Sheshmani Magdum Pal v. State of Maharashtra

7. The most important piece of circumstantial evidence is the deposition of PW-7- Amit Suresh Nayak, neighbour and shop keeper residing on the adjacent Plot Nos. 26 and 27, Kumawat Nagar, Nashik. He has deposed that Appellant along with his wife and two sons were residing as tenant in room no. 2 on Plot no. 28 belonging to PW-6. He has identified Appellant in Court. In his evidence, he has deposed that on 08.01.2012 at about 8 p.m. when he was in his shop he heard the quarrel between Appellant and Sangita; he has stated that considering it was an usual quarrel, he did not pay attention; then at about 10:00 p.m. when he was putting his goods inside his shop, he saw Appellant going out of his house on his bicycle and carrying two black coloured plastic bag which were hung on both sides of the bicycle handle; that he saw Appellant returning back after some time but the two black plastic bags were missing; that thereafter at about 10:30 p.m. when he was closing the shutter of his shop, he saw Appellant carrying one gunny bag of cement kept on the petrol tank of his motor cycle. He has stated that after 15 days when police brought Appellant to his room he came to know that Appellant had committed murder of his wife and two sons. In his cross-examination, he has answered the questions pointedly, his answers are reliable and deserve to be accepted. Evidence of PW-7 assumes significance because he is the person who has last seen the Appellant outside the spot of incident. This incriminating fact is an important piece of circumstantial evidence; PW-7 saw Appellant taking two plastic bags on his bicycle at 10:00 p.m.; thereafter he saw Appellant returning on his bicycle without the said two plastic bags and lastly at 10:30p.m. he saw Appellant taking a cement bag on his motorcycle. This evidence proves the prosecution case that Appellant after committing the crime between 8:00 p.m. and 10:00 p.m. on 08.01.2012 disposed of the dead bodies of his two sons by using his bicycle and the dead body of his wife Sangita by using his motorcycle. This fact stands proved when one considers the evidence of PW-10, owner of the new house rented by Appellant, since on the following day i.e. 09.01.2012 Appellant shifted to the new house alone and stayed there alone for the next 20-22 days. The bicycle and motorcycle used by Appellant to transport the dead bodies of the victims were seized by prosecution. The accused gave disclosure statement about the same as per Exh. 22 and aforesaid vehicles were seized under panchanama (Exh. 23) by I.O. On 03.03.2012.

8. Mr. Yashpal Thakur, learned Advocate appointed to represent Appellant has argued that in the present case, DNA and bone reports received from the Forensic Science Department were filed in the Trial Court after filling of the charge-sheet and the same therefore cannot be taken cognizance of. It is seen that the learned Trial Court has taken judicial notice of the contents of the said reports even though they were placed on record after filing of charge-sheet. It is stated in the said reports that the DNA blood group of Appellant does not match with the DNA of the two sons whose skulls and bones were recovered and thus, the Appellant was not the biological father of the two children. This aspect is not of much relevance or help to the defence case since the chain of circumstances proving involvement of Appellant in committing the murder of Sangita and the two children is so well established that it proves beyond all reasonable doubt that it is the Appellant and Appellant only who is the author of the crime. Mr. Thakur had also vehemently submitted that in the presence case, postmortem report is not proved in evidence and hence benefit of doubt be given to Appellant. Once again we reiterate that the bodies of victims were found in a highly decomposed state after 51 days and therefore, it may be possible that the post-mortem report was not made available, but identification of the bodies has been done by PW-9 which has gone unchallenged. He has further argued in the present case that the prosecution has not proved any motive. In our opinion, the chain of circumstances stands proved by the prosecution, hence even though motive may not be present, the same becomes significant. However we find that in the present case, prosecution has successfully proved the motive also; PW-9 brother of deceased Sangita has deposed about Sangita informing him and his family members about the demand of money by Appellant, the harassment and ill-treatment meted out to her by suspecting her chastity and character.

9. PER CONTRA, Mr. Patil, learned APP has pointed out an important aspect of circumstantial evidence. He has submitted that Sangita and her two children went missing within 11 days after she came back to reside with Appellant at Nashik; that the place of disposal of dead bodies of Sangita and the two children was exclusively to the knowledge of Appellant; that he led the police authorities to the two spots for effecting recovery of the dead bodies; that these dead bodies were in the plastic bags and cement bag lying in the bushes on the banks of Godavari river and the Padolmala canal and both these spots were inaccessible and were shown by Appellant to the police authorities. We fully agree with the submissions advanced by the learned APP.

10. After carefully scrutinizing the evidence on record, we are of the considered opinion that prosecution has proved the following circumstances to bring home the guilt of Appellant and has thus proved its case against the Appellant beyond all reasonable doubts:-

(i) that Appellant resided in the rented house in Plot NO. 28, Kumawat Nagar Nashik till 08.01.2012 along with his wife Sangita and their two sons Shiva and Chotu;

(ii) that on 08.01.2012 Sangita had a telephonic conversation with her sister and brother (PW-9) and informed them that Appellant had gone to finalized the new rented house and she was packing the household articles for shifting;

(iii) that on 08.01.2012 at 8:00 p.m., PW-7 neighbor heard Appellant and Sangita quarreling; that at 10:00 p.m. PW-7 saw Appellant taking two black plastic bags on his bicycle and return back after some time without the bags; that at 10:30 p.m. PW-7 saw Appellant taking a cement bag on the tank of his motorcycle and driving away with it;

(iv) that the bicycle and motorcycle used by the

Appellant to dispose the dead bodies were recovered and seized; that prosecution proved that possession of the motorcycle was with the Appellant, though its registration was in the name of the earlier owner;

(v) that on 09.01.2012 i.e., on the next day after the incident Appellant shifted to the new rented house alone without Sangita and the two children; this fact was proved through the deposition of PW-10, owner of the new rented house;

(vi) that on 29.01.2012 at about 1:30 a.m. in the middle of night Appellant informed PW-7 on phone call that Sangita had run away along with the two sons in the morning;

(vii) that Appellant evaded and avoided answering the phone calls from PW-9 and Sangita’s relatives after 09.01.2012;

(viii) that after 29.01.2012 Appellant switched off his mobile phone and evaded answering phone calls from her parents and relatives;

(ix) that despite the above, Appellant did not lodge missing complainant on search for Sangita and their two sons and this conduct of Appellant speaks volume above his motive;

(x) That on 29.01.2012 Appellant led the police to the two spots near Godavari river and Padolmala canal and from there, dead bodies of Sangita and the two children were recovered;

(xi) that the motive for committing murder of Sangita and the two sons has been proved through the evidence of PW-9, brother of Sangita;

(xii) that the dead bodies of Sangita and their two children were identified by PW-9;

(xiii) that spot panchanama was done and photographs taken by PW-12 of the dead bodies after recording of panchanama were marked in evidence and proved by the prosecution.

10.1. Thus, from the aforesaid proven circumstances, the chain of circumstance relied upon by the prosecution stands completely proved and it can be safely inferred that Appellant has committed the murder of Sangita and their two children.

10.2. The Hon’ble Apex Court in the case of G. Parshwanath Vs. State of Karnataka[1] while adverting to the law relating to appreciation of evidence in a case based on circumstantial evidence when there is no direct eye witness account has in paragraph No. 11 held as under:- “11. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

10.3. That apart we would also like to state about the conduct of Appellant. In the facts and circumstances of the present case, if it was the case of Appellant that Sangita and her two children had eloped and run away from their matrimonial home on 08.01.2012, then as a prudent husband and father, it was his duty to lodge a missing complaint with the police authorities to trace them; that Appellant did not do so. Learned Trial Court has in its judgment referred to 17 specific circumstances relied upon by the prosecution to prove the guilt of Appellant. On carefully scrutinizing the evidence on record we find no infirmity with the judgment of the Trial Court. We would like to add that Appellant committed a cold blooded murder of his wife Sangita and their two children Shiva (2 ½ years) and Chotu (7 months) and also attempted to cause disappearance of the evidence.

11. In view of the above, we do not find any merit in the appeal and entirely concur with the Judgement dated 27.03.2015 returned by the learned Trial Court and uphold the same.

12. Criminal Appeal No. 1036 of 2015 dismissed.

13. Before parting with the Judgment, we would like to place on record appreciation for the efforts put in by Mr. Yashpal M. Thakur, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant; he 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