S.S. Dani, J.
1. The appellant-accused Jaswantlal Chotalal Doshi, challenges the order of conviction and sentence dated 26th October 1989 passed by the Additional Sessions Judge, Pune, is Sessions No. 502 of 1988, holding the appellant-accused guilty for offences punishable under sections 302 and 364 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life. At the time of admission of Criminal Appeal No. 799 of 1989, this Court by an order dated 8-12-1989 ordered to issue a show cause notice for enhancement of sentence. It is numbered as Suo Motu Petition No. 31 of 1989. This Court while rejecting Criminal Application No. 140 of 1991 filed by the accused for bail on 31-1-1991, has ordered to treat the Criminal Appeal and the Notice of enhancement as confirmation case and further directed to expedite the matter.
2. The facts leading to arrest and trial of the accused can be summarised as follows :
3. The alleged incident is stated to have taken place on 28-6-1988 between 7.15 a.m. to 11.00 a.m. in a Mori (Latrine) situated at Gadge Maharaj Dharmashala at Village Dehu Taluka : Haveli, District Pune and victim involved in the case is Vikrant alia Sunny Parkhe, male child of 5 years. The deceased Sunny was the son of P.W. 4 Asha w/o Prakash Parkhe (Exh. 18). P.W. 4 Asha got employment in Ammunition-Factory after the death of her husband and accused before the Court was already in service there. P.W. 4 Asha has three daughters including Shital P.W. 17 (Exh.53). She used to reside at house bearing No. 813, situated in Gurwar Peth at Pune. P.W. 4 Asha lost her husband Prakash on 20th December 1981 and after his death, she continued to stay with her in-laws for abut 31/2 years. The mother-in-law of P.W. 4 Asha dies somewhere in June 1985 and thereafter there used to be quarrels between P.W. 4 Asha and her sister-in-law and brother-in-law. As stated above in August 1986, P.W. 4 Asha got a job in place of her husband in Ammunition Factory situated at Kirkee and for the said service, she shifted her residence from Gurwar Peth to Bibewadi. The accused also was serving in the same Ammunition Factory and because of this, the accused P.W. 4 Asha got acquainted with each other. P.W. 4 Asha then requested the accused to search a house for her which may be nearer to her place of employment. The accused is having his own residential premises consisting of three rooms, and as such offered one room out of it to P.W. 4 Asha. P.W. 4 Asha then decided to shift to the room of the accused. Before that all the three daughters were kept at Thane in a boarding School. P.W. 4 Asha thereafter went to reside in one of the rooms of the premises of the accused alongwith her minor son Sunny @ Vikrant. She stayed there for about 5 to 6 months and during this period illicit intimacy developed between P.W. 4 Asha and the accused. The residents of the locality started talking bad about them and as such P.W. 4 Asha again requested the accused to search for an independent residence for her. P.W. 4 Asha then through the assistance and efforts of the accused secured the premises at 'Rup Nagar' and then started residing over there alongwith her son. Accused continued to visit and have night halts at the new residence of P.W. 4 Asha and they both stayed as husband and wife. Because of the talk in the locality about the relationship between P.W. 4 Asha and the accused, they both decided to marry and ultimately got married on 2nd May 1987. In the year 1988, son Sunny was admitted to a School near St. Zavier School, situated at Chinchwad. P.W. 17 Shital Prakash Parkhe (Exh. 53) daughter of P.W. 4 Asha, used to take Sunny to the School, and bring him back. There arose a dispute over the money between P.W. 4 Asha and P.W. 17 Shital and P.W. 4 Asha saw that her daughter Shital also stays in boarding School at Thane. Thereafter P.W. 4 Asha, herself started to take Sunny to the School in the morning daily at about 7.00 a.m. and leaving him at the School, she used to go to her work at the Ammunition Factory.
4. The incident is alleged to have taken place on 28th June 1988. It is alleged by the prosecution that P.W. 4 Asha as usual took Sunny for School and boarded bus alongwith him. She then met a School girl in the Bus and left her son Sunny in the company of that girl student at School Bus stop. At that time Sunny was wearing a school uniform on his person including Pant (Art. 3), Shirt (Art. 2), Banian (Art. 4), Shoes (Art. 5), Socks (Art. 6), and School Bag (Art. 9), containing slate (Art. 10), School books (Art. 11), Note books (Art. 12), Pencil (Art. 13) and Biscuit packet (Art. 14).
5. P.W. 16 Chitra Govind Pilley, a sister of P.W. 4 Asha was staying with P.W. 4 Asha since 2/3 days prior to incident and used to bring Sunny back to the house from the School. Accordingly P.W. 16 Chitra (Exh. 49) performed that duty for about 2-3 days prior to the date of the incident. On the date of the incident i.e. 28-6-198 P.W. 16 Chitra G. Pilley went to the School as usual so as to bring Sunny back to the house. P.W. 16 Chitra came to know from the School authority that Sunny did not attend the School on that day and therefore, on her own went to the office of P.W. 4 Asha at Ammunition Factory and narrated the absence of Sunny in the School. Sumitra J. Doshi is the wife of the accused and it is alleged by the prosecution that when P.W. 16 Chitra was with P.W. 4 Asha, the wife of the accused also came there and made enquiries with P.W. 4 Asha about the accused. All the three ladies viz, P.W. 4 Asha, P.W. 16 Chitra and Sumitra Doshi wife of the accused went to the School at about 12 noon. On finding Sunny absent in the School P.W. 16 Chitra went to her own house but P.W. 4 Asha and wife of the accused went to the Police Station at Chinchwad where the mother of the deceased lodged a missing report (Exh. 20) P.W. 21 Shankar T. Jadhav (Exh. 59), is the Head Constable attached to Chinchwad Police Station at the material time and he reduced the missing report (Exh. 20) in writing as per the version of (P.W. 4) Asha. After lodging the missing report P.W. 4 Asha then went back to her house and thereafter returned to the School and waited there.
6. It is the case of the prosecution, that after P.W. 4 Asha left her son Sunny in the company of the School girl, the accused is alleged to have taken away Sunny with him, and it is further case that both of them boarded the bus at about 7.30 a.m. P.W. 11 Eknath Parsharam Bhagwat (Exh. 36) was also travelling by the same bus and he noticed the accused alongwith his son Sunny. Then all of them got down at Deogaon Phata and boarded another Bus and ultimately got down at Village Dehugaon Bus stop. It is alleged that the School bag Art. No. 9 was with the accused and Sunny at that time, P.W. 7 Anusaya Bhimaji Kamble (Exh. 27) was staying in Gadge Maharaj Dharmashala at Dehu Village at that time and on the day of the incident i.e., on 28-6-1988, at about 8.00 a.m. P.W. 7 Anusaya, approaches a latrine (Mori) of the said Dharmashala so as to ease herself, P.W. 7 Anusaya then notices the dead body of a boy in the said Mori. She then comes out of latrine and narrate the incident to office bearers of the Dharmashala. P.W. 10 Ramesh Shivaji Awaghade (Exh. 34) stays near the said Dharmashala and P.W. 7 Anusaya informs him about the presence of the dead body in the latrine of the Dharmashala. P.W. 10 Ramesh Shivaji Awaghade in his own turn then goes to the latrine and finds a dead body over there. P.W. 10 Ramesh Shivaji Awaghade then reaches the Police Patil of the Village and brings him at the spot. The information in respect of the dead body of a child is then communicated to Dehu Road Police Station as per (Exh. 32) and accidental death came to the registered at No. 30 of 1988 under section 174 of the Criminal Procedure Code. It was registered by P.W. 20 Dattatraya Haribhau Lave (Exh. 56) who was attached to the concerned Police Station at that time. P.W. 20 Dattatraya took over the investigation and visited the place on 28-6-1988 itself and called two panchas including P.W. 1 Arun N. Gaikwad (Exh. 11) . In the presence of the two panchas then inquest came to be effected on the dead body as per Exh. 12 and panchnama of the spot (Exh. 14) came to be drawn. The dead body of the child was then sent to. Talegaon Nagar Parishad Hospital with requisition (Exh. 46) for post mortem and P.W. 14 Shivaji Ramchandra Karat (Exh. 45), a medical officer does the autopsy over the dead body as per post mortem notes (Exh. 47). P.W. 20 Dattatraya Haribhau Lave then informs this incident to Pimpri Police Station. On the next day i.e. 29-6-1988 P.W. 20 Dattatraya attaches the various articles from the dead body (Arts. 2 to 8). Under the Panchnama (Exh. 24) in the presence of two panchas including P.W. 5 Shamlal Suganchand Agarwal (Exh. 23).
7. P.W. 12 Laxman Sakharam Hagawane (Exh. 37), was waiting for bus at Dehu Bus Stand and he noticed the accused alongwith the School Bag Art. No. 9 before the Court. Accused then boarded the bus and it is further alleged that the accused reached 'Refreshment Tea Stall' and had wada, served to him by P.W. 18 Waman Ranuji Shirole (Exh. 54).
8. P.W. 15 Wandana Waman Mahajan (Exh. 48) is a resident of Railway Quarters and on 28-6-1988 at about 11.00 a.m. while in her house, her son brought a School bag Art. No. 9 P.W. 15 Vandana then handed over the said Art. No. 9 to a lady peon of the school. The School bag Art. 9, then was shown to P.W. 4 Asha who identified it as the School bag of her son Sunny. It is the further case of the prosecution that the accused also went to the School and P.W. 4 Asha and the accused both went together to the Railway Quarters in search of Sunny. P.W. 4 Asha then handed over School bag Art. 9 to the Police P.W. 21 Shankar Tukaram Jadhav (Exh. 59) attached it under the Panchanama (Exh. 60) in the presence of two Panchas. Thereafter P.W. 4 Asha went to her in laws on the next dya i.e., 29-6-1988 at about 10.00 p.m. P.W. 4 Asha suspected the accused to have killed her son Sunny and then lodged her complaint (Exh. 22). P.W. 9 Subhash Vinayak Zanzane (Exh. 31) was attached as P.S.I. to the said Police Station at that time and he recorded it in writing as per the version of P.W. 4 Asha the complainant. P.W. 9 Subhash v. Zanzane thereafter registered the offences punishable under sections 364 and 302 I.P.C. and arrested the accused at 9.50 p.m. under Panchanama (Exh. 26) in the presence of two Panchas including P.W. 6 Uttam Arjun Kamble (Exh. 25). On the next day i.e . 30th June 1988, P.W. 23 Popat Ramchandra Deolay (Exh. 65), P.S.I. Pimpri Police Station, effected search of the house of the accused. In the presence of two Panchas, including P.W. 8 Ramdas D. Karale (Exh. 29). During the said house search Articles 15 to 22 before the Court came to be attached under the Panchanama (Exh. 30). On 30th June 1988, itself P.W. 9 Subhash Vinayak Zanzane then handed over all investigation papers alongwith the accused to Pimpri Police Station alongwith the written report (Exh. 33) as the said offence had taken place in the jurisdiction of the Pimpri Police Station. P.W. 22 Md. Chand Mulani (Exh. 62) was attached to Pimpri Police Station as Police Inspector at that time and on receiving the investigation papers, he carried out further investigation. On 1-7-1988, it is alleged by the prosecution, that the accused, while in Police custody, made a voluntary statement in the presence of two Panchas, including P.W. 3 Naresh Hanumant Kurwar (Exh. 15) that he shall show the place where he had thrown away School Bag Art. No. 9. The voluntary statement of the accused came to be reduced in writing as per Exh. 60. It is further alleged by the prosecution that the accused took Panchas and the police to the place near railway quarters and showed it to the Panchas. It is further case that the Panchanama of the place shown by the accused came to be made in the presence of same Panchas as per (Exh. 17). P.W. 22 Md. Chand Mulani (Exh. 62) then proceeded further with the investigation and recorded the statements of various witnesses on 2-7-1988, 4-7-1988 and 5-7-1988. P.W. 22 Md. Chand Mulani then sent written requisition to Special Judicial Magistrate P.W. 13 Subhash D. Dahiwal (Exh. 38) to hold identification parades. P.W. 13 accordingly held the identification parades on 27-7-1988 and 3-8-1988. It is the case of the prosecution that P.W. 11 Eknath P. Bhagwant (Exh. 36) who is allege to have been accused with deceased in the Bus identified the accused in the parade on 27-7-1988 while P.W. 12 Laxman S. Hagawane who is alleged to have seen the accused with bag Art. No. 9 at the bus stop, identified the accused in the parade held on 3-8-1988. The Panchanama in respect of holding the said identification parades have seen reduced in writing as per (Exh. 42) and (Exh. 44) respectively. P.W. 22 Md. Chand Mulani then sent the various article before the Court to the Chemical Analyser for examination and received the reports (Exh. 63 and 64) from the Chemical Analyser. Thereafter the written requisition was sent by P.W. 22 Md. Chand Mulani to the Tahasildar for drawing the sketch of the scene of offence. The concerned Tahasildar then visited the alleged scene of offence and prepared the map (Exh. 36). On completion of the other necessary investigation, the accused came to be charge-sheeted for the alleged offence of kidnapping and murder punishable under sections 364 and 302 of Indian Penal Code and accused stood his trial in Sessions Case No. 502 of 1988. The Additional Sessions Judge, Pune framed charges as per (Exh. 4) on 12-1-1989 for the alleged offence punishable under sections 302 and 364 of the Indian Penal Code. The accused denied all the charges and claimed to be tried. The prosecution adduced evidence of number of witnesses and on consideration and appreciation of the evidence on record, the additional Sessions Judge held the accused guilty for both the offences. By an order dated 26th October 1989, the Additional Sessions Judge, Pune, convicted the accused for both the offences and sentenced him to suffer imprisonment for life for the offence of murder punishable under section 302 of the Indian Penal Code. The Additional Sessions Judge, Pune though held the accused guilty for offence of kidnapping punishable under section 364 of the Indian Penal Code did not award separate sentence on the accused for the said offence. The accused challenges the legality and correctness of the said conviction and sentence in this Criminal Appeal No. 799 of 1989. As stated in the opening para, this Court while admitting Criminal Appeal of the accused, ordered to issue notice for enhancement of sentence and called upon the accused to show cause as to why the sentence inflicted by the trial Court should not be enhanced. This notice of enhancement of sentence has been numbered as suo motu Petition No. 31 of 1989. Both these matters are being decided and disposed of by this order.
9. Before coming to the material question in respect of complicity of the accused in the commission of the alleged offence, it may be stated that there is no serious dispute in respect of the homicidal death of deceased son. Inquest panchanama in respect of the dead body has been placed on record at (Exh. 12) and the evidence of Pancha witness P.W. 1 - Arun Narayan Gaikwad has been adduced at (Exh. 11). In addition to this, prosecution has also placed on record the post mortem notes (Exh. 47) effected and maintained by P.W. 14 - Dr. Shivaji R. Karad (Exh. 45) who admittedly carried out the examination on the dead body of Sunny on 29-6-1988 at Talegaon Nagar Parishad Hospital. The evidence of the Medical Officer P.W. 14 - Dr. Shivaji R. Karad has been also adduced by the prosecution at (Exh. 45). It is clear from these various documents and testimony of the Medical Officer deceased Sunny sustained external and internal injuries which resulted into his death. It has been opined by the Medical Officer that the death in the present case was homicidal one and it is admittedly not disputed or objected to by the accused during the trial. The trial Judge in view of this set of facts on record was justified in holding that deceased met with his death in the alleged incident and as stated above charges punishable under sections 302 and 364 of the Indian Penal Code have been levelled against the accused. In order to prove the alleged offence against the accused, the prosecution has adduced the evidence of as many as 24 witnesses. Out of these, 24 witnesses, P.W. 1 - Arun Narayan Gaikwad (Exh. 11) P.W. 2 Vilas Babu More, P.W. 3 - Naresh Hanumant Kurward (Exh. 15), P.W. 5 - Shamlal Suganchand Agarwal (Exh. 23), P.W. 6 - Uttam Arjun Kamble (Exh. 25) and P.W. 8 - Ramdas Dashrath Kharal (Exh. 29) are the pancha witnesses in whose presence the various panchnamas have been effected and reduced into writing by the investigating machinery during the investigation. P.W. 9 - Subhash v. Zanzane (Exh. 31), P.W. 20 - Dattatraya Haribhau Lave (Exh. 56), P.W. 21 - Shankar Tukaram Jadhav (Exh. 59), P.W. 22 - Md. Chand Mulani (Exh. 62), P.W. 23 - Popat Ramchandra Deolay (Exh. 65) and P.W. 24 - P.W. 22 - Laxman Baburao Lolge (Exh. 68) are the Investigating Officers. P.W. 14 - Dr. Shivaji Ramchandra Karad (Exh. 45) is the Medical Officer, while P.W. 13. Subhash Digamber Dahiwal (Exh. 38) is the Special Judicial - Magistrate who conducted identification parades on 27-3-1988 and 3-8-1988 in which it is alleged by the prosecution that the prosecution witnesses identified the accused.
10. P.W. 4 - Asha Prakash Parkhe (Exh. 18), is the mother of the deceased Sunny and is the complainant in the present case. P.W. 16 - Chitra Govind Pilley (Exh. 49) and P.W. 17 Shital Prakash Parkhe (Exh. 53) are the sister and daughter of the complainant P.W. 4 - Asha. Remaining witnesses i.e., P.W. 7 - Anusaya Bhimaji Kamble (Exh. 27), P.W. 10 - Ramesh Shivaji Awaghade (Exh. 34), P.W. 11 - Eknath Parsharam Bhagwat (Exh. 36), P.W. 12 - Laxman Sakharam Hagawane (Exh. 37), P.W. 15 - Wandana Waman Mahajan (Exh. 48), P.W. 18 - Waman Ranuji Shirole (Exh. 54) and P.W. 19 Sheikh Farid Sheikh Kadar (Exh. 55), are the witnesses alleged to be independent and reliable.
11. Admittedly, there is no eye-witness in the present case, and the case exclusively hangs on circumstantial evidence. It is now well settled by the various decisions of this Court and of the Supreme Court that in cases of circumstantial evidence, motive plays an important part.
12. The question of motive assumes academic interest when the case is placed with evidence of the eye-witnesses of the incident. If the case is of circumstantial evidence, the chain of circumstances linked up with each other should be complete, unbroken and conclusive so as to point out the guilt of the accused and in any case exclude any possibility of any one else being the culprit. Coming to the question of motive in the present case, it is abundantly clear from the evidence on record that any sort of motive is conspicuously absent in the present case, on the part of the accused to do away with the child. P.W. 4 Asha, the mother of the child and the wife of the accused has stepped into the witness box and as per the evidence (Exh. 18) her husband died on 20th of December 1981 and thereafter she continued to stay with her in-laws. Her mother-in-law died in June 1985 and then quarrels started between her and her in-laws. As per her evidence, she got a job in place of her husband in Ammunition-Factory in August 1986 and she started living in an area known as Bigve Wadi after leaving the in-laws House. The accused is admittedly in the service in the said Ammunition Factory and because of the induction of P.W. 4 - Asha in the said factory both of them came close and acquainted with each other. As per her own evidence, she started residing in one of the rooms of the premises which are in occupation of the accused and she stayed for about 5 to 6 months in that room alongwith deceased Sunny. The couple stayed as husband and wife. It is further in her evidence that she decided to have an independent house for her because of the rumour spread over in the locality in respect of her intimacy with the accused and as per her evidence it is the accused who has not only helped her in searching out an independent accommodation but also spent Rs. 10,000/- as the financial assistance for purchasing an accommodation. According to her, after purchasing the premises at Rupi Nagar, she started residing there and the accused used to visit there quite often as before. It may also be noted that she admits to have married the accused on 2nd of May 1987. It is pertinent to note that P.W. 4 - Asha, does not allege anything against the accused in her own evidence nor even whispers about any motive on the part of the accused to commit the present incident. Certain admissions given by P.W. 4 - Asha in her cross-examination will also negative the story of any motive on the part of the accused to do away with the child. P.W. 4 - Asha admits in her evidence, that every month she and accused used to go to Thane to pay the fees of her daughter and they had done so till this incident. She also admits the financial assistance of Rs. 10,000/- from accused in her own evidence. It may also be further noted that after the incident P.W. 4 - Asha admits that she alongwith the accused searched for the missing Sunny and the accused accompanied P.W. 4 Asha, not only to the School and a place near the Railway Quarters but also the Police Station where P.W. 4 Asha lodged a missing report. Further it may be noted the P.W. 4 Asha admits in her evidence that she went to Police Station alongwith the bag Art. No. 9 and in between the 12-30 p.m. to 7-30 p.m. though she was at Police Station, she did not lodge any report. She further admits to have been interrogated by the Police at about 7-30 p.m. P.W. 4 Asha then admits emphatically that at the time of the presentation of the bag, police had enquired from her as to whether she suspected anybody and she clearly admits in her evidence that on 28-6-1988, she did not suspect the accused or any other person for kidnapping her son. It is, therefore, clear from her own evidence that eventhough she was at the police station after the incident from 12-30 p.m. onwards she did not lodge any report nor she raised any suspicious against the accused as a person responsible for kidnapping and killing her own son. From the evidence of P.W. 4 - Asha herself it becomes clear that the prosecution has been unable to indicate any motive on the part of the accused to commit the incident. It need not be stated that while lodging the F.I.R. (Exh. 22) she has raised the suspicion against the accused which she had admittedly refrained from doing so in her missing report. It need not be said that the suspicion however, strong it may be, cannot substitute proof. Reliance is placed on behalf of the prosecution on a circumstance that prior to the incident accused had tried to press the neck of the child and this circumstance according to prosecution is sufficient to infer a motive on the part of the accused. It may be noted that P.W. 4 - Asha herself negatives such a story and she clearly admits in her evidence in para 12 that she never told in a statement before the police nor she had disclosed to anyone that prior to the incident the accused had tried to press the neck of her son. It may also be noted that P.W. 4 - Asha further admits the position in para 17 of her evidence that she does not remember the day, date and month when her son Sunny had disclosed to her that the accused tried to press his neck. She emphatically states in her evidence that she did not disclose this incident to anyone at any time. In view of this clear-cut admissions given by P.W. 4 - Asha herself, the prosecution is unable to prove any motive on the part of the accused. It may also be noted at this juncture that whatever disputes P.W. 4 - Asha had, they were with her brother-in-law and sister-in-law and P.W. 4 - Asha herself admits this position in clear terms in her cross-examination. It may be noted P.W. 4 - Asha admits that after the death of her mother-in-law there was some disputes between her and her sister-in-law about the receipt of the amount of Provident Fund and there was also a dispute between her and her brother-in-law as to who should get the service in the Ammunition Factory in place of deceased husband. She further admits that she even had lodged a report to the Police about this quarrel and goes on to admit that her brother-in-law was demanding her signature to withdraw the money which was in deposit with the Society and which belonged to her mother-in-law. P.W. 4 - Asha further admits the position that she had asked her brother-in-law to deposit the share of her husband in the amount of the funds of her mother-in-law in the name of Sunny as he was the only son to her. It is, therefore, clear from this admission of the complainant herself that whatever disputes she had, they were not between her and the accused but were between her and her brother-in-law and sister-in-law. Therefore, it is clear that the prosecution has been unsuccessful to prove that the accused had any motive to do away with this child.
13. The prosecution relies on number of circumstances so as to claim the accused in the present case as the killer of Sunny and one of the circumstance is in the nature of the last seen together. It is alleged by the prosecution that the deceased Sunny and the accused were seen together just prior to the alleged incident and there are also circumstances proving the presence of the accused alone after the incident and on the basis of these circumstances, the prosecution desires to fasten the criminal liability on the shoulders of the accused. As per the evidence of P.W. 4 - Asha she left deceased Sunny with the School girl at the bus stop and admittedly no one knows as to what happened thereafter. It is admitted position that the prosecution has resiled from adducing the evidence of that School Girl in whose company P.W. 4 Asha has left Sunny and this important link is admittedly missing. The prosecution strongly relies on the evidence of P.W. 11 Eknath P. Bhagwat, P.W. 12 Laxman S. Hagawane and P.W. 19 Waman Ranuji Shirole so as to prove the presence of the accused prior and subsequent to the incident so as to hold him guilty for the alleged offence. The prosecution further relies on the evidence of the identification parades. P.W. 11 Eknath Parshram Bhagwat (Exh. 36) has stated in his evidence that when he boarded the Bus at 7-30 a.m. on 28-6-1988 at Jashree Talkies Bus Stop, he had noticed one man alongwith the School child in the Bus and according to this witness that man was the accused before the Court and the child was deceased Sunny. According to this witness, he himself the accused and deceased Sunny got down at Dehugaon Phata and thereafter boarded another Bus and they reached Dehu Village. It is on the basis of this evidence that the criminal liability is tried to be proved against the accused. It is pertinent to note that this witness (Exh. 36) P.W. 11 - Eknath resiles and refrains from identifying the accused in the Court itself. It has been found by the trial Court that in spite of the fact that the witness went near to all the persons present in the Court, he was emphatic that the person to whom he saw in the bus was not present in the Court. It is no doubt true that at subsequent stage this witness himself then identifies the accused but it is contrary to which the admits first in the evidence. Further it may be noted that P.W. 11 - Eknath Parsharam Bhagwat admits in his cross-examination that Police Sub-Inspector was present in the hall when the identification parade was being conducted and emphatically states that at the time of the parade alongwith him, the Magistrate, Police Inspector, one Mohan Rokade and 7 other persons were present. Admittedly his statement has not been recorded after the identification parade. Then this witness further admits that no Panchanama or any documents was prepared by the Magistrate in his presence at the time of conducting identification parade. Therefore, the non-identification by this witness of the accused in the Court and admissions on his part about the presence of the police personnel at the time of identification parades go to the root of the case and no reliance can be placed on this evidence so as to prove guilt of the accused. It may be further noted that P.W. 11 - Eknath was only a passenger of the Bus and has admitted that there was no incident of any talk between him and the accused in the bus so as to remember the accused. His statement has been recorded by investigating machinery on 4-7-1988 i.e., after long gap and he himself admits in his evidence that he has obliged police in criminal cases. In view of this evidence, circumstances and admissions of this witness, no reliance can be placed on his testimony as tried to be urged on behalf of the prosecution.
14. The next witness is P.W. 12 - Laxman Sakharam Hagwane. He has adduced his evidence (Exh. 37) and has stated that he noticed the accused coming from the side of Tukaram Temple and stated that at that time the accused was all alone and having a School bag (Art. 9) with him. This witness further pleads to have identified the accused in the parade. It may be noted that the witness admits in his cross-examination that the other panch present had told him colour of the shirt of that person who was to be identified by him. In other words, this witness identified the accused in the parades at the instance and information received by him from the Panch and he also admits that no document of Panchanama come to be reduced in writing in his presence. It may also be noted that the witness emphatically admits in evidence that he had not stated in his statement before the police recorded during the investigation that he had seen the accused at the Bus stop of Dehugaon along with School Bag. Witness further admits that he was disclosing this fact for the first time when he has entered into witness box and at no time prior to it, he had disclosed it to anyone that he had seen the accused alongwith Article No. 9.
15. The prosecution then further relies on the evidence of P.W. 18 - Waman R. Shirole, who has stated in his evidence at (Exh. 54) that on 28-6-1988 he had seen the accused in his canteen styled as 'Refreshment Tea Stall' at Chinchwad at about 10 or 10-15 a.m. According to this witness accused was all alone and he was armed with School bag (Art. 9) and had enjoyed eating of Wada at the Canteen and thereafter he left the place. On the basis of such an evidence, the criminal liability is tried to be fastened on the shoulders of the accused. It is urged on behalf of the prosecution that this circumstance of presence of accused alone immediately after incident would be sufficient to prove that the accused is the culprit. It may be noted firstly in respect of this witness that he admits before the Police that when the accused visited his canteen he alone was present. His statement was recorded by the investigating machinery on 4-7-1988 and he is emphatic in his evidence that till he gave his evidence in the witness box, he did not disclose this incident to anyone. He further admits that about 200 to 250 customers daily visit his hotel. It is, therefore, highly improbable and unbelievable that this witness will remember the accused as alleged by him. Admittedly no identification mark came to be noticed on the School bag (Art. 9) so as to impress or bring the attention of the witness. It may also be noted that if as per the case of the prosecution the accused came to the Hotel with School bag after killing Sunny, it is most unnatural that the accused will keep the School Bag (Art. 9) with him and will move alongwith it openly if really he had committed the murder. In view of this improbable evidence, no reliance can be placed on the testimony of this witness also as to prove the circumstance alleged against the accused by the prosecution.
16. Reliance is also placed on behalf of the prosecution on the evidence adduced in the shape of an identification parade in the present case. P.W. 13 Subhash Digambar Dahiwal (Exh. 38) was working as Special Judicial Magistrate at Pune, at that time and on receiving the written requisition (Exh. 39), he held the identification parades on 27-7-1988 and 3-8-1988 as per his evidence at (Exh. 38). P.W. 11-Eknath Parsharam Bhagwat identified the accused in the said parade on the first occasion, while P.W. 18 - Waman Ranuji Shirole also identified the accused in the parade. In addition to the admissions given by these two prosecution witnesses as stated above, it may also be noted that this piece of circumstantial evidence is further shattered by the evidence of P.W. 13-Subhash D. Dahiwal himself. It may be recalled that as per the story of the prosecution, witness Eknath identified the accused as a person who was travelling alongwith this witness in Bus. As per the prosecution witness Laxman he had seen the accused alone boarding the bus at Dehugaon Bus Stand alongwith a School Bag Art. 9. It is noted further that during the conduction of the identification parade, a memorandum panchanama has been reduced into writing and all the material details have been mentioned therein. It is pertinent to note that P.W. 13 - Subhash Digambar Dahiwal accepts the position in his cross-examinations that it is not mentioned in the memorandum that witness Eknath Bhagwat told him that he had seen the accused in the bus by which he had travelled. So also is the position with respect to the evidence of prosecution witness Laxman Hagawane and the fact that he had told to have been the accused alone at the Bus stand has not been mentioned in the memorandum panchanama. In addition to this it may be noted that as admitted by the prosecution witness, the Police Officer was present at the time of the identification parade. In view of this evidence on record, this piece of evidence looses it sanctity and also the efficacy.
17. It is alleged by the prosecution that the incident in question has taken place in a latrine situated in a Dharmashala on 28-6-1988 between 7.15 a.m. to 11.00 a.m. It will, therefore, be useful to ascertain from the evidence on record as to whether there is any material in respect of the time and place of the incident as alleged by the prosecution and as disclosed by the evidence on record. P.W. 14 Dr. Shivaji Ramchandra Karad has effected the post mortem examination on the dead body of deceased Sunny and as per his evidence at (Exh. 45), the patient must have died 3 to 4 hours after taking his last meals. It may be noted in this connection, that P.W. 7 Annusaya Bhimaji Kamble and P.W. 10 Ramesh Shivaji Awaghade both saw the dead body of deceased Sunny at 8.00 a.m. in the latrine located near the said Dharmashala. As per the charge (Exh. 4), the offence is alleged to have been committed between 7-15 a.m. to 11-00 a.m. on that day and as stated above medical evidence on record shows that death must have been 3-4 hours after taking the meals. It is, therefore, clear from the circumstances and evidence on record that the medical evidence and the evidence of the witnesses are at variance.
18. Further, it may be noted that P.W. 7- Annusaya Bhimaji Kamble and P.W. 10 Ramesh Shivaji Awaghade found the dead body in a latrine of the said Dharmashala at about 8.00 a.m. and this is also fortified by the specific recitals in a Panchanama of the scene of offence (Exh. 40). As per the Panchanama, it is further revealed that the Tukaram Temple is located at a distance at about 100 ft. away from the Dharmashala and it is not in dispute that many pilgrims visit the temple.
19. Further it may be noted that as per Panchanama itself, the houses of one Baban and that of P.W. 10 Ramesh Shivaji Awaghade are located just near the said Dharmashala. P.W. 7 Anusaya and P.W. 10 Ramesh had emphatically stated in their evidence that there was no other person except P.W. 7 Anusaya in the Dharmashala at the time of the incident. However, this does not appear to be a true state of affairs. It may be noted that the Investigating Officer (P.W. 20) Dattatraya Haribhau Lave has admitted in his evidence at (Exh. 56) that P.W. 7- Anusaya did not state in her statement before the Police that she was all alone in the Dharmashala. It may further be noted that even though P.W. 10 Ramesh Shivaji Awaghade states in his evidence that he had stated in his statement before the police that there were only three persons, including P.W. 7, in that Dharmshala at the time of the incident, this stands to be falsified by the evidence of P.W. 20 Dattatraya H. Lave who admits in his evidence at (Exh. 56) the P.W. 10 Ramesh Shivaji Awaghade has not stated accordingly in his statement before the police. It therefore, stands to be proved that at the time of the incident in the Dharmashala, it is not P.W. 7 Anusaya who alone was staying. It need not be stated that the Dharmashala is located just at a distance of stones throw from the temple. It is probable that many visitors must have been present in the Dharmashala itself. Admittedly the time of the incident in 8-00 a.m. in the morning and considering the place of offence viz. a latrine located in the Dharmashala, it cannot be expected that the scene of offence would be isolated at the time of the offence. This being so, such an incident as alleged by the prosecution cannot be said to have gone un-noticed.
20. It may also be noted that the post mortem notes prepared and maintained by P.W. 14 Shivaji Ramchandra Karad after the examination of the dead body is produced on record at (Exh. 47). It has been proved by the sworn testimony of the medical officer himself. It is pertinent to note that as per column 15 on external examinations, contusion and reddish colour ring around the scrotum came to be found and also injury to external genitals of the deceased. It may also be noted at this juncture that the deceased was found without having any pant on his person P.W. 7 Anusaya B. Kamble and P.W. 10 Ramesh Shivaji Awaghade have both seen the dead body in the latrine of the Dharmashala and both are emphatic in their evidence that the deceased was not wearing anything below the waist. This is also fortified further by the specific recitals in an inquest Panchanama (Exh. 12) and Panch P.W. 1 Arun N. Gaikwad also admits the position in his evidence at Exh. 12. P.W. 20 Dattatraya Haribhau Lave, an Investigating Officer who effected an inquest at (Exh. 12) also admits the position that the boy was not having any pant on his person. It may also be noted that all these witnesses and the documents positively prove that a half pant was found lying near the dead body. It is, therefore clear from the evidence on record that the boy had sustained injury and was found naked at the place of the offence. As stated earlier the dead body was in a latrine located in a Dharmashala. Considering all this evidence on record, it would be reasonable to hold that the boy must have been sexually assaulted.
21. In order to prove the criminal guilt against the accused, the prosecution has relied on another piece of evidence in the form of a voluntary statement of the accused. The alleged Judge has also relied on this evidence so as to hold the accused guilty of the alleged offence. It is alleged by the prosecution, that after the arrest, the accused, while in police custody on 1-7-1988 made a voluntary statement in the presence of two Panchas that he shall show the place where the article was thrown away. P.W. 3. Naresh H. Kurwar is one of those two Panchas while P.W. 22 Md. Chand Mulani is the investigating officer who was present at that time. It is the case of the prosecution that the accused in the presence of the Panchas and the Police made a voluntary statement to show the place where he had alleged to have thrown away article i.e., school bag Article 9. A statement to that effect came to be effected in the presence of the Panchas as per (Exh. 16). It is the further case of the prosecution that in pursuance of the said voluntary statement, the accused then led the Panchas and the Police near the railway quarter and then showed that place and the Panchanama at (Exh. 17) came to be effected there. On the basis of this evidence on record, the prosecution desires to fasten the criminal liability on the accused. It may be noted firstly that admittedly no recovery was made of any article from this place. It, therefore, looses its importance and evidential value inasmuch as such a voluntary statement is admissible in evidence under section 27 of the Evidence Act provided any recovery is made in pursuance of such a voluntary statement by the accused. It may also be noted that P.W. 3 naresh Hanumant Kurwar, a panch to the said voluntary statement, admits the position that the place shown by the accused was near the railway quarter. P.W. 15 Wandana Waman Mahajan is a resident of a railway quarter and as per her evidence (Exh. 48), the bag Article 9 was found by her son in between the two railway quarters. It is, therefore, clear from this evidence on record that the place which is alleged to have been shown by the accused in pursuance of the voluntary statement is a place accessible to the public at large. It may also be noted that P.W. 3 Naresh Hanumant Kurwar admits in his evidence at (Exh. 15) that his shop is located at a short distance from Pimpri Police Station and as such this P.W. 3 Naresh was amenable and available to the police and admittedly independent Panch has not been secured for the alleged voluntary statement and for effecting panchanama of the place pointed out by the accused. It may also be noted that nothing incriminating was found at that place and therefore, no useful purpose can be served by such piece of evidence and no reliance can be placed to prove guilt against the accused on such a evidence. Another circumstance relied upon by the prosecution and also by the trial Judge is the absence of accused from the duty on the day of the incident. It is submitted on behalf of the prosecution that admittedly the accuse was not on duty on the day of the incident and had also not visited P.W. 4 Asha on the earlier night had as such this speaks for his involvement as a culprit. In this connection, it may be noted that P.W. 24 Laxman Baburao Lolge has stated in his evidence (Exh. 68) that on 26-6-1988 as stated above, the accused was on duty and worked on that day and was having a night duty from 9-30 p.m. to 7-00 a.m. the next day. He has further stated that on 27-6-1988, he received message from the accused that he should be marked as absent on that day and from 27-6-88 the accused did not attend his duty any further. At this juncture reference may be made to the statement made by the accused under section 313 Criminal Procedure Code. In an answer to question No. 56, it has been stated by the accused that it is false that he did not attend his duty on 27-6-1988 and sent a message to mark him absent. He is emphatic in his answer to the said question that his off-day was Monday. It is not disputed that 26-6-1988 was Sunday and as such 27-6-88 was admittedly an off-day for the accused. It may also be noted that even though P.W. 24 Laxman Baburao Lolge admits to have prepared an extract of the register of the relevant period so as to show presence and absence of the accused on duty, it has not been placed on record on behalf of the prosecution. In view of the specific denial, it was necessary for the prosecution to proves this fact positively by producing sufficient evidence on record which has not been done in the present case. In view of this, this piece of circumstance also cannot be of any assistance to the prosecution.
22. In the present case there are more than one missing links. P.W. 15 Wandana Waman Mahajan has stated in her evidence (Exh. 48) that on 28-6-1988 at about 11.00 a.m. her son brought the School Bag Article. 9 before the Court to her and as per this witness he told her that Article 9 was found by the side of the Railway Quarter. It may be noted that as per evidence of P.W. 18 Waman Ranuji Shirole (Exh. 54), the person working in a hotel. Article 9 was found with the accused when he had gone to the hotel. Admittedly nothing has been recovered from the place visited in pursuance of the voluntary statement made by the accused. There is also no mention that the place in near the Railway Quarter. Admittedly the son of P.W. 15 Wandana W. Mahajan has not stepped into witness box and therefore, it has not been explained by the prosecution as to when and how School bag Article 9 reached the railway quarter.
23. As per evidence of P.W. 4 Asha, she left her son Sunny in the company of the School students at the Bus stop on the day of the incident and she left for the factory to attend duty. Prosecution has admittedly resiled from producing the evidence of the said School student, who accompanied deceased Sunny thereafter. It is not in the evidence of any prosecution witness that the accused had taken away Sunny from the bus stop. It has, therefore, remained to be explained by the prosecution as to how deceased Sunny was found in the accompany of the accused, if at all the evidence of the so called witnesses is to be believed. Therefore, all these missing links, in our opinion, will have to be treated as fatal to the story of prosecution.
24. The prosecution has also adduced evidence of P.W. 17 Shital Prakash Parkhe at (Exh. 53). She is the daughter of P.W. 4 Asha, she has stated that after the death of her father she and her two brothers were taken by P.W. 4 to Thane, and were admitted in the boarding there. She has in her evidence stated that the accused used to tell that P.W. 4. Asha should transfer the house property in his name and P.W. 4. Asha used to refuse that since Sunny was very young. The witness, has stated in her evidence that accused used to beat her mother P.W. 4- Asha. It is submitted on behalf of the prosecution that the intention on part of the accused to do away with the child was to have property of P.W. 4 and this has been substantiated by the testimony of P.W. 17 Shital. It is, however, to be noted that P.W. 17. Shital P. Parkhe admits in para 5 of her evidence that she had not stated to the police in her statement during the investigation that the accused used to beat her. She has also admitted to have not stated to police that accused used to beat her sister also. It is further to be noted that whatever has been alleged by P.W. 17. Shital and which the prosecution desires to rely to foist motive on the part of the accused stands shattered when P.W. 4 Asha has stated that she had not raised suspicion against the accused. As per her own evidence, the accused was in the Police Station with her. She has not stated at any place in her evidence that she was assaulted and ill-treated by the accused. Therefore, whatever has not been alleged by P.W. 4 Asha cannot be taken to have been proved on the basis of the evidence of P.W. 17 Shital P. Parkhe, who admittedly was staying in boarding school after the death of her father. As stated by P.W. 4 Asha herself, the accused accompanied her to secure admission in the boarding School. Both got married also and they jointly searched for the missing Sunny and the accused was all the while with her. Therefore, it would be unsafe to place any reliance on the testimony of P.W. 17 Shital in view of these circumstances.
25. It is submitted by Shri Solkar, Additional Public Prosecutor that the evidence on record is sufficient to hold offence proved against the accused. It is further submitted on behalf of the prosecution that on the search of the accused, two tickets for travel to Lonawala were found and inasmuch as it is not explained by the accused, the story of the prosecution will have to be taken as duly proved. It may be noted in this connection that admittedly the accused was in disturbed and mental condition. The recovery of the railway tickets and the possibility of travel to Lonawala from Pune, by the accused can be explained and accepted in view of the circumstances mentioned above.
26. As stated in the opening paragraph, this case rests on circumstantial evidence and as such motive will play an important role. The prosecution has not proved chain of circumstances linked up with each other so as to point out the guilt of the accused and leave the possibility of any one else being a culprit. Considering the various circumstances, facts and evidence on record, we are of the opinion that the prosecution has failed in this case to prove complicity of the accused as the killer of deceased Sunny. The evidence on record as discussed above is sufficient to hold that there was no motive on the part of the accused to-do away with the child and none of the circumstances as pointed out by the prosecution is clinching so as to implicate the accused as a culprit in the present case. The trial Court has wrongly relied on these circumstances to come to the conclusion that the offences have been proved against accused. For the reasons stated, we are unable to agree with the reasoning of the trial judge and we hold the alleged offences are not safely brought to the home of the accused. It may be noted at this juncture that the learned trial Judge, while recording and appreciating the evidence, has allowed inadmissible evidence to go on record. It may be noted that the police statements recorded by the investigating machinery during the investigation have been taken on record by the trial Court as duly proved and have also relied upon by the trial Judge so as to hold the accused guilty. The relevancy for which such a statement before the police can be used and manner in which it is to be used have been lost sight of by the trial Court. In view of the circumstances and evidence as discussed above, we are of the opinion that none of the charges can be said to be safely proved against the accused and consequently the accused cannot be held guilty in the present case.
27. In the result, we hold that the prosecution in this case has failed to prove the guilt of the accused. Criminal Appeal No. 799 of 1989 is therefore allowed and the order of conviction and sentence dated 26-10-1989 passed by the Additional Sessions Judge, Pune in Sessions Case no. 502 of 1988, is hereby quashed and set aside and the appellant-accused is acquitted of the offences with which he stood charged. The appellant-accused be set at liberty forthwith, if not required in any other case. Consequently, the Suo motu Notice No. 31 of 1989 for enhancement of sentence does not survive and it stands discharged.