Oral Judgment: (B.R. Gavai, J.)
The present criminal confirmation case and two criminal appeals are being heard and decided together.
2) The prosecution case, in brief, is as under:
Deceased Dhanshree Ramteke daughter of Alka Ramteke was studying in Dr. Ambedkar College and was also taking tuition. On 14/8/2012, she left for her tuition class at 6.30 p.m. on her moped Dio. She normally used to return home at 8.30 p.m. to 9 p.m. However, on that day, she did not return and as such, her mother made enquiries with her friends on telephone and also informed the said fact to her brother, namely, Rajesh Dahat. The mother and her maternal uncle took search for her in the night of 14/8/2012 and in the morning of 15/9/2012. Since she could not be traced till afternoon, a missing report came to be lodged by Rajesh Dahat, maternal uncle of Dhanshree, at Gittikhadan Police Station.
3) Police Station Officer, Police Station, Gittikhadan received information from the Office of Police Commissioner that a body of lady was found burning in Gorewada area. He visited the said spot along with squad and noticed a body of lady, which was lying in half burnt condition and a truck tyre on which the said body was burnt. Spot panchanama and inquest panchanama came to be drawn. The body was referred for post mortem. Various articles including footwear were recovered from the spot. Police informed the fact about finding of the said body to Rajesh Dahat and Alka Ramteke and called them to Police Station for identification. They came to the Police Station and identified the said body to be that of Dhanshree. A first information report came to be registered for the offences punishable under Sections 302 and 201 of Indian Penal Code against unknown persons.
4) The Investigating Officer after taking charge of the investigation, recorded statements of some witnesses and came to know about affairs of accused no.1 with Dhanshree and arrested both the accused immediately. According to prosecution, on the basis of memorandum of accused under Section 27 of the Evidence Act, various incriminating articles came to be seized at their instance. On completion of investigation, a charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, who committed the case for trial to Court of Sessions. On conclusion of the trial, the learned trial Judge convicted both the accused for the offences punishable under Sections 302 and 201 of Indian Penal Code. The accused no.1 was sentenced to death for the offence punishable under Section 302 of Indian Penal Code and to pay fine of rupees two thousand and in default, to suffer simple imprisonment for six months whereas accused no.2 was sentenced to suffer imprisonment for life and to pay fine of rupees one thousand and in default, to suffer further simple imprisonment for three months. Insofar as offence punishable under Section 201 of Indian Penal Code is concerned, both the accused were sentenced to suffer rigorous imprisonment for five years and pay fine of rupees one thousand each and in default, to suffer further simple imprisonment for three months.
5) Since accused no.1 was awarded capital punishment, the matter has come up for confirmation of same before this Court. Since both the accused are aggrieved by the judgment and order of conviction and sentence passed by the learned trial Judge, they have filed separate appeals against the said judgment and order.
6) Shri Tiwari, learned Counsel for accused no.1, submits that prosecution has utterly failed to prove the case beyond reasonable doubt. It is contended that prosecution has failed to prove incriminating circumstances and the chain of circumstances, which lead to no other conclusion than the guilt of the accused no.1. It is further contended that recovery of blood stained clothes, two wheeler of deceased Dhanshree, nylon rope, etc. is full of doubts and as such, cannot be said to be proved beyond reasonable doubt. It is also contended that evidence of Call Detail Reports (hereinafter referred to as œCDRs?), on which learned trial Judge has heavily relied, is of no use to prosecution inasmuch as at the most, what can be said to be proved by that evidence is that for a period of less than one minute, both accused no.1 and deceased Dhanshree were within an area of one tower. It is further submitted that periphery of that tower not being brought on record, the said circumstance is also of no use to the prosecution. It is further submitted that prosecution has also utterly failed to prove motive. It is contended that in the totality of facts and circumstances, the order of conviction and sentence is not sustainable in law. The learned Counsel has placed reliance on the judgments of the Apex Court in Akhilesh Hajam vs. State of Bihar (1995 Supp (3) SCC 357) and State of Maharashtra vs. Raju Bhaskar Potphode (2007 ALL SCR 2018).
7) Shri Jaltare, learned Counsel for accused no.2, submits that insofar as accused no.2 is concerned, there is no evidence at all. It is contended that conviction of accused no.2 is only on conjectures and surmises and as such, same is not sustainable in law.
8) Shri Doifode, learned Additional Public Prosecutor for State, submits that prosecution has proved all the incriminating circumstances against accused persons beyond reasonable doubt. It is contended that prosecution has proved that incriminating circumstances are so interwoven to each other that the same lead to no other conclusion than guilt of the accused persons. It is further contended that on memorandum under Section 27 of Evidence Act, blood stained clothes of the accused were seized and the Chemical Analyser's report shows that the said clothes were having blood stains. It is also contended that prosecution has also recovered two wheelers of deceased Dhanshree and accused no.1 on memorandum of accused no.1. It is submitted that nylon rope, which was used in commission of crime, was also recovered at the instance of accused no.1. It is further submitted that CDRs clearly establish that the accused no.1 had called deceased Dhanshree to the house of accused no.2 and both the accused killed her there. It is contended that the evidence also shows that accused thereafter carried deceased Dhanshree to Gorewada forest. It is submitted that evidence of PW-11 Javedkhan also shows that tyre was stolen from his shop by the accused. It is further submitted that evidence of PW-4 Sarita reveals that accused along with one girl had come to the house of accused no.2. It is also contended that though this witness has turned hostile, still her evidence can be taken into consideration. It is further submitted that evidence of PW-8 Vicky, PW-22 Vishal and PW-24 Punam also establish the motive behind the crime. It is further contended that motive of the accused was that though accused no.1 was in relationship with deceased Dhanshree, he suspected that deceased Dhanshree had relationship with someone else and on account of that, the accused had committed her murder.
9) Shri Doifode, learned Additional Public Prosecutor further submits that murder of Dhanshree was committed by accused no.1 in a brutal manner and against human dignity and thereafter evidence was sought to be destroyed by burning her. It is contended that this is a fit case to be considered as rarest of rare case and capital punishment is rightly awarded by the learned trial Judge. The learned Additional Public Prosecutor relies on the following judgments in support of his submissions:
Bhagwanvs. State of Rajasthan (AIR 2001 SC 2342), Sucha Singh vs. State of Punjab (AIR 2001 SC 1436), State of Himachal Pradesh vs. Jeat Singh (AIR 1999 SC 1293), Bhagwan Dass vs. State (N.C.T. of Delhi) (2011 (2) SCC (Cri.) 985), Ganga Singh vs. State of Madhya Pradesh (2013 (3) SCC (Cri.) 314, Satish Ramchandra Bavbande vs. State of Maharashtra (2010 (2) Mh.L.J. (Cri.) 516), Ajitsingh Harnamsingh Gujral vs. State of Maharashtra (AIR 2011 SC 3690), Sunder alias Sundararajan vs. State By inspector of Police (2013 (3) SCC (Cri.) 98), Dayanidhi Basoi vs. State of Orissa (2003 (9) SCC 310), Rajendra Pralhadrao Wasnik vs. State of Maharashtra (2012 (3) Scale 182), Md. Mannan @ Abdul Mannan vs. State of Bihar (2011 (4) Scale 809), Praveen Kumar vs. State of Karnataka (2003 (12) SCC 199), and Sanjay alias Kaka vs. State (N.C.T. Of Delhi) (AIR 2001 SC 979).
10) With the assistance of the learned Counsel for the appellants/accused and learned Additional Public Prosecutor for State, we have scrutinized the entire evidence on record. The prosecution has examined as many as 31 witnesses and various documents have been exhibited on record. The learned trial Judge in para (38) of the impugned judgment has noted down 22 circumstances which, according to the learned trial Judge, have been established beyond reasonable doubt by the prosecution. According to the learned trial Judge, these circumstances interwoven to each other lead to no other conclusion than guilt of the accused.
11) Though the learned trial Judge has culled down 22 circumstances, perusal of the impugned judgment reveals that according to the learned trial Judge the following incriminating circumstances have been proved beyond reasonable doubt:
(i) The CDRs show that on 14/8/2012 the accused no.1 and deceased Dhanshree were within the range of mobile tower No.38821.
(ii) The accused no.1 and deceased Dhanshree were last seen together by PW-4 Sarita.
(iii) There is discovery of blood stained clothes, Dio moped belonging to deceased Dhanshree and a nylon rope used in the crime at the instance of accused no.1.
(iv) The clothes recovered from accused no.1 have been found to be having blood stains in Chemical Analyser's report.
(v) It has been established that there was a love affair between accused no.1 and deceased Dhanshree.
(vi) From the evidence of PW-11 Javedkhan, it was established that truck tyre was stolen by the accused.
12) Insofar as accused no.2 is concerned, according to the learned trial Judge, the following circumstances have been proved:
(i) Address of accused no.2 as compared with CDRs is the same address.
(ii) Evidence of PW 4 Sarita establishes that accused nos.1 and 2 were last seen together with deceased Dhanshree.
(iii) Recovery of clothes on memorandum under Section 27 of Evidence Act.
(iv) Recovery on memorandum under Section 27 of Evidence Act of empty bottle of liquor, the bag used to carry liquor and the rope with which deceased Dhanshree was strangulated.
13) We will first deal with the evidence regarding recovery of articles. The prosecution in this respect relies on the evidence of PW 2 Pawan, PW-12 Laxmikant and PW-29 Chakshupal Bahadure, Investigating Officer. No doubt, the panch witnesses have supported the prosecution case. It is pertinent to note that the memorandum of accused no.1 is said to have been recorded at 13.15 hours on 18/8/2012 and thereafter recovery of articles commenced from 14.05 hours till 16.30 hours. Insofar as accused no.2 is concerned, memorandum is said to have been recorded at 13.35 hours on the same day and the proceedings for seizure commenced from 17.00 hours till 18.30 hours.
14) Insofar as accused no.1 is concerned, the first recovery was of Honda Shine motor-cycle, which is said to have been used for carrying the truck tyre from Awasthi Nagar for the purpose of burning the dead body of Dhanshree. Recovery of the said motor-cycle was from the compound of the house of accused no.1. Motor-cycle belonging to a person would be normally parked at his residence only. In that view of the matter, the said recovery, in our view, cannot be said to be an incriminating circumstance established beyond reasonable doubt.
According to the prosecution, recovery of nylon rope, which was used for strangulating Dhanshree, was also made from bushes near the house of accused no.1. The said recovery was between 14.05 hours and 14.45 hours.
The next recovery was of clothes from the middle room of the house of PW-2 Pawan, which, according to prosecution, were kept concealed. The said recovery was from 15.00 hours to 15.35 hours.
The fourth recovery was of Honda Dio moped of deceased Dhanshree bearing Registration No.MH 31 CW 9266 from the place near a shop, namely, R.K. Mobile situated in Saify Building in a locality known as Mominpura. The said recovery was made between 16.05 hours and 16.30 hours.
15) Insofar as accused no.2 is concerned, the first recovery was of the clothes used by accused no.2 at the time of committing crime. The said recovery was made between 17 hours and 17.30 hours on the same day.
The second recovery was of empty bottle of liquor concealed under bushes near nalla near Paloti School. The said recovery was effected between 17.40 hours and 18.00 hours.
The third recovery was of one coloured college bag in which the accused no.2 is alleged to have carried away the liquor bottle and the rope with which deceased Dhanshree was strangulated. The said recovery was made between 18.10 hours and 18.30 hours.
16) Insofar as recovery of clothes of accused no.1 is concerned, blood is detected on the full pant allegedly recovered at the instance of accused no.1 from the house of PW-2 Pawan. However, it will be interesting to read the evidence of PW-2 Pawan. PW-2 Pawan in his examination-in-chief itself states that he was having so and so relation with accused no.1. He states that in the night of 14th and 15th August 2012 at about 1.00 a.m. to 1.30 a.m. all his family members were sleeping. He states that he was residing in his house with mother, grand-mother and elder brother Nandkishor. He states that he heard the noise of knocking the door. He opened the door and saw accused no.1 Dharamveer standing outside his house. He entered the house and thereafter they had a talk for five minutes. This witness made query with accused no.1 why he had come at midnight. The accused no.1 told him that he had come casually. The accused no.1 asked him to give him his clothes as his clothes were dirty. This witness provided clothes to accused no.1. The accused no.1 wore the same and put his dirty clothes on a peg (khuti) in his house. This witness further states that on 16/8/2012, he received a phone call that accused no.1 was arrested in murder case of one girl. He states that on 17th or 18th August 2012, both accused along with Police came and asked him to hand over clothes of accused no.1. He states that accused no.1 showed the place where he had kept the clothes and thereafter Police seized the clothes. In his cross-examination, this witness admits that some altercation took place between him and accused no.1 prior to two days. He states that hall of his house is in the front side and any person can see the hall just-after opening the front door. According to this witness, the clothes were on a peg in the hall. He specifically admits in his cross-examination that on 17/08/2012 Gittikhadan Police came along with accused no.1 and another person in his house at around 11.30 a.m. and that on Gittikhadan Police making enquiry about clothes of accused no.1, he handed over the clothes to Police.
17) Firstly, it is difficult to believe that the clothes having blood stains in a hall of the house of PW-2 Pawan would remain unnoticed for two-three days. It is further to be noted that though according to PW-2 Pawan, the clothes were kept in the front room, according to panch witness “ PW-12 Laxmikant, the clothes were pointed out by the accused no.1 in the inner room. If version of PW-2 Pawan that Police had come on 17/8/2012 and he had handed over clothes to the Police is believed, then entire recovery on 18/8/2012 is full of doubts. In any case, recovery is from a place, which was accessible to one and all and where apart from PW-2 Pawan, his entire family was residing. We, therefore, find that the said recovery cannot be said to be established beyond reasonable doubt.
18) Insofar as recovery of motor-cycle belonging to accused no.1 is concerned, the said recovery is from the compound of his house. In that view of the matter, we fail to understand as to how the same can be considered as an incriminating circumstance.
19) Insofar as recovery of nylon rope is concerned, no ligature marks have been found on the said nylon rope. Apart from that, the same was from an open place, which was accessible to one and all. As such, we find that the said recovery also cannot be said to be a conclusive incriminating circumstance.
20) Insofar as recovery of Hondo Dio moped belonging to deceased Dhanshree is concerned, the same was from Mominpura area. PW-29 Chakshupal Bahadure, Investigating Officer admits in his cross-examination that Mominpura is a thick locality. He further admits that he had not recorded statements of shopkeepers or any other resident. He further admits that he has not taken photographs of Dio moped and alleged spot from where the said vehicle was seized. Though he admits that Police Department is having Special Department of investigation - I-Car which includes Photographer, he did not call I-Car in the present matter. Though he further admits that each Police Station is provided with digital camera, he has not taken photographs of the place from where the alleged seizure and discoveries were effected. It is again difficult to believe that a vehicle remained unnoticed and that too, in a thickly populated area for three-four days. In any case, even assuming that the said recovery is established, in our considered view, that itself cannot be said to be a conclusive proof of the guilt of the accused.
21) Insofar as accused no.2 is concerned, the first recovery, i.e. of his clothes was from his house. However, in the Chemical Analyser's report, no blood stains have been found on his clothes. As such, in our view, the said recovery is inconsequential.
Insofar as recovery of liquor bottle is concerned, the same was from a place open and accessible to one and all.
Insofar as third recovery of bag is concerned, it is said to be recovered from a School Bus. It is to be noted that 14/8/2012 was Tuesday. 15/8/2012 was Wednesday, which would undisputedly be a holiday. However, Schools were open on 16th, 17th and 18th August 2012. It is difficult to believe that such a bag would lie unnoticed in a School Bus for three days. In that view of the matter, we find that the said recovery is also of no assistance to the prosecution case insofar as accused no.2 is concerned. In any case, as discussed hereinabove, we find that there are no incriminating circumstances as against accused no.2.
22) It will be apposite to reproduce the following observations of the Apex Court in Akhilesh Hajam vs. State of Bihar (1995 Supp (3) SCC 357):
œ11) As regards the seizure of blood stained iron angle on the basis of disclosure statement said to have been made by the appellant, the same is also not free from doubt. According to the prosecution, the appellant made the disclosure statement that he had kept the iron angle in the room concealed beneath the fuel wood, which was used as a weapon of offence, but according to the statement of PW 6 the witness of disclosure and seizure of the alleged iron angle the same was not found concealed beneath the fuel wood in the room but the iron angle was found in the verandah which is an open and accessible place. Such a seizure from an open and accessible place can hardly be said to be a recovery on the basis of disclosure statement. It is, therefore, difficult to accept that the seizure of iron angle was on the basis of the disclosure statement made by the appellant.?
(emphasis supplied)
It is also relevant to report the following observations of the Apex Court in the case of State of Maharashtra vs. Raju Bhaskar Potphode (2007 ALL SCR 2018):
œ8) It will be noticed that the Trial Court placed reliance on the so called discovery of alleged weapon pursuant to the disclosure by the accused. The High Court has rightly noticed that the knife was found in an open space and was clearly visible. Investigating Officer admitted that anybody could have seen the knife even without much effort.?
(emphasis supplied)
23) The next circumstance which the learned trial Judge finds to be established is regarding accused nos.1 and 2 last seen together in the company of deceased Dhanshree. In this respect, learned trial Judge has relied on the evidence of PW-4 Sarita. However, this witness has turned hostile and has not supported the prosecution case. She has only identified accused no.2 being her neighbour. However, learned trial Judge has relied on her Police statement recorded under Section 161 of Code of Criminal Procedure wherein she has stated that in the evening of 14/8/2012, accused nos.1 and 2 were seen with a girl. We fail to understand as to how same can be said to be an incriminating circumstance proved beyond reasonable doubt.
24) Another incriminating circumstance which the learned trial Judge finds to be proved against accused no.1 is evidence of PW-6 Deepesh, who states that in the night of 14/8/2012, the accused no.1 had come to his house around 2 a.m. - 2.30 a.m. and said that since he was heavily drunk, he should be permitted to sleep at his home. However, it is to be noted that in the evidence of PW-2 Pawan at whose place accused no.1 is supposed to have gone earlier, it has not come that accused no.1 had consumed liquor. In any case it is difficult to believe as to why if accused no.1 had initially gone to the house of PW-2 Pawan, would go to the house of PW-6 Deepesh for sleeping and not slept at the house of PW-2 Pawan. We find that the same also cannot be said to be an incriminating circumstance proved beyond reasonable doubt.
25) Insofar as love affair between accused no.1 and deceased Dhanshree is concerned, prosecution relies on the evidence of PW-8 Vicky, PW-22 Vishal and PW-24 Punam. It is to be noted that accused no.1 himself has admitted that he was having friendship with deceased Dhanshree and not love affair.
Insofar as PW-8 Vicky is concerned, he states in his examination-in-chief that accused no.1 was a boy friend of deceased Dhanshree. However, this witness admits in his cross-examination that Dhanshree used to meet him and she was also having various friends in College and tuition class.
Insofar as PW-22 Vishal is concerned, again what he states is that accused no.1 was friend of deceased Dhanshree and they used to talk to each other on mobile on various occasions. Insofar as PW-24 Punam is concerned, she is elder sister of deceased Dhanshree. She states that accused no.1 was friend of her sister Dhanshree and he used to visit her house and as such, she was also knowing him.
26) From the evidence of aforesaid witnesses, it could thus be seen that what has been established is that accused no.1 was having friendship with deceased Dhanshree. However, from the evidence of various witnesses, who have been examined by the Investigating Agency itself, it is revealed that deceased Dhanshree was having friendship with various persons including PW-8 Vicky and PW-25 Nitesh. As a matter of fact, as has come in the evidence of PW-25 Nitesh, on 14/8/2012 itself, i.e. the day of incident, he met Dhanshree and both of them had gone to movie together. In that view of the matter, we are of the considered view that the said circumstance cannot be considered to be an incriminating circumstance proved beyond reasonable doubt.
27) The main incriminating circumstance on which the learned trial Judge relies is that location of accused no.1 and deceased Dhanshree was found to be within the range of Tower No. 38821 between 7.30 p.m. and 1.30 a.m. of the midnight of 13th and 14th August 2012. However, from the CDRs, which have been established from the evidence of PW-17 Stephen, we find that the mobiles of deceased Dhanshree and accused no.1 were within the range of Tower No.38821 only between 19.12.25 hours till 19.13.02 hours. We find that merely because both mobiles of accused no.1 and deceased Dhanshree were within the range of particular tower for a period of less than a minute, it cannot be a sole incriminating circumstance, particularly when prosecution has also failed to bring on record the area, which falls under the said tower. It is to be noted that after 19.13.02 hours, various SMSs have been received on the mobile of deceased Dhanshree and she has also received various incoming calls from Mobile Nos.956110593, 9021619408, 8976158698 and 8600363738. Insofar as mobile No.956110593 is concerned, same belongs to PW 25 Nitesh. Insofar as rest of mobile numbers are concerned, no investigation of whatsoever nature has been done by the Investigating Agency. In that view of the matter, we are of the considered view that even from CDRs, it cannot be said to be conclusively proved that accused no.1 and deceased Dhanshree were together between 7.30 p.m. and 1.30 a.m. as has been found in sub-para (9) of para 38 of the impugned judgment by the learned trial Judge.
28) Insofar as the circumstance regarding tyre being stolen from the shop of PW-11 Javedkhan is concerned, we find that the finding of the learned trial Judge in this regard is also not sustainable. In his evidence, PW-11 Javedkhan states that on 14/8/2012, there were two tyres outside his shop and in the morning of 15/8/2012, one tyre was found to be missing. He also states that on enquiry with adjacent shop owners, he could not trace out whereabouts of the aforesaid truck tyre. This witness has also turned hostile. We find that on the basis of his evidence, it cannot be conclusively held that the tyre was stolen from the shop of PW-11 Javedkhan by the accused no.1.
29) It is to be noted that though it is a prosecution case that accused no.1 was having love affair with deceased Dhanshree and that accused no.1 was suspecting that she was also having love affair with someone else and, therefore, she was done away with, there is no evidence placed on record to establish the said motive. We are unable to understand as to on the basis of which evidence the learned trial Judge has come to a finding that the prosecution has proved strained relations between accused no.1 and deceased Dhanshree. None of the witnesses examined on behalf of the prosecution has deposed that relations between deceased Dhanshree and accused no.1 had become strained on account of suspicion regarding her affairs with someone else. In our view, the said finding of the learned trial Judge is based on no evidence.
30) It is the prosecution case that since accused no.2 was residing alone in his house, deceased Dhanshree was brought to his house by the accused no.1 and accused nos.1 and 2 have killed her at his place and thereafter her body was taken to Gorewada area and was burnt on tyre. However, prosecution has also not examined any witness to establish that on 14/8/2012, in the house of accused no.2, there was no one except accused no.1.
31) The Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (AIR 1984 SC 1622) has observed thus:
œ152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned œmust or should? and not `may be' established. There is not only a grammatical, but a legal distinction between `may be proved' and `must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
œcertainly it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions.?
(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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.?
It can thus clearly be seen that the Apex Court has in unequivocal terms held that the circumstances concerned must or should and not may be established. It has further been held that the facts so established should be consistent with hypothesis of the guilt of the accused and that they should not be explainable on any other hypothesis except that the accused is guilty. It has also been held that there must be chain of circumstances so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all human probability the act must have been done by the accused.
32) Insofar as judgments, which are relied on by the learned Additional Public Prosecutor appearing for the State are concerned, we deal with the same hereinafter.
Insofar as judgment of the Apex Court in the case of Shri Bhagwan vs. State of Rajasthan (AIR 2001 SC 2342(1) is concerned, in the said case, on the basis of evidence, the Court had come to the conclusion that the circumstance of the accused last seen with one of the deceased was proved beyond reasonable doubt. Recovery of stolen ornaments and blood stained shirts from the accused immediately after the incident were also the circumstances, which were proved by the prosecution. In the present case, there is no evidence of last seen together. Insofar as recovery is concerned, we have already discussed hereinabove as to how the alleged recovery cannot be said to be free from doubt. As such, the said judgment would not be applicable to the facts of the present case.
Insofar as judgment of the Apex Court in the case of Sucha Singh vs. State of Punjab (AIR 2001 SC 1436) is concerned, on the evidence led before the Court, it was established that deceased were abducted by the accused persons. There was evidence of father, who had seen his two deceased sons being abducted by the accused. As such, the findings recorded by the Apex Court therein on the facts of the said case would not be applicable to the present case.
In the case of State of Himachal Pradesh vs. Jeet Singh (AIR 1999 SC 1293), a circumstance was disclosure by the accused on the memorandum under Section 27 of Evidence Act that he had hidden incriminating articles in the tobacco bushes and heap of rubbish situated in the compound of his residence. In that view of the matter, the Apex Court held that discovery from a place, which is open and accessible, need not be disbelieved in each and every case.
In the case of Bhagwan Dass vs. State (2013 (3) SCC(Cri) 314, the Apex Court found that there was circumstantial evidence, which proved the case beyond reasonable doubt. A criminal case has to be decided upon facts as appearing in the said matter and the evidence so brought on record. No straight-jacket formula can be applied. In that view of the matter, reliance on the said judgment, in our view, would not in any way be helpful to the prosecution case.
Insofar as judgment of the Apex Court in the case of Ganga Singh vs. State of Madhya Padesh (2013) 3 SCC (Cri) 314} is concerned, no doubt the Apex Court has held that benefit of defective investigation would not go to the accused. The Apex Court in the said case has held that when the prosecution proves its case beyond reasonable doubt, acquittal of accused on ground of defective investigation is impermissible. However, it has further been held that only if defective investigation casts serious doubt on prosecution case, the accused would be entitled to acquittal due to such doubt.
Insofar as judgment of the Division Bench of this Court in the case of Satish Ramchandra Bavbande vs. State of Maharashtra (2010 (2) Mh.L.J. (Cri.) 516) is concerned, the Court on the facts as proved therein, has found that the circumstances were proved beyond reasonable doubt and that there was no missing link in the prosecution case. Such a situation is not present in the case in hand.
33) The ratio of the rest of the judgments on which learned Additional Public Prosecutor has relied is pertaining to confirmation of death sentence. From the evidence which has been discussed by us in the earlier part of this judgment, we have come to the considered conclusion that the prosecution has firstly failed to prove the incriminating circumstances against the accused and secondly, it has failed to establish chain, which leads to no other conclusion than guilt of the accused. In that view of the matter, the said judgments, which are relied on by the learned Additional Public Prosecutor would not be of any assistance in the present case.
34) In the totality of the circumstances, we find that the prosecution has utterly failed to prove the case against both the accused beyond reasonable doubt. Insofar as accused no.2 is concerned, we find that there is no iota of evidence against him. The conviction of accused no.2 is totally on conjectures and surmises and is not at all sustainable in law.
Insofar as accused no.1 is concerned, as already discussed hereinabove, the alleged recovery cannot be believed for the reasons, which have been assigned by us hereinabove. Insofar as circumstance regarding CDRs is concerned, as already discussed by us hereinabove, the only circumstance that can be said to be proved is that accused no.1 and deceased Dhanshree were within the range of a particular tower for a period of less than one minute. Even thereafter, deceased Dhanshree had received certain calls from some other persons. As such, the said circumstance cannot be said to have conclusively established that it is accused no.1 and accused no.1 alone, who has caused death of Dhanshree.
35) In that view of the matter, the criminal appeals succeed.
36) In the result, the criminal appeals are allowed. The impugned order of conviction and sentence is set aside. The appellants are directed to be set at liberty forthwith, if not required in any other case.
Since criminal appeals of the accused are allowed and the accused have been acquitted of the charges, no separate orders are necessary in criminal confirmation case.