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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1126 OF 2004
Shivanna Bhimsen Lokhande
Convict No.C-13291
Yeravada Central Prison
411 006. ..Appellant.
Vs.
The State of Maharashtra ..Respondent.
ig ....
Ms. Revati Mohite-Dere (amicus curiae ) for the Appellant.
Dr. F.R. Shaikh, APP for the State.
....
CORAM: SWATANTER KUMAR, C.J. &
DR. D.Y. CHANDRACHUD, J.
April 16, 2009.
JUDGMENT (PER DR. D.Y.CHANDRACHUD
, J.)
:
1. The Appellant stands convicted for the murder of his wife
Sakhubai. Sakhubai and the Appellant were labourers. Their worldly
belongings were housed in a shed made from tin sheets. The shed
was home. Typical of life in urban India, their tin shed lay in close
proximity to a building by the name of Amit Apartments at Kondhwa, a
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Suburb of Pune. The couple had a child who was barely three.
Sakhubai had worked as a maid with Pramila and Charles Pillai for
seven or eight months. The prosecution alleges that on 3rd May, 2002
Sakhubai had reported for work with the Pillais and was present until
nine in the night. She was addicted to alcohol. That evening was no
exception. The Appellant was summoned by the Pillais to their
residence and was asked to take away his wife. The next morning
between seven thirty and eight, the Appellant came to the Pillai home
in Amit Apartments for a morning snack. Upon being asked about the
whereabouts of his wife he stated that she had left to meet her sister
that morning. The Appellant is alleged to have left the temporary
shed in which he lived with his family and to have shifted to another
construction site at Nanapeth in Pune. Netaji Shinde was on duty as
a Senior Police Inspector at the Sahakarnagar Police Station. At
eight thirty in the morning, he received a wireless message of a dead
body being found near the Suryamukhi Ganesh Temple. Upon
reaching the spot he found the dead body of a woman lying on an
open ground in a pool of blood. Her face was crushed. A large stone
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was found lying by the side of the body. P.I. Shinde who deposed at
the trial lodged a complaint, at Exh. 33. A crime, C.R. 87/2002 was
registered. P.I. Shinde prepared a Panchanama of the scene of
offence in the presence of two panch witnesses (Exh. 18). The dead
body was transmitted for postmortem analysis. The investigation led
to Charles and Pramila Pillai who resided in Amit Apartments and at
whose house Sakhubai had been employed. Pramila Pillai informed
the police that a woman of a similar description had resided in a hut in
front of the apartment complex, but had not reported for work with
them for the previous four or five days. Mr. and Mrs. Pillai were taken
to the Sassoon Hospital where the body was stored in the morgue.
The morgue has been euphemistically referred to at the trial as a
dead house. The Pillais identified the body. They informed the
Investigating Officer that the brother and sister of Sakhubai resided at
village Dhanori. The trail led to the brother and sister who in turn are
alleged to have identified the body of the deceased. The Appellant
was arrested on 10th May, 2002. It has been alleged that in
pursuance of a statement made by the Appellant in the presence of
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panch witnesses the Appellant led the police to the tin shed in front of
Amit Apartments where a bloodstained shirt and pant belonging to
him came to be recovered from a gap in the tin sheets.
2. The Appellant was charged under Section 302 of the Penal
Code of the murder of Sakhubai and was committed to trial before the
Additional Sessions Judge, Pune. The prosecution examined ten
witnesses. P. Ws.1, 2 and 3 were panch witnesses – P.W. 3 to the
discovery Panchanama. P.W. 4 and P.W 7 were respectively the
employers at whose house the deceased had worked as a maid.
P.W. 4 was, however, declared hostile. P.W. 5 was the doctor who
had conducted the postmortem. P.W. 6 and P.W. 9 were the
Investigating Officers. P.W. 8 Devidas was the brother of the
deceased. The Additional Sessions Judge at Pune by his judgment
dated 26th December, 2002 convicted the Appellant of an offence
under Section 302 of the Penal Code and sentenced him to suffer
imprisonment for life. The judgment of conviction has been called into
question in these proceedings.
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3. On behalf of the Appellant reliance has been placed on the
evidence of P.W. 9 Sunil Korde who was the Investigating Officer.
P.W. 9 deposed that the clothes of the deceased were shown to Mr.
and Mrs. Pillai at the police station. Those clothes were seized under
a Panchanama, but the clothes were not sealed. P.W. 9 deposed that
the clothes could not be sealed because the dead body was unknown
and the victim could be identified on the basis of the clothes.
Similarly, P.W. 7 stated that she was shown the clothes of the
deceased at the police station. Reliance was sought to be placed on
the following judgments in order to support the submission that when
the bloodstained clothes of the victim have not been kept sealed till
the time that they were sent to the Chemical Analyst, this would
affect the probative value of the findings of the Chemical Analyser: (i)
The State V. Motia1; (ii) Dasu V. State of Maharashtra2 ; and (iii)
State of Maharashtra V. Prabhu Barku Gade3. The learned counsel
submitted that the opening of the packet containing the clothes at the
1 AIR 1955 Rajasthan 82.
2 1995 Cri.L.J. 1933.
3 1995 Cri. L. J. 1432.
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police station on 10th May, 2007 seriously affects the probative value
of the evidence of the Chemical Analyser. Moreover, learned counsel
submitted that the prosecution has failed to examine the carrier.
Finally, it was urged that the identification of the dead body of the
deceased has not been proper and it is impossible to infer that the
body which was recovered was the body of the wife of the Appellant.
These submissions would now fall for consideration.
4. At the outset, it would be necessary to advert to the
question as to whether there was a proper identification of the body of
the deceased. The deceased, it is an admitted position, was in the
employment of Charles and Pramila Pillai who resided in an
apartment complex called Amit Apartments at Kondwa. Sakhubai
had been working with them as a maid and resided together with the
Appellant in a temporary structure built from tin sheets. Both P.W. 4
Charles Pillai and P.W. 7 Pramila Pillai knew the deceased who had
worked with them for over seven months as well as the Appellant who
was the spouse of the deceased. Sakhubai was given to alcohol.
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On the night of 3rd May, 2002 when she was under the influence of
liquor, the Appellant was summoned by the Pillais for taking away his
wife. The dead body of Sakhubai was found at about 8.30 the
following morning. The postmortem report records that the following
injuries were found externally on the body of the victim :
“1. Left shoulder abrasion dimension 1 x 1 cm.
2. Crush injury involving whole head and face. All bones of
cranium crushed along with corresponding soft tissue.
3. Sunburns at both arms, forearm and both lower limbs.”
P.W. 5 Dr. Narkhede who was a lecturer at the Sassoon Hospital in
the Department of Forensic Science conducted the postmortem
examination. Apart from the aforesaid external injuries, he also
found the following internal injuries :
“1. All bones of cranium crushed along with corresponding
soft tissue meanings lacerated. Brain also lacerated at
many places. Base of skull fractured.”
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P.W. 5 opined that these were sufficient to cause death and had
been the result of an assault with a hard, blunt and heavy object. The
sunburns (item No.3 of the external injuries) were post-mortem while
the first and the second of the external injuries were found to be fresh
in nature.
5.
P.W. 7 in the course of her deposition stated that she had
identified the victim on the basis of her hands and legs since her face
was totally crushed and could not be identified. P.W. 8 Devidas was
the brother of the victim. He deposed that though the forehead of the
victim was crushed, the side of the face was in a position to be
identified. P.W. 8 and his sister Ambubai identified the body on the
basis of the features of both the hands and legs and some portion of
the face. According to him the nose and mouth were intact and there
was no injury thereon. The upper portion including the eyes were
crushed. There is no infirmity in the appreciation of the evidence of
P.W. 7 and P.W. 8 in respect of the identification of the dead body.
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The identification of the dead body was by a near relative, and
evidently on the basis of the limbs and other features. Though the
face had been crushed as a result of the severe blow dealt with by the
stone used as a weapon of offence, it cannot be said that the
identification of the body was rendered impossible. P.W. 8 in
particular as the brother of the deceased was in a position to identify
her body on the basis of his perception of her features. P.W. 7 was
the employer with whom the deceased had worked for several
months. There was no reason for P.W. 7 to depose falsely nor is any
such suggestion put to the witness. The prosecution has established
that the dead body was of Sakhubai and that the death was
homicidal.
6. The principal submission that has been urged on behalf of
the Appellant is that the clothes of the deceased were not sealed and
that as a result the probative value of the report of the Chemical
Analyser is substantially diluted. Now P.W. 9 who was the
Investigating Officer deposed that the clothes of the deceased were
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shown to Mr. and Mrs. Pillai at the police station. According to him,
though the clothes were seized under a Panchanama, they were not
sealed and could not be sealed because the dead body was unknown
and the victim could be identified on the basis of the clothes. In the
State V. Motia (AIR 1955 Rajasthan 82) a Division Bench of the
Rajasthan High Court held thus :
“Whenever it is desired by the prosecution that certain
articles, which have been recovered from accused personsare to be identified, or are to be sent to the Chemical
Examiner for analysis, it is necessary that the officerrecovering the articles should immediately take steps to
seal them and evidence should be produced that the seals
were not tampered with till the identification is over, or till
the articles are sent to the Chemical Examiner for analysis.
In the absence of such precautions it would always be open
to the accused to say that the police later put human bloodon the articles in order to implicate the accused. It is,
therefore, necessary for the prosecution to produce
evidence that steps were taken at once to seal the articles,
and that from the time the articles came into possession ofthe police to the time they were sent for identification before
a Magistrate or for examination to the Chemical Examiner
the seals remained intact. This evidence is missing in this
case. It is, of course, not difficult to sprinkle a few humanblood stains on articles recovered if somebody wants to do
so. We do not say that this was done in the present case;
but as precautions were not taken, the argument raised on
behalf of the accused that this might have been done
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blood stains on these various articles as we would havedone if necessary precautions had been taken.”
The same view was reiterated by a Division Bench of this Court in
Dasu v. State of Maharashtra (1985 Cri. L.J. 1933) :
“In order that there should not be any tampering with the
articles which are said to be stained with blood theinvestigating officers are expected to put them in a proper
cover and to seal them in the presence of the panchas andto forward them to the chemical analyser with proper seals.
The forwarding letter issued by the Investigating Officer tothe Chemical Analyser in this case is at Ex. 26. In that
letter it is mentioned that all those articles were wrapped in
brown papers and were duly sealed, but there is no
evidence as to when they were wrapped and sealed. Thenon-sealing of the articles immediately after the seizure in
the presence of the panchas is bound to affect theprobative value of the findings of the Chemical Analyser.”
This was reiterated by another Division Bench of this Court in State of
Maharashtra V. Prabhu Barku Gade (1995 Cri. L. J. 1432) where the
judgment of the Rajasthan High Court was followed. It was urged that
the probative value of the recovery of the bloodstained clothes of the
deceased would be substantially diluted if not obliterated as a result of
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the failure of the investigating officer to seal them.
In Khet Singh vs Union of India, (2002) 4 SCC 380, the law
on the subject was revisited by the Supreme Court and the following
principles have been enunciated:
“Law on the point is very clear that even if there is any sort
of procedural illegality in conducting the search and seizure,the evidence collected thereby will not become inadmissible
and the court would consider all the circumstances and findout whether any serious prejudice had been caused to the
accused. If the search and seizure was in completedefiance of the law and procedure and there was any possibility of
the evidence collected likely to have been tampered with or
interpolated during the course of such search or seizure,
then, it could be said that the evidence is not liable to beadmissible in evidence.”
In the present case, the defence has been unable to
establish any prejudice, much less a serious prejudice as enunciated
by the Supreme Court in Khet Singh’
s case. There is no material on
the record to indicate the possibility or likelihood of the evidence
collected to have been tampered with or interpolated. No such
suggestion has been put to the Investigating Officer during the course
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of cross examination. The judgments which have been relied upon by
the Counsel for the Appellant must now be read in conjunction with
the principle laid down by the Supreme Court in Khet Singh’
s case
(supra). No prejudice is established or shown.
7. The issue that merits consideration then is as to whether
the circumstantial evidence on the record is sufficient to bring home
the guilt of the Appellant beyond reasonable doubt. It is well settled
that in a case which rests on circumstantial evidence the prosecution
must establish all the necessary links in the case and the evidence
must be consistent only with the guilt of the accused. The first aspect
of the case that merits attention is the evidence of P.W. 4 Charles
Pillai and his spouse Pramila Pillai, P.W. 7. They are witnesses to
what had happened on the night of 3rd May, 2002. P.W. 4, it must be
noted was declared hostile but the law does not mandate that the
entirety of his testimony should be discarded. P.W. 4 deposed that
he knew the Appellant whose wife Sakhubai was working with him
and P.W. 7 as their maid. Sakhubai was addicted to liquor.
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Whenever she consumed liquor, she would sleep in the parking
space of the apartment belonging to P.W. 4 and P.W. 7 out of fear for
the Appellant. The flat adjoining the home of P.W. 4 and 7 was empty
and the keys to the flat had been kept by a builder with P.W. 4 with a
view to show the flat to prospective customers. On 3rd May, 2002
when he returned between 9 and 9.30 p.m., P.W. 4 was informed by
P.W. 7 that Sakhubai had consumed liquor and had slept in the
adjoining flat. The Appellant was sitting behind the compound wall.
P.W. 4 deposed that he called the Appellant and informed him that
his wife had consumed alcohol and was sleeping in the adjoining flat.
Thereafter the Appellant took Sakhubai away with him. To the same
effect is the deposition of P.W. 7, Pramila Pillai who stated that at
about 9.00 p.m. the accused was called to her house and was told to
take Sakhubai away with him. The Appellant was last seen by P.W. 4
and P.W. 7 when he left their flat at about 9.00 p.m. on 3rd May, 2002.
The body of Sakhubai was found the next morning at 8.30 a.m. The
only person who could have furnished a cogent explanation of what
transpired in the meantime after Sakhubai left the house of P.W. 4
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and P.W. 7 is furnished by the Appellant. P.W. 4 deposed that at
about 8 or 8.30 a.m. on 4th May, 2002 the Appellant met him when he
came to the flat along with his son and told him that his wife had run
away as usual. P.W. 7 stated that on the morning of 4th May, 2002
when the Appellant came to the flat, he requested her for breakfast
and upon being questioned about where Sakhubai was, the Appellant
replied that she had gone to visit her sister. Thereafter, as P.W. 4
deposed, the Appellant shifted to Nanapeth on 5th May, 2002 together
with his belongings and articles and left the place where he had
originally resided. No suggestion was made in the cross-examination
to P.W.8 Devidas who resided at village Dhanori together with his
sister to the effect that Sakhubai had visited him or the sister. In fact,
it would appear that when confronted with a question about the
whereabouts of his wife the Appellant chose to give inconsistent
explanations to P.W. 4 and P.W.7.
8. Apart from this aspect of the circumstantial evidence the
prosecution established at the trial that on a statement made by the
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Appellant the Investigating Officer, P.W. 9 was led together with the
panchas to a place where the Appellant had hidden the blood stained
clothes worn by him. The Appellant led the police and the panch
witnesses to a shed situated in front of Amit Apartments at Kondwa
and took out a plastic bag containing the clothes which were kept
beneath the tin sheets. P.W. 9 deposed that there were bloodstains
on the sleeves of the shirt and on the pant. The Panchanama was
proved in evidence and marked as Exhibit 24. Articles 12 and 13
were the clothes worn by the Appellant. All the seized articles were
forwarded to the Chemical Analyser in a sealed condition. The blood
on the shirt was found to be of blood group A while the blood group
for the stains on the trouser was inconclusive. The trouser was
stained with blood at places and the report of the Chemical Analyser
was that it appeared to have been washed. In his statement under
Section 313 the Appellant totally denied the recovery of his clothes.
There was therefore no explanation by the Appellant of the
circumstances in which the bloodstains had appeared on his shirt and
the trouser.
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9. Insofar as the aspect of motive is concerned P.W. 8
Devidas who was the brother of the deceased deposed that about
one month prior to the date of the incident the Appellant and Sakhubai
had come to his village and prior to the visit a quarrel had taken place
between them. Sakhubai was addicted to liquor and used to go to
drink liquor even together with strangers. There used to be frequent
quarrels between the accused and the victim and P.W. 8 deposed
that both of them had quarreled when they had come to his house.
P.W. 8 deposed that at that time the Appellant had brought a sickle
along with him and threatened the deceased that he would finish her
“very soon”. Thereafter P.W. 8 persuaded both of them to go back to
their home. During the course of the cross examination of the witness
a question was asked to him as to whether he had lodged a complaint
following the threat administered by the Appellant, but P.W. 8
answered in the negative. It was most unnatural to expect that P.W. 8
should lodge a complaint on a quarrel between his sister and her
husband. The evidence of P.W. 8, as indeed the evidence of P.W. 4
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and 7, shows that Sakhubai was addicted to liquor. P.W. 4 in fact
deposed that when she consumed liquor Sakhubai would not go back
to her matrimonial home but would sleep in the parking space
because of the fear of the Appellant. The night of May 3, 2002 was
no exception insofar as he consumption of liquor by Sakhubai was
concerned. The prosecution has established a motive on the part of
the Appellant.
10.
The medical evidence shows that Sakhubai was done to
death by a heavy, hard and blunt object. The severity of the injuries is
evident from the fact that her head and face were crushed; all the
bones of the Cranium were crushed along with the corresponding soft
tissue. The brain was lacerated at many places and the base of the
skull was fractured. The circumstantial evidence relied upon by the
prosecution provides all the necessary links which bring home the
guilt of the Appellant beyond reasonable doubt. The subsequent
conduct of the Appellant in furnishing a false explanation in regard to
the whereabouts of his wife immediately after the crime and in shifting
his place of residence in order to conceal his identity lend support to
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the case of the prosecution. The Appellant failed to lodge any
missing report in regard to the absence of his wife. The fact that in his
statement under Section 313 of the Cr. P.C., he furnished no
explanation of what happened when he left the Pillai home on the
night of 3rd May 2002 with his wife furnishes an additional piece of
supporting material. That was a fact which was peculiarly within his
own knowledge. The cumulative effect of the circumstantial evidence
is to establish the guilt of the Appellant beyond reasonable doubt.
11. In these circumstances, the judgment of the Additional
Sessions Judge convicting the Appellant of an offence under Section
302 of the Penal Code and sentencing him to imprisonment for life is
correct. There is no merit in the Appeal. The Appeal shall
accordingly stand dismissed.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD, J.
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