
guilt when all the incriminating facts and circumstances are found to be
totally incompatible with the innocence of the accused. Of course, the
circumstances from which an inference as to the guilt is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely connected
with the principal fact sought to be inferred from those circumstances.
In Hanumant
Govind Nargundkar v. State of M.P. [AIR 1952
SC 343], which is one of the earliest decisions on the subject, this court
observed as under:
It
is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should be in the first instance be fully established and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused. In Padala Veera
Reddy v. State of A.P. [(1989) Supp (2) SCC 706], this
court held that when a case rests upon circumstantial evidence, the following
tests must be satisfied:
(1)
the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
(3)
the circumstances, taken cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else; and
(4) the
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
In Sharad
Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that
the onus was on the prosecution to prove that the chain is complete and falsity
or untenability of the defence set up by the accused cannot be made basis for
ignoring serious infirmity or lacuna in the prosecution case. The Court then
proceeded to indicate the conditions which must be fully established before
conviction can be based on circumstantial evidence. These are:
(1) the
circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be
established;
(2) the
facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the
circumstances should be of a conclusive nature and tendency;
(4) they
should exclude every possible hypothesis except the one to be proved; and
(5) there
must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused.
In
State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86], it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.
The
above noted propositions have been reiterated in Bodhraj alias Bodha and Others
vs. State of Jammu and
Kashmir [(2002) 8 SCC
45]; Bharat vs. State of M.P. [(2003) 3 SCC 106]; Jaswant Gir vs.
State of Punjab [(2005) 12 SCC 438]; Reddy Sampath
Kumar vs. State of A.P. [(2005) 7 SCC 603]; Deepak Chandrakant
Patil vs. State of Maharashtra [(2006) 10 SCC 151]; Ramreddy
Rajesh Khanna Reddy and Another vs. State of A.P. [(2006) 10 SCC 172] and State of Goa vs. Sanjay Thakran and Another [(2007) 3 SCC 755].
In Ramreddy
Rajesh Khanna Reddy and Another vs. State of A.P. [(2006) 10 SCC 172], this Court while reiterating the
settled legal position, observed:
It
is now well settled that with a view to base a conviction on circumstantial
evidence, the prosecution must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and the circumstances so
proved must form such a chain of events as would permit no conclusion other
than one of guilt of the accused. The circumstances cannot be on any other
hypothesis. It is also well settled that suspicion, however grave it may be,
cannot be a substitute for a proof and the courts shall take utmost precaution
in finding an accused guilty only on the basis of the circumstantial
evidence. At this stage, we also deem it proper to observe that in
exercise of power under Article 136 of the Constitution, this Court will be
extremely loath to upset the judgment of conviction which is confirmed in
appeal. However, if it is found that the appreciation of evidence in a case,
which is entirely based on circumstantial evidence, is vitiated by serious
errors and on that account miscarriage of justice has been occasioned, then the
Court will certainly interfere even with the concurrent findings recorded by
the trial court and the High Court Bharat vs. State of M.P. [(2003) 3 SCC
106].
In the
light of the above, we shall now consider whether in the present case the
prosecution succeeded in establishing the chain of circumstances leading to an
inescapable conclusion that the appellant had committed the crime.
A
careful reading of the judgments of the Additional Sessions Judge and High
Court shows that the conviction of the appellant was based on the following
circumstances:
(i)
that both the accused were with the deceased when he was last seen alive in the
night of 30/9/1994.
(ii) the
accused had residence in the vicinity of the place where the injured was found
while the injured did not reside in the vicinity.
(iii) accused
No.1 had an injury which could be caused by user of the blade (Art.7) and had
knowledge where the piece of blade could be found by the Police.
(iv) there
was human blood on the piece of blade and stains of human blood on the clothes
of accused No.1 were not explained to be the stains of blood of his own.
(v) the
handkerchief purchased by accused No.1 was found near the injured with stains
of blood of the injured indicative of presence of accused No.1 in the vicinity
after the injured had sustained bleeding injuries.
(vi)
Accused No.2 used to be with accused No.1 many times and had been sleeping at
the place of accused No.1 for three nights and accused No.2 had borrowed
Rs.300/- in the night of 30th
September, 1994 and
(vii)
they were caught when they were together.
We
shall first scrutinize the evidence of last scene, which is in the form of
statement of PW11 Raju Poojari. In the first instance, the witness denied his
acquaintance with Babu Poojari but then volunteered to admit that he knew the
latter. He gave out that he was residing in a temporary shed at Sonapur, Chandanwadi,
which was used as tailoring shop. Later on, he made an improvement by saying
that he was doing work at the tailoring shop. According to him both the accused
had passed in front of the shop on 30th September, 1994 at 10.45 p.m. He demonstrated his acquaintance with both the accused by
saying that they used to come to the tailoring shop. When two photographs of
the deceased (marked as Article 8) were shown to him, PW11 stated that the said
person had come with the accused for getting their clothes stitched from the
shop. He expressed his ignorance about the time when they came to the shop and
then stated that they came at 10.30 p.m. 2-4
days before the police came to make enquiries from him. According to PW11 his
signatures were obtained at the police station but nothing was read out to him.
He then stated that something was read out at the police station ten days back
when he was called there and was shown photographs (marked as Article 8).
He
admitted the existence of a liquor shop near the tailoring shop, but gave out
that the same was owned by one John. He denied his involvement in the business
of illicit liquor. At that stage the public prosecutor sought and was granted
permission to ask questions in the nature of cross examination. In reply to the
querries put by the public prosecutor, PW11 denied the suggestion that he was
doing business of illicit liquor and expressed his ignorance about the
statement given to the police that he was engaged in such business. He also
denied having stated before the police that the accused had come to the liquor
shop with the person in the photograph and that they were offering liquor to
him and also asked Babu Poojari to pour more liquor in his glass because he was
their guest. PW11 then stated that the person shown in the photograph was
totally drunk when he came with two accused and they were supporting him while
walking and this happened 4-5 days before when he was called to the police
station.
He
expressed his ignorance about the number of false cases registered against him.
In cross examination he denied having indulged in any activity other than
tailoring work. He also gave out that he did not know the names of the accused
when they passed in front of the tailoring shop.
A
critical analysis of the statement of PW11 shows that the same is full of
contradictions. In the examination-in-chief, he demonstrated his acquaintance
with the accused by saying that they used to come to tailoring shop but in
cross examination he admitted that he did not know their names when they were
passing in front of the tailoring shop. The second important contradiction
relates to his recognition of the person shown in the photograph. In the first
instance he gave out that the said person had come with the accused for getting
their clothes stitched from the shop but, later on, stated that he came with
the accused and was heavily drunk and was being helped by the accused. Yet
another contradiction which is apparent from the statement of PW11 relates to
his acquaintance with Babu Poojari. In the beginning he flatly denied that he
knew Babu Poojari and then made a u-turn by voluntarily stating that he knows Babu
Poojari. He also denied having stated before the police that he was doing the
business of selling illicit liquor in association with Babu Poojari and that
the accused offered liquor to the deceased and also asked Babu Poojari to pour
more liquor in his glass. These contradictions are evident from the following
extracts of the statement of PW11:
I
know Satish Bandapalli and Devaanna Bandapalli and they were passing in front
of my shop at about 10.45 p.m.
I do
not know where they were going. I had been knowing those 2 persons as they used
to come to the tailoring shop. These 2 accused had not done anything
else when they passed in front of my tailoring shop. I did not know their names
at that time. I had seen the person whose 2 photographs from Article
8 are now shown to me, but I do not know his name. When I last saw the person
in this photograph, he had been with the 2 accused before this court. Those 3
together had come to my shop. Those 3 had come for getting their clothes
stitched from the shop where I used to be. I do not remember the time when they
had come to the shop.
Now I
say that they had come at 10.30 p.m. 2-4 days before the police came to make
enquiries from me. The police had taken me in the police station. At the police
station my signature was obtained and I was permitted to go. The police did not
read out anything to me at the time they had taken me to the police station and
obtained my signature but something was read out to me 10 days back when I had
been called here. At the time my signature was taken I was shown the
photographs Article 8. It did not happen that Babu Poojari came to me
and agreed to work with me and we both started doing the business of illicit
liquor. I had not stated so to any one at any time. I can not say why portion
marked A to that effect has been so recorded. It did not happen that
these 2 accused had come to my illicit liquor business with the person in the
photograph. I had not stated so to any one at any time. I can not say why
portion marked B to that effect has been so recorded in my alleged
statement dated 5.10.1994. I had not seen these 2 accused offering liquor to
the person in the photograph and also asking Babu Poojari to pour more liquor
in his glass as he was their guest. I had not stated so to any one at any time.
I cannot say why portion marked C to that effect has been so recorded
in my alleged statement dated 5.10.1994.
The
person in the photograph now shown to me Article 8 was totally drunk when he
had come with these 2 accused to our shop. The person in the photograph was so
drunk that these 2 accused had to support the person in the photograph Article
8 for making him walk away and in that condition I last saw them walking away
from the tailoring shop 4-5 days before police took me to the police station.
At
present I have been wrongly apprehended by the police in a case when there was
a raid on the illicit liquor shop in the neighbourhood. I do not know in how
many false cases I have been involved after being wrongly apprehended. It
is significant to note that even though PW11 denied having made statements
marked A, B and C before the police but the
investigating officer, PW13 categorically asserted that Raju Poojari did make
those statements.
The
learned Sessions Judge as also the High Court noted contradictions in the
statement of PW11 but ignored the same by describing them as minor. In the
opinion of the learned Sessions Judge the variation in the previous statement
of PW11 stands explained by his desire not to incriminate himself. He also
observed that the defence had not brought anything from the cross examination
of PW11 to discredit his testimony. The High Court adopted the same line of
reasoning for placing reliance on the evidence of last scene.
In our
view, the testimony of PW11 is wholly untrustworthy. He appears to be a
doctored witness, who came forward to support the prosecution cause with a view
to win favour from the police in the cases registered against him in connection
with the raid of illicit liquor shop. This is the reason why he made
vacillating statement regarding the identity of two accused and the deceased
and the purpose of their coming to the so-called tailoring shop where he was
residing and also working. It is difficult, if not possible, to believe that
even though the accused persons used to come to the tailoring shop for getting
their clothes stitched, where PW11 is said to be working, he did not know their
names. His attempt to conceal his acquaintance with Babu Poojari who was his
associate in the business of illicit liquor is inexplicable. The suggestive
conjecture made by the learned Additional Sessions Judge that PW11 retracted
from the statement made before the police because he did not want to
incriminate himself in offences relating to business of illicit liquor cannot
be accepted because the fact of the matter is that the witness was arrested by
the police in connection with the said business and there was every reason for
him to come forward to support the police case. The testimony of PW11 is also
discredited by the fact that he made self contradictory statements regarding
the presence of the accused and the deceased at the shop.
In one
breath he stated that they were passing in front of the shop and thereafter
sought to identify them by stating that they had come for stitching the
clothes.
The
next thing which is to be seen is whether the evidence relating to the recovery
of clothes of the appellant and the half blade, allegedly used for commission
of crime, is credible and could be relied on for proving the charge of culpable
homicide against the appellant.
In
this context, it is important to note that the prosecution did not produce any
document containing the recording of statement allegedly made by the appellant
expressing his desire to facilitate recovery of the clothes and half blade. The
prosecution case that the accused volunteered to give information and took the
police for recovery of the clothes, half blade and purchase of handkerchief is
highly suspect. It has not been explained as to why the appellant gave
information in piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and
6.10.1994.
Room
No.45 of Ganesh Bhuvan from which the clothes are said to have been
recovered was found to be unlocked premises which could be accessed by any one.
The prosecution could not explain as to how the room allegedly belonging to the
appellant could be without any lock. The absence of any habitation in the room
also cast serious doubt on the genuineness and bonafides of recovery of
clothes. The recovery of half blade from the road side beneath the wooden board
in front of Ganesh Bhuvan is also not convincing. Undisputedly, the
place from which half blade is said to have been recovered is an open place and
everybody had access to the site from where the blade is said to have been
recovered. It is, therefore, difficult to believe the prosecution theory
regarding recovery of the half blade. The credibility of the evidence relating
to recovery is substantially dented by the fact that even though as per the
Chemical Examiners Report the blood stains found on the shirt, pant and
half blade were those of human blood, the same could not be linked with the
blood of the deceased.
Unfortunately,
the learned Additional Sessions Judge and High Court overlooked this serious
lacuna in the prosecution story and concluded that the presence of human blood
stains on the cloths of the accused and half blade were sufficient to link him
with the murder.
The
over jealous efforts made by the prosecution to link the handkerchief allegedly
found near the body of the deceased of the appellant lends support to the
argument of the learned counsel for the appellant that the police had
fabricated the case to implicate the appellant. In his statement, PW7 Mohd. Farid
Abdul Gani, who is said to have sold the handkerchief to the appellant,
admitted that he was not selling branded handkerchiefs and that there were no
particular marks on the goods sold by him. He, however, recognized the
handkerchief by saying that the accused made a lot of bargaining and he was
amused by the latters statement that he will soon become an actor.
Both
the learned Additional Judge and High Court accepted the testimony of PW7 along
with the statement of PW9 ignoring the admission made by the former that he did
not put any special mark on the handkerchief sold by him; that he purchased the
handkerchiefs in wholesale from the market and removed the label of
manufacturer before selling the same and that there are 4 or 5 other persons
carrying on the same business in the locality. Likewise both the courts ignored
the fact that PW9 could not confirm the exact identity of the handkerchief
(marked as Article 3), he could only say that the handkerchief of the appellant
was just like Article 3.
In our
opinion it is extremely difficult to believe that a person engaged in the
business of hawking would remember what was sold to a customer almost two
months after the transaction and that to without identity of the goods sold
having been established.
On the
basis of above discussion we held that the prosecution failed to establish the
chain of circumstances which could link the appellant with the crime. The
learned Trial Court and the High Court committed a serious error by relying on
the circumstantial evidence of last scene, the recovery of pant and shirt from
Room No.45 of Ganesh Bhuvan building, half blade from under the
wooden board and the sale of the handkerchief by PW7 to the appellant.
In the
result the appeal is allowed. The judgment under appeal and the one of the
Trial Court are set aside and the appellant is acquitted. He shall be released
forthwith if not required in connection with any other offence.
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