30 Apr 2121
Case : Ashok Dhondiram Dhavale v. State of Maharashtra Criminal Appeal No. 904 of 2018
Court : Bombay High Court
Bench : Justice Sadhana S. Jadhav & Justice N. R. Borkar
Decided on : 30 Apr 2121
Sections 302 & 201 of Indian Penal Code, 1860
Brief Facts & Procedural History
1. Deepali Shinde-P.W.1, daughter of Leelabai and elder sister of Manisha and Poonam. P.W.1 called her mother on 12th February 2015 but her cell phone was switched off and on calling Manisha, she came to know that mother had gone to visit her brother 5 days ago. Deepali continuously tried to call her mother but her phone was switched off and therefore, she called her maternal uncle and from him, she found that her mother had not visited their house. She then visited her maternal home at Maldev, where she found from her cousin, Sachin that Manisha was having a love affair with Ashok Dhavale, who is a resident of village Maldev and this affair was opposed by the villagers and therefore he had to leave the village.
2. On 27th March 2015, she received a phone call from the cell phone of her mother that her mother and sister were critical and were on oxygen, and the person who called her told her that he will call her after an hour but didn’t call. On 1st April 2015, she received a call from the same person from the cell phone of her mother asking her to come along to a place if she wanted to meet her mother and asked her to come to village Akalpe. She disclosed all these facts to her in-laws and she lodged the missing report at the police station on 16th April 2015 against the unknown person and therefore the investigation was set in motion but she had suspicion against the accused Ashok Dhavale. He was arrested by Police on the suspicion of P.W.1. After completion of the investigation the charge sheet was filed and at the trial, the prosecution examined thirteen witnesses against the accused.
3. When the matter was heard by Sessions Judge, Raigad the accused was convicted for the offence punishable under sections 302 and 201 of Indian Penal Code, 1860 against which the accused preferred an appeal before the honourable High Court of Bombay.
Issues before the court
1. Whether conviction can be based solely on circumstantial evidence, without any direct witness present?
2. Whether trial court was right in convicting the accused for the said charges?
The Observations by the Court
The Honourable Bombay High Court after looking into the evidence and hearing the counsels from both sides, observed that the facts which are for consideration are as follows:
1. P.W.1 was trying to contact her mother from 9th April 2015 and she had called her sister Manisha and learned that her mother was missing and therefore it is clear that her sisters had died subsequently.
2. The accused were indeed arrested on 18th April and the next day the cell phone and photos of Leelabai were recovered from his house and he led police to all the dead bodies and also the golden chain with swastika pendant was also recovered from the custody of the accused from his house and all these things were identified by P.W.1.
3. At this point, the Honourable Bombay High Court referred to the judgment of Privy Council in Pulluri Kotayya v. King-Emperor, (1947) AIR 67, in which the privy council has examined and simplified Section 27 of the Indian Evidence Act and noted down that it will be wrong to treat ‘fact discovered’ within the section as equivalent to the ‘object produced’, as Facts Discovered would talk about the place from which the object is produced based on knowledge of the accused and further Privy council noted down that where information which is given by a person in custody is in the form that “I will produce a knife concealed in the roof of my house” and it leads to the discovery of the fact that a knife is concealed in the House of the informant and the fact discovered become relevant but if the statement added is “with which I stabbed A” then the words become inadmissible.
4. The Honourable Bombay High Court is of the view that the prosecution has placed so much reliance on the information given by the accused but this information does not prove that the accused has committed homicidal death cannot be taken into consideration for reasons:
a. The body was decomposed and beyond identification.
b. Bodies were found in the forest area far away from the main road and the accused is also not a resident of the locality.
c. No explanation is given as to why the wallet of the accused was found on the spot close to a dead body.
5. The fact that was proved by the testimony of P.W.3 that the at the scene of the offence, wallet containing the driving license of accused and many other things as mentioned in the panchnama were found which clearly shows that he is the perpetrator of the offence.
6. Photograph of the deceased and cell phone was recovered from the house of the accused and tower location also established that calls were made by the accused only and all the handwritten letters exchange between Manisha and the accused which were verified by P.W.1, all leads to the consideration that there was a love affair between Manisha and the accused.
7. The Honourable Bombay High Court also noted down that in the cases of circumstantial evidence if the materials collected are interlinked then the same has to be considered accordingly and a logical inference has to be drawn and in the present case, there is no material to show that before the information given by accused there was any possibility for the police to know where the dead body was found as those bodies were not visible from the main highway which could not have been discovered without the behest of accused and at this point court referred to the judgment of honourable Supreme Court in Ram Avtar v. State (Delhi Administration), (1985) AIR 1692, in which Supreme Court has rightly pointed out that if a clear chain of circumstantial evidence is found then the court should not break the chain and all the circumstantial evidence should be read as one integrated whole otherwise the concept of proof of circumstantial evidence would be defeated.
8. The Honourable Bombay High Court also discarded the argument made by defence counsel that the cause of death is not ascertained, for which the court pointed out that the accused cannot get the benefit of the admission of doctors that the bodies were not referred to the anatomy expert. And at this point court referred to the judgment of C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, where the Supreme Court examines the question of whether any lapse by investigating officer in examining the evidence would lead to the benefit do the accused, court answered this question and mentioned that the question is well very well settled that if primacy is given to such defective investigation then criminal justice would be eroded and in the case where the investigation agencies were negligent on their part then the court must examine the evidence produced by the prosecution in the light of rightness and falsity of the evidence.
The Decision Held by the Court
1. The Honourable Bombay High Court held that the Trial Court was right in convicting the accused of offences under sections 302 and 201 of the Indian Penal Code, 1860.