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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 822 OF 2015
Sidram Baccharam Kamble
Aged: 43 years, Occu.: Labour work, R/o.: at post Shirawad, Tal. Shirol, District: Kolhapur
(At present Kolhapur Central Prison, Kalamba, Kolhapur)
.. Appellant
Through Kurundwad Police Station, District Kolhapur
.. Respondent
Ms. Nasreen S.K Ayubi, Advocate for Appellant.
Mr. Ajay Patil, APP for Respondent No.1 – State.
JUDGMENT
. This Criminal Appeal is filed to question legality of
Judgement and Order in Sessions Case No. 13 of 2012 dated
17.03.2015 passed by the Additional Sessions Judge, Jaysingpur, District Kolhapur (Trial Court).
2. Appellant is convicted by the trial court for the offence punishable under section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs 1000/-, and in default thereof to suffer further rigorous imprisonment for two years. Accused is also convicted for offence punishable under section 309 IPC and sentenced to suffer rigorous imprisonment for one year. Both sentences to run concurrently.
3. Prosecution case is based on circumstantial evidence. Prosecution has heavily relied on “last seen together theory” for indicting the Appellant/accused. Shorn of unnecessary details, facts of the prosecution case which emerge from record are as under:
3.1. On 02.05.2012, Pandurang Ramchandra Kamble (father of Geeta), resident of Rui, Kolhapur, lodged First Information Report (for short ‘FIR’) bearing Crime No. 53/12 with Kurundwad Police Station against Appellant under sections 302 and 309 IPC for committing murder of his wife Geeta. Appellant was serving in Sizing Mill and deceased (Geeta Kamble), his wife was an agricultural labourer. Appellant shall be referred to as ‘accused’ for sake of convenience.
3.2. According to Prosecution, accused and Geeta were married for 18 years prior to incident. Accused suspected Geeta of infidelity after death of his father, four to five years before; that one year before the incident due to disputes, mother of accused and Geeta were not staying with him, he convinced them to come and reside with him at Rui, Kolhapur; but ill-treatment and harassment of Geeta continued even thereafter.
3.3. On 02.05.2012 at about 5:30pm in the evening, complainant received a phone call from Bhimrao Kamble, resident of Shirwad that accused assaulted Geeta with a knife and also tried to commit.
3.4. PW-3 with his two sons and brother-in-law PW-6 (Babasaheb Anna Kamble) rushed to Shirwad to their house and saw Geeta lying in a pool of blood and accused also lying grievously injured next to her. He noticed assault marks on the neck, left cheek and left hand of Geeta and noticed that accused had assaulted himself over his stomach, private parts and attempted to commit suicide.
3.5. Kurundwad Police Station Authority registered offence under section 302 and 309 of IPC. Accused was taken to C.P.R. Hospital, Kolhapur for treatment. Spot Panchanama vide (Exh.36) and Seizure Panchanama of Articles of Geeta vide (Exh.50) was conducted through panchas. Seized articles mentioned in seizure Panchanama (Exh.38) were sent to the Chemical Analyzer for Chemical Analysis vide (Exh.24). Photographs were taken of the spot of incident during Seizure Panchanama, the chit (suicide note) was recovered from the clothes of accused and notebook from which the chit was torn was recovered from his house of Appellant. After completing investigation, chargesheet was filed with the Judicial Magistrate First Class (J.M.F.C) Kurundwad, who committed the case to the Court of Sessions as the offences were triable by the Sessions Court.
4. Charge was framed below Exh. 2. It was read over and explained in vernacular language to accused to which he pleaded not guilty and claimed to be tried.
5. Prosecution examined 14 witnesses to bring home the guilt of accused; PW-1 Sachin Malage, PW-2 Pandurang Shivaji Kamble, PW-4 Vishal Mahavir Kamble and PW-5 Chandrakant Shivappa Talware are Pancha witnesses. PW-1 conducted Spot Panchanama at the spot of incident; PW-2 recovered and seized clothes of Geeta and accused and Articles from spot of incident along with the alleged suicide note (chit) from Appellant; PW-4 collected the handwriting specimen of accused for sending it to the Handwriting Expert and PW- 5 is the Search Pancha in respect of seizure of the notebook from the house of accused.
5.1. PW-3 Pandurang Kamble is the father of Geeta; PW-6 Babasaheb Kamble; PW-7 Sampat Kamble; PW-8 Aubai Kamble and PW-10 Sushant Sidram Kamble are the uncle, cousin brother, mother and minor son of the accused and Geeta; PW-12 Dr. Dinesh Kumar Chavan is the doctor who conducted postmortem on the dead body of Geeta and also treated the injured Appellant; PW-11 Chandrakant Bhat Police Head Constable recorded the FIR; PW-13 Deepak Wagale is the Handwriting Expert who submitted his expert opinion vide (Exh.
75) and PW-14 Sudhir Bhalerao is the Investigating Officer (I.O.).
5.2. PW-4 pancha witness to the specimen handwriting of Appellant has been declared hostile. He has admitted that police authority did not obtain handwriting of accused in his presence.
5.3. PW-12 has stated that injuries caused on Geeta could be possible by sword or sharp-edged weapon.
5.4. PW-3 in his examination-in-chief has deposed that accused suspected Geeta’s character and therefore quarrelled, abused and assaulted her; that accused habitually abused his mother i.e., PW-8 Aubai; that he had filed complaint against accused about 3 to 4 months prior to the incident; that he saw Geeta lying dead in a pool of blood and accused having tried to commit suicide at the spot of incident; and filed FIR.
5.5. PW-7 Sampat Kamble, cousin brother of accused was their neighbour. He deposed that on 02.05.2012, son of accused visited his house and informed him about the quarrel between accused and Geeta; that he was informed by another neighbor, Mr. Popat about the incident and he rushed to the spot to find Geeta lying dead in a pool of blood and the accused lying grievously injured next to her.
5.6. PW-8 Aubai Kamble is the mother of the Appellant; has deposed that accused was habitually in an inebriated state would abuse and assault Geeta; that much prior to the incident, she, Geeta and her two sons had deserted the Appellant; that accused despite desertion had assaulted Geeta and forced both of them to come back and stay in the matrimonial home, that on the date of incident, i.e. on 02.05.2012 she left for collecting firewood in the afternoon; that on that day accused was discharged from Dattawad Hospital, Shirwad as he had recovered from jaundice and had come home; that when she returned, she came to know about the incident.
5.7. PW-10 Sushant Kamble aged 14 years is the minor son of Appellant and deceased. He has deposed in his examination-in-chief that, accused had suffered from jaundice and had taken treatment in Government Hospital Dattawad; on 02.05.2012 accused was discharged from the hospital. He further deposed that before the incident people present in the house were he himself, Deceased and PW-8 Aubai Kamble. After he took his lunch at 4:00pm the accused asked him to play outside the house while PW[8] had gone out to collect firewood. He deposed that, whilst he was playing, PW-7 disclosed to him that his father had assaulted his mother; he therefore rushed to his home and saw both of them lying in a pool of blood; he then made a telephone call to PW-6, his uncle and informed him about the incident.
6. Ms. Ayubi, learned Advocate appearing for accused submitted that prosecution has failed to prove the chain of circumstances and that evidence of prosecution witnesses is inconsistent and does not corroborate with each other; that indictment and conviction of accused for committing murder of Geeta has been based on a mere possibility; that on the date of incident accused was discharged from hospital after suffering from a bout of jaundice; that none of the prosecution witnesses have deposed any unusual behaviour or quarrel between him and his wife on the day of incident; that the suicide note (chit) seized by the prosecution and produced in the evidence cannot be the basis for convicting the accused; that PW- 12, the doctor in his deposition has opined that some of the injuries on deceased Geeta are possible by a sword or other sharp edged weapon; that the possibility of an unknown person entering the house and assaulting, both Geeta and accused thus cannot be ruled out and therefore the prosecution has failed to prove the guilt of accused beyond reasonable doubt.
7. PER CONTRA Mr. Ajay Patil, learned APP on behalf of Respondent State has submitted that accused had an apparent motive to assault Geeta as he suspected infidelity; that accused intended to sell his house property for funding his medical treatment which was opposed by Geeta and hence he quarralled; that accused and Geeta were last seen together by PW-10 their son who was asked by him to go out and play outside the house; that after PW-10 left the house the accused and Geeta were the only two persons present at the scene of crime and at that time Geeta was assaulted with a knife by accused and he thereafter attempted to commit suicide and injure himself; that recovery of the chit (suicide note ) is an important piece of evidence which shows that accused had a premeditated plan to murder Geeta; hence motive stands proved and presence of any unknown person is ruled out and further there is no theft or robbery which has taken place. He submitted that the weapon used by accused in the assault has been recovered and seized and the prosecution has thus proved its case beyond reasonable doubt against the accused.
8. We have heard Ms. Ayubi, learned Advocate for Appellant and Mr. Ajay Patil, learned APP and with their able assistance perused the entire evidence and exhibits.
9. It is seen that case of the prosecution is based on circumstantial evidence and “last seen together theory”. Prosecution case is further supported and corroborated by medical evidence and recovery evidence. PW-10 is the child witness, 14 years of age, son of accused and deceased Geeta; he has last seen both of them together at about 4:00 p.m. when accused asked him to go outside the house and play; that presence of any unknown person after PW-10 left the house stands ruled out as the son was playing nearby and rushed to home immediately after being informed about the incident; that weapon used in the crime i.e. knife has been recovered from the spot of incident; that the note (chit) recovered from the accused though strictly cannot be construed as a suicide note, the contents of the same chit clearly prove that accused had a premeditated plan to commit murder of Geeta; that deposition of PW-3 and PW-8 i.e. father and mother-in-law of Geeta clearly point the needle of suspicion towards the accused as he habitually mistreated, abused and assaulted Geeta and PW-8.
10. In the present case prosecution has proved beyond reasonable doubt the chain of incriminating circumstances, as discussed, and alluded to hereinabove and most importantly the “last seen together theory”.
11. From a minute perusal of the evidence, it is seen that the proximity of time between PW-10 having seen accused and Geeta together in the house (scene of crime) and the time of incident is very short; therefore, this proximity of time proves the “last seen together” theory in the present case. Since the prosecution has proven that accused was “last seen together” with Geeta, it is for the accused to explain how the incident happened as it was exclusively within his knowledge; that accused failed to prove or give any explanation as to what transpired when he was in the house with Geeta and therefore conduct of the accused is highly questionable. The chain of circumstances described above along with the “last seen together” theory are both duly corroborated by medical evidence and recovery evidence in the present case.
12. That apart, prosecution has succeeded in proving the panchnama through PW-1 relating to the incident spot, seizure of weapon (knife) and other articles; prosecution has proven seizure panchnama vide (Exh.36) relating to seizure of clothes of accused and the suicide note (chit); prosecution has through PW-13 (handwriting expert) succeeded in proving the chit (marked as Exh. 75) to be in the handwriting of accused and there cannot be any reason to disbelieve the contents of the chit as an important piece of evidence to prove that the accused had a premeditated mindset to murder Geeta and thereafter commit suicide in (which he failed); most importantly prosecution has proved through forensic evidence that blood stains on the weapon (knife) match with the blood group of Geeta as also the blood stains on the clothes of accused matched with the blood group of Geeta.
13. Medical evidence in the present case is given by PW-12 Dr Dinesh Kumar Chavan. He has deposed that after conducting the postmortem examination; he found that there were 4 external injuries as under:
(i) Perforating injury at left side of neck 3” depth x 1’
(ii) Stab injury just below left eye 1” length x 0.2’ depth x
(iii) Stab wound at left lower thigh just above left knew 1”
(iv) Stab wound at left hand in between left thumb and left index finger 2” length x 1” depth x 0.[5] breadth.
13.1. Postmortem Report further states that there is 1 internal injury caused to the large vessels of the neck i.e. the carotid artery and jugular vein transaction in which the grievousness of the nature of the injury is stated. Injuries were caused by sharp objects, and death is due to cardio-respiratory arrest, due to hemorrhage shock and due to the left side of neck vessels, carotid artery and jugular vein transaction leading to causation of death. PW12 issued a death certificate which is marked as (Exh.28).
14. In a decision of the Supreme Court in the case G. Parshwanath Vs. State Of Karnataka[1], in paragraph No.11, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under: -
15. In the case Sharad Birdhichand Sarda Vs. State of Maharashtra[2], in paragraph Nos.153 to 158, while enunciating the law relating to appreciation of evidence in a case based on 2 AIR 1984 SC 1622:: (1984) 4 SCC 116 circumstantial evidence, the Supreme Court has held as under:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned '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 v. State of Maharashtra, (1973) 2 SCC 793: 1973 Cri LJ 1783 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. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry (1952) NZLR 111, thus: Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
156. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. …………
158. …..decision of this Court in Deonandan Mishra v. State of Bihar 1955 Cri LJ 1647, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor- General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the accusedas the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation... such absence of explanation or false explanation would itself be an additional link which completes the chain.”
16. In case of Hanumant and Ors. Vs. State of Madhya Pradesh[3], in paragraph Nos.11 and 12 the Apex Court has enunciated the rules applicable to circumstantial evidence and are held as under:-
17. In the case Surajdeo Mahto Vs. The State of Bihar[4], in paragraph Nos.29 and 30, the Apex Court has propounded the “last seen together” theory and held as under:-
18. In the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra[5], the Apex Court has laid down the fundamental principles to be kept in mind while adjudicating a criminal case founded on circumstantial evidence. Paragraphs 31 and 32 of the decision are relevant and read thus:
19. In view of the above settled legal position and the evidence and findings discussed hereinabove, we are of the considered view that prosecution has established the complete chain of circumstances to prove the guilt of accused beyond all reasonable doubts based upon the deposition of PW-3, PW-6, PW-7, PW-8 and PW-10, which clearly reveal and corroborate their deposition regarding Appellant suspecting the character of Geeta; hence the motive stands proved. Further medical evidence given by PW-12 indicating the nature of injuries on Geeta’s body along with the recovery evidence by PW-1, PW-2, PW-4 and PW-5 and PW13 clearly indict the involvement of accused beyond all reasonable doubts.
20. Hence, we do not find any merit in the appeal and entirely concur with the Judgement and Order dated 17.3.2015 passed by the learned Trial Court and uphold the same.
21. Criminal Appeal No. 822 of 2015 is accordingly dismissed.
22. Before parting with the Judgment, we would like to place on record appreciation for the efforts put in by Ms. Nasreen S.K. Ayubi, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant; she was thoroughly prepared in the matter and rendered proper and able assistance to the Court. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.] MOHAN AMBERKAR