Full Judgment Text
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CASE NO.:
Appeal (crl.) 579 of 2005
PETITIONER:
Sattatiya @ Satish Rajanna Kartalla
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 16/01/2008
BENCH:
G.P. Mathur & G.S. Singhvi
JUDGMENT:
J U D G M E N T
Per G.S. Singhvi J.
This appeal by special leave is directed against the judgment of
the Bombay High Court, which upheld the conviction of the appellant
under Section 302 I.P.C. and sentence of life imprisonment awarded to
him by Additional Sessions Judge, Greater Bombay in Sessions Case
No.28/1995.
On 1.10.1994, PW1 Dr. Rasiklal Dwarkadas Dani, a resident of
Pratap Building 173, Dadiseth Agyari Lane, Mumbai, telephonically
informed Assistant Police Inspector (API), PW14 R.R. Gaekwad of
Police Station Tilak Nagar that a man, who was later on, identified as
Satish, was lying on the right side of the stairs of the building in a pool
of blood. API Gaekwad reached the spot and removed that person to
G.T. Hospital, where he was declared brought dead. PW14 recorded
the information given by Dr. Dani as Ex.P6 and treated the same as
FIR. He then handed over the investigation to PW13 Shamsherkhan
Wazirkhan Pathan, who was acting as night Police Inspector at L.T.
Marg Police Station. The latter prepared Panchnama of the dead body.
From the papers found in the pocket of the clothes of the deceased,
the police contacted his brother, PW3 Rajaiyya Pochyya Bandapalli on
1.10.1994 itself and recorded his statement. After two days, the
appellant and one Devabhuma Badapatti were arrested. On the day of
his arrest i.e. 3.10.1994, the appellant is said to have made a
statement and then took the police to Room No.45 of the third floor of
the building known as \021Ganesh Bhuvan\022 Dadiseth Agyari Lane, Mumbai
and got recovered his pant and shirt which are said to be having stains
of blood. On 4.10.1994, the appellant was medically examined by
PW10 Shiv Narain Daund, who found that the thumb and index finger
of the appellant\022s right hand had been injured sometime back. On the
next day i.e., 5.10.1994, the appellant took the police to PW7 Mohd.
Farid Abdul Gani, who claims to have sold the handkerchief, which was
found near the body of the deceased. On 6.10.1994, the appellant is
said to have given some more information to the police and got
recovered half blade (marked as Article 7) which was lying under the
wooden platform in front of \021Ganesh Bhuvan\022. The clothes of the
deceased, the pant and shirt belonging to the appellant and blade
were sent for chemical examination. As per the Chemical Examiner\022s
Report, the clothes of the deceased were having human blood of \021O\022
group. The pant and shirt, allegedly recovered at the instance of the
appellant also had blood stains, but it could not be established whether
the same was human blood of \021O\022 group. The stain on the blade was
also said to be of human blood but its identity could not be established
by the chemical examiner.
After completing the investigation, the police submitted challan
in the Court of the Metropolitan Magistrate who committed the case to
the Court of the Sessions, Greater Bombay.
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The prosecution examined PW1 Dr. Rasiklal Dwarkadas Dani,
PW2 Dinesh Dubey, with whom Devabhuma Badapatti is said to have
worked till September 1994, PW3 Rajjaiyya (brother of the deceased),
PW4 Hari Oval and PW8 Ranjit Bishram Jaiswal, who acted as panches
for recovery of the clothes from Room No.45 of \021Ganesh Bhuvan\022, PW5
Salim Sheikh, who acted as panch for recovery of half blade beneath
wooden board in front of \021Ganesh Bhuvan\022, PW6 Shankar Shripati
Ulalkar, who was engaged in the work of shaving and cutting hair
outside shop No.1 of \021Ganesh Bhuvan\022, Dadiseth Agyari Lane, PW7
Mohd. Farid Abdul Gani, who claims to have sold the handkerchief to
the appellant, PW9 Balu Shivram Nalwada, who is said to have
witnessed the sale of handkerchief by PW7 to the appellant, PW10
Shivraj Narayan Daund, who examined the appellant on 4.10.1994,
PW11 Raju Chandu Poojari, who claims to have seen the accused
persons with the deceased on the night of the incident i.e. 30.9.1994,
PW12 Dr. Avinash Janardan Pujari, who performed the autopsy on the
dead body, PW13 PI, Shamsherkhan Vazirkhan Pathan and PW14 API,
R.R. Gaikwad. Thereafter, the statements of the appellant and
Devabhuma Badapatti were recorded under Section 313 Cr.P.C. Both
of them denied having committed the crime.
The motive of the crime, as projected by the prosecution, was
that the appellant was having illicit relation with Lakshmi \026 wife of the
deceased and Devabhuma Badpatti was having animosity with the
latter because of the alleged murder of his father. The prosecution
relied on the circumstantial evidence of last scene, recovery of blood
stained pant and shirt from Room No.45, \021Ganesh Bhuvan\022 Building,
blood stained half blade and handkerchief found near the body of the
deceased to prove the appellant\022s involvement in the crime.
The learned Additional Sessions Judge did not accept the
prosecution\022s theory regarding motive but relied on the circumstantial
evidence and convicted both the accused under Section 302 read with
Section 34 I.P.C. and sentenced them to life imprisonment. On
appeal, the Division Bench of the High Court upheld the conviction of
the appellant and confirmed the sentence of life imprisonment
awarded to him, but acquitted Devabhuma Badpatti on the premise
that there was no evidence to show that he was a party to the crime.
Shri Ajit Kumar Pande assailed the findings recorded by the
learned Additional Sessions Judge, which as mentioned, were
confirmed by the High Court by arguing that the entire story was
fabricated by the police to falsely implicate the appellant. Learned
counsel invited our attention to the serious discrepancies in the
statement of PW 11, Raju Poojari, who claims to have seen the
appellant with the deceased at 10.45 p.m. on 30th September 1994
and argued that the deliberate attempt made by the witness to conceal
the fact that he was engaged in the business of illicit liquor and was
arrested by the police in connection with the said business should have
been treated by the learned Additional Sessions Judge and High Court
sufficient for discarding his testimony. Shri Pande then argued that
the recovery of the blood stained pant and shirt from Room No.45 of
\021Ganesh Bhuvan\022 and half blade from under the wooden board in front
of \021Ganesh Bhuvan,\022 are highly suspicious and no credence should
have been given to such recoveries for holding the appellant guilty of
serious offence like murder because they were not proved to be
stained with human blood of \021O\022 group. He lastly argued that version
of PW7 Mohd. Gani regarding sale of handkerchief to the appellant is
unbelievable because there was nothing from which he could identify
the handkerchief allegedly sold more than one month before the
alleged murder. Shri Sushil Karanjakar, learned counsel for the State
supported the judgment under challenge and argued that the High
Court rightly upheld the conviction of the appellant and the sentence
awarded to him.
We have thoughtfully considered the entire matter. It is settled
law that an offence can be proved not only by direct evidence but also
by circumstantial evidence where there is no direct evidence. The
Court can draw an inference of guilt when all the incriminating facts
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and circumstances are found to be totally incompatible with the
innocence of the accused. Of course, the circumstances from which an
inference as to the guilt is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal
fact sought to be inferred from those circumstances.
In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC
343], which is one of the earliest decisions on the subject, this court
observed as under:
\023It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should be in the first
instance be fully established and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability the act must have been
done by the accused.\024
In Padala Veera Reddy v. State of A.P. [(1989) Supp (2) SCC
706], this court held that when a case rests upon circumstantial
evidence, the following tests must be satisfied:
\023(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by
the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.\024
In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4
SCC 116], it was held that the onus was on the prosecution to prove
that the chain is complete and falsity or untenability of the defence set
up by the accused cannot be made basis for ignoring serious infirmity
or lacuna in the prosecution case. The Court then proceeded to
indicate the conditions which must be fully established before
conviction can be based on circumstantial evidence. These are:
\023(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned must
or should and not may be established;
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty;
(3) the circumstances should be of a conclusive nature and
tendency;
(4) they should exclude every possible hypothesis except the one to
be proved; and
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(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.\024
In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86], it
was pointed out that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be
accepted. It was also pointed out that the circumstances relied upon
must be found to have been fully established and the cumulative effect
of all the facts so established must be consistent only with the
hypothesis of guilt.
The above noted propositions have been reiterated in Bodhraj
alias Bodha and Others vs. State of Jammu and Kashmir [(2002) 8
SCC 45]; Bharat vs. State of M.P. [(2003) 3 SCC 106]; Jaswant Gir vs.
State of Punjab [(2005) 12 SCC 438]; Reddy Sampath Kumar vs.
State of A.P. [(2005) 7 SCC 603]; Deepak Chandrakant Patil vs. State
of Maharashtra [(2006) 10 SCC 151]; Ramreddy Rajesh Khanna Reddy
and Another vs. State of A.P. [(2006) 10 SCC 172] and State of Goa
vs. Sanjay Thakran and Another [(2007) 3 SCC 755].
In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P.
[(2006) 10 SCC 172], this Court while reiterating the settled legal
position, observed:
\023It is now well settled that with a view to base a conviction
on circumstantial evidence, the prosecution must establish
all the pieces of incriminating circumstances by reliable
and clinching evidence and the circumstances so proved
must form such a chain of events as would permit no
conclusion other than one of guilt of the accused. The
circumstances cannot be on any other hypothesis. It is
also well settled that suspicion, however grave it may be,
cannot be a substitute for a proof and the courts shall take
utmost precaution in finding an accused guilty only on the
basis of the circumstantial evidence.\024
At this stage, we also deem it proper to observe that in exercise
of power under Article 136 of the Constitution, this Court will be
extremely loath to upset the judgment of conviction which is confirmed
in appeal. However, if it is found that the appreciation of evidence in a
case, which is entirely based on circumstantial evidence, is vitiated by
serious errors and on that account miscarriage of justice has been
occasioned, then the Court will certainly interfere even with the
concurrent findings recorded by the trial court and the High Court \026
Bharat vs. State of M.P. [(2003) 3 SCC 106].
In the light of the above, we shall now consider whether in the
present case the prosecution succeeded in establishing the chain of
circumstances leading to an inescapable conclusion that the appellant
had committed the crime.
A careful reading of the judgments of the Additional Sessions
Judge and High Court shows that the conviction of the appellant was
based on the following circumstances:
\023(i) that both the accused were with the deceased when he was last
seen alive in the night of 30/9/1994.
(ii) the accused had residence in the vicinity of the place where the
injured was found while the injured did not reside in the vicinity.
(iii) accused No.1 had an injury which could be caused by user of the
blade (Art.7) and had knowledge where the piece of blade could be
found by the Police.
(iv) there was human blood on the piece of blade and stains of
human blood on the clothes of accused No.1 were not explained to be
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the stains of blood of his own.
(v) the handkerchief purchased by accused No.1 was found near the
injured with stains of blood of the injured indicative of presence of
accused No.1 in the vicinity after the injured had sustained bleeding
injuries.
(vi) Accused No.2 used to be with accused No.1 many times and had
been sleeping at the place of accused No.1 for three nights and
accused No.2 had borrowed Rs.300/- in the night of 30th September,
1994 and
(vii) they were caught when they were together.
We shall first scrutinize the evidence of last scene, which is in
the form of statement of PW11 Raju Poojari. In the first instance, the
witness denied his acquaintance with Babu Poojari but then
volunteered to admit that he knew the latter. He gave out that he
was residing in a temporary shed at Sonapur, Chandanwadi, which
was used as tailoring shop. Later on, he made an improvement by
saying that he was doing work at the tailoring shop. According to him
both the accused had passed in front of the shop on 30th September,
1994 at 10.45 p.m. He demonstrated his acquaintance with both the
accused by saying that they used to come to the tailoring shop. When
two photographs of the deceased (marked as Article 8) were shown to
him, PW11 stated that the said person had come with the accused for
getting their clothes stitched from the shop. He expressed his
ignorance about the time when they came to the shop and then stated
that they came at 10.30 p.m. 2-4 days before the police came to make
enquiries from him. According to PW11 his signatures were obtained
at the police station but nothing was read out to him. He then stated
that something was read out at the police station ten days back when
he was called there and was shown photographs (marked as Article 8).
He admitted the existence of a liquor shop near the tailoring shop, but
gave out that the same was owned by one John. He denied his
involvement in the business of illicit liquor. At that stage the public
prosecutor sought and was granted permission to ask questions in the
nature of cross examination. In reply to the querries put by the public
prosecutor, PW11 denied the suggestion that he was doing business of
illicit liquor and expressed his ignorance about the statement given to
the police that he was engaged in such business. He also denied
having stated before the police that the accused had come to the
liquor shop with the person in the photograph and that they were
offering liquor to him and also asked Babu Poojari to pour more liquor
in his glass because he was their guest. PW11 then stated that the
person shown in the photograph was totally drunk when he came with
two accused and they were supporting him while walking and this
happened 4-5 days before when he was called to the police station.
He expressed his ignorance about the number of false cases registered
against him. In cross examination he denied having indulged in any
activity other than tailoring work. He also gave out that he did not
know the names of the accused when they passed in front of the
tailoring shop.
A critical analysis of the statement of PW11 shows that the same
is full of contradictions. In the examination-in-chief, he demonstrated
his acquaintance with the accused by saying that they used to come to
tailoring shop but in cross examination he admitted that he did not
know their names when they were passing in front of the tailoring
shop. The second important contradiction relates to his recognition of
the person shown in the photograph. In the first instance he gave out
that the said person had come with the accused for getting their
clothes stitched from the shop but, later on, stated that he came with
the accused and was heavily drunk and was being helped by the
accused. Yet another contradiction which is apparent from the
statement of PW11 relates to his acquaintance with Babu Poojari. In
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the beginning he flatly denied that he knew Babu Poojari and then
made a u-turn by voluntarily stating that he knows Babu Poojari. He
also denied having stated before the police that he was doing the
business of selling illicit liquor in association with Babu Poojari and that
the accused offered liquor to the deceased and also asked Babu Poojari
to pour more liquor in his glass. These contradictions are evident from
the following extracts of the statement of PW11:
\023I know Satish Bandapalli and Devaanna Bandapalli and
they were passing in front of my shop at about 10.45 p.m.
I do not know where they were going. I had been knowing
those 2 persons as they used to come to the tailoring
shop.\024
\023These 2 accused had not done anything else when they
passed in front of my tailoring shop. I did not know their
names at that time.\024
\023I had seen the person whose 2 photographs from Article 8
are now shown to me, but I do not know his name. When
I last saw the person in this photograph, he had been with
the 2 accused before this court. Those 3 together had
come to my shop. Those 3 had come for getting their
clothes stitched from the shop where I used to be. I do
not remember the time when they had come to the shop.
Now I say that they had come at 10.30 p.m. 2-4 days
before the police came to make enquiries from me. The
police had taken me in the police station. At the police
station my signature was obtained and I was permitted to
go. The police did not read out anything to me at the time
they had taken me to the police station and obtained my
signature but something was read out to me 10 days back
when I had been called here. At the time my signature
was taken I was shown the photographs Article 8.\024
\023It did not happen that Babu Poojari came to me and
agreed to work with me and we both started doing the
business of illicit liquor. I had not stated so to any one at
any time. I can not say why portion marked \021A\022 to that
effect has been so recorded. It did not happen that these
2 accused had come to my illicit liquor business with the
person in the photograph. I had not stated so to any one
at any time. I can not say why portion marked \021B\022 to that
effect has been so recorded in my alleged statement dated
5.10.1994. I had not seen these 2 accused offering liquor
to the person in the photograph and also asking Babu
Poojari to pour more liquor in his glass as he was their
guest. I had not stated so to any one at any time. I
cannot say why portion marked \021C\022 to that effect has been
so recorded in my alleged statement dated 5.10.1994.
The person in the photograph now shown to me Article 8
was totally drunk when he had come with these 2 accused
to our shop. The person in the photograph was so drunk
that these 2 accused had to support the person in the
photograph Article 8 for making him walk away and in that
condition I last saw them walking away from the tailoring
shop 4-5 days before police took me to the police station.
At present I have been wrongly apprehended by the police
in a case when there was a raid on the illicit liquor shop in
the neighbourhood. I do not know in how many false
cases I have been involved after being wrongly
apprehended.\024
It is significant to note that even though PW11 denied having
made statements marked \021A\022, \021B\022 and \021C\022 before the police but the
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investigating officer, PW13 categorically asserted that Raju Poojari did
make those statements.
The learned Sessions Judge as also the High Court noted
contradictions in the statement of PW11 but ignored the same by
describing them as minor. In the opinion of the learned Sessions
Judge the variation in the previous statement of PW11 stands
explained by his desire not to incriminate himself. He also observed
that the defence had not brought anything from the cross examination
of PW11 to discredit his testimony. The High Court adopted the same
line of reasoning for placing reliance on the evidence of last scene.
In our view, the testimony of PW11 is wholly untrustworthy. He
appears to be a doctored witness, who came forward to support the
prosecution cause with a view to win favour from the police in the
cases registered against him in connection with the raid of illicit liquor
shop. This is the reason why he made vacillating statement regarding
the identity of two accused and the deceased and the purpose of their
coming to the so-called tailoring shop where he was residing and also
working. It is difficult, if not possible, to believe that even though the
accused persons used to come to the tailoring shop for getting their
clothes stitched, where PW11 is said to be working, he did not know
their names. His attempt to conceal his acquaintance with Babu
Poojari who was his associate in the business of illicit liquor is
inexplicable. The suggestive conjecture made by the learned Additional
Sessions Judge that PW11 retracted from the statement made before
the police because he did not want to incriminate himself in offences
relating to business of illicit liquor cannot be accepted because the fact
of the matter is that the witness was arrested by the police in
connection with the said business and there was every reason for him
to come forward to support the police case. The testimony of PW11 is
also discredited by the fact that he made self contradictory statements
regarding the presence of the accused and the deceased at the shop.
In one breath he stated that they were passing in front of the shop
and thereafter sought to identify them by stating that they had come
for stitching the clothes.
The next thing which is to be seen is whether the evidence
relating to the recovery of clothes of the appellant and the half blade,
allegedly used for commission of crime, is credible and could be relied
on for proving the charge of culpable homicide against the appellant.
In this context, it is important to note that the prosecution did not
produce any document containing the recording of statement allegedly
made by the appellant expressing his desire to facilitate recovery of
the clothes and half blade. The prosecution case that the accused
volunteered to give information and took the police for recovery of the
clothes, half blade and purchase of handkerchief is highly suspect. It
has not been explained as to why the appellant gave information in
piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994.
Room No.45 of \021Ganesh Bhuvan\022 from which the clothes are said to
have been recovered was found to be unlocked premises which could
be accessed by any one. The prosecution could not explain as to how
the room allegedly belonging to the appellant could be without any
lock. The absence of any habitation in the room also cast serious
doubt on the genuineness and bonafides of recovery of clothes. The
recovery of half blade from the road side beneath the wooden board in
front of \021Ganesh Bhuvan\022 is also not convincing. Undisputedly, the
place from which half blade is said to have been recovered is an open
place and everybody had access to the site from where the blade is
said to have been recovered. It is, therefore, difficult to believe the
prosecution theory regarding recovery of the half blade. The credibility
of the evidence relating to recovery is substantially dented by the fact
that even though as per the Chemical Examiner\022s Report the blood
stains found on the shirt, pant and half blade were those of human
blood, the same could not be linked with the blood of the deceased.
Unfortunately, the learned Additional Sessions Judge and High Court
overlooked this serious lacuna in the prosecution story and concluded
that the presence of human blood stains on the cloths of the accused
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and half blade were sufficient to link him with the murder.
The over jealous efforts made by the prosecution to link the
handkerchief allegedly found near the body of the deceased of the
appellant lends support to the argument of the learned counsel for the
appellant that the police had fabricated the case to implicate the
appellant. In his statement, PW7 Mohd. Farid Abdul Gani, who is said
to have sold the handkerchief to the appellant, admitted that he was
not selling branded handkerchiefs and that there were no particular
marks on the goods sold by him. He, however, recognized the
handkerchief by saying that the accused made a lot of bargaining and
he was amused by the latter\022s statement that he will soon become an
actor.
Both the learned Additional Judge and High Court accepted the
testimony of PW7 along with the statement of PW9 ignoring the
admission made by the former that he did not put any special mark on
the handkerchief sold by him; that he purchased the handkerchiefs in
wholesale from the market and removed the label of manufacturer
before selling the same and that there are 4 or 5 other persons
carrying on the same business in the locality. Likewise both the courts
ignored the fact that PW9 could not confirm the exact identity of the
handkerchief (marked as Article 3), he could only say that the
handkerchief of the appellant was just like Article 3.
In our opinion it is extremely difficult to believe that a person
engaged in the business of hawking would remember what was sold to
a customer almost two months after the transaction and that to
without identity of the goods sold having been established.
On the basis of above discussion we held that the prosecution
failed to establish the chain of circumstances which could link the
appellant with the crime. The learned Trial Court and the High Court
committed a serious error by relying on the circumstantial evidence of
last scene, the recovery of pant and shirt from Room No.45 of \021Ganesh
Bhuvan\022 building, half blade from under the wooden board and the sale
of the handkerchief by PW7 to the appellant.
In the result the appeal is allowed. The judgment under appeal
and the one of the Trial Court are set aside and the appellant is
acquitted. He shall be released forthwith if not required in connection
with any other offence.