Ambadas Shripati Jadhav and ors v. The State of Maharashtra and anr

1 The Three Appeals filed by the four convicts raise a challenge to the judgment and order dated 11/5/2015 passed by the Addl. Sessions Judge, Pune in Sessions Case NO. 74/2010 by which all the appellants stand convicted for committing offence under section 302 of the IPC read with 34 of the IPC, for committing murder of Smt. Smita Patki and Smt. Sulabha Pachapurkar and are sentenced to imprisonment for life. They are also convicted for committing house trespass in order to commit offence punishable with death under Section 449 of the IPC and sentenced to undergo Imprisonment for life, along with the penalty of Rigorous Imprisonment for seven years on being convicted under Section 392 and 397 read with Section 34 of the IPC. The substantive sentences being directed to run concurrently, the appellants have preferred the Appeals which are admitted by this Court on 11/5/2015.

2 We have heard Mr.Hrishikesh Shinde for the appellant in Appeal No.1016/2024, Ms.Farhana Shah, appointed Advocate for accused no.1 in Appeal No.811/2015 and Ms.Farhana Shah i/b Ms. Anjali Patil for accused no.4 for appellants in Appeal No.811/2015, Ms.Anita Agarwal for appellant in Appeal No.215/2024, Mr.Dileep Satale for respondent no.2 complainant and Mr.Agarkar, APP for the State.

3 On 17/4/2010, the two deceased, Smita Patki and Sulabha Pachapurkar residing in Shakambari Bunglow, Raghukul Society, Karve Nagar, Pune, were found lying in a pool of blood inside the house by PW-3, the maid servant Kalpana Hule, when she entered the house to attend the household chores by using the key in her possession. It is she who informed the neighbor who then arrived on the spot.

4 The four accused persons faced the charge of having, either individually or in furtherance of common intention, committed the murder of two elderly ladies by intentionally and knowingly causing their death, thereby committing an offence under Section 302 r/w Section 34 IPC. Similarly, they also faced a charge of having robbed the deceased women of gold ornaments along with Titan wrist watch and one mobile handset worth Rs.80,000/- which were in possession of Smita Patki and therefore, they were charged under Section 392 read with Section 34 IPC. For assaulting the deceased with knife and causing grievous hurt, they also faced a charge under Section 392 r/w Section 397 IPC. They were also accused of committing house trespass in the house of the complainant Prabhakar Patki having made preparation for committing murder by means of a deadly weapon such as sickle, and of committing an offence punishable u/s.452 r/w Section 34 of the IPC.

5 Prabhakar Pandurang Patki, a retired employee lodged a report with the Karve Nagar police station on the very same day i.e. 17/10/2010, informing that his wife and his sister used to reside in Shakambari Bunglow, Karve Nagar. However, after his retirement, as he was engaged as Chief Financial Officer and his office was at Vashi, he was residing at Vashi along with his elder son. Referring to the incident dated 17/4/2010, he informed that before leaving for his office, as per his usual habit, he telephoned his wife at about 10.00 to 10.15 a.m. and had conversation with her. At 12.30 p.m, he received phone call from one Vishram Rajhans who apprised him of some issue at home and he asked his brother to proceed to the house. He also attempted to establish contact with his wife but did not get any response. He was thereafter informed by his brother that his wife and sister were lying in a pool of blood and immediately, he reached the house and notice that the gold bangles (patlya) worn by his wife were missing. After a while, he also noticed that the gold mangalsutra and ring of his wife was missing and he reported this to the police.

6 The case of the prosecution is based on circumstantial evidence and in order to establish the chain of circumstances, the prosecution has relied upon the evidence of PW 2 to PW 5. PW 2 Sunanda is the cook in the house of Patki’s, who deposed that she used to work in the house and be there between 11.00 to 11.30 a.m. Deposing that though she did not remember the month and year, but on 17th, she went to the house and cooked food, and the two elderly ladies in the house had their lunch, and thereafter, she left the house by pulling the door, which was automatically locked. PW 3 Kalpana is the maid who retained the key of the house on 17/4/2010, as her routine when she reached the house of Patki’s after opening the gate, she opened the door of the bungalow using the key in her possession and saw Smita Patki lying near the door in pool of blood. Frightened, she rushed outside to inform the neighbour Mr. Shenolikar, who then made the necessary phone calls.

7 As far as the two key witnesses of the prosecution, PW 2 deposed that prior to 3 to 4 days of the incident, she had seen unknown persons wandering near the bungalow, where the work of garden was going on. Similarly, the maid Kalpana also corroborate her, as she deposed that at the time of the incident, the work of garden was going on near the bungalow of Patki, and she saw four persons working in the garden, while others were passing through the garden as a shortcut. According to PW 3, she had seen some persons present there on one or two occasions, and they were the persons other than those who were working in the garden. According to her, generally, others used to pass through that place, but she had seen the persons while they stopped there and according to her, they were 3 to 4 in number. PW 3 identified the accused as those persons whom she had seen, stopped near the bungalow. She also deposed that she was called in Jail to find out whether she could identify the persons whom she had seen near the bungalow of Patki, and she identified two persons who were also present before the Court.

8 Another witness in the chain of circumstances relied by the prosecution is PW 4, Basappa Dhotre, who deposed that in April 2010, the work of garden situated in Ganesh Nagar was going on, and four labours were working on the site. According to Basappa, a labour supplier, there was a footpath in the garden and persons used to pass by that way, and near the open space, there were bungalows. PW 4 deposed thus “At that time, I noticed that for two days four persons used to come there and sit there. I had no talk with them but those persons used to come towards us for drinking water which we used to store for drinking the labours. No conversation between me and those persons had taken place.”

9 Prosecution has relied on testimony of these three witnesses, to establish that they were the accused who had committed the crime with the intention of robbing the two women in advance age, who were staying alone in the house. In order to ascertain as to what made the Investigating Officer suspect the four persons as accused, it is necessary to refer to the evidence of investigating Officer PW 13, Chandrakant, Ghodke. It is PW 13 who recorded the complaint lodged by Patki (Exhibit 29) and registered C.R No. 141/2010 and conducted the investigation. He visited the site in the presence of panchas and prepared the spot panchnama and collected the material lying on the ground, including hair, red colour and bangles, which were seized. No fingerprints could be collected from the spot as per PW 13, and even the dog squad did not provide any clue. The Inquest Panchnama of the two bodies found on the spot was prepared, and then the bodies were sent for postmortem, and a provisional opinion for cause of death was obtained to reveal that the death of the women was due to injuries sustained by them, and cutting of throats. As regards the connection between the crime and the accused, PW 13 has not offered any explanation, but has deposed that on 29/7/2010, he arrested accused Ambadas Shripati Jadhav, and on 30/7/2010, when he expressed his readiness to make a statement by recording a panchnama under Section 27 of the Evidence Act (Exhibit 41), he showed the bungalow, where the crime was committed. The other two accused Pandu and Bunty were arrested on 5/8/2010. It was accused Ambadas who, while in police custody expressed his readiness to give a statement, which lead to the discovery of a mangalsutra from his house (Exhibit 49). The piece of ornament was seized under a panchnama (Exhibit 50). Further, according to PW 13, accused Pandurang led to recovery of one golden ring from his house, (Exhibit 51). From Bunty @ Gaurav, the Investigating Officer has shown recovery of weapons on 13/8/2010, from his farmhouse, and which were found to be concealed on the katta of bathroom, along with blood stained clothes.

10 In order to prove the aforesaid recoveries, the panch witnesses are examined, being PW 6 Sachin Bindal, the panch on recovery of knives, blood stained clothes, dagger from a farmhouse. PW 9, owner of the farmhouse, is also examined by the prosecution. However, his evidence do not lend any credence to the prosecution case, as he stated that he had seen that one purse was taken from mezzanine floor, (potmala) but he never saw the contents of the same. He make reference to one Ashok Jadhav and the relatives of Jadhav family visiting him, but beyond this, he do not throw any light, so as to establish or connect with either of the accused from the farmhouse. Another witness on panchnama is PW 10, who has signed the panchnama when accused Ambadas gave a statement that he had kept the mangalsutra in his house at Solapur.

11 With this evidence being brought on record with no conclusive evidence of blood grouping being brought on record by the prosecution, its case rested purely on circumstantial evidence. Another witness PW 5, auto rickshaw driver, also did not assist the prosecution as he deposed that he had read the news about commission of robbery and killing of two ladies in Karve Nagar. He also deposed that appeal was made to the public at large that the offenders had ran away, and if anyone had any knowledge, they should contact the police. About 8 to 10 days prior to reading the news, when he had stopped near the food world at the corner at Karve Nagar waiting for the passengers, one person came there running and when he made inquiries with him, he saw some blood stains on his clothes, and behind him, there were three persons. All of them sat in the rickshaw, and he took them to Paud phata and dropped them there. He had told him that they were doing work of painting. On gaining this information, he went to the police and provided the information. This witness, after 2 months, identified one of the person, and in the Court, he identified Pandurang Balu Jadhav, but could not identify others.

12 From the entire evidence brought on record by the prosecution, it appear to us that the prosecution has miserably failed to discharge the burden of proving the guilt of the accused, and particularly when the case of the prosecution is based on circumstantial evidence. The law, as regards circumstantial evidence, being well settled, expect the facts to be conclusively established, that there is no other conclusion drawn from the chain of circumstances brought on record by the prosecution. In the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra[1], the Apex court has laid down the test to the following effect. “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 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: "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 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." 1 1984 AIR 1622 (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”.

13 In order to prove a case based on circumstantial evidence, it is necessary for the prosecution to establish that each and every incriminating circumstance is proved by reliable evidence, and that the circumstances so proved must form a chain of events, from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other inference can be at all derived. Circumstantial evidence is the evidence of circumstances which can be relied upon, not as proving a fact directly, but instead as pointing towards existence of the circumstances from which the inference of guilt is sought to be drawn, but it must be conjointly or firmly established and should be of a definite tendency unerringly pointing towards the guilt of the accused. The chain of circumstances so brought on record must be complete, with no gaps left and the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

14 In light of the aforesaid principles involving circumstantial evidence, when we have examined the evidence brought on record by the prosecution, we find it insufficient to establish its case based on circumstantial evidence. PW 2 and PW 3, the cook and the maid respectively, merely refer to some unknown persons wandering near the bungalow, but there is no reason for them specifically remembering these persons, and in the whole prosecution case, there is no clue offered as to how the said persons came to be arrested and that too, after a gap of three months. The Test Identification Parade conducted on 16/10/2010 is after three months of the arrest of the accused and after six months of the correctness of the incident and in absence of the connect being established between offence and the arrested accused persons, the Test Identification Parade do not lend much credence of the case of the prosecution. It appears that wide publicity was given, inviting any information from public about the incident which had created a feeling of despair in the locality, as two old women in their own house were done to death by committing robbery, and PW 5 clearly acted on this information. In any case, it is unbelievable that a lady who worked at many houses and ran from one house to another, remembered the accused persons as the persons who were seen near the garden, and though there was no communication or conversation between them. According to PW 4, he also did not have any conversation with the four persons who used to come and sit near the garden, but came there for bringing water, which was stored for drinking for the labours. PW 4 categorically admitted that he had a weak eyesight and his operation was performed, and there was a cataract in his left eye, and therefore, it is doubtful as to how much reliance can be placed upon his identification of the persons who were casually seen by him, loitering near the garden. The Memorandum of Identification Parade is not on record, but the witnesses have deposed that PW 2, PW 3 and PW 4 were called in jail, and they identified some of the accused. Whether the identification was done prior to the arrest of the accused has not appeared with clarity on record, but after arrest, and almost after four to six months, there are discoveries including of the weapons and the ornaments. Pertinent to note that there is no evidence on record, to establish that the ornaments recovered from accused No.1 Ambadas, Accused No.2 Pandya belonged to the accused as there is no evidence brought on record that these ornaments belong to the deceased, and there is no identification of these ornaments by PW 1, husband of Smt. Smita Patki. PW 13, the Investigating Officer has admitted that he did not collect receipts from the informant. *** The Memorandum Panchanama of the Test Identification Parade (Exhibit-65) is brought on record by PW 12, who was serving as Naik Tahsildar at Haveli Taluka, District Pune. A letter was issued to the Superintendent, Yervada Prisons, to make necessary arrangement for conducting the Test Identification Parade. As per PW 12, three accused persons were called and the Identification Parade was conducted in two parts on 16/10/2010. In the first part, identification of accused Ambadas and accused Pandurang @ Pandya was undertaken. 12 dummy persons similar to the accused persons were called, all of whom were prisoners in Yerwada prison, and they were caused to stand in one room. Thereafter, the witnesses were called one by one, and they were identified by the four witnesses i.e. PW 2 Sunanda, PW[3] - the maid servant, gardener Basappa and auto rickshaw driver Popat Zende. In the identification Parade, the two accused were made to stand in a row and the witnesses identified them from the dummy witnesses. Apart from the fact that the manner of conduct of Test Identification Parade is clearly in violation of the manual, it is surprising to note that when the witnesses PW 2 to PW 5 did not even report to the police, immediately giving the identity of the persons who were working near the garden, who were suspected to be the accused persons, it is difficult to believe that after six months, they clearly identified the accused persons. In any case, the identification of accused by the witnesses in the T.I. Parade, being not an evidence of conclusive nature, in absence of any other corroborative material on record, the same cannot be trusted blindly and the trial Judge has fallen into grave error in accepting the guilt of the accused merely on the basis of this identification.

10 In light of the aforesaid, since the prosecution has failed to prove its case against the accused, and in absence of the burden being discharged by the prosecution, to establish the circumstances, one leading to the other, and ultimately the accused being connected to the death of the two women, we do not find the conviction and the sentence imposed upon the accused persons to be sustainable in law. We are informed that the four accused persons have undergone more than 15 years of Imprisonment since their arrest, and in the wake of the failure of the prosecution to establish its case beyond reasonable doubt, their conviction is liable to be set aside and cannot be sustained. The appellants are set at liberty by setting aside the conviction imposed upon them. Release shall be ensure forthwith. Criminal Appeal Nos.811/2015, 1016/2024 and 215/2014 are allowed.