Criminal Appeal No.968 of 2006,Criminal Appeal No.443 of 2007

12th February, 2009

Petitioner Counsel: Shri. ARFAN SAIT
Respondent Counsel: Ms. M. M. DESHMUKH

Cases Cited:
Hanumant Govind Nargundkar Vs. State of Madhya Pradesh, AIR 1952 SC 343 [Para 9]
State of Goa Vs. Sanjay Thakran, 2007 ALL SCR 1861=(2007)3 SCC 755 [Para 9]
Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., Hyderabad, (2002)6 SCC 470 [Para 10]
Shivaji Sahebrao Bobade Vs. State of Maharashtra, AIR 1973 SC 2622 [Para 11,57]
Apren Joseph alias Current Kunjukunju Vs. The State of Kerala, AIR 1973 SC 1 [Para 16]
Ganesh Bhavan Patel Vs. State of Maharashtra, AIR 1979 SC 135 [Para 17]
State of M.P. Vs. Kriparam, (2003)12 SCC 675 [Para 18]
State of Rajasthan Vs. Bhanwar Sing, (2004)13 SCC 147 [Para 19]
Dilawar Singh Vs. State of Delhi, 2007 ALL SCR 2430=(2007)12 SCC 641 [Para 20]
T. T. Antony Vs. State of Kerala, AIR 2001 SC 2637 [Para 22]
Rameshwar s/o. Kalyan Singh Vs. The State of Rajasthan, AIR (39) 1952 SC 54 [Para 29]
Nirmal Kumar Vs. State of Uttar Pradesh, 1993 Supp. (1) SCC 510 [Para 30]
Suryanarayana Vs. State of Karnataka, JT 2001(1) SC 230 [Para 30]
Panchhi Vs. State of U.P., 1998(4) ALL MR 725 (S.C.)=(1998)7 SCC 177 [Para 31]
Bhagwan Singh Vs. State of M.P., 2003 ALL MR (Cri) 564 (S.C.)=(2003)3 SCC 21 [Para 32]
Laxman Vs. State of Karnataka, 1997(1) Crimes 388 [Para 39]
Jagdeo Singh Vs. State, 1979 Cr.L.J. 236 [Para 39]
Pal Singh Vs. State of Punjab, 1995 Cr.L.J. 3596 [Para 39]
Sadiq Vs. State of U.P., 1981 Cr.L.J. 379 [Para 40]
Vijender Vs. State of Delhi, (1997)6 SCC 171 [Para 41,61]
Pulukuri Kottaya Vs. Emperor, AIR 1947 Privy Council 67 [Para 44]
Pandurang Kalu Patil Vs. State of Maharashtra, 2002 ALL MR (Cri) 1205 (S.C.)=(2002)2 SCC 490 [Para 45]
Amitsingh Bhikamsingh Thakur Vs. State of Maharashtra, 2007 ALL MR (Cri) 1393 (S.C.)=(2007)2 SCC 310 [Para 46]
Bodh Raj alias Bodha Vs. State of Jammu and Kashmir, AIR 2002 SC 3164 [Para 48]
Aloke Nath Dutta Vs. State of West Bengal, 2007 ALL SCR 1018=(2007)12 SCC 230 [Para 49]
State of Rajasthan Vs. Wakteng, 2007 ALL MR (Cri) 2124 (S.C.)=AIR 2007 SC 2020 [Para 52]
Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 Cr.L.J. 1738 [Para 59,60]

JUDGMENT

SWATANTER KUMAR, C.J.:- Additional Sessions Judge, Greater Mumbai, by his judgment dated 25/26/27th October, 2004 has convicted three accused viz. (i) Geeta Keshav Shankar @ Geeta Mukesh Kharwa, (ii) Gauri Manga Kharwa @ Wagheri, and (iii) Santosh Kanti Kharwa for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay fine of Rs.1,000/- each and in default to undergo simple imprisonment for a period of six months.

2. Aggrieved from the finding of guilt and sentence awarded to the respective accused, Geeta Mukesh Kharwa, Accused No.1 and Gauri Manga Kharwa, Accused No.2 have filed Criminal Appeal No.968 of 2006, while accused No.3 Santosh Kanti Kharwa, has filed Criminal Appeal No.443 of 2006 before this Court, inter alia, claiming acquittal, but primarily on the following grounds :

(a) There is undesirable and unexplained delay of one month in registering the FIR;

(b) The judgment of the Trial Court is not based upon cogent, proper and admissible evidence. The Trial Court has opted to supply gaps in the prosecution case by surmises and conjectures. Accused Santosh was neither named in the FIR nor in the Application Exhibit-19 made by PW-4 on 30th January, 2002 and none of the prosecution witnesses have connected him with the occurrence of crime, thus he has been falsely implicated;

(c) There are serious material contradictions in the statements of PW-3 Pallavi and PW-4, Nirmala. The statements of the child witness (PW-3) is a version given by a tutored witness keeping in view the fact that the statement itself was recorded after lapse of a long period. Statement of the child witness (PW-3) thus cannot be the foundation for recording of finding of guilt against any of the accused;

(d) Neither other evidence led by the prosecution nor the post-mortem Report Exhibit-29 records, much less proves, that there was any injury on the body of the deceased which resulted in his death. On the contrary, the cause of death stated in the Post-mortem Report does not even support the case of the prosecution;

(e) Recovery of rope vide Exhibit-26 has not been proved in accordance with law and is a result of police influence upon the Accused as he was arrested on 15th February, 2002 while the recovery was effected on 22nd February, 2002. Thus, the rope (Article 1) has just been planted upon the accused and in any case the statements recorded vide Exhibit-26 are not admissible in evidence and of course that the Accused have been falsely implicated as they have no intention or motive to kill the deceased, as alleged.

(f) Material evidence which has been relied upon by the Trial Court while convicting the accused is not put to the accused in a statement under Section 313 of the Code of Criminal Procedure thus causing serious prejudice to the rights of the accused.

3. Now we may refer to the story of the prosecution which is the premise for guilt and conviction of the appellants. Gauri, Accused No.2 was married to Mohan Chiku Kharwa. Their relations were strained as Mohan had suspected character of Gauri and divorced her. Gauri had developed intimacy with Santosh Kharwa, Accused No.3. Santosh had love affair with sister of Gauri by name Ratan and married to her, therefore, Gauri had again tried to establish relations to cohabit with Mohan but Mohan was not accepting her. Geeta, accused No.1, is stated to be the wife of Mukesh Kharwa, who was brother of the deceased Mohan Kharwa. Mukesh is also stated to have given divorce to Geeta and therefore, Geeta had inimical terms and grudge with family of Mohan. On 14th January, 2002 Geeta, Gauri and Santosh had gone to Girgaon Chowpati along with Dinesh Suma Wagheri, Ruksana Sona Wagheri and others. Deceased Mohan also attended Chowpati. Nirmala Chiku Kharwa (PW-4), mother of the deceased also attended Girgaon Chowpati along with her grand daughters. Mohan was flying kite. Gauri started teasing and jesting Mohan. Gauri took a pinch on the thigh of Mohan and took up a quarrel. Mohan is stated to have told to his mother Nirmala that he is going to pass urine and he will come back. He went there but he did not return. Attempt has been made on behalf of the prosecution to show that Mohan, Nirmala, Geeta and Gauri had consumed liquor at the Chowpati and then Mohan left for passing urine. Mohan was followed by Geeta, Gauri and Santosh. Santosh gave push to Mohan. Mohan fell down. Santosh then put a rope around the neck of Mohan and then Geeta pressed mouth and Gauri caught hold of legs of Mohan. They pressed neck of Mohan in the sea water and drowned him till death. They dragged body of Mohan in the deep sea and threw it in the sea water. Nirmala, mother of Mohan, went for a search of her son till late night at Girgaon Chowpati along with others. Mother of Mohan visited Gaondevi Police Station next day and lodged a missing complaint of her son which was recorded and registered by the police vide S.D. E. No.2 of 2002 on 16th January, 2002, Exhibit 12-A. On 30th January, 2002 mother of Mohan (PW-4) visited Gaondevi Police Station and reported her complaint in writing by filing an application Exhibit-19 that her son Mohan died due to drowning and his dead body was found at the sea shore within the jurisdiction of Cuffe Parade Police Station. In the application Exhibit-19, she also stated that she suspected Geeta (Accused No.1), Gauri (Accused No.2), Dinesh Wagheri and Ruksana Wagheri, for having killed her son Mohan. On the basis of the application Exhibit-19, it appears that no First Information Report (FIR) was registered but after few days and supposedly on the basis of interrogation made, FIR was registered being FIR No.00/02 on 15th February, 2009 for an offence under Section 302 read with Section 34 of the Indian Penal Code that Geeta, Gauri and Santosh caused death of Mohan while he was under the influence of liquor by throttling and drowning him in the sea water. This led to the arrest of the accused Santosh.

4. On 16th February, 2002, a panchanama of dead body was drawn which is at Exhibit-27. As there were high tides on the night of 15th February, 2002, panchanama of the place of incident Exhibit-33 was prepared on 16th February, 2002. During the period when Santosh remained in police custody till 22nd February, 2002, he is claimed to have made a voluntary statement Exhibit-26, leading to recovery of a nylon rope (Article-1). Thereafter, the statement of the child witness (PW-3) Pallavi Kharwa (Exhibit-31) was recorded, who is the eye-witness to the incident as per prosecution case. After the body was found on 16th January, 2002, the same was subjected to post-mortem, report of which is at Exhibit-29. To support this case, the prosecution examined in all nine witnesses including the complainant, API Patil (PW-1), the alleged eye-witness Pallavi Kharwa (PW-3), Nirmala Chiku Kharwa (PW-4), mother of the deceased Mohan, Shri. Rakesh Singh (PW-8) Special Executive Officer who recorded statement of Pallavi (PW-3), and P.I. Dhanwade (PW-9) the Investigating Officer. The statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the Court, after putting the questions and material evidence to the Accused. Upon conclusion of the trial, the accused were found guilty of the offence charged and were sentenced accordingly.

5. To sum up the case of the prosecution, the suspects, the deceased and his family members had gone to Girgaon Chowpati in the afternoon of 14th January, 2002, where Mohan is supposed to have consumed liquor with accused and others. Even his coming to Chowpati was objected to by his mother Nirmala, PW-4. Later on, he went to urinate and informed his mother that he will come back. The role attributed to the respective accused is that Geeta, Gauri and Santosh followed deceased Mohan and pushed him. The deceased fell down. Accused Santosh put a rope around the neck of the deceased and Geeta pressed mouth and Gauri caught hold of legs of the deceased and they pressed neck of the deceased in the sea water and drowned him till death, whereafter his body was drowned into the deep sea water.

6. The learned Trial Court, while recording reasons for conviction of the accused, noticed that the accused admitted the panchanama Exhibit-27 dated 16th January, 2002, post-mortem report Exhibit-29 and the death certificate Exhibit-28, in terms of Section 294 of the Code of Criminal Procedure. The cause of death shown in the certificate was Asphyxia due to drowning. The Court further heavily relied upon the statements of PW-4 Nirmala, mother of deceased Mohan and PW-3 Pallavi, niece of the deceased, who was 9 or 10 years old girl at the time of the incident. Her statement was recorded by the Special Executive Officer on 20th February, 2002. According to Pallavi, PW-3, she saw her uncle Mohan, the deceased, going for passing urine. He was followed by Geeta, Gauri and Santosh. Accused Santosh gave push to her uncle who fell in the sea water and Gauri pushed mouth of deceased Mohan in the water, and Geeta held legs of the deceased, which ultimately caused death of Mohan. The child witness thought that all the three accused were enjoying, joking and jesting. After the incident she started playing and forgot to tell about it to her grandmother. While referring to the evidence, the learned Trial Court made the following observations which have considerable bearing on the case of the prosecution :

"25. .......... I am of the opinion that the witness P.W. No.4 have signed on the reverse of her complaint and there is mention of annexure in the application itself. I am of the opinion that the non signing of the annexures do not go to the root of case. Non-placing of the documents before the Superiors at the most can be termed as procedural lapse or irregularity and cannot be held as fatal to the prosecution case.

26. XX XX XX XX

27. .......... P.W. No.4 Nirmala further deposed that Mohan came there and threatened Geeta to leave the said place immediately and that Geeta assaulted Mohan by her hands on his thigh and took a pinch and that Mohan got wild and questioned her as to why she was teasing him all the time. ......................

28. .......... The evidence is complete cogent which is incompatible with any other hypothesis except that of the guilt of the accused. The circumstances brought on record have conclusive tendency. I have discussed few circumstances in forgoing paragraph and I am of the opinion that the conduct of Geeta and Gauri on the fateful night of the incident has been established beyond reasonable doubt ............................................................................

29. The next circumstances which is reflecting from testimony of P.W. No.4 is that P.W. No.4 Nirmala and others started searching Mohan, they searched him for about one hour and then saw Geeta. She came towards them laughing. P.W. No.4 categorically stated that Geeta was laughing loudly. She questioned her as to why she was laughing to which Geeta answered that she was laughing because they were searching Mohan and that they could not locate Mohan. This circumstance points finger at the conduct of Geeta. .................... P.W. No.4 deposed in her ocular testimony that she requested Geeta to help her to search Mohan and that Geeta took them towards some building opposite chowpaty. ..........................................................................

30. I must observe that the testimony of P.W. No.3 Pallavi sufficiently corroborated by P.W. No.4 Nirmala in establishing guilt of the accused. P.W. No.4 deposed that she had searched Mohan up to 1.00 pm. She again came to chowpaty and waited up to 12.30. However they could not see Mohan......"

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"35. ..... P.W. No.4 lent external corroboration to the testimony of P.W. No.3 Pallavi Kharwa. I must record that I found child witness Pallavi as competent. ......

36. ..... In the instant case child witness Pallavi had disclosed the incidents to her grandmother P.W. No.4 Nirmala, after a month and the prosecution has brought on record that accused No.1 Geeta threatened child to kill her if she tells the incidents to anybody else. From these set of facts the authority will not be applicable to the instant case."

7. Thus, it is evident that treating PWs.3 and 4 as the eye-witnesses coupled with the circumstance that PW-4 had searched for her deceased son while Geeta had come towards them laughing was the conclusive circumstances and there was complete cogent evidence which is compatible with only hypothesis that of the guilt of the accused, the learned Trial Court had proceeded to convict the accused.

8. It is a settled principle of law that the prosecution should establish its case beyond reasonable doubt and should prove the chain of events which undoubtedly leads towards only one conclusion that is the guilt of the accused. While the Court has to appreciate the evidence led by the prosecution and defence, if any, the circumstances alleged by the prosecution should be fully established. The presumption that accused is not guilty unless proved and the burden of proof to establish guilt of accused is on the prosecution, are principles of law which have remained unchanged in the criminal jurisprudence since times immorable.

9. In the case of Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh, (AIR 1952 SC 343), the Supreme Court stated that in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. This principle has remained undisturbed and even in a very recent judgment in the case of State of Goa Vs. Sanjay Thakran & Anr., (2007)3 SCC 755 : [2007 ALL SCR 1861], the Supreme Court reiterated this principle and held as under :

"13. The prosecution case is based on the circumstantial evidence and it is a well settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests :

(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.

(See State of U.P. Vs. Satish, (2005)3 SCC 114; Padala Veera Reddy Vs. State of A.P., 1989 Supp (2) SCC 706; Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC 116; Gambhir Vs. State of Maharashtra, (1982)2 SCC 351 (para 9) and Hanumant Govind Nargundkar Vs. State of M.P., AIR 1952 SC 343)."

10. Principles governing administration of criminal justice are stated by the Supreme Court in Harijana Thirupala & Ors. Vs. Public Prosecutor, High Court of A.P., Hyderabad, (2002)6 SCC 470, observing that :

"11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in evidence case depends upon the facts of each case."

11. The Court has to examine and keep in mind that the accused "must be" and not merely "may be" guilty of an offence. The mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622).

12. These are some stated principles which have stood the test of time without variations and are applicable to the facts and circumstances of given case. It is necessary for the prosecution to prove the chain of events which leads to guilt of the accused. This chain of events must be proved by direct and substantive evidence and some times may also be permitted to be proved by the circumstantial evidence but in that event the circumstances forming part of chain must be established fully and must be compatible to the story of the prosecution.

13. The first and foremost event in a criminal trial is registration of the FIR. In the present case, the prosecution story began with the incident of 14th January, 2002 when the accused, the deceased and other witnesses are stated to have visited Girgaon Chowpaty. There are contradictory versions as to at which point of time and how Mohan, the deceased, met the accused persons ? Did they come together or came separately ? who saw them following the deceased and then committing the crime in question ? All these versions need proper consideration. But whatever be the versions, the conduct of both the eye witnesses and for that matter persons accompanying them are very unnatural. It is the case of prosecution that the witness PW-3 and PW-4 Nirmala went to Girgaon Chowpaty at 1.00 p.m. and returned therefrom late in the night. Obviously, they spent considerable time at Girgaon Chowpaty. Once Mohan was found missing, in the backdrop of the statement of PWs.3 and 4, it is not only improbable but is opposed to any normal human conduct that they did not get in touch with the police and intimate to them about missing or drowning of Mohan. Be that as it may, they claim to have come back home late in the night and even in the morning of 15th January, 2002, neither PW-4 who is eldest member in the family and with whom PW-3 is residing for years together nor PW-3 Pallavi indicate the story to the police and even on 16th January, 2002 when PW-4 Nirmala lodged a missing report vide Exhibit 12-A which was recorded by PW-1 Maruti Patil details were not stated. This missing report obviously must have been lodged by PW-4 after proper thinking and examining the events that admittedly happened in her presence at Girgaon Chowpaty. The lodging of a missing report thus was a result of proper thinking and is not a report which was instantaneously lodged in a hurry. After lodging the missing report, there is no explanation on record as to what was done by PWs.3 and 4 or their relations in that behalf. It appears that they were contended with the report of missing despite the conduct of accused Geeta, Gauri and Santosh. The matter remains unpursued and unaltered even after the body of the deceased was recovered from the sea near Nariman Point on 16th January, 2002. Though the body was recovered on 16th January, 2002, vide Panchanama Exhibit-27, PW-4 Nirmala claims that she came to know about the recovery of the body of her son on 18th January, 2002, when the body of the deceased was handed over to her after the post-mortem. Despite this, nothing happened till 30th January, 2002 when PW-4 files an application Exhibit-19 which is again received by the same witness PW-1 Maruti Patil who had recorded the missing report. In that application she names six persons including accused Geeta and Gauri but does not mention the name of accused Santosh. No role was attributed in that application to Santosh, though other four suspects viz. Dinesh Suma Wagheri, Ruksana Sona Wagheri were specifically named in the report. It does not stand to reason why she does not name Santosh in this report when admittedly she had seen him at the place of occurrence.

14. The matter is investigated and looked into, still no FIR is registered. It is only on 15th February, 2002 when the FIR is registered and the accused are arrested. Strangely, the Investigating Officer himself registered an FIR, Exhibit 15 mentioning suspicion indicated in the application Exhibit-19 by referring to a story of killing of Mohan but again with some variance. It was required from the prosecution to explain why there was such an inordinate delay in registering the FIR when according to the prosecution, the incident occurred in the presence of two eye-witnesses i.e. PWs.3 and 4. The FIR is primarily registered after the so called interrogation of suspects/accused but the FIR still does not refer to statement of PW-3 Pallavi. None of the family members came forward to lodge a report except a missing report dated 16th January, 2002, and the application Exhibit-19 even after the death under suspicion circumstances. There is no reasonable cause which even stand true to the probabilities of normal human conduct to justify such inordinate delay in lodging of the FIR i.e. From 14th January, 2002 to 15th February, 2002.

15. Normally the delay in lodging the FIR by itself may not be sufficient to bring the case of the prosecution under suspicion. Mere delay in institution of an FIR may not prove fatal to the case of the prosecution if there is some kind of reasonable explanation in registration of FIR after such an inordinate delay. But there no such explanation coming on record to justify delay in lodging FIR.

16. In the case of Apren Joseph alias Current Kunjukunju & Ors. Vs. The State of Kerala, AIR 1973 SC 1, the Supreme Court stated the principle that it is always better that the FIR is recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the FIR therefore inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. Effect of delay in lodging the FIR would always depend on the facts and circumstance of a given case.

17. Following the established principles and approval, the Supreme Court in Ganesh Bhavan Patel & Anr. Vs. State of Maharashtra, AIR 1979 SC 135, while examining the question of delay in lodging the FIR and delay in recording statements of the parties and its effect on the prosecution case set aside the conviction and acquitted the accused observing with emphasis that the delay may assume such a character as to affect the prosecution case if there are concomitant circumstances to suggest the investigator was deliberately marking time with a view to decide about the shape to be given to a case and eye witnesses to be introduced, the Court held as under :

"18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. on the 30th, of Constable Shinde at 4 a.m. and thereafter of Welji, Kanjibhai (P.W.7) Santukbai (P.W.6), Pramila, and Kuvarbai, between 8 a.m. and 1 p.m..

xxxxx xxxxx xxxxx

27. The most important of these circumstances is the conduct of S.I. Patil in not recording that "first information" allegedly given by Shinde and Ravji on that occasion. S.I. Patil admitted that he did not record the information given to him by Shinde and Ravji about the occurrence, on that occasion. The information, which he then received, was about the commission of a cognizable offence. It was, therefore, the duty of S.I. Patil (who was in-charge of the Police Station) to record it in accordance with the provisions of S.154 of Cr.P.C.; but he did not do so. The explanation given by him was that it was the practice of this Police Station not to record such information until a message was received from the Hospital with regard to the condition of the injured person. This explanation of Patil's failure to do what was his statutory duty, was mere moonshine and was rightly repelled by the learned trial Judge.

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29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R' and further delay in recording the statement of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."

18. The Supreme Court in State of M.P. Vs. Kriparam, (2003)12 SCC 675 took the view that inordinate and unexplained delay in lodging the FIR is fatal to the case of the prosecution particularly when the facts and circumstances of the case demonstrate such an inference.

19. In State of Rajasthan Vs. Bhanwar Sing, (2004)13 SCC 147, the Supreme Court observed that delay in lodging FIR corrodes the credibility of the prosecution. It was held :

"6. We find that the High Court has carefully analysed the factual position. Though, individually some of the circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been established. The presence of PWs.3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW-5, the widow that she sent for these persons to go and find the body of her husband. It is quite unnatural that PWs.3, 4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against acquittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed."

20. In Dilawar Singh Vs. State of Delhi, (2007)12 SCC 641 : [2007 ALL SCR 2430] setting aside conviction under Section 397 of Indian Penal Code by holding delay in FIR as one of the grounds, the Supreme Court observed :

21. We may also notice here that in the present case there are three informations given to the police authorities which are diametrically opposite to the earlier informations and interestingly all these informations have been given after occurrence which is alleged to have been witnessed particularly by PWs.3 and 4. The information of missing of the deceased was given two days after the date of occurrence i.e. on 16th January, 2002. The application raising suspicious about death, Exhibit-19 is given on 30th January, 2002 while the Investigating Officer wrote and recorded the FIR on his own on 15th February, 2002. It is some what contrary to the normal and expected norms of human behaviour. It appears that from time to time different persons were involved in the investigation who are alleged to have committed the crime. What were the circumstances for lodging a missing report, what was necessity for lodging the application on 30th January, 2002 naming six persons as suspects and what was the necessity again to file fresh FIR on 15th February, 2002 involving the accused particularly the accused No.3 is an aspect which has not been explained by both the Investigating Officers i.e. Maruti Patil (PW-1) and Dhanawade (PW-9).

22. The Supreme Court in the case of T. T. Antony Vs. State of Kerala & Ors., AIR 2001 SC 2637 held that in terms of Sections 154 and 162 of the Code of Criminal Procedure, there can be no second FIR in respect of the same incident or occurrence or of the same cognizable offence. If the application Exhibit-19 is put to its weightage it was expected of the Investigating Officer to have straightway registered an FIR as by that time the dead body had already been recovered. The PW-4 had given her version naming suspects including Geeta and Gauri to have killed her son. But the Investigating Officer waited for another 15 days before even registering the case. In view of this discussion and particularly the attendant circumstances which ultimately lead to registration of an FIR on 15th February, 2002, we are of the considered view that there has been inordinate and unexplained delay in lodging the FIR and the earlier two informations given on 16th January, 2002 and 30th January, 2002 vide Exhibit 12 and Exhibit-19 do cause further suspicion that the Investigating Officer has not conducted investigation of the case in a proper manner and perspective. Delay in registering the FIR thus is one of the important aspects of the present case which certainly would weigh with the Court while examining the case of the prosecution in establishing the guilt of the accused.

23. The next aspect of the case of the prosecution which needs to be examined by this Court is relatable to different versions and contradictions between the statements of the prosecution witnesses. PW-3, the child witness has to be given some margin but her conduct is hardly that of a normal child. Pallavi (PW-3) is the only witness produced by the prosecution to show as the eye-witness to the occurrence and as a witness to the crime. According to Pallavi (PW-3), Geeta, Gauri and Santosh were present at Girgaon Chowpaty and the children were flying kites. The accused took her uncle Mohan, the deceased, towards western side. Her mother Geeta, Gauri and Santosh were putting rope around the neck of her uncle, deceased Mohan. PW-3 Pallavi further states that she thought they were enjoying and she again started playing with the children and she forgot to tell about the incident to her grandmother and then she stated that she saw her uncle proceeding for passing urine. Her uncle was followed by Gauri, Geeta and Santosh and then Santosh gave push to her uncle and he fell in the sea water. Then her aunt Gauri pushed mouth of the deceased in the water, Geeta held legs of her uncle Mohan. She thought that they were playing, joking and jesting. They all started searching Mohan uncle as he was not traced and Geeta was laughing at them. Geeta was not permitting them to search Mohan. Geeta was taking them to another place and threatened PW-3 if she tells this fact to anybody she would kill her and further stated that her uncle had gone and would never come back. PW-3 therefore did not disclose this fact to anybody and then they boarded a taxi and returned home.

24. PW-4, mother of the deceased Mohan, states that she had scolded her son as to why he came to chowpaty as she had advised him to the contrary. When they were taking their food, Geeta came there and told PW-4 that she was searching them since long time and why they arrived late there. PW-4 stated that Mohan came there and threatened Geeta to leave the place immediately. Geeta assaulted Mohan with hand on his thigh and took a pinch. Mohan got wild and questioned her as to why she was teasing him all the time. Then PW-4 Nirmala questioned Geeta as to why she was misbehaving. Mohan went away to fly kite. Geeta also went away. She had seen Gauri then. As she could not see Mohan, she started searching Mohan and when she met Geeta, she was laughing loudly at PW-4. After searching Mohan till 11.00 p.m. they took light food and waited upto 12.30 a.m. They hired a taxi and then went home and searching for deceased Mohan was of no help.

25. Another version that has been recorded in the FIR by the Investigating Officer (PW-1) Maruti Patil is without any reference to the statement of Pallavi (PW-3). The FIR which is practically the foundation of the case is filed by the Investigating Officer (PW-1) Maruti Patil, material part of the FIR reads :

"On interrogating them Geeta Keshav Shankar and Gauri Manga Wagheri told that on 14/2/02 in the evening at 20.30 hrs. behind Birla Krida Kendra, Chawpati, Mumbai, with the help of person named Santosh Kanti Kharwa, they have killed Mohan Chiku Kharwa while he was under influence of liquor, firstly by strangulating him with rope and then by drowning him in the sea water."

Thus according to the FIR, which is stated to be registered on the basis of interrogation of Geeta and Gauri, Mohan was drunk (was under the influence of liquor) and he was killed by strangulation using rope. Then his body was put into the sea water by Gauri, Geeta and Santosh together. In other words, there is not only variation in the statement of these three witnesses but it is a case of complete contradiction. If statement of Pallavi (PW-3) is to be believed then there were two different instances, one of strangulation of Mohan by the three persons when she thought they were playing and enjoying and the other when the deceased walked to the western side when his mouth was pushed and put into the sea water, while one of the accused held his legs. If Mohan was already strangulated to death and had died then there cannot be a possibility of his walking to the sea and then being pushed and if he had not been killed by strangulation as claimed by the Investigating Officer then there was no occasion for the deceased to be with the accused as he must have sensed obvious danger to his life and especially when it occurred at a place which was crowded being Girgaon Chowpaty, the sea shore. According to PW-3 herself, there were people who were swimming in the sea even at 11.00 in the night. PW-3 Pallavi is totally silent on the point whether deceased was under the influence of liquor and with whom he consumed liquor.

26. According to PW-4, there was enmity of Geeta and Gauri with their family and there was a fight of a kind between Gauri and Mohan as she had pinch him on his thigh. Mohan told her to go away and then he went to fly kite. If this statement of PW-4 is to be believed then version of the Investigating Officer as well as PW-3 Pallavi can hardly be trusted. The only common feature in all these evidence is that Geeta and Gauri were laughing loudly. It again does not appear to be a plausible and probable human conduct of the persons who had killed somebody and when they knew that PW-3 had seen them killing Mohan, the deceased. In her cross-examination, PW-3 has stated another version that Mohan went for passing urine and they could not see the persons who were swimming and could not see Mohan, Geeta and Gauri when they were taking food at a far distance.

27. In light of this documentary and oral evidence, let us examine the case of the prosecution in its entirety. There is no witness produced by the prosecution though there were admittedly large number of persons swimming in the sea at all times when the accused as well as deceased and their family members are stated to be present on the place of occurrence i.e. Girgaon Chowpaty. It is also somewhat difficult to believe that the ladies who are in inimical terms towards family of deceased and who had been divorced by the deceased because of bad character, would go around with the deceased drinking or flying kite and for that matter would go near the water when it is stated by PW-4 that the deceased did not know how to swim.

28. Another very vital but important aspect of the case of the prosecution which suffers from basic infirmities is exact point of time when PW-3 Pallavi told her grandmother about the occurrence. She ought to have told about the incident to her grand-mother (PW-4) especially when she was living with her grandmother since many years and must have been attached to her grandmother. Despite the fact that it related to death of her uncle, neither on 14th January, 2002, nor on 16th January, 2002, or on 30th January, 2002 and finally even on 15th February, 2002 when a formal FIR is registered, she tell the incident to her grandmother or any other relative. What might have happened between 15th February, 2002 to 20th February, 2002 that persuaded her to make her statement before Special Executive Magistrate is an aspect which completely casts shadow of doubt on the case of the prosecution. The long period between 16th January, 2002 to 20th February, 2002 is a sufficient period during which there was opportunity of tutoring. It is abnormal behaviour of the child that she would play at the sea-shore, and enjoy with children free of any fear, restrictions or threat even after watching incident of strangulation and drowning and to sit there till 11.00 hours in the night despite the fact that her uncle, deceased Mohan did not return and still she did not tell anything to anybody about the incident. There cannot be any threat to her from Geeta when Geeta was not around her. PW-3 Pallavi at the time of her examination in Court was 11 or 12 years old and thus was not a child of tender age. She has answered the court's questions properly and thus her examination-in-chief as well as cross-examination has to be viewed by the Court as that of a normal witness. In her entire statement in the examination-in-chief she has not uttered a single word as to why she did not tell her grand-mother about the incident even on 16th January, 2002 and for that matter on 30th January, 2002 or on 15th February, 2002. The Court cannot overlook the seriousness of crime but it was required of the prosecution to prove chain of events in a proper manner with cogent and definite evidence providing link from the date of occurrence. satisfying all ingredients proving the guilt of the accused before the Court of Law.

29. We are also aware of the fact that the statement of the child witness has to be examined by the Court with greater caution. Every contradiction and variation in the statement of the child witness may not be disadvantageous to the case of the prosecution. Reliability of statement of a child witness is not easily doubted by the Court. In the case of Rameshwar s/o. Kalyan Singh Vs. The State of Rajasthan [AIR (39) 1952 SC 54], the Supreme Court stated the principle that even the omissions for instance of not administering the oath by itself may not be destructive of the credibility of the witness. It is a factor which may affect the credibility but not competency of the witness to make the statement. The statement of the child witness also needs corroboration as corroboration is essential before there could be a conviction but that the necessity of corroboration, is a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge.

30. Similarly in the case of Nirmal Kumar Vs. State of Uttar Pradesh, 1993 Supp. (1) SCC 510, the Court reiterated the principle that the evidence of a child witness should be examined cautiously and it is always more prudent to find some corroboration unless the circumstances of the case compel it otherwise. Even in the case of Suryanarayana Vs. State of Karnataka, JT 2001(1) SC 230, where a child witness of four year old girl was the witness to the occurrence and her name appeared in the FIR as well as other circumstances corroborated her statement, the Court has held that there was no reason to doubt the veracity of her statement.

31. In the case of Panchhi & Ors. Vs. State of U.P., (1998)7 SCC 177 : [1998(4) ALL MR 725 (S.C.)], the Court held as under:

"11. Shri. R. K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW-1, he being a child witness. According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide Prakash Vs. State of M.P., (1992)4 SCC 225, Baby Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667; Raja Ram Yadav Vs. State of Bihar, (1996)9 SCC 287 and Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997)5 SCC 341."

32. The Supreme Court in the case of Bhagwan Singh & Ors. Vs. State of M.P., (2003)3 SCC 21 : [2003 ALL MR (Cri) 564 (S.C.)], held as under :

"19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony."

33. We have already discussed in some details the statement of PW-3 which is circumvented by suspicion and incorrectness. Her statement is hardly corroborated. Even the report of the investigating officer that refers to strangulation and drowning simultaneously while according PW-3 Pallavi, first there was strangulation then Mohan went for urination towards sea and there was incident of pushing him in sea water while she was playing. Contradictions in the statement of PW-3 and the entire case of the prosecution are material one. There is no iota of evidence to show and justify the childs conduct right from the evening of 14th January, 2002 to 20th February, 2002. No where in any of the documents i.e. Daily diary entry of 16th January, 2002, Application Exhibit 19 made by PW-4 on 30th January, 2002, FIR registered on 15th February, 2002 the name of PW-3 Pallavi is mentioned to be the eye-witness. This abnormal conduct of the child and PW-4 put together compels this Court not to entirely rely upon the statement of the child witness. The possibility of her being tutored cannot be ruled out but in fact such tutoring is evidenced by the fact that on that very day of incident she prefers to play around rather than informing her relatives about the commission of crime that she had allegedly seen with her own eyes. If they were having food at the relevant point of time and they could not see as stated by PW-3 herself as to what was happening at a distance where the people were swimming and where Geeta, Gauri and Mohan have stated to have gone, PW-3 Pallavi could not be the eye-witness to the occurrence and her sole statement could not be the basis for holding the accused guilty of killing deceased Mohan.

Has the prosecution been able to prove the chain of events resulting in the death of the deceased Mohan and effect of recovery and the post-mortem report on the case of prosecution.

34. PW-1 Maruti Patil is the police officer who had made daily diary entry as well as has received the application Exhibit-19 on 30th January, 2002. According to him, PW-4 had lodged the missing report which is at Exhibit-12. Then on 30th January, 2002, PW-4 had informed him that her son Mohan died due to drowning and his dead body was found by the Cuff Parade Police Station and her complaint was recorded by that Police Station on 16th January, 2002. The complaint dated 16th January, 2002 recorded by Cuff Parade police station is neither produced nor proved by the prosecution. The only report of 16th January, 2002 is the missing report of Mohan lodged by PW-4 in the Gamdevi Police Station. He also refers to names of the six suspects which were recorded in the complaint marked Exhibit-19 dated 30th January, 2002. Maruti Patil (PW1), the Police Officer then called the accused named in the application marked Exhibit-19 for investigation. After 7th February, 2002 and on 15th February, 2002 he called the accused mentioned in the application, interrogated them and then complicity of Geeta and Gauri and Santosh was noticed and thereafter he recorded the FIR under Section 302, read with Section 34 of Indian Penal Code, Exhibit-15. It is the version of this officer that on 18th January, 2002 the dead body of Mohan was handed over to PW-4. Though the investigation is stated to be under the control of PW-1 till 15th February, 2002 he did not make any mention about the recovery of the dead body and post-mortem report prepared on 17th February, 2002 (Exhibit-29) and he hardly makes any effort to investigate the matter. He allegedly calls the accused persons and the whole story is prepared before registration of the FIR which is recorded by him vide Exhibit-15 on 15th February, 2002.

35. PW-9 claims to be the Investigating Officer, (P.I. of D. B. Marg Police Station) and according to him papers were brought to him after registration of FIR Exhibit-15. He also interrogated the accused. Vide discovery panchanama Exhibit-26 at the instance of accused no.3 Santosh, a nylon rope was recovered. The rope was purchased from one Santosh Yadav. According to PW-9, he received post-mortem report during the investigation then he filed charge-sheet in the Court.

36. As is evident from the above narrated facts and discussion of evidence, the entire case of the prosecution hinges upon the statements of PW-3 and PW-4, post-mortem report Exhibit-29 and Exhibit-26 the recovery, Panchanama. As far as PWs.3 and 4 are concerned, we have already discussed in great detail the abnormal conduct of these witnesses and the contradictions in their evidence. Both the Investigating Officers have conducted the investigation in a most casual and to say the least, irresponsible manner. No investigation is done on the basis of missing report lodged on 16th January, 2002. Even till the application dated 30th January, 2002 was filed no steps were taken and it is only on 7th February, 2002 that PW-1 calls the accused and prepares a story which is to be recorded in the FIR. Still at that juncture name of PW-3 or her being an eye-witness to the incident does not appear on any of the police records investigation file. Thereafter, till 15th February, 2002, nothing is done though the facts alleged have been revealed earlier.

37. As far as post-mortem report Exhibit-29 is concerned, it has to be noted that initially even the original post-mortem report was not produced before the Court along with the police file. It is somewhat strange that the medical officer who conducted the post-mortem was also not called before the Court as a witness much less nobody with the record of the hospital was produced who could one way or the other prove the contents of the post-mortem report. The post-mortem report has been exhibited as Exhibit-29 probably on the basis that the counsel who was provided to the accused by legal aid, firstly recorded following note, which is undated "I am not admitting any of the documents at this stage". Even counsel appearing for accused No.2 and 3 also wrote "(documents) not admitted at this stage". This has so been recorded on Exhibit-6. However, on 16th August, 2004 the same counsel have written "inquest panchanama dated 16th January, 2002 and cause of death dated 16th January, 2002 post-mortem notes are admitted". This obviously mean that counsel for accused made that statement in furtherance to the Court's query as contemplated under Section 294 of the Code of Criminal Procedure Code and at least it has so been noticed in the judgment of the trial Court. What exactly needs to be examined is whether the contents of those documents have been proved in accordance with law without examining the doctor who conducted post-mortem or any of the witnesses acquainted with the relevant facts to be proved. We are not going into the merits or otherwise of the procedure adopted by the trial Court while proving post-mortem report. In view of the subsequent notings by advocates representing accused, the Court will have to proceed on the basis that the panchanama was admitted and so was the case of the post-mortem notes. In other words, the post-mortem report itself was not proved by any witness. The post-mortem report which is alleged to have been prepared on 17th January, 2002 by RMO of the G.T. Hospital states that the body was brought to the hospital on 16th January, 2002 at 8.15 p.m. while the body was alleged to have been recovered vide Panchanama Exhibit-27. The photo copy of the post-mortem report was exhibited as Exhibit-29. It shows the name as "unknown". Thereafter, it has been recorded as Mohan Chiku Kharwa. There were no injuries on the body of the deceased and the body was highly decomposed. The stomach of the deceased is reported to contain fluid about 500 ml. and probable cause of death is recorded as under :

"Probable cause of death is Asphyxia may be due to drowning."

38. The post-mortem report thus hardly supports the case of the prosecution in proving that death was homicidal. Allegation that first the deceased was strangulated by a nylon rope (Art.1) and thereafter the three accused had pushed him into water, caught hold his legs and pushed his head into the sea water, is not supported by any medical evidence. Non examination of doctor has caused serious prejudice to the case of prosecution. Merely because admission was given by counsel appearing for the accused at later stage does not absolve the prosecution of proving its case beyond reasonable doubt.

39. The post-mortem notes, in view of the consent and admission recorded by the learned Counsel could be read in evidence but still the Court would have to examine its evidentiary value and impact on the case of the prosecution. In the case of Laxman Vs. State of Karnataka, 1997(1) Crimes 388 (Kant (DB)), where the doctor who conducted the post-mortem report was not available, another doctor who was acquainted with the hand-writing and signature of the author of the post-mortem report was examined. But the court took the view that the provisions of Section 294 could not be applied to the facts of the case. Even if a post-mortem report has been exhibited the report itself cannot be used as substantive piece of evidence until and unless the doctor concerned has been examined in Court. This view was taken by the Allahabad High Court in Jagdeo Singh Vs. State, 1979 Cr.L.J. 236. The Punjab and Haryana High Court even took the view that where the medical officer is not examined and the post-mortem report is exhibited on 'no objection' of the Counsel for the accused, that could not give post-mortem report the evidentiary value of a proved document regarding the cause of death, because the information regarding sufficiency or otherwise of the injury to cause death has to be deposed by the medical officer. (Pal Singh Vs. State of Punjab, 1995 Cr.L.J. 3596).

40. The Allahabad High Court had also taken a view that even if genuineness of the contents of the post-mortem report has not been disputed and is read as substantive evidence, it may still be necessary to examine the doctor concerned to clarify his opinion in the reports or to obtain his opinion on medical questions (Sadiq Vs. State of U.P., 1981 Cr.L.J. 379). (As referred in Basus Code of Criminal Procedure).

41. In Vijender Vs. State of Delhi, (1997)6 SCC 171, the Supreme Court was concerned with the case where the post-mortem report indicating homicidal death was produced by the Clerk of hospital. The Supreme Court held as under :

"18. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. The only witness examined by the prosecution in this regard was Satish Kumar (PW-21), a record clerk of the District Hospital, Ghaziabad. His testimony reads as follows :

"I have brought the post-mortem report of an unknown male sent by PS Loni, Ghaziabad on 28.6.1992. Post-mortem was conducted on 28.6.1992 by Dr. U. C. Gupta. The date of sending is not known to me and is not given on record. Dr. U. C. Gupta was transferred from District Hospital earlier. He has been now transferred back. I identify his signature and handwriting from the post-mortem report. The copy of P/M report is Ext.21/A (objected to). I have seen Dr. U. C. Gupta writing and signing. Cross-examination Original copy is not on record. The original copy is sent to SSP, Ghaziabad. Second copy is sent to PS and third copy is maintained in the record."

19. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U. C. Gupta, who held the post-mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW-21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The order reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post-mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also."

42. In light of these above principles, we are of the view that the prosecution has not been able to establish by expert evidence the story of strangulation and then taking the deceased to sea water beyond all reasonable doubt. The post-mortem report does not reflect any injury on neck of the deceased. As a normal consequence of strangulation with a rope would leave some kind of injury internal or external to the neck muscle it would have been available and noticed even if the body was decomposed. We have already noticed that the story of prosecution is that the neck of the deceased was strangulated by tying rope around the neck of the deceased and therefore it is unexplainable as to how he would walk to the water with three accused as for the drowning of a person into water one would have to walk to some distance into the sea and in a place where large number of people were swimming and walking on the beach i.e. Girgaon Chowpaty, people could have noticed dragging of body of deceased upto deep sea.

43. Coming to the recovery of nylon rope from accused No.3-Santosh, he was taken into custody on 15th February, 2002 and after one week in the police custody, the rope (Article 1) was recovered by discovery panchanama Exhibit-26. This circumstances does not fit into the case of the prosecution at all inasmuch as it was prior to 15th February, 2002 the date on which the FIR was registered that PW-1 had called Accused Gauri, Geeta and Santosh and infact it is upon the information and facts given by them that the FIR is stated to have been registered. Even accused Santosh, on 15th February, 2002, was also arrested and he also stated to have comfortably told the Investigating Officer about the commission of crime. If the prosecution case proceeds on this hypothesis then it can hardly be believed that for eight days accused No.3 Santosh will not tell story about hiding the rope in his house and getting it recovered. Undue and unexplained delay in recovery of the rope when the accused was in custody of the police does raise doubt about genuineness of the recovery of rope. Furthermore, PW-5 Santosh Yadav from whom the rope is alleged to have been purchased by Gauri was produced as the witness but he turned hostile and did not support the case of the prosecution.

44. The principle in relation to discovery is, recovery of an object cannot be equated with discovery of a fact. The Privy Council explained this concept as early as in AIR 1947 Privy Council 67 (Pulukuri Kottaya & Ors. Vs. Emperor) where it held as under :

"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police office must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the fact discovered is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a decoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

45. This principle was consistently approved by the Supreme Court and was reiterated with the approval in the case of Pandurang Kalu Patil & Anr. Vs. State of Maharashtra, (2002)2 SCC 490 : [2002 ALL MR (Cri) 1205 (S.C.)]. The Supreme Court, while stating that the decision of the privy council was binding on the High Court unless there is judgment of the Supreme Court to the contrary called the above principle as "locus classicus" and held as under :

"4. The legal proposition adumbrated in Pulukuri Kottaya has been considered and tested by this Court, time and again, and on all such occasions this Court has only reiterated the said principle with approval (vide Jaffar Hussain Dastagir Vs. State of Maharashtra, (1969)2 SCC 872; K. Chinnaswamy Reddy Vs. State of A.P., (AIR 1962 SC 1788 : (1963)1 Cri.L.J. 8); Earabhadrappa Vs. State of Karnataka, (1983)2 SCC 330 : 1983 SCC (Cri) 447; Ranbir Yadav Vs. State of Bihar, (1995)4 SCC 392 : 1995 SCC (Cri) 728; Shamshul Kanwar Vs. State of U.P., (1995)4 SCC 430 : 1995 SCC (Cri) 753 and State of Rajasthan Vs. Bhup Singh, (1997)10 SCC 675 : 1997 SCC (Cri) 1032, SCC para 15 and in the last cited decision this Court, while again reaffirming the ratio in Pulukuri Kottaya has said thus : (SCC p.680)

"The ratio therein (Kottaya 1) has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth."

5. Even the recent decision in State of Maharashtra Vs. Damu, (2000)6 SCC 269 : 2000 SCC (Cri) 1088 this Court followed Pulukuri Kottaya with approval. The fallacy committed by the Division Bench as per the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it was enacted as a proviso to the two preceding sections (see Sections 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to anyone while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. Nonetheless, the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulukuri Kottaya that (AIR p.70, para 10) "it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced". The following sentence of the learned Law Lord in the said decision, though terse, is eloquent in conveying the message highlighting the pith of the ratio : (AIR p.70, para 10)

"Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."

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7. It is unfortunate that learned Judges of the Division Bench of the Bombay High Court, in the impugned judgment, have chosen to set a locus classicus at nought without reference to any of the catena of judicial pronouncements rendered by High Courts as well as the Apex Court pertaining to the ratio in that decision. Nonetheless, the guidelines laid down by the Division Bench of the impugned judgment did not call for any interference as they related to the manner of recording the evidence in the trial court. However, we feel that Guideline F (mentioned in the impugned judgment) seems to be unnecessary and would only cause additional workload for the trial courts."

46. In a more recent judgment in the case of Amitsingh Bhikamsingh Thakur Vs. State of Maharashtra, (2007)2 SCC 310 : [2007 ALL MR (Cri) 1393 (S.C.)], the Supreme Court defined and explained the scope of Section 27 of the Evidence Act and held as under :

"16. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya Vs. King Emperor [(1946-47) 74 1A 65 : AIR 1947 PC 67 : 48 Cri.L.J. 533] in the following words, which have become locus classicus : (1A p.77)

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19. The various requirements of the section can be summed up as follows :

(1) The fact of which evidence is sought to be given must relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

20. As observed in Pulukuri Kotayya case it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy Vs. State of A.P., AIR 1962 SC 1788 : (1963)1 Cri.L.J. 8."

47. The accused was in police custody when he gave information and to admit this information as evidence basic ingredients of Section 27 of the Evidence Act have to be satisfied especially to establish the chain of events put up by the prosecution before the Court to bring home the guilt of the accused. Furthermore, such discovery should appear to be probable in view of the circumstances in which information is tendered.

48. For a recovery to be truly within the scope and limitation of Section 27 of the Evidence Act, information should distinctly relate to the facts discovered. A statement even by way of confession made in a police custody which distinctly relate to the fact discovered is admissible in evidence against the accused. The Supreme Court in the case of Bodh Raj alias Bodha & Ors. Vs. State of Jammu and Kashmir, AIR 2002 SC 3164 held as under :

"The words "so much of such information as relates to distinctly to the fact thereby discovered" are very important and whole force of Section 27 concentrates on them. Clearly the extent of the information must depend on the exact nature of fact discovered to which such information is required to relate. The ban as imposed by the preceding section was presumably inspired by the fear of legislature that a person under police custody might be induced to confess by exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced. It seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. S.27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. Under S.27, as it stands, in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police."

49. This doctrine of recovery is founded on the principle that if any fact is discovered after a search made on the strength of any information obtained from the prisoner such fact is a guarantee that information supplied by the prisoner is true and is based upon the doctrine of confirmation by subsequent events. While discussing extent of admissibility of such statement, the Supreme Court in Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007)12 SCC 230 : [2007 ALL SCR 1018], observed as under:

"53. It is, however, disturbing to note that a confession has not been brought on record in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles of Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court."

50. In the present case Discovery Panchanama Exhibit-26 contain both admissible and inadmissible part. The confession of the accused in police custody that the three accused had drowned deceased Mohan is inadmissible and in fact this part has not been expressly excluded by the learned Trial Court while marking it as exhibit and the entire prosecution case admittedly draws strength from this part of Exhibit-26 which, in our view, was inadmissible. This could only be read to the extent of recovery of rope Article-1 and knowledge of accused about the rope.

51. Another patent lacunae in the case of the prosecution is that if the accused were so willing to confess the crime why their statements in terms of Section 164 of the Code of Criminal Procedure, were not recorded and what was a justification for the investigating officer to record confession in the manner indicated in Exhibit-26 as well as in the FIR Exhibit-15. It appears to have been done to overcome the procedure of law. Furthermore, the rope which, according to the prosecution, was used for strangulating the deceased was never sent to forensic expert for DNA test or for any other chemical analysis so as to prove the story of the prosecution that the said rope was actually used for strangulating the deceased.

52. The Supreme Court in the case of State of Rajasthan Vs. Wakteng, AIR 2007 SC 2020 : [2007 ALL MR (Cri) 2124 (S.C.)], upheld the order of acquittal by the High Court where a sword allegedly recovered in pursuance of statement of accused was not sent for examination to Forensic Science Laboratory.

53. From the above analysis, it is clear that the prosecution has not been able to establish the recovery and cause of death in accordance with law much less beyond reasonable doubt. Confessional statement in Exhibit 26 can hardly be used for filling up the lacunae in the case of the prosecution.

General discussion and consideration of the point raised by the accused in relation to non compliance of Section 313 of the Code and its effect.

54. Besides material contradictions aforenoticed, inadmissibility of recovery panchanama Exhibit-26 and lack of evidentiary value of the post-mortem Exhibit-29, as its contents are not proved in accordance with law are the important factors leading to failure of prosecution case. There are other attendant circumstances which are indicative of the fact that the prosecution has not been able to establish guilt of the accused beyond reasonable doubt. The abnormal conduct of PWs.3 and 4, the most material witnesses, seen in the light of callous investigation conducted by both PWs.1 and 9 has the cumulative effect of tilting the balance in favour of the accused rather than the prosecution. PW-4 has never approved of Mohan coming to Chowpati and in fact had also taken exception to the manner in which Gauri had behaved with Mohan by taking pinch on his thigh. In this background it is difficult to believe that PW-4 would after hours of search and not finding Mohan even on seeing Gauri and Geeta laughing would not have lodged any report with the police authorities raising suspicion against accused. According to her, the deceased had gone to urinate and as per her statement she had not seen anybody accompanying Mohan, the deceased. The version by PW-3 is marred by variations and contradictions. Her conduct is also quite abnormal. She keeps playing but tells nobody that she had seen three accused strangulating and pushing the deceased into the sea water, despite the fact that she also remained on Chowpati till late night and left together in a taxi with PW-4 Nirmala. Introduction of PW-3 for the first time on 20th February, 2002 even after registration of FIR on 15th February, 2002 nearly a month after the occurrence, thus causes concern as besides being interested witness she even appears to be a tutored witness. The prosecution has entirely failed to state the circumstances much less plausible reasons for delay in registration of FIR. The introduction of PW-3 at such a late stage and PW-4 giving different versions involving different people at different stages are some other circumstances overshadowing prosecution case. Her report names various suspects and then FIR Exhibit 15 ultimately involves accused Santosh.

55. PW-2 Abdul Salim has given a totally different version trying to attribute motive to accused Geeta. According to him, on 7th January, 2002 Geeta had come to Mohan's room and asked him to accompany him but he refused, she tried to hold his collar when Mohan gave jerk to her hand causing injury to her lip and she threatened to take revenge. This aspect of the prosecution case is not even remotely suggested either by PWs.4 and 3 or for that matter PW-1.

56. There are too many missing links and loopholes in the case of the prosecution as put forth before the Court. Another very important aspect of the case is that while recording the statement of all the accused though separately under Section 313 of the Code, material evidence and statements of the witnesses which could directly point out to the factum of guilt of the accused are not put to them. The evidence relatable to post-mortem Exhibit-29 as well as the factum of injury due to strangulation and consequential death by drowning of the deceased was not put to any of the accused specifically. It is never suggested to either of the accused that their specific acts caused death of Mohan.

57. It is a settled principle of law that material piece of evidence should be put to the accused while recording his statement under Section 313 of the Code. This duty is cast upon the Court and the Court has to give an opportunity to the accused and draw his attention to the inculpatory material and whenever there is non-compliance of the provisions and particularly where material piece of evidence is not put it has adverse effect on the case of the prosecution. This was so held by the Supreme Court in the case of Shivaji Sahebrao Bobade (supra) as under :

"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration."

58. A Division Bench of Punjab and Haryana High Court in the case of Sucha Singh, son of Chanan Singh, son of Fulla Singh Vs. State of Punjab (in Criminal Appeal No.472-DB of 2001), while dealing with the case of circumstantial evidence, held as under :

"It is true that in the extended principles of criminal jurisprudence as approved by the Hon'ble Apex Court, a conviction can result even in case of circumstantial evidence. A case of circumstantial evidence must necessarily provide a complete link between the various factors controlling conviction of an accused. In other words, motive, intention, circumstances indicating a complete link in the participation of the accused in commission of the crime, the weapon or such other attending circumstances which would on the face of it indicate involvement of the accused in the commission of crime. Such circumstantial evidence must be corroborated as a whole by the other evidence adduced by the prosecution. If the basic ingredients in that behalf are satisfied then an obligation is placed on an accused to render an explanation to the crime committed and not merely to deny the case of the prosecution in his statement under Section 313, Cr.P.C.. In the case of Vasa Chandrasekhar Rao (supra) as well as in Jagjit Singh's case (supra), the Hon'ble Apex Court has enunciated the principle that where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which a conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an establishment of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence against the accused beyond any reasonable doubt. Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt.

The above dictum of the Hon'ble Apex Court clearly indicates that prosecution is essentially to prove the commission of crime beyond reasonable doubt. The prosecution is not entitled to give a go by to this principle even in case of circumstantial evidence."

59. The Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 Cr.L.J. 1738 observed as under :

"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos.4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh Vs. State of Madhya Bharat, AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule Vs. State of Maharashtra, (1976)1 SCC 438: (AIR 1976 SC 557) this Court held thus :

"The fact that the appellant was said to be absconding not having been put to him under Section 342, Criminal Procedure Code, could not be used against him."

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144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."

60. The mere fact that the counsel of the accused had admitted some part of the post-mortem report would not entitle the prosecution to discharge its onus to prove the case in accordance with law. In the case of Sharad Birdhichand Sarda (supra), the Supreme Court clearly stated in paragraph 150 as under :

"150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into and only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."

61. Even in the case of Vijender (supra), similar view was taken and the Supreme Court even went further to hold that the reliance of the trial court on the result of investigation to base its findings is again patently wrong. If the observations of the Trial Judge in this regard is taken to its logical conclusion, it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173, Cr.P. C., which is the outcome of an investigation, would result in completely destroying the scheme of the Code. The Court is required to weigh its conclusion solely on the evidence adduced during the course of trial and can hardly rely upon the investigation or results stated in the police file.

62. The standard of proof in criminal case has to be beyond reasonable doubt. This expression is of higher standard, of course, there cannot be absolute standard stating degree of proof. This could depend upon the facts of a given case. Doubts would be called reasonable if they are free from zest for abstract speculation. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence.

63. In the present case, taking into consideration the inadmissible evidence, the contradictions and the trial not being in conformity with law do raise doubts which are not only reasonable but are actual and substantial.

64. Logical analysis of the above discussion leads us to one and the only one conclusion that the prosecution has failed to prove the charge of Section 302 read with Section 34 of the Indian Penal Code against all the accused, beyond reasonable doubt. The story of the prosecution suffers from doubt and improbabilities. Besides the prosecution having failed to bring the guilt of the accused at home, it is a case where undue delay caused at every stage by the investigating agency and the callous attitude of the investigating authority has provided advantage to the accused in law. Link evidence is missing and different versions of the prosecution witnesses including the eye-witness has created visible loop-holes in the case of the prosecution. This is probably a glaring case where investigating officer has registered the FIR after outlining the story that the prosecution intents to put in the charge-sheet under Section 173 of the Code of Criminal Procedure and deciding names of the persons who are to be termed as Accused.

65. For the reasons aforestated, we accept the appeals of the appellants and while setting aside the finding of guilt and conviction recorded by the Trial Court in its judgment, we acquit all the accused and direct them to be set at liberty forthwith.

Appeals allowed.