V.M. Deshpande, J.
1. On reference being made by learned Additional Sessions Judge, Washim, the present Confirmation Case bearing Criminal Confirmation Case No.1/2014 arises for confirming the capital punishment awarded by learned Addl. Sessions Judge, Washim in Sessions Trial No.51/2012 to condemned prisonerâRamesh Jijeba Lahane.
Ramesh Lahane has also independently challenged the said judgment by presenting Criminal Appeal No.301/2014. According to him, not only the capital punishment is excessive but the very finding of the learned Judge of the Court below holding him guilty of committing murder of Vishwanath Lahane, is unsustainable.
(I) FACTUAL MATRIX
The prosecution case as it is unfolded during the course of the trial, is narrated as below:-
Namdeo Wamnrao Rathod (PW 10) on 11.2.2012 was discharging his duties as Police Station Officer of Police Station, Washim (Rural).
On 11.2.2012 Atmaram Ukanda Kalbande, Police Patil of village Zakalwadi came to Police Station, Washim (Rural). He gave report (Exh.32) that at 4 o clock in the noon on 11.2.2012, he received information that there is one dead body in the well situated in the agricultural field of Pralhad Chintaman Kalbande. He further reported that on getting such information, he along with Pralhad went to the field to notice that dead body of a unknown person was inside the well and it was stinking.
Upon receiving such information through report (Exh.32), Namdeo Rathod (PW 10) registered an accidental death vide A.D. No. 9/2012 under Section 174 of the Code of Criminal Procedure (Cr. P.C.) {Exh.31}.
2. After registering A.D. No.9/2012, Namdeo Rathod came to Police Station, Washim (City) for obtaining information about missing persons. It was informed to him that one missing report dated 7.2.2012 is with Police Station, Washim (City) in respect of one Vishwanath Lahane, who was missing from 5.2.2012. The said report was given by son of Vishwanath, by name, Shankar. Namdeo Rathod (PW 10) obtained the said missing report (Exh.36). He contacted Shankar and informed him that one dead body was found in a well situated at Zakalwadi and, therefore, for identification purposes, he was called on 12.2.2012.
3. On 12.2.2012, PW 10-Rathod along with his Police Staff and Panch, Police Patil went to the spot. Shankar Lahane and his relatives were also present. Namdeo Rathod (PW 10) directed two persons to go inside the well to fetch the dead body. The dead body was fetched outside the well. PW 10-Namdeo Rathod noticed that the body was beheaded and the stomach of the said body was cut in a straight direction. The said body was of a male person.
4. Shankar Lahane noticed corn on the leg of the dead body and he identified that the dead body was of his father Vishwanath Lahane.
The well in which dead body was found was constructed one and was 60 feet deep having width of 4 feet. Namdeo Rathod (PW 10) noticed blood on the edge of the well on the southern side. The said was seized by him. He prepared the Panchnama of the said spot. The said Panchnama is at Exh.57.
5. PW 10-Rathod immediately called Dog Squad. He also requisitioned a photographerâVishal Wankhede who took eight photographs, according to his directions. Those photographs are at articles A1 to A8. The necessary professional charges were given to the Photographer to the tune of Rs.1,100/- and two receipts Exhs. 87 and 88 were obtained from him.
PW 10-Rathod in presence of Panchas also drawn the inquest panchnama (Exh.55).
6. At about 2 o clock in the noon the Dog Squad reached the spot. Rathod (PW 10) directed the Dog Handler Police Constable (Buckle No.1523) to give direction to the dog. After the trained dog completed its sniffing, a detailed panchnama was prepared. During this process, articles which were found, were seized by PW 10-Rathod under seizure panchnama (Exh.56). The Dog Handler also prepared a panchnama in respect of the work done by dog (Exh. 60).
7. The dead body was sent to Rural Hospital, Washim by PW 10Rathod through Police Constable (Buckle No.802) under requisition to the hospital (Exh. 89).
PW 10-Namdeo Rathod also gave a separate requisition letter to the Medical Officer requesting to hand over the sample of flesh/skin, nails and hair of dead body under the sealed condition. The requisition letter is at Exh. 90.
8. In the meantime, Shankar Vishwanath Lahane came to Police Station and lodged his oral report (Exh. 37). In the said report, the first informant named the condemned prisoner Ramesh, Rameshwar Maruti Kalbande and Vitthal Jayawanta Tanpure and Sau. Laxmibai Ramesh Lahane (acquitted accused). Since the First Information report (FIR) (Exh. 37) was disclosing commission of a cognizable offence, PW 10-Rathod, registered a crime vide Crime No.18/2012 for the offence punishable under Sections 302, 201 read with Section 34 IPC against the persons who were named in the FIR. The printed FIR is at Exh. 38.
9. Upon registration of the crime on the very same day i.e. 12.2.2012, Ramesh Lahane was arrested at 22:31 hours. The arrest panchnama is at Exh.91. At the time of arrest of Ramesh, two mobiles were found on his person. Those were seized in the presence of Panchas. The said Panchnama is at Exh. 62. The articles which were seized from the spot and the mobiles were deposited in the Maalkhana.
On 13.2.2012 Police Constable Buckle No.802 brought skin, nail, clipping, hair of dead body, viscera bottle and the blood sample in the Police Station. Those were seized by PW 10-Namdeo in presence of Panchas under Seizure panchnama (Exh.63).
10. The dead body was handed over to relatives of the deceased for last rites.
A piece of bone of hand of the deceased was sent in a sealed condition by the Doctor. It was seized by drawing Seizure Panchnama. A jaw which was found on the spot was seized under seizure memo Exh. 64.
11. On 13.2.2012, PW 10-Rathod arrested Rameshwar Maruti Kalbande and Vitthal Jaiwant Tanpure. Both were sent for their medical examination. Ramesh was also sent for medical examination and under Seizure memo Exh.65, blood samples of those three persons were seized. They were produced before the learned Magistrate for the purposes of obtaining police custody remand. The same was granted.
12. On 16.2.2012 when Ramesh was in the custody, in presence of Panchas, he gave his memorandum statement u/s. 27 of the Evidence Act. The said memorandum statement is at Exh. 66. By the said memorandum statement, Ramesh agreed to point out the place wherein he has concealed bottle containing half filled liquor and also clothes. He also agreed to show the place wherein Vishwanath was beheaded. In pursuance to the memorandum statement (Exh.66), the Investigating Officer PW 10-Rathod along with Police Staff, panchas and the condemned prisoner-Ramesh boarded the police vehicle. Ramesh led them to Duttanagar area in city of Washim. As per his direction, the vehicle was stopped. Ramesh showed his house. Ramesh entered into the house and took one of half filled country liquor bottle of 750 ml. kept in the rack of utensils. It was noticed that the said bottle was containing about 200 ml. of country liquor. Thereafter, he took one grey colour full pant from tinshed adjacent to the house having bloodstains. The Investigating Officer thereafter sealed the said full pant and liquor bottle. Thereafter as per the direction of Ramesh, the Police party along with him boarded the jeep again. He asked to take the vehicle at Malegaon Road. After proceeding some distance near PKV Office, he asked the Police party to take the vehicle on left direction. There were one or two houses in the agricultural field. There the prisoner asked to stop the vehicle. Thereafter he took the police party to a field having standing toor crop. Near the boundary of the said agricultural field where the cracks were developed, that spot was shown by him. He disclosed that this is a place wherein the deceased was beheaded. From the said spot bloodstain soil and simple earth were seized. A composite seizure memo of these articles, namely, liquor bottle, full pant and blood mixed soil and simple soil was prepared. The same is at Exh. 67.
13. The Investigating Officer also requested the Tahsildar by letter Exh. 95 and requested for drawing the map. The map was prepared and it is at Exh.96.
14. Since during the disclosure statement Exh.66 dated 16.2.2012 prisoner-Ramesh disclosed about the complicity of one Jayawant Lahane, the Investigating Officer arrested Jayawant Lahane.
15. After Jayawant Lahane was arrested, the Investigating Officer obtained his police custody remand. During his enquiry, nothing fruitful was disclosed to the Investigating Officer Therefore the I.O. again, on 23.2.2012 when prisoner-Ramesh was in his custody, interrogated him. In the said statement, it was revealed to the I.O. by prisoner-Ramesh that he had committed crime and not Jaiwant. He agreed to show the place wherein the shirt he was wearing on the date of commission of the offence, his cycle, the knife, the mobile of deceased Vishwanath, were concealed by him. The said memorandum statement is at Exh.69.
In pursuance to the disclosure statement (Exh. 69), the Police party along with prisoner-Ramesh again brought the Police Jeep and they were taken to his Duttanagar residence wherein he showed a shirt which was hanging on a peg on the wall. The said shirt was having faint blood stains. He also pointed out the cycle which was parked in a tinshed.
Thereafter Ramesh took the Police party to a fallow land in front of Chintamani Hotel. He pointed out the place i.e. the cracks at one Babhli shrub. From there one long knife and one mobile phone was seized. The said recovery panchmama is at Exh. 70. Exh.71 is the spot panchnama which is the house of prisoner-Ramesh, which was pointed out by prisoner in his memorandum statement, as a place wherein deceased was done to death by strangulation.
16. On 10.3.2012, the I.O. gave a letter to the Medical Officer making a query as to whether the neck can be severed with the help of the seized knife. The knife was sent along with the said letter. The said letter is at Exh.80. The Medical Officer on the back side of the said letter itself, has given his opinion. The said opinion is at Exh.81. By the said opinion, the Doctor opined that the decapitation injury may be caused by such a weapon. The I.O. then drew the query Panchnama dated 10.3.2012 (Exh.73).
In the meanwhile, the postmortem report was also received. The said postmortem report is at Exh.77.
The I.O. has also obtained the blood samples of first informant Shankar and his mother Shobhabai. The said was obtained after giving the requisition letter Exh.102 to the Medical Officer for DNA purpose.
17. The I.O. recorded the statement of neighbours of prisoner-Ramesh; photograph of deceased was available along with the missing report (Exh.36) that was shown by I.O. to the neighbours at the time of recording their statements.
18. On 24.2.2012, the I.O arrested the wife of the prisoner Ramesh by name Laxmibai. The arrest panchnama is at Exh.103.
19. All the said seized articles were sent to Chemical Analyser for obtaining the scientific opinion by giving requisition Exh.104. Exh.105 is a request letter to the Director of Forensic Laboratory at Nagpur for the opinion of viscera. Exh.108 is a request letter made to the Director, Forensic Laboratory at Kalina, Vidyanagar. Santa Cruz, Mumbai, by which a request was made to give information in respect of the DNA about the articles which were already sent.
In all seven C.A. reports Exhs. 117 to 123 were received by the I.O. whereas Exhs.52 and 53 are the DNA test reports which were received by the I.O.
20. During the investigation, it was revealed to the I.O. that there was no role of Rameshwar Kalbande ; Vitthal Tanpure and Jayawanta Lahane in the crime. Therefore with the requisite permission discharge report u/s. 169 of Cr. P.C. was filed in the court of law. Upon that, the learned Magistrate issued notice to the first informant. The first informant appeared in the said discharge proceedings and objected for the discharge of Rameshwar Kalbande and Vithal Tanpure. On 23.5.2012 the discharge report in respect of Jayawanta Lahane was accepted by the learned Magistrate. However, the I.O. was again directed for reinvestigation in respect of Rameshwar Kalbande and Vitthal Tanpure. In the light of said directions, the I.O. again, reinvestigated the matter in respect of Rameshwar and Vitthal. However nothing was found against them and, therefore, a fresh discharge report was filed in the Court of learned Magistrate. The said discharge report was accepted by the learned Magistrate.
The I.O. noticed in pursuance of his investigation that there is ample material and evidence available against prisoner Ramesh and his wife and, therefore, he filed the charge-sheet in the Court of law.
21. The learned Magistrate in whose Court the charge-sheet was presented, found that the offence is exclusively triable by the Court of Sessions. Therefore, he passed committal order. After the committal order, the case was placed in the Court of learned 2nd Adhoc Additional Sessions Judge, Washim which was registered as Sessions Trial No. 51/2012.
Vide Exh.22 on 12th June 2013, the learned 2nd Adhoc ADJ, Washim framed charge against the condemned prisoner Ramesh and his wife Laxmibai @ Chatura Ramesh Lahane. Both were charged that they in furtherance of their common intention, committed murder of Vishwanath Lahane and in order to screen themselves from legal punishment, they had destroyed the evidence. Accordingly, a charge u/s 302 and 201 r/ws. 34 IPC was framed against them. Both of them denied the charge and claimed for their trial.
22. In order to bring home the guilt of the persons against whom charge was framed, the prosecution has examined ten witnesses. The prosecution has also relied on voluminous documents which were proved during the course of trial.
Both Ramesh and his wife were examined u/s 313 Cr. PC. They did not examine any defence witness. According to them, they were falsely implicated in the crime.
23. The learned ADJ, Washim, after a full-fledged trial, acquitted the accused no.2 Laxmibai. However, he found the prisoner-Ramesh guilty, as a person responsible for death of Vishwanath Lahane. The prisoner Ramesh was heard on the point of sentence. After hearing, in the opinion of the learned ASJ, Washim, it is a case wherein life imprisonment is not an adequate sentence and, therefore, he imposed capital punishment on Ramesh Jijeba Lahane by his judgment and order of conviction dated 3rd April, 2014.
24. As required u/s. 366 of the Cr. P.C., reference was made to this Court by the learned ASJ for confirmation of the death sentence passed against Ramesh. In the meanwhile, Ramesh has also questioned the correctness of the finding holding him guilty for commission of the murder of Vishwanath, by filing an Appeal.
25. We have heard Shri N.S. Khubalkar, learned Addl. Public Prosecutor for the State and Shri S.D. Chande, learned counsel for the condemned prisoner Ramesh Lahane, in extenso. We have also gone through in detail, the entire record and proceedings. We have also seen the muddemal properties, namely, clothes of Ramesh and the weapon.
(II) POINTS FOR DETERMINATION
26. The following are the points that arises for our determination.
| Sr.No. | Points | Finding |
| 1 | Whether the prosecution has proved that death of Vishwanath Lahane is homicidal one? | Proved |
| 2 | Whether the prosecution has proved that the Prisoner-Ramesh is responsible for the homicidal death of Vishwanath Lahane? | Not proved |
| 3 | Whether the capital punishment as awarded by the learned court below is only adequate punishment to the appellant? | Does not survive. |
| 4 | What order? | As per the order |
27. In order to bring home the guilt of the condemned prisoner Ramesh, the prosecution has examined following ten witnesses:
| PW No | Name | Description |
| 1 | Shankar Vishwanath Lahane | He is son of deceased Vishwanath. He is the first informant. He has lodged the missing report (Exh. 36). He has also lodged FIR (Exh. 37) upon which the offence vide Crime No.18/2012 was registered with Police Station, Washim (Rural). |
| 2 | Pankaj Madhav Ingle | He is the resident of vicinity where prisoner-Ramesh resides. He is examined on the point that in the night of 5.2.2012 he has seen the deceased in the company of prisoner-Ramesh. |
| 3 | Sagar Damodhar Khillare | He resides opposite the house of prisoner-Ramesh. He is also examined on the point of deceased being seen lastly in the company of prisoner Ramesh. |
| 4 | Shobhabai Vishwanath Lahane | She is the widow of Vishwanath. She is examined on the point that her deceased husband informed her at the time of going to Washim for attending the marriage ceremony that, thereafter, he will visit the house of prisoner Ramesh. |
| 5 | Jaiwanta Ramchandra Lahne | The prosecution has examined this witness to prove that on 5.2.2012 he left the deceased Vishwanath near Chintamani Hotel at his request so that he could reach to the house of Ramesh. He is also examined on the point that he received phone call from deceased on 5.2.2012 at 9.10 in the night. He has also deposed that PW 1 Shankar made enquiries with him on 6.2.2012 at Karanji and enquired about the whereabouts of deceased Vishwanath. |
| 6 | Gulabrao Dhondji Bakal | He is the Panch witness on Inquest Panchnama (Exh.55); seizure Panchnama (Exh.66) and Seizure Panchnama (Exh. 57). |
| 7 | Rajiv Gangadhar Chaudhari | He is a Dog Handler. He took Dog by name âHeeraâ at the spot as per the request of the I.O. and gave command to the trained Dog. He has proved the Dog Handler Report (Exh.60). |
| 8 | Prakash Ananda Kamble | He is the Panch who has proved various documents on which the prosecution intends to rely |
| 9 | Dr. Parmeshwar Kharat | He has conducted the postmortem and proved postmortem report (Exh.77). He also gave information about the weapon (Exh.80). |
| 10 | Namdeo Wamanrao Rathod | He is working as Police Station Officer, P.S., Washim (Rural) and he has conducted the entire investigation of Crime No. 18/2012 and he has presented charge-sheet in the court of law. |
| Sr.No | Exh. No/ Date | Description |
| 1 | Exh. 34 | This is an application dated 29.8.2009 under the signature of deceased-Vishwanath to President, Dispute Resolving Committee of Karanji. |
| 2 | Exh. 35 | A report lodged with Police Station, Shirpur by Jijeba Lahane, the father of the deceased. It is dated 13.10.1988 |
| 3 | Exh. 36 | Oral report/missing report lodged dated 7.2.2012 by PW 1 Shankar Lahane with Police Station, Washim {City}. |
| 4 | Exh. 37 | Oral report dated 12.12.2012 lodged by PW 1- Shankar Lahane on the basis of which crime bearing No.18/2012 for the offence punishable under section 302, 234 IPC was registered. |
| 5 | Exh. 55 | Inquest Panchnama |
| 6 | Exh. 5612.02.2012 | Seizure Panchnama showing the seizure from the spots:(a) From the field of Uttamrao Sonuji Gore, articles like white and black hair, halfburnt cloth, burnt fodder, burnt ash mixed earth were seized. (b) From the agricultural field of Shamrao Gore, black and white hair, a human jaw of which flesh was eaten by wild animals, three teeth were seized. |
| 7 | Exh.5712.02.2012 | Spot Panchnama in respect of the well situated in agricultural field of Gut No.138 owned by Pralhad Chintaman Kalbande in Zakalwadi village wherein the dead body was found. |
| 8 | Exh.6012.02.2012 | Joint report of Investigating Officer and Dog Handler |
| 9 | Exh. 6212.02.2012 | Seizure memo under which two cellphone of Nokia make were seized from prisoner-Ramesh at the time of his arrest. |
| 10 | Exh.6616.02.2012 | Memorandum Statement of prisoner-Ramesh while he was in custody u/s. 27 of the Evidence Act.He agreed to point out: (i) The place from his house wherein he concealed the liquor bottle. (ii) His bloodstained clothes; and, (iii) The place where deceased Vishwanath was beheaded. |
| 11 | Exh., 6716.02.2012 | Recovery Panchnama in pursuance to Exh.66.(a) A liquor bottle was seized from the rack inside the house of prisoner-Ramesh which was kept behind steel box. (b) A fullpant which was kept beneath gunnybag from the tinshed adjacent to the house of prisoner- Ramesh. (c) He showed the place in the agricultural field of Uttam Gore where deceased was beheaded. |
| 12 | Exh.6923.02.2012 | Memorandum statement of prisoner Ramesh u/s 27 of the Evidence Act by which he agreed to show his (1) His clothes, (2) Weapon, (3) Cycle and, (4) The cellphone of deceased Vishwanath. |
| 13 | Exh. 7023.02.2012 | Recovery Panchnama in pursuance to the discovery statement Exh.69.(a) A shirt having blood stains which was having on the peg inside the house of prisoner Ramesh. (b) A cycle which was parked in a tinshed adjacent to the house of Ramesh. (c) The wepon i.e. Knife and cellphone of deceased Vishwanath from the crack of the ground near Babhul tree on the eastern dhura of fallow land /field situated in front of Chintamani Hotel. |
| 14 | Exh.7210.03.2012 | The query Panchnama in respect of weapon. |
| 15 | Exh.77 | Postmortem report. |
| 16 | Exh.104 | Requisition letter sent to Chemical Analyser, Dhantoli Nagpur. |
| 17 | Exh.105 | Requisition letter to Chemical Analyser, Dhantoli for examination of viscera. |
| 18 | Exh. 51 | CA report showing that mythyl alcohol 92 mg., per grams in the viscera. |
| 19 | Exh.52 | DNA report showing that Exh. 1 long bone sent by Investigating Officer to the Director of Forensic Science Laboratory, State of Maharashtra, Vidya Nagari, Kalina Santa Cruz, Mumbai in respect of Shobhabai Lahane (widow of deceased) FSLML Case No. DNA 263/12, concluded to be biological parents Shankar Lahane (PW 1) in FSLML Case No. 263/12. |
According to Shankar (PW 1) on 5.2.2012,the marriage of daughter of one Bharat Keshao Lahane was to be solemnsized at Swagat Lawn, Washim. His father had gone to attend the said marriage, but he did not return. He waited for him the whole night and then tried to contact him on his mobile through his cell-phone, but in vain, as the phone was switched off. He further states that on the next day morning, he met Police Patil Jayawanta Lahane and enquired as to whether he met his father in the marriage. The Police Patil told him that his father met him near Pusad Naka, Washim and his father was about to go to the house of Ramesh to meet him, in respect of sale transaction of the agricultural field. Shankar (PW 1) further states that Jayawanta further told him that his father had asked him to come to take his father if any misdeed happened. On that Jayawanta replied to his father not to go there, if he apprehends danger to his life. He further states that Jayawanta told his father that he would not come to take him. Shankar further states that Jayawanta had told him that he met his father at about 7.40 p.m. Jayawanta further told him that he received a phone call of his father at around 9.10 p.m. His father called Jayawanta in front of the house of Ramesh near Chintamani Hotel. However Jayawanta showed his un-readiness to go there due to fear. Jayawanta further disclosed to him that though after halfanhour, he phoned his father, but his phone was switched off.
Shankar further states that in the same night, he enquired about his father with his relatives on phone; but they replied in the negative. On the next day, Shankar, Jayawanta Lahane, Punjab Lahane, Baburao Padgham and Giri came to Washim and went to the house of Ramesh, but the house was locked. At that time, Shankar was possessing a photo of his father. He showed the said photo to the neighbours of Ramesh and enquired whether the person in the photo had been in the house of Ramesh in the night of 5.2.2012. Shankar further states that in response, those persons told him that around 9.30 pm. On 5.2.2012, the said person was seen running but Ramesh and Laxmibai were dragging him into their house. Shankar further states that due to the said answer, he felt that the Ramesh might have killed his father. Therefore, they all went to Police Station, Washim to lodge the report. The report is at Exh. 36. He also handed over the photo of his father to police while lodging the report.
Shankar (PW 1) further states that on the same day, the police had brought the accused (Ramesh and his wife Laxmibai) in Police Station for enquiry; but they did not disclose the fact. Thereafter, he took search of his father in the adjacent Shiwar upto three days.
Shankar further states that at about 830 p.m, he received a call from Police Station, Washim (Rural) that body of a person, aged about 50 years, is floating in a well situated in Zakalwadi Shiwar which was stinking. The Police called him to identify the said body. Therefore he, in the morning, along with Jaideo Lahane, Datta Lahane, Anil Giri, Punjab Lahane and other 4/5 persons, rushed to Zakalwadi Shiwar. He states that the body was already fished out by the police. He further states that the body was not having any head and its stomach was cut and bowels were protruding out; the body was naked. Shankar states that his father was having corn on his sole. Both the toes were short which he noticed. Considering all these features, he identified the dead body as that of his father. He states that at that time, his uncle Jaideo Baliram Lahane, Datta Lahane, maternal uncle Shriram Kisan Badar were also present. They also identified the body.
Shankar further states in his evidence that thereafter all of them approached Police Station, Washim (Rural) and lodged the report (Exh.37), which was scribed as per his say.
In the cross-examination, to a question put to him, he replied that son of Baliram Lahane, namely, Jagan had not been to the marriage ceremony; but then changed his version by saying that he does not know. He stated in his cross-examination that he had shown photograph of his father to 3/4 persons of Dattanagar area, around 10.30 am to 11.00 am. on 7.2.2012 who were not acquainted with his father. It is stated by him that the distance between Chintamani Hotel and the house of Ramesh is about 40 to 45 feet and his house is situated in a densely populated area.
30. Another witness who is examined by the prosecution is Pankaj Mahadeorao Ingle (PW 2). His evidence shows that he knows the accused as they are his neighbours. He claims that he is having an auto-rickshaw and he used to ply the same himself. Pankaj states that on 5.2.2012 between 9.30 and 10.00 p.m. he had come to his house with his auto. While parking his auto, one person came near him and he asked him as to where he is going? Thereupon, he replied that he was going to urinate. Pankaj states that thereupon he asked the said person as to where he resides? The said person replied that he was the guest of Ramesh Lahane. Ramesh Lahane is the person who is present in the dock. He further states that Ramesh took the said person to his home. At that time, wife of Ramesh was standing on the road. Thereafter he parked his auto, had a meal and went to sleep. Pankaj further states that after 2/3 days, the police came to him and he narrated the aforesaid fact to them. He further states that at that time the police had shown him one photo, which was of the said guest.
In the cross-examination, Pankaj has stated that he cannot tell the exact date when his statement was recorded. He further states that the distance between his house and the house of accused is more than 350 feet. In the cross-examination, he further admitted that since last 15 years he was working as a Manager of Dhaba (roadside eatery) of Jasminder Johar; in the next breath, he volunteers that he was not working as a Manager but as a servant.
31. PW 3 is Sagar Khillare. According to him, he joined his duty as a police constable on 26.8.2013. He resides at Dattanagar area. He knows the accused as they reside in front of his house. Ramesh used to abuse them under the influence of liquor and, therefore, they used to ignore him. He states that he knows Pankaj Ingle. From the witness box Sagar states that on 5.2.2012 between 8.30 and 9.30 pm, after having his meals, that time, he saw one person murmuring under the influence of liquor, who went towards the house of Pankaj Ingle. He states that verbal exchange of words between Pankaj and said person were going on. He saw this in the light of street light. He states that Pankaj reached that person up to the house of Ramesh Lahane, thereafter, he went to his house and Pankaj went to his house.
Sagar (PW 3) further states that on 17.2.2012 the police came to his house to prepare Panchnama. That time the police showed a photo and asked him as to whether he can identify the said person. Thereupon he replied in affirmative because the said person came to the house of Ramesh on 5.2.2012. Thereafter he came to know that the said person was murdered.
In the cross-examination Sagar has admitted that around 8.00 to 8.30 p.m. the person who was taken by Pankaj was under heavy drunken state. He states that he has seen Pankaj while taking away that person towards the house of Ramesh. However he did not see him entering into the house of accused. He states that Dattanagar is a densely populated area and the distance between his house and house of Pankaj is more than 350 to 400 feet.
32. PW 4 Shobh Lahane is the widow of the deceased. She has stated in her evidence that her husband had lodged a report against Ramesh at Police Station Shirpur. Previously Ramesh was residing at Karanji along with is first wife. Thereafter he performed second marriage with Chatura and was residing with her in the house situated in his field. She states that Ramesh was working as agricultural labour and he also used to sell the flesh of goats in the village, so he was called as âbutcher. She states that her husband had expressed his willingness to sell the field property. Therefore, the accused asked her husband to come to Washim in Dattanagar at his home.
Shobha (PW 4) states that the incident occurred before 14 months. Her husband had gone to attend the marriage of daughter of Bharat Lahane. She states that before leaving the house, her husband had told her that he would attend the marriage and would go to the house of Ramesh in order to end the dispute. On that day, her husband did not return in the night. On the next day morning, Jayawanta had come to her house and asked whether her husband returned home. Thereon, she replied in the negative. She states that Jayawanta told her that her husband had met him and asked him to reach to the house of Ramesh on his motorcycle as he wanted to enter into the transaction of field property. Therefore, Jayawanta reached her husband near a square. She further states that the Jayawata told her that her husband had asked him to accompany him to the house of Ramesh; however, Jayawanta expressed his inability to go there.
She further states that on the next day her son Shankar, Jayawanta, Punjab and others had gone to Dattanagar to see her husband. She states that after four days, she came to know that the dead body of her husband was lying in the well near Zakalwadi Shiwar. Therefore, she, her son and relatives went there. On the same day, the dead body was brought to her home at about 9.00 p.m, which was beheaded. She identified the dead body as that of her husband. She further states that after recording her statement, she was called by police and her son Shankar and were referred to hospital in order to obtain their blood samples.
33. Another witness is PW 5Jayawanta Ramchandra Lahane. He states that he owns and possesses 2 acres of agricultural land and his wife is a police patil of the village. He is having two children and they are studying in VI and VIII standard in Washim. He states that on 5.2.2012 he had been to Washim to attend the marriage of daughter of one Bharat Lahane and he attended the same at Swagat Lawn along with his wife. He states that he, Sitaram Lahane, Atmaram Lahane, came at Pusad Naka to take the beatle leaf at the pan kisok.. On seeing them Vishwanath (deceased) came there. He also took beatle leaf with them. He states that thereafter they went to attend the marriage ceremony. He states that after the marriage, he along with his wife, started to go to his home. When they reached near Pusad Naka, he received mobile call of Vishwanath who asked him to take him on motorcycle to the house of Ramesh for transaction of his field. He states that he stopped his bike. Vishwanath came there and sat on his bike. First, they came to his room at Civil Lines and left his wife there. He states that, that time Vishwanath asked him to reach him near Chintamani Hotel. Accordingly, he left Vishwanath near Chintamani Hotel. It was at about 7.30 to 7.45 p.m. Then he returned his home.
He further states in his evidence that at about 9.10 p.m., he received a phone call of Vishwanath asking him to come to take him in front of the house of Ramesh near Chintamani Hotel. However, he refused to go there and switched off his mobile. He further states that on next day on 6th, he went to his village Karanji. There, son of deceased, Shankar met him and asked him as to whether his father met him and where he had gone. Shankar further told that his father did not return to his house. He told Shankar that his father was intending to go to house of Ramesh for the field transaction and he reached his father near Chintamani Hotel.
On next day, on 7th, he received a call of Shankar that his father did not return to his home and to take search, he should accompany him and should reach near Dattanagar. Accordingly around 10.00. to 10.30 hours, he reached Dattanagar. There Panjab Lahane, Baburao Padghan, giri, Shankar Lahane were present and he stated that they made enquiry with neighbours of Ramesh whether the person appearing in the photo, which was brought by Shankar, had come there. He states the neighbor told that the said person had been there. At that time, the house of Ramesh was locked. He states that they went to Police Station, Washim (Urban), where Shankar lodged the report. He states that in the Police Station the accused were called for enquiry and after enquiry they were set free.
Jayawanta further states that on 11th he had been to the house of his sister. That time, he received message from Shankar that one body was lying in the well in Zakalwadi Shiwar and I should reach there. On 12th, around 10. a.m. he went near the said well. There Shankar, Gulabrao, Jaideo lahane and other villagers had assembled. The villagers identified the dead body as that of Vishwanath. He further states that after lodging the report, accused-Ramesh and his wife Chatura @ Laxmi were arrested by police. He further states that the accused told his name falsely before the police in the crime. He was also arrested in this crime. As nothing was found against him during investigation, he was discharged by the court. His statement was recorded by the police.
In the cross-examination, he states that on 11th, he was arrested in the crime and he was in jail for three months.
34. In the present case, there is no direct evidence, in the sense of an eye witness account, to connect prisoner-Ramesh with the crime. Thus, the entire case of the prosecution rests on circumstances and circumstantial evidence.
35. The learned Addl. Public Prosecutor has submitted that from the prosecution case, the following are the circumstances proving the guilt of Ramesh:
1) The fields of both deceased-Vishwanath and Ramesh were at village Karanji. Both fields were adjacent to each other. There exists a dispute between them over the boundary (dhura) and small water channel (paat).
2) Deceased Vishwanath was residing at Karanji, a village nearby Washim city. Accused Ramesh was residing along with his second wife.
3) The measurement of area which was done by the deceased Vishwanath through the T.I.L.R. transpired that the accused Ramesh had grabbed 10 gunthas of field of deceased Vishwanath which contain a small water stream.
4) In-spite of grabbing the land portion of Vishwanath, he was not ready to relinquish the said portion.
5) Accused Ramesh always used to extend threats of murder to Vishwanath. Vishwanath was disgusted with the threats, Hence he decided to sell out the field, however, Ramesh was obstructing the said sale.
6) To settle the dispute over the field, accused Ramesh had called deceased Vishwanath to his house at Dattanagar. On 5.2.2012 there was marriage ceremony of daughter of one Bharat Lahane which gave an occasion for deceased Vishwanath to go to Washim City and go to the house of the accused Ramesh on the issue of field dispute.
7) On 5.2.2012 Vishwanath expressed his intention to his wife PW 4 to go to the house of Ramesh, in respect of transaction of the field when deceased was to go to attend the marriage ceremony at Washim city.
8) At Washim city also deceased Vishwanath expressed his intention to PW 5Jayawanta to go to the house of Ramesh at Dattanagar in respect of transaction of the field.
9) On 5.2.2012 Vishwanath actually attended the marriage ceremony of daughter of Bharat Lahane at Swagat Lawn at Washim city at 5.00 p.m. Vishwanath had disclosed to PW 5 his intention to visit the house of Ramesh for transaction of his field.
10) While at Washim deceased Vishwanath had requested PW 5-Jaiwanta to drop him near the house of accused Ramesh at Dattanagar area of Washim city.
11) PW 5 dropped deceased Vishwanath near Hotel Chintamani at 7.30 to 7.45 p.m. at Washim city. The accused Ramesh was residing near Hotel Chintamani.
12) Deceased Vishwanath was last seen in the company of accused Ramesh in the night of 5.2.2012 at about 9.30 p.m. at the house of accused Ramesh by witness PW 2Pankaj and PW 3 Sagar Khillare.
13) After last seen with accused Ramesh in the night of 5.2.2012, Vishwanath did not return back to his village Karanji where his family members were waiting for him.
14) After waiting for his father-Vishwanath, PW 1Shankar lodged missing report Exh. 36 with Washim Police Station on 7.2.2012.
15) In the missing report at Exh.36, PW 1 Shankar has specifically named accused Ramesh as accused who has played foul with his father.
16) The time of death is proximate to the time of last seen in the night of 5.2.2012.
17) After last seen in the company of accused-Ramesh, beheaded body of Vishwanath was found on 11.2.2012 in the well in the field of Pralhad Kalbande.
18) The spot where the body was found was near about one 1.5 k.m. to the house of accused-Ramesh.
19) DNA tests proved identity of the dead body as that of Vishwanath.
20) Under these circumstances, the accused owes an explanation, but no explanation from the accused-Ramesh as to where Vishwanath went from his house and, therefore, presumption u/s. 106 of the Evidence Act has to be pressed into service.
21) The death of Vishwanath was homicidal one.
22) Section 27 of the memorandum and consequent recoveries from accused Ramesh.
23) The conduct of the accused at the spot where the accused and Panch (PW 8) was the same spot where the dead body was found on 11.2.2012 i.e. well of Pralhad Kamble and nearby fields.
24) CA reports are incriminating inasmuch as human blood were detected thought the blood group was inconclusive on the clothes of accused Ramesh and knife.
According to the learned Addl. P.P. the aforesaid circumstances clearly established the charge of murder leveled against Ramesh. In order to buttress his point, he has relied upon following authoritative pronouncements :-
1) AIR 1985 SC 1692: Ram Avtar vs. State (Delhi Admn).
2) (2010) Vol.8 SCC 593: G. Parshwanath vs. State of Karnataka.
3) (2001) 6 SCC 205: Gade Lakshmi Mangaraju vs.State of A.P.
4) (1988) 3 SCC 319 : Laxmi Raj Shetty vs. State of T.N.
5) (2010) 2 SCC 353: Vijay Kumr Arora vs. State (NCT New Delhi)
6) (1992) 2 SCC 86: State of U P vs. Ashok Kumar Srivastava
7) (2000) 1 SCC 225: C.K. Raveendran vs. State of Kerala
8) (1973) 4 SCC 17: Abdul Ghani vs. State of U.P.
9) AIR 2009 SC(Supp)428(2): Mahesh Gonnade vs. State of Maharashtra
10) (2011) 3 SCC 685 : Ramesh and others vs.State of Rajasthan
11) (2013) 12 SCC 721 : Nana Keshav Lagad vs. State of Maharashtra.
36. Per contra, the learned counsel for Ramesh would submit that, Ramesh is falsely implicated. He submits that at vital point, the chain is broken. According to him, there is no reliable evidence by which it could be held that deceased was seen lastly in the company of Ramesh. He further submitted that recoveries made at the instance of Ramesh are clearly inadmissible in evidence.
37. How the Court should evaluate and consider the prosecution case solely based on circumstances is guided by various authoritative pronouncements of Honble Apex Court right from its judgment in the case of Hanumant vs. State of Madhya Pradesh reported in AIR 1952 SC 343. On number of occasions, the said principles are reiterated by the highest court of this country. In fact, five golden principles came to be formulated by the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra: AIR 1984 SC 1622. With these guiding lamps, the Court has to evaluate the entire prosecution case which is based entirely on circumstantial evidence.
In AIR 1952 SC 343 : Hanumant Nargundkar vs. State of MP, the Apex Court has ruled as to how the circumstantial evidence should be appreciated, which runs as under:-
â10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex. P3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge,(1838) 2 Lewin 227) where he said:
âThe mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them incomplete.â
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in 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 spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case.â
Further, in a landmark case: Sharad Birdhichand Sarda vs. State of Maharashtra: AIR 1984 SC 1622, the Honble Apex Court ruled the following five golden principles which the Honble Court has said as âPanchsheel on proof of a case based on circumstantial evidence.
It would be useful to reproduce the following observations from the said authoritative pronouncements of the Apex Court:
â152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh (supra). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi vs. State of Uittar Pradesh (1969) 3 SCC 198; and Ramgopal v.State of Maharashtra (AIR 1972 Sc 636;. It may be useful to extract what Mahajan, J, has laid down in Hanumant case:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in 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.
153. 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 âmust or âshould and not âmay be established. There is not only a grammatical but a legal distinction between âmay be proved and âmust be or should be proved as was held by this court in Shivaji Sahabrao Bobade v. State of Maharashtra: 1973 2 SCC 793 where the following observations were made : (SCC Para 19 P. 807 : SCC (Cri) p. 1047.
Certainly, 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 âmay be and âmust be is a 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â
The Apex Court in Sardas case (supra) at paragraph 157, ruled as under :-
â157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. ....................â
IV) CRITICAL ANALYSIS OF PROSECUTION CASE :
38. In the light of aforementioned, let us analyze the prosecution case.
As to Point No.1 : This point is in respect of death of Vishwanath. According to the prosecution, Vishwanath died homicidal death.
While criticizing the prosecution case, passingly, learned counsel for Ramesh (prisoner) submitted that merely on the basis of identification of dead body by PW 1Shankar and PW 6Gulabrao Bakkal that the dead body which was fished out from the well was of Vishwanath, it will be unsafe to reach to the conclusion that it was, in fact, body of Vishwanath.
PW 1-Shankar along with others reached at the agricultural field at Zakalwadi wherein the well was situated in view of the phone call which he received on 11.2.2012 at 8.30 p.m. from Police Station, Wshim (Rural), by which it was intimated to him that the dead body is floating in the well. On reaching the spot, Shankar (PW 1) identified the said dead body as of his father Vishwanath though the said body was not having head. Shankar (PW 1) identified the dead body as of his father on the basis of two corns on the left leg and also the short toes of the foot.
Gulabrao Bakal (PW 6) has also identified the dead body on the said basis.
PW 1-Shankar is the son of deceased-Vishwanath. PW 6Gulabrao Bakal is co-brother of the deceased. In view of their relations with deceased, remembering the peculiar marks in the nature of corns and the short toes on the foot, there is no room to raise a suspicion in respect of their identification. We cannot forget that the age of PW 1Shankar is 20years. Thus, for last twenty years, he was observing his father with such peculiarity.
Further, on 12.2.2012 when the dead body was fished out from the well, the I.O. has done inquest on the same in presence of two Panchas, of course, one of the Panchas was Gulabrao Bakal. What is important is, while doing inquest the I.O. and Panchas noticed the following :
"तसà¥à¤à¤¡à¤¾à¤µà¤¯à¤¾à¤ªà¤¾à¤¯à¤¾à¤à¥à¤¤à¤³à¤ªà¤¾à¤¯à¤¾à¤µà¤°, पà¥à¤à¤¾à¤µà¤°à¤¦à¥à¤¨à¤à¤à¤à¤à¤à¤à¤ ठतà¤à¤°à¤¾à¤µà¤°à¤à¥à¤°à¤ªà¤¿à¤¦à¤¸à¤¤à¤à¤¹à¥à¤¤. तसà¥à¤à¤¦à¥à¤¨à¤¹à¥à¤ªà¤¾à¤¯à¤¾à¤à¥à¤¬à¥à¤à¥à¤à¤à¥à¤¡ à¤à¤¹à¥à¤¤."
Thus, the observations of Shankar (PW 1) in respect of the dead body is also having support from the inquest Panchnama.
What is most important about the identification is the scientific evidence in the nature of DNA test.
A piece of bone of hand of the deceased was sent in a sealed condition by the Doctor. It was seized by drawing a seizure Panchnama (Exh. 64).
The blood samples of Shankar (PW 1), the son of the deceased, and Shobhabai (PW 4), the widow, were taken and they were seized in a sealed condition vide Exh. 74. The I.O. sent these articles to Forensic Science Laboratory, Kalina, Vidyanagari, Santa Cruz, Mumbai, under requisition Exhs.107 and 108 for the DNA test. The said Laboratory has given its report, which is placed on record at Exh.52. The scientific opinion after DNA was done, is as under:-
OPINION : â(1) Exh.1long bone and Shobhabai V .Lahane in FSLML Case No. DNA 263/12 are concluded to be the biological parents of Shankar V. Lahane in FSLML Case No. DNA 263/12.â
In view of the aforesaid scientific evidence available on record, the submission of the learned counsel for Ramesh (prisoner) is highly misplaced. Therefore, there is no doubt to record a finding that the beheaded dead body which was fished out from the well on 12.2.2012 was of Vishwanath Jijeba Lahane, father of PW 1 Shankar and husband of PW 4Shobhabai.
The dead body was sent to Rural Hospital, Washim by PW 10 Rathod, the I.O. through Police Constable under requisition to the hospital (Exh. 89). Dr. Parmeshwar Kharat (PW 9) was working as Medical Officer since August, 2011 at Civil Hospital, Washim. On 12.2.2012 a dead body was brought to him by Police Constable. Shankar Lahane, Gulabrao Bakal and one Mahadeo Khandare identified the said body.
On examination, he found that the dead body was well nourished and cold rigor mortis were well marked. He also noticed sign of decomposition. Greenish discolouration over abdomen was present. He noticed postmortem peeling off skin over back buttock and both the upper and lower limbs. He noticed that the head was missing. At the time of conducting postmortem, he noticed the following external injuries:-
â1) Decapitation injury over neck at the level of C3 C4 cervical vertebra corresponding tissues, blood vessels, muscles, trachea, oesophagus spinal cord amputed. Above the level of this injury head neck face is missing. Dark red blood firmly adhered to the cut end. Margins of injury clean cut.
2) Incised wound over front of abdomen in the midline, 5 cm. Below nipple level size of wound is 25 cm. long, 5 cm. broad and cavity deep from which internal visceral organs like stomach, small and large intestine protruding out. Margins of wound one cleant cut without any blood adhered to the cut end. Injury is vertically placed.â
The Doctor opined that the cause of death is decapitation injury. According to the postmortem report injury No.1 is antemortem; whereas Injury No.2 is postmortem.
According to the opinion of the Doctor, the cause of death was said decapitation injury.
In view of the evidence of the Dr. Parmeshwar Kharat (PW 9) together with the postmortem report (Exh 77), we record our finding that the death of Vishwanath was homicidal one and the prosecution has proved that the nature of death of Vishwanath is homicidal one. Accordingly, we answer the Point No.1 in the affirmative.
39. As to Point No.2 : In view of the affirmative finding that Vishwanath Lahane died homicidal death, the most important question which is posed to this Court is, as to whether the prosecution has proved that Ramesh (prisoner) is responsible for such homicidal death of Vishwanath.
40. The Court will have to evaluate the available evidence â both oral as well as documentary, in the light of guiding principles of the decisions of Hemant Nargundkar and Sharad Birdhichand Sarda (cited supra).
41. The prosecution case has to be examined and its analysis has to be done on the touchstone of principles laid down by the Honble Apex Court, since there is no eye witness account available in the present prosecution case and the entire prosecution is based on circumstantial evidence.
According to learned Additional Public Prosecutor, the prosecution has brought such incriminating circumstances on record and the chain of circumstances is complete and there is no reasonable ground for the conclusion consistent with the innocence of Ramesh (prisoner).
The circumstances which he has culled out are already mentioned in the preceding paragraph No.35 of this judgment.
Though the learned Addl. P.P. has culled out about 24 circumstances, if they are closely examined, then it will reveal that they are elaborated version of following three circumstances:-
(A) Last seen theory;
(B) The discoveries at the instance of prisoner Ramesh, his memorandum statement u/s 27 of the Evidence Act; and
(C) Motive
Even the learned trial Court while concluding that Ramesh is guilty of commission of death of Vishwanath, has referred to above three circumstances only.
42. Now let us scrutinize the evidence to find out as to whether the prosecution ha s established the aforesaid circumstances beyond reasonable doubt.
(A) Last seen theory: Insofar as the proof that the deceased was lastly seen in the company of Ramesh (prisoner), we have the evidence of (i) Pankaj Madhav Ingle (PW 2); (ii) Sagar Damodar Khillare (PW 2); and, (iii) Jayawant Ramchandra Lahane (PW 5).
According to the prosecution, on 5.2.2012 deceased Vishwanath left his residence at Karanji to attend the marriage of daughter of one Bharat Keshav Lahane which was to be solemnized at Swagat Lawn, Washim. There is no evidence available on record as to who were his companions, when he left his village. However, from missing report (Exh.36) which PW 1Shankar was required to lodge since his father did not return to house in the night, has a reference that his father left the village with some persons at 3 o clock on 5.2.2012. There is a reference of one Jagan Baliram Lahane in missing report at Exh. 36. Since the said report discloses that when all other persons returned to the village but for his father, PW 1 Shankar made enquiry with said Jagan about his father.
43. PW 5is Jayawanta Lahane. He is husband of Police Patil of village Karanji. His two sons are studying at Washim in VI and VIII standard. According to this witness, he had been to Washim on 5.2.2012 to attend the marriage of daughter of Bharat Lahane. After attending the said marriage, when he had been to one paan kiosk at Pusad Naka, along with others, deceased Vishwanath came there. He also took paan i.e. beatle leaf and thereafter they went to attend the marriage.
In view of the aforesaid evidence, one can conveniently reach to the conclusion that on 5.2.2012 deceased Vishwanath left his village Karanji along with some persons to attend the marriage to be performed at Swagat Lawn at Washim.
PW 5-Jayawanta claims that after the marriage, he along with his wife, started to go to his room on his motorcycle. When the couple reached at Pusad Naka, PW 5 received a mobile call of Vishwanath who asked him to take him on his motorcycle to the house of Ramesh (prisoner). He stopped the bike. Vishwanath came there and sat on the bike. Thereafter, firstly, he dropped his wife at their room at Civil Lines and thereafter he left deceased-Vishwanath near Chintamani Hotel at about 7.30 to 7.45 p.m. and then he returned his home.
44. PW 2 is Pankaj Ingle. He claims that he ply an auto-rickshaw. He is the resident of the same vicinity wherein the house of Ramesh (prisoner) is situated.
According to him, on 5.2.2012 at about 9.30 to 10.p.m., he reached to his house and when he was parking his auto-rickshaw, one person came near him. He asked him as to where he was going. Thereupon, the said person replied that he was going to urinate. Upon that, witness-Pankaj asked the said person as to where he resides. Upon that, the said person replied that he is the guest of Ramesh(prisoner).
PW 2-Pankaj Ingle claimed that at that time Ramesh Lahane came and took the said person to his home, at that time, the wife of Ramesh was standing on road. Thereafter he parked his auto, had his meals and went to sleep.
45. PW 3 is Sagar Khillare. He is the resident of Dattanagar area, wherein the house of Ramesh (prisoner) is situated. According to Sagar, on 5.2.2.2012 around 8.30 to 9.30 p.m. he had come out of his house after having his meals. That time, he noticed one person murmuring under the influence of liquor, who went towards the house of Pankaj (PW 2). Verbal exchange of words were going on in between Pankaj and said person. That time, Sagar was standing near his house. He claims that Pankaj (PW 2) reached the said person to the house of Ramesh (prisoner). Thereafter he went to his house and Pankaj went to his house.
46. When Vishwanath failed to return to the house at Karanji in the night of 5.2.2012, on the next day i.e. 6.2.2012 Shankar (PW 1) met Jayawanta Lahane (PW 5) and enquired as to whether he met his father in the marriage, whereupon Jayawanta disclosed to him, that his father met him near Pusad Naka. The conversation between PW 1Shankar and PW 5Jayawanta which Shankar has vividly described from the witness box during trial, has no evidentiary value, being hearsay evidence. Further, Jayawanta (PW 5) is completely silent in his evidence in respect of the material aspects, such as;
(a) â.... Jayawanta Lahane further told me that my father asked him to take him (my father) to the house of Ramesh for transaction of his field if any misdeed happened. On that Jayawanta replied to my father not to go there if he apprehends to his life and further stated that Jayawanta would not go to take himâ
(b) âJayawanta showed his un-readiness to go there due to fear. Moreover Jayawanta told him that his father had phoned my father but it was switched offâ.
Jayawanta (PW 5) would have been the best person to depose aforesaid facts. He is completely silent on aforementioned aspects in his evidence. Therefore, to that extent, the evidence of PW 1Shankar will have to be discarded though the learned Addl.P.P. vehemently pressed the same.
47. Now let us examine the worth of the evidence of PW 2 Pankaj and PW 3Sagar.
The entire case of the prosecution hinges on the evidence of these two witnesses because, if the prosecution case is to be believed, these are only two persons who have seen Vishwanath lastly alive and in the company of Ramesh ( prisoner).
The distance between the house of Ramesh(prisoner) and PW 2Pankaj is more than 350 feet as it has come on record through his cross-examination. Though in the opening paragraph of his evidence, Pankaj has claimed that he ply the auto rickshaw, he has admitted in his cross-examination that since last 15years, he is working as servant at Dhaba (roadside eatery) of one Jasvinder Johar. Even in the cross-examination, firstly, he replied that since last 15years he was working as Manager at the said Dhaba and then changed his version.
48. Insofar as the evidence of Sagar is concerned, from his evidence, it is clear that Dattanagar is a densely populated area and the distance between his house and house of Pankaj (PW 2) is more than 350 to 400 feet. The vernacular version of Sagar (PW 3) shows that the house of Ramesh ( prisoner) is situated just in front of his house.
The evidence of PW2 Pankaj and PW3 Sagar on material aspect, is entirely different which can be seen from the following:
| PW2 Pankaj claims that he has seen Ramesh Lahane came and took said person to his home and at that time wife of Ramesh was standing on the road. | PW 3 Sagar claims that Pankaj(PW 2) reached that person to the house of Ramesh Lahane. |
| According to PW 2 Pankaj, the time was between 9.30 and 10.00 p.m. | According to PW 3 Sagar, the time was between 8.,30 to 9.30 p.m. |
The aforesaid two mentioned versions in the evidence of PW 2Pankaj and PW 3Sagar cannot be termed as minor variation. If the evidence of these two witnesses is examined in its correct perspective, it is clear that these two prosecution witnesses are giving an altogether different versions.
The house of Sagar is situated just in front of the house of Ramesh (prisoner). According to this witness, it is Pankaj who has reached deceased Vishwanath upto the house of Ramesh. However, Pankaj is completely silent on that aspect. Not only that, he claims that it is Ramesh, the prisoner, who took Vishwanath, the deceased, to his house. PW 3Sagar is completely silent about the presence of wife of prisoner-Ramesh standing on the road. Further, none of these witnesses has claimed that they have seen Ramesh (prisoner) either taking deceased Vishwanath inside his house or Vishwanath, on his own, entered the house of Ramesh. On the contrary, Sagar has stated as under:
"पà¤à¤à¤à¤¨à¥à¤¤à¤¯à¤¾à¤à¤¸à¤®à¤¾à¤²à¤¾à¤°à¤®à¥à¤¶à¤à¤¯à¤¾à¤à¤°à¤¾à¤à¤¡à¥à¤¨à¥à¤¤à¤¾à¤¨à¤¾à¤®à¥à¤ªà¤¿à¤¹à¤²à¥. परतà¤
तà¥à¤à¤¸à¤®à¤°à¤®à¥à¤¶à¤à¤¯à¤¾à¤à¤°à¤¾à¤¤à¤à¤¾à¤¤à¤¾à¤¨à¤¾à¤®à¥à¤ªà¤¾à¤¿à¤¹à¤²à¥à¤¨à¤¾à¤¹à¥."
When Pankaj is completely silent or he is not supporting the PW 3 that it is Pankaj who has reached Vishwanath to the house of Ramesh, it will be hazardous to accept the version of Sagar that he has seen Pankaj reaching Vishwanath near the house of Ramesh.
From the entire evidence of Sagar, it is absolutely clear that he is not making even a reference to the presence of Ramesh (prisoner) or his wife either on the road or in front of his house. Looking to the fact that Sagars house is situated just opposite the house of Ramesh he is the best person to notice the presence of Ramesh as claimed by Pankaj (PW 2).
49. PW 1-Shankar has claimed that on 7.2.2012 he along with Jayawanta Lahane (PW 5), Panjabrao, Jaideo Lahane, Baburao Padgham and Anil Gori, Datta Lahane reached Washim and went to the house of Ramesh (prisoner), his house was found to be locked. That time he was possessing the photo of his father. He showed the said photo to the neighbours of Ramesh. However PW 1 Shankar is completely silent that he met either Pankaj (PW 2) or Sagar (PW 3) nor Pankaj or Sagar claims that they met Shankar on 7.2.2012.
These two prosecution witnesses identified the photo which was shown to them by police and they identified that Vishwanath was the same person whom they saw on 5.2.2012.
The police statements of these two witnesses are recorded on 17.2.2012. According to the I.O., PW 10Rathod, he has recorded statement of witnesses on 13th. For recording the statement of witnesses the police must have visited the vicinity. According to PW 3-Sagar Khillare on 17.2.2012, the police had came near to his house to prepare Panchnama and, at that time, police had shown a photo to him. The evidence of PW 10 Rathod does not disclose that he visited the vicinity on 17.2.2012 Further, the learned Addl. P.P. was unable to point out any Panchnama recorded by the I.O. on 17.2.2012.
On thing to be noted is that at the time of recording of evidence of PW 3-Sagar, he was working as Police Constable. Therefore, the possibility that he is a partisan witness cannot be ruled out in the light of his belated police statement.
50. In view of the vital difference on the material aspect as appearing in the evidence of prosecution witness Pankaj and Sagar, coupled with the fact that their police statements were recorded belatedly i.e about five days of the recovery of the dead body and particularly when none of them has stated in their evidence that they saw deceased-Vishwanath entering inside the house of Ramesh or Ramesh taking him inside his house, we are of the opinion that it will be too risky to reach to the conclusion that these two prosecution witnesses has seen deceased-Vishwanath in the company of Ramesh the prisoner in the night on 5.2.2012
51. That leaves us to scrutinize the evidence of PW 5 Jayawanta on the aspect of last seen theory. In his evidence Jayawanta never claims that he reached deceased Vishwanath to the house of Ramesh (prisoner). His evidence would reveal that on 5.2.2012 at about 7.30 to 7.45 p.m. he left Vishwanath near Chintamani Hotel. In that view of the matter, it is absolutely clear that it is not his claim that he has seen deceased going towards the house of Ramesh after he was dropped near Chintamani Hotel.
His evidence would reveal that at about 9.10 p.m. he received a call of Vishwanath (deceased) requesting him to come near Chintamani Hotel to take him; however, he refused and switched off his mobile. The Court has to examine as to whether Jayawanta is the witness giving the truthful version.
According to PW 1Shankar on 7.2.2012 when he visited the locality Dattanagar in order to trace out his father Vishwanath, he was accompanied not only with other persons but also PW 5 Jayawanta Lahane. Since there was no trace of his father, he reached the Police Station and lodged the missing report.
Though the learned Addl. P.P. Submitted that the missing report was lodged on 7.2.2012 since the said date is appearing on the said missing report (Exh.36) we have reason to reject such claim. No doubt true, missing report though it is styled as âoral report (Exh.36) is dated 7.2.2012, on perusal of the original, it is revealed to us that on left hand margin portion of the said document, there is a Station Diary Entry having No.20/2012 and it is dated 8.2.2012 at 13.30 hours. In view of the said entry, the Court will have to put reliance on entry No. 20/2012 dated 8.2.2012 rather than oral version of PW 1 in that behalf.
52. Be that as it may, Shankar (PW 1) is very clear that at the time of lodging of report Exh.36, PW 5 Jayawanta accompanied him. Even Jayawanta (PW 5) has corroborated the said fact. Thus, either on 7.2.2012 or on 8.2.2012, Jayawanta (PW 5) was present in Police Station, Washim (city) and in his presence, PW 1-Shankar has lodged his missing report.
Perusal of Exh.36missing report would reveal that the said report is completely silent about Jayawanta (PW 5) dropping deceased near the Chintamani Hotel. Had really Jayawanta told or disclosed the fact to Shankar (PW 1) that he has left Vishwanath near Chintamani Hotel on 5.2.2012 in between 7.30 and 7.45 p.m. and/or he received a phone call from Vishwanath at 9.10 p.m., the said aspect would not have missed by Shankar while narrating his missing report or at the time of lodging of report (Exh36). The said fact would have been revealed by Jayawanta (PW 5) to the police authorities at Washim (city) as it was the first opportunity that was available to Jayawanta to report such an important fact that he has dropped deceased Vishwanath near Chintamani Hotel and at 9.10 p.m. he received call from Vishwanath. The silence on the part of PW 5 Jayawanta in the Police Station on such vital aspect at the time of recording of missing report (Exh.36) creates a serious doubt about the claim of Jayawanta, that he had reached Vishwanath near Chintamani Hotel and/or he received a phone call from Vishwanath at 9.10 p.m.
The claim of Jayawanta that he received a phone call from Vishwanath on 5.2.2012 at 9.10 p.m. could have been easily established by proving the CDR reports. For the reasons best known to the I.O. and the prosecution, nothing sort of that was done.
53. On the minute and closer scrutiny of the entire prosecution case, it shows that following telephonic calls were materialised or not, if the prosecution case is to be believed in that behalf.
(i) A telephone call from deceased-Vishwanath to PW 5Jayawanta Lahane in the evening/night of 5.2.2012. (This call was not materialised).
(ii) A telephone call from deceased-Vishwanath to PW 5Jayawanata at 9.10 p.m. On 5.2.2012. (This call was materialised).
(iii) A call on the cell-phone of deceased-Vishwanath by his son PW 1Shankar on 5.2.2012 from 9.00 p.m. (This phone call was not materialised).
From the evidence of PW 1Shankar, it is clear that deceased Vishwanath was carrying cellphone having No. 90497494523.
Though PW 5Jayawanta Lahane, has claimed that he received phone call from deceased-Vishwanath while he was on his motorcycle, his evidence does not reflect the number of his cellphone.
54. By first phone call that was materialised, if the evidence of PW 5Jayawanta is to be believed, was made by deceased-Vishwanath to him after the marriage ceremony at Swagat Lawn was over. The claim of PW 5Jayawanta is that he received phone call from deceased-Vishwanath when he was proceeding on his motorcycle along with his wife for his room. Since the phone call he received while he was on motorcycle, obviously, the said phone call must have received by him on his cell-phone.
By the said phone call, according to the prosecution case, a request was made by the deceased to drop him to the house of Ramesh (prisoner) and accordingly, Jayawanta (PW 5) has dropped deceased-Vishwanath near Chintamani Hotel between 7.30 and 7.45 pm.
If the evidence of the prosecution witness Jayawanta is to be believed, he received phone call from Vishwanath (deceased) at 9.10 p.m. requesting him to come near Chintamani Hotel for taking him from the said place.
The reference to the third phone call is in the missing report (Exh.36) lodged by PW 1Shankar. It is stated in the said report that that on 5.2.2012 in the night when all other villagers returned from the marriage except his father, he tried to make a phone call to his father Vishwanath from 9.00 p.m. however it was switched off.
55. In order to have corroboration in respect of the aforementioned phone calls, the I.O. could have investigated in that direction. No CDRs are produced on record.
Though CDRs would have been only corroborative in nature but, according to us, it was a vital coupling to complete the chain to the extent of proving the fact conclusively that phone calls were made by deceased-Vishwanath to PW 5Jayawanta and in pursuance to the aid phone call, Jayawanta has dropped deceased-Vishwanath near Chintamani Hotel. Except for this phone call, there was no other occasion for Jayawanta to know about the intention of deceased Vishwanath to go to the house of Ramesh (prisoner). In that view of the matter, the corroboration to the claim of PW 5Jayawanta about the phone call was must.
Further, it is to be noted that it is the claim of PW 5Jayawanta that he received phone call from deceased-Vishwanath at 9.10 p.m. on 5.2.2012 requesting him to take from the place Chintamani Hotel. However, according to the version of PW 1Shankar and the recitals in document Exh. 36 (missing report), the phone of Vishwanath was giving signal of being switched off from 9.00 p.m. Therefore, the production of CDRs of the calls allegedly made by Vishwanath to PW 5Jayawanta would have had a great corroborative value
56. PW 5-Jayawanta has not stated in his evidence that after the phone call to him by deceased-Vishwanath at 9.10 pm, he made a phone call to deceased Vishwanath after half-an-hour. If the evidence of PW 1-Shanakr is seen, he claims that on 6.2.2012 PW 5Jayawanta informed him that after receipt of the phone call from his father at 9.10 p.m, requesting him to take him from the place near Chintamani Hotel and he showed his un-readiness to go there and, thereafter, Jayawanta made a phone call to deceased Vishwanath after half-an-hour but it was found to be switched off.
Leave aside as to whether this part which is appearing in the evidence of PW 1Shankar is admissible or not, on its own evaluation, the claim made by Jayawanta that he made phone call to deceased Vishwanath after half-an-hour at 9.10 p.m, as suggested by PW 1 Shankar in his evidence, appears to be unnatural one; because, once Jayawanta refused to oblige the request of deceased-Vishwanath to take him from Chintamani Hotel in pursuance to the phone call at 9.10 p.m. and when Jayawanta disconnected the said phone call, there was no reason for Jayawanta to make a phone call to Vishwanath after half-an-hour. The evidence of PW 1-Shankar is completely silent as to what prompted Jayawanta to make a phone call after half-an-hour.
57. Another important aspect in respect of the credibility of this witness is concerned, is that initially on 18.2.20012 Jayawanta was arrested by I.O. in the present crime. He was in jail for three months in respect of the present crime. Ultimately, he was discharged by police on the basis of the order passed by the learned Magistrate on the discharge application moved by the I.O. The police statement of PW 5-Jayawanta is recorded only after his discharge from the present crime.
In view of the nondisclosure of the fact that he has left deceased Vishwanath near Chintamani Hotel on 5.2.2012 or he received the phone call of 9.10 p.m. on 5.2.2012 at the first opportunity which was available to him right in Washim Police Station (city ) and that his police statement was recorded belatedly after a period of three months, there is absolutely no doubt in our mind to reject his claim.
Exh.36the missing report is completely silent about the fact that on 7.2.2012 PW 1Shankar had been in the vicinity of Dattanagar and he has shown the photograph to the neighbours as claimed by him in his evidence.
The first information report is lodged by PW1Shankar on 12.2.2012 after the identification of the dead body. It is at Exh. 37. The relevant portion from the first information report in that behalf is reproduced here-in-under:
"२.२०१२रà¥à¤à¥à¤®à¥à¤®à¤¾à¤à¥à¤µà¤¿à¤¡à¤²à¤¾à¤à¤à¤¾à¤¶à¥à¤§à¤à¥à¤£à¤¯à¤¾à¤¸
सà¥à¤¬à¤¤à¤ªà¤à¤à¤¾à¤¬à¤°à¤¾à¤µà¤²à¤¹à¤¾à¤¨à¥, à¤à¤¯à¤µà¤¤à¤à¤²à¤¹à¤¾à¤¨à¥, à¤à¤¯à¤¦à¥à¤µà¤²à¤¹à¤¾à¤¨à¥, बाबà¥à¤°à¤¾à¤µ
पडà¤à¤®, ठिनलà¤à¥à¤°à¥, दतालहानà¥à¤ सà¥à¤µà¤¾à¤¶à¥à¤®à¤¯à¥à¤¥à¥à¤à¤²à¥à¤µ
िà¤à¤à¤¤à¤¾à¤®à¤£à¥à¤¹à¥à¤à¥à¤²à¤à¥à¤®à¤¾à¤à¥à¤°à¤®à¥à¤¶à¤²à¤¹à¤¾à¤¨à¥à¤¯à¤¾à¤à¥à¤à¤°à¥à¤à¥à¤²à¥à¤ सता,
तयाà¤à¥à¤à¤°à¤¬à¤¦à¤à¤¹à¥à¤¤à¥. à¤à¤à¥à¤¬à¤¾à¤à¥à¤à¤¯à¤¾à¤²à¥à¤à¤¾à¤à¤¨à¤¾à¤®à¥à¤®à¤¾à¤à¤¯à¤¾à¤µà¤¿à¤¡à¤²à¤¾à¤à¤¾
फà¥à¤à¥à¤¦à¤¾à¤à¤µà¥à¤¨à¤¹à¥à¤à¤¥à¥à¤à¤²à¥à¤¹à¥à¤¤à¥à¤à¤¾à¤¯à¤ शà¥à¤¿à¤µà¤à¤¾à¤°à¤ªà¥à¤¸à¤à¥à¤²à¥
ठसता, तयालà¥à¤à¤¾à¤à¤¨à¥à¤¸à¤¾à¤à¤¿à¤à¤¤à¤²à¥à¤à¥à¤¯à¤¾à¤«à¥à¤à¥à¤®à¤§à¥à¤²à¤à¤¸à¤®
िदनाà¤à¤à¥«.२.२०१२à¤à¤¯à¤¾à¤°à¤¾à¤¤à¥à¤°à¤®à¥à¤¶à¤²à¤¹à¤¾à¤¨à¥à¤à¤¯à¤¾à¤à¤°à¥à¤à¤²à¥à¤¹à¥à¤¤à¥
वतà¥à¤¤à¤¯à¤¾à¤à¥à¤à¤°à¤¨à¤à¤°à¤¨à¤ªà¤³à¥à¤¨à¤à¤¾à¤¤à¤ सतारमà¥à¤¶à¤²à¤¹à¤¾à¤¨à¥à¤¹à¤¾à¤¨à¥
तयाà¤à¤¨à¤¾à¤§à¤°à¤¨à¤à¤°à¤¾à¤¤à¤à¤£à¤¤à¤¹à¥à¤¤à¤¾, ठसà¥à¤¶à¥à¤à¤¾à¤°à¤à¤¯à¤¾à¤²à¥à¤à¤¾à¤à¤¨à¥
साà¤à¤¿à¤à¤¤à¤²à¥."
Insofar as the claim made in the FIR that it was disclosed to Shankar by neighbours that deceased-Vishwanath was trying to run away and that time Ramesh (prisoner) hold him and brought to his house, is not at all supported by PW 2Pankaj and PW 3-Sagar Khillare.
Further, the I.O. has stated that he has recorded the statement of neighbours. However, none of such neighbors was examined by the prosecution to prove the fact of running Vishwanath and he being dragged inside the house.
Further, in the missing report (Exh.36) there is a reference of Jagan Baliram Lahane to whom the PW 1-Shankar has made initial enquiry as to whereabouts about his father in the night of 5.2.2012. However, neither Jagan was examined as prosecution witness nor his police statement was recorded.
58. Thus, there is absolutely no credible evidence available in the prosecution case that on 5.2.2012 Vishwanath had been to the house of Ramesh (prisoner) and/or any one has seen the deceased Vishwanath alive in the company of Ramesh. Necessarily we have to reject the theory of âlast seenâ as propagated by the prosecution.
(B) Discoveries at the instance of prisoner-Ramesh in his memorandum statement u/s 27 of the Evidence Act:
59. Another circumstance, in order to complete the chain, which is established according to the learned Addl. P.P. for the State as well as the learned trial Judge, is the discoveries made by the prisoner-Ramesh while he was in police custody.
According to Namdeo Rathod (PW 10), the Investigating Officer, Ramesh (prisoner), was arrested on 12.2.2012 at 22:31 hours under arrest Panchnama (Exh.91). The I.O. produced him before the learned Magistrate and obtained his police custody remand. According to the prosecution, on two occasions, prisoner Ramesh made disclosure statement , namely, on (a) 16.2.2012; and (b) 23.2.2012
60. According to the prosecution when prisoner was in police custody, on 16.2.2012 he made a disclosure statement u/s 27 of the Indian Evidence Act in presence of Panchas (1) Vishal Wankhede, and (2) Prakash Ananda Kamble (PW 8). The said memorandum statement is at Exh.66. From the admissible portion, it is clear that he agreed to show (1) the place of his house wherein he has concealed the half-filled liquor bottle; (2) the bloodstained clothes concealed in his house ; and (3) the place where deceased-Vishwanath was beheaded.
It is the case of the prosecution that in pursuance to the said memorandum statement dated 16.2.2012, Ramesh led the police party upto his house and showed the rack in the kitchen meant for keeping household utensils and from there half-filled country liquor bottle was found.
It is further case of the prosecution that thereafter he came out of his house, went in the tinshed adjacent to his house and from there he took full-pant beneath a sack.
Further, according to the prosecution, thereafter, prisoner-Ramesh led the police party and took them to the agricultural field of Uttam Gore and showed the place where deceased Vishwanath was beheaded.
Let us examine and evaluate this aspect.
61. On 11.2.2012 Police Station, Washim (Rural) got the information from Atmaram Ukanda Kalbande, Police Patil of Zakalwadi (Exh. 32) about floating of dead body of one unknown person in a well situated in the agricultural field of one Pralhad Kalbande.
On 12.2.2012, the police reached in the agricultural field bearing Gut No. 138 of Pralhad Chintaman situated in Zakalwadi. That time PW 1 Shankar and others were also present and in their presence the dead body was fished out from the well. On the same day, Spot Panchnama was drawn vide Exh. 57.
62. As per the prosecution case, on the very same day, the I.O. summoned the Dog Squad and a trained dog by name âHeea reached on the spot along with its Handler.
Exh. 56 is the Seizure Panchnama under which various things were seized.
Exh.56 is dated 12.2.2012. It reveals that a trained dog along with his Handler came near the well wherein dead body was kept. It further shows that thereafter the smell of the said dead body was given to the said Dog. The said dog proceeded towards the southern direction. Thereafter the I.O. and others came to another agricultural field which was about 500 feet. The document (Exh.56) shows that said spot was inspected by the I.O. in presence of Panchas. There, they found burnt ash. They dug the said place, that time bad bad odour was emitted. There they found black and while human hair. Also, they found half burnt cloth and burnt fodder and also a plastic to which human black and white hair were sticked. The I.O. seized those articles. Exh.56 shows that those articles /things were seized from the agricultural field of one Uttam Gore.
Exh.56 shows the further recovery of the human black and white hair and human jaw disfigured by wild animals and also three teeth. These articles were also seized under the said document Exh. 56 and the place of these articles was in the agricultural field of one Shyamrao Gore.
The recitals of Exh.56 are duly corroborated through the evidence of prosecution witness no.7Raju Choudhari, Handler of the Dog, Panch witness Gulab Bakal (PW 6) and also by the I.O. Namdeo Rathod (PW 10).
63. Now as per the memorandum statement of Ramesh dated 16.2.2012 (Exh. 66) he agreed to show the place wherein Vishwanath was beheaded. According to the prosecution, in pursuance to the same, he took police party in the agricultural field of Uttam Gore and showed the place. The Panchnama of the same is at Exha. 67. Exh.67 which shows that Ramesh took the police party to a place wherein it was noticed that at the said place some digging was there and presence of burnt ash and burnt fodder.
The learned Addl. P.P. has heavily relied upon the conduct of prisoner-Ramesh to show the said place in order to connect him with the crime.
We are afraid that we can attach any importance to the place which is shown by Ramesh as per his emorandum statement Exh.66. It is to be noted that the police had already visited the agricultural field of Uttam Gore on 12.2.2012. On the said date from the very same place which was shown by Ramesh, they had seized the articles as mentioned in the preceding paragraph as per the Seizure Panchnama (Exh.56). The place which was also in know of the I.O., therefore, even the subsequent conduct of prisonerRamesh showing the very same place, in our considered view, has no value in the eye of law.
64. Insofar as liquor bottle is concerned, it appears from the prosecution case through PW 3-Sagar that Ramesh is habituated to drinking. If a person is habituated to drinking then noticing the liquor bottle in his house cannot be termed as an incriminating circumstance. Further, on 16.2.2012 wife of the prisoner-Ramesh was not arrested. From the evidence of PW 8-Prakash Kamable, the Panch, it does not appear that when they reached to the house of Ramesh, the house was closed. It will be useful to reproduce the relevant portion appearing in the evidence of PW 8Prakash Kamble, the Panch, as under:
"तयानतà¤à¤°à¤ªà¥à¤¿à¤²à¤¸à¤à¥à¤ªà¤®à¤§à¤¯à¥à¤¬à¤¸à¤²à¥. à¤à¤°à¥à¤ªà¥à¤°à¤®à¥à¤¶à¤¨à¥à¤à¤®à¤¹à¤¾à¤²à¤¾à¤¤à¤¯à¤¾à¤à¥
à¤à¤°à¤¦à¤¾à¤à¤¿à¤µà¤²à¥, हाताà¤à¤¯à¤¾à¤à¤¶à¤¾à¤¯à¤¾à¤¾à¤¨à¥. à¤à¤®à¤¹à¥à¤¸à¤µà¤¾à¤¤à¤¯à¤¾à¤à¤¾à¤à¤°à¤¾à¤¤à¤à¥à¤²à¥."
Thus, it is absolutely clear that the house was not in the exclusive control of prisoner-Ramesh. In that view of the matter, much importance cannot be attached to the recovery of liquor bottle from the house.
65. Insofar as the recovery of clothes is concerned, Exh.67 the Recovery Panchanma recites as under:
âतयानतà¤à¤°à¤à¤°à¥à¤ªà¥à¤à¤°à¤¾à¤¬à¤¾à¤¹à¥à¤°à¤¯à¥à¤à¤¨à¤à¤°à¤¾à¤²à¤¾à¤ªà¤¿à¤¿à¤à¤®à¤¬à¤¾à¤à¥à¤¸à¤²à¤¾à¤à¥à¤¨
ठसलà¥à¤²à¤¯à¤¾à¤ªà¥à¤µà¤¾à¤®à¥à¤à¥à¤µà¤°à¤à¥à¤¨à¤ªà¤¤à¤¯à¤¾à¤à¥à¤¶à¥à¤¡à¤ सलà¥à¤²à¤¯à¤¾à¤à¥à¤ ामधà¥à¤¨
पà¥à¤¤à¤¯à¤¾à¤à¥à¤à¤¾à¤²à¥à¤²à¤ªà¤¿à¤µà¤²à¥à¤²à¥à¤«à¥à¤²à¤ªà¤¯à¤¾à¤à¤à¤à¤¾à¤¢à¥à¤¨à¤¿à¤¦à¤²à¤¾."
From the above, it is absolutely clear that full-pant was recovered from the tinshed which was not a closed place and was accessible to anybody. Therefore, we are not ready to place any reliance on such recovery at the instance of Ramesh, especially when such recovery is shown to be made from a place which was not in exclusive control and domain of Ramesh.
In that view of the matter, according to our considered view, for the aforesaid evaluation, the recoveries and showing of the place by prisoner Ramesh must go and are of no use to the prosecution.
66. The prosecution case further depicts that after the first memorandum statement on 16.2.2012 during his further police custody on 23.2.2012, prisoner-Ramesh has made another disclosure statement u/s 27 of the Evidence Act. The said memorandum statement is at Exh. 69. The admissible portion of said memorandum statement shows that on 23.2.2010 Ramesh agreed to show the place wherein Vishwanath was killed and to show the place wherein he has concealed the shirt, his cycle and weapon-knife and mobile of deceased Vishwanath.
67. According to the prosecution, in pursuance to the memorandum statement dated 23.2.2012, Ramesh led the police party again to his house and then shown the place which was a peg on the wall on which the shirt was hanging.
Further, Ramesh took the police party to the adjacent tinshed and shown the cycle.
Further, he took the police party to a fallow land in front of Chintamani Hotel and from there, from a crack, near one Babhli shrub, he took out the weapon knife and mobile phone.
Further, he took police party to the agricultural field of Shyamrao Gore and the well where he threw the dead body.
All these are recorded in Recovery Panchnama Exh. 70.
68. The recovery at the instance of Ramesh in respect of shirt and cycle must go and it cannot stand to the scrutiny of law for a minute. On 16.2.2012 the police along with Ramesh had been to his house. They entered the house of Ramesh. The I.O. must have searched the house that time and still the prosecution wants to impress upon us that we must believe the fact that on 23.2.2012 the shirt was still hanging on a peg which was having bloodstains.
Further, on 16.2.2012 Ramesh along with the police party had been to the tinshed in order to recover the full-pant. Therefore, these two places were already in know of the police. In that view of the matter, we have no other reason but to observe that these two recoveries appear to have been shown just to suit the prosecution case and accordingly they are rejected.
69. Insofar as the recovery of knife and mobile phone is concerned, Exh.70 clearly shows that it was made from the open place. Further, without there being any identification from any of the prosecution witnesses, including the son and widow of deceased Vishwanath, as to whether the cell-phone seized belongs to Vishwanath (deceased), the prosecution wants us to believe that the said was belonging to deceased Vishwanath.
Insofar as the place where the deceased was killed, as per memorandum statement, is the house of Ramesh himself and also the agricultural field of Uttam Gore and Shyamrao Gore which was already visited by the I.O. along with his police party prior to the date of the drawing of Panchnama (Exh. 70). On that count also, the same has no evidentiary value though the learned Addl.P.P. insists that the same be relied, in support of prosecution case .
70. There is another reason for disbelieving the recoveries from the house of prisoner-Ramesh. According to the evidence of PW 1Shankar and PW 5Jayawanta, on 7.2.2012 when the missing report (Exh.36) was lodged, Ramesh along his wife were called in the Police Station for enquiry. The evidence of PW 5Jayawanta corroborates the version of PW 1 Shankar that Ramesh and his wife were in police station and only after enquiry they were set free. Thus, it is clear that it must be in the mind of prisoner-Ramesh that there is a suspicion on him in respect of death of Vishwanath. If that be so, the natural conduct of any person will be to dispose of any incriminating material and/or article from his house rather than preserving them till 16.2.2012 and 23.2.2012 to show to the police party.
PW 8Prakash Kamble, the panch witness, is examined by the prosecution to show that in his presence, prisoner-Ramesh has made his two disclosure statements. The possibility of Prakash Kamble under the thumb and influence of the I.O. cannot be ruled out in view of the following portion appearing in the evidence of I.O :-
âPrakash Kamble resides near the Police Station. Therefore, we used to call as him as Panch.â.
71. Aforementioned discussion leads us to record a specific finding that the so called recoveries and the subsequent conduct of Ramesh in pursuance to the disclosure statement has no value in the eye of law and, accordingly, the contention in that regard is also rejected.
(C) MOTIVE:
72. The last part in the prosecution case is in respect of the motive. According to the evidence appearing, the agricultural fields of Vishwanath (deceased) and Ramesh (prisoner) are adjacent to each other. According to the prosecution, the motive to kill deceased Vishwanath is the encroachment made by Ramesh on the agricultural field of deceased Vishwanath.
73. According to the prosecution, Ramesh has made encroachment over the agricultural field of deceased to the extent of 10 gunthas. PW 1Shankar states that there was a dispute on that count between his father and Ramesh. Shankar's evidence would reveal that his father lodged a complaint with Chairman, Dispute Redressal Committee of Karanji. It is dated 29.8.209. Exh.35 is a complaint lodged to Police Station Officer, Shirpur ; it is dated 13.10.1988. It shows that it was lodged by Jijeba Lahane i.e father of deceased.
Both the learned Addl. P.P. and the learned Judge of the trial Court have relied heavily on the recitals of these two documents to show that there was motive on the part of Ramesh to finish him.
It will be pertinent to note that at the time of recording of the evidence of Shankar in whose evidence these two documents were exhibited as Exhs. 34 and 35, the learned Judge has specifically recorded that these documents are exhibited to the extent of signatures. Therefore, it is clear that the contents of these documents remained to be proved. Further, according to the PW 1Shankar, Ramesh always used to extend threats of murder to his father. There is not a single complaint or report lodged by deceased-Vishwanath during his lifetime with police authorities in respect of the threats extended to him by Ramesh (prisoner).
Further, the police report (Exh.35) made to Police Station Officer, Shrirpur is dated 13.10.1988, that is, much prior to the date of the incident. Further, the said report was also not lodged by deceased-Vishwanath, but by his father.
74. According to PW 5-Jayawanta at Washim deceased Vishwanath told him that he wants to dispose of his agricultural field and, therefore, he wants to go to the house of Rmesh (prisoner). There is a faint corroboration in respect of willingness of Vishwanath to sell the property which appears in the evidence of PW 4Shobhabai, the widow. According to her evidence, deceased was asked by Ramesh to visit the house at Washim
PW 1Shankar is the only son of Vishwanath. He is fully grown person. Therefore, if deceased-Vishwanath was intending to go to the house of Ramesh in respect of sale transaction, normally, it would have been disclosed by Vishwanath to Shankar. The evidence of PW 1 Shankar is completely silent about the said fact that his father intended to go to the house of Ramesh in respect of the sale transaction.
Further, according to PW 1Shankar and PW 4Shobhabai there was a dispute in respect of the agricultural field amongst deceased Vishwanath and Ramesh. The first information report lodged by Shankar (Exh. 37) speaks otherwise, as can be seen from the relevant portion appearing in the said report, as under :
âमाà¤à¥à¤²à¤¦à¥à¤¨à¤¤à¥à¤¨à¤µà¤·à¤¾à¤¾à¤¤à¤¤à¤¯à¤¾à¤à¥à¤¿à¤µà¤°à¤¦à¤¿à¤¶à¤°à¤ªà¥à¤°à¤ªà¥à¤¿à¤²à¤¸à¤¸à¤à¥à¤¶à¤¨à¤²à¤¾
माà¤à¥à¤µà¤¿à¤¡à¤²à¤¾à¤à¤¨à¥à¤¦à¥à¤¨à¤¤à¥à¤¨à¤µà¥à¤³à¤¾à¤¤à¤à¤¾à¤°à¤à¥à¤²à¥à¤¹à¥à¤¤à¥à¤µà¤à¤à¤ à¤à¤¾à¤¤à¤à¤
मà¥à¤à¥à¤à¥à¤¦à¤¯à¤¾à¤à¤¯à¤¾à¤à¤¡à¥à¤¦à¥à¤à¤¨à¤à¤ªà¤¸à¤¾à¤¤à¤¿à¤®à¤ िवलà¥à¤¹à¥à¤¤à¥."
The aforesaid contents from the first information report, thus, clearly shows that the dispute was already settled. As observed in the preceding paragraph, though it is mentioned in the first information report that on 2/3 occasions Vishwanath lodged the police complaint, no such complaint is filed on record by the prosecution.
In that view of the matter, we are of the opinion that the prosecution has even failed to prove that there was any motive which could be used against prisonerRamesh.
75. To sum up, the evaluation of the prosecution case reminds us the observations of Hon'ble Apex Court in a case reported at (2013) 12 SCC 406 : Sujit Biswas vs. State of Assam. Paragraph 13 of the said judgment reads thus;
â13. Suspicion, however grave it may be, cannot take the place of proof and there is a large difference between something that âmay beâ proved, and something that âwill be provedâ. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between âmay beâ ad âmust beâ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between âmay beâ true and âmust beâ true, must be be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between âmay beâ true and âmust beâ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or merely probable doubt, but a fair doubt that is based upon reason and common sense.â
CONCLUSIONS:
76. The prosecution case was fully based on the circumstances only. There was no eye witness account. Therefore, the prosecution was obliged to prove the circumstances on which the prosecution was relying to establish fully so that conclusion of guilt can be drawn. The facts so established in the present prosecution case is not consistent only with the hypothesis of the guilt of Ramesh, according to us, the chain of the evidence is not complete. The chain of circumstances is broken at various places. Vital couplings in the chain are missing. According to us, the prosecution case revolves only around suspicion against the prisoner-Ramesh. However, suspicion cannot take place of proof.
In the result, we are of the view that the conviction of the prisoner-Ramesh cannot be sustained only on the basis of suspicion and, therefore, the order of conviction and sentence is liable to be set aside.
ORDER
Criminal Appeal No.301/2014 is allowed by setting aside the judgment and order of conviction passed by learned Additional Sessions Judge, Washim dated 3.4.2014 in Sessions Trial Case No. 51/2012.
The appellant-Ramesh Jijeba Lahane be set at liberty forthwith if he is not required in any other case.
The fine amount if any paid, be refunded to him.
Since the Criminal Appeal of the appellant is allowed and he is acquitted of the charge, no separate orders are necessary in Criminal Confirmation Case No.1/2014.