Criminal Law Journal
1982 CRI. L. J. 2056 P. S. Patankar, Advocate for Appellant; J. A. Barday,
BOMBAY HIGH COURT
(Principal Seat at BOMBAY)
JAHAGIRDAR , J. and M. L. PENDSE , J.
Criminal Appeal No. 733 of 1976, D/- 3 - 3 - 1981
Sadashiv Bajrang Sutar Appellant v. The State of
Maharashtra Respondent
(A)Evidence Act (1 of 1872), S.9 - Failure to hold
identification parade - Effect.
All the witnesses, who claimed to have seen the accused
last in the company of the deceased on the day in
question identified the accused according to their own
version, for the first time in the open court after the date
of the incident. The charge against the accused was u/s.
302 I.P.C. None of these witnesses had seen the accused
any time before the day in question.
Held, that the failure to hold identification parade cuts
at the very root of the testimonials of witnesses and the
very circumstance that the deceased was last seen in the
company of the accused is not established at all.
(Para9)
(B)Evidence Act (1 of 1872), S.9 - Identification
parade - Duty of investigating officer.
It is the duty of the investigating officer to see that
a person who is to be identified by the prosecution
witnesses who had not seen him before must be kept in
such circumstance that he would not be exposed to the
view of the persons who were going to identify him later
in the trial.
(Para9)
(C)Evidence Act (1 of 1872), S.27 - "Fact discovered"
- What is not covered cannot be discovered - Accused
making statement that he had kept weapon called
Wakas in certain village - Wakas found in open
place in corner of house not belonging to accused -
Held, statement of accused did not distinctly lead to
discovery of particular weapon - This circumstance
had to be rejected as irrelevant.
(Para13)
ADV ANAND BRAHMBHATT AND ASSOCIATES
Copyright © AIR Infotech
Public Prosecutor, for the State.
Judgement
1. JAHAGIRDAR, J. :-The appellant, hereinafter
referred to as the accused, has been convicted by
the learned Sessions Judge of Solapur for the offence
punishable under 302 of the I.P.C. in Sessions Case No.
42 of 1976. The charge against the accused was that he
had on the night of 4th and 5th of Oct. 1975 committed
the murder of one Bhagwat Rangnath Salgar on the
outskirts of the village of Tembhurni of which the said
Bhagwat was the resident. The accused himself belongs
to village called Bembale, which is said to be seven miles
away from village Tembhurni.
2. The facts giving rise to the prosecution have been
set out in great details in the judgement of the Court
below and it is not necessary for us to refer to them
again. It is sufficient to mention that both the accused
and the deceased were at some time working in the same
Company called the Hindustan Construction Company
and as a result of their employment they had moved
from place to place. The last place where they had been
posted was Kolkewadi in Ratnagiri District. At that time
the work in which they were engaged had come to an
end and both of them were forced to return to their
respective villages. It is alleged by the prosecution that
both the accused and their wives were friendly with each
other or at least on visiting terms with each other. It is
suggested, but not proved convincingly, that some ill-
will developed between the deceased Bhagwat and the
accused on account of some exchange of abuses on the
basis of the caste to which the accused belonged.
3. On 4th of Oct. 1975, according to the prosecution, the
accused was seen in the village Tembhurni. It is alleged
that on that day sometime in the evening Bhagwat left
his house for having a cup of tea never to return again
to his house. His wife Shakuntala lodged complaint
to the police that her husband was missing and on
the previous" day the accused was seen in the village.
Thereafter investigations were taken up and the accused
was arrested on 5th of Oct. 1975. According to the
prosecution, the accused led the police to the discovery
of an instrument called Wakas, often used by carpenters,
pursuant to a statement made under S.27 of the Evidence
1
 Criminal Law Journal
Act. It was the case of the prosecution that the accused
was last seen with Bhagwat on the night and he was seen
running away from the place where the body of Bhagwat
was found later. The blood found on the Wakas was of
'B' group which was also the blood group of deceased
Bhagwat. A satchel which was allegedly being carried by
the accused on 4th of Oct. 1975 was seized from the shop
of the brother of the accused. That satchel also disclosed
the presence of human blood of 'B' group. It is on these
facts that the accused was put up for trial in the Sessions
Case referred to above.
4. The defence of the accused was one of total denial. He
also pointed out that the house from which the Wakas
was recovered was not his house, but the house of his
uncle. He denied his presence at Tembhurni on 4th of
Oct. 1975.
5. The prosecution examined several witnesses who can
be broadly classified into three categories. One was
Shakuntala, wife of the accused, who had seen the
accused at Tembhurni on the evening of 4th Oct. 1975.
The second group of witnesses consists of persons who
are alleged to have seen the accused and the deceased
together in the evening of 4th Oct. 1975. The third set of
would witnesses be those relating to the discovery and
the seizure of the articles.
6. The learned Sessions Judge was sufficiently
impressed by the prosecution evidence to convict the
accused of the offence with which he had been charged,
namely under S.302 of the I.P.C. For this offence, the
accused was sentenced to imprisonment for life. Another
charge which was levelled against the accused was one
under S.201 of the I.P.C. Of this, however, the accused
was acquitted. It is the order of conviction and sentence
passed by the learned Sessions Judge of Solapur on 28th
of June, 1976 that is the subject-matter of challenge in
this appeal.
7. In para 15 of his judgement, the learned Sessions
Judge has enumerated the circumstances upon which the
prosecution relied and these circumstances, according
to the learned Sessions Judge constitute the chain of
circumstantial evidence sufficiently strong enough to
@page-CriLJ2058
ADV ANAND BRAHMBHATT AND ASSOCIATES
Copyright © AIR Infotech
fasten the guilt on the accused. Mr. Patankar the learned
Advocate appearing for the accused, had no difficulty
in showing that some of these circumstances are totally
innocuous and could not be said to be incriminating as
against the accused : some of these circumstances are
non-existent and some of them are not proved. We will
examine the circumstances in the order in which they
have been mentioned in para 15 of the judgement of the
learned trial judge.
8. The first circumstance is that the accused was seen in
village Tembhurni on the day of the incident. That has
been held to be proved on the basis of the evidence of
Shakuntala, the wife of the deceased. We will proceed
for the moment on the assumption that this circumstance
has been proved. By itself this is of innocuous nature
and cannot be pressed into service by the prosecution for
fastening the guilt of murder on the accused.
9. The second circumstance that is mentioned is that,
deceased Bhagwat was last seen in the company of the
accused. For the purpose of proving this circumstance
several witnesses belonging to Tembhurni have been
examined. One of them is said to be a respectable School
teacher. We will proceed on the assumption that all
these witnesses are respectable and are probably making
the statements honestly. Nevertheless, one should not
lose sight of the fact that none of these witnesses, who
now claim to identify the accused as the person who
was seen in the company of Bhagwat on the day in
question, had seen the accused any time before 4th
of Oct. 1975. The investigating officer has shown a
marked degree of negligence in his duty in not holding an
identification parade in such a case. All these witnesses,
who claim to have seen the accused last in the company
of Bhagwat on 4th of Oct. 1975, have identified the
accused, according to their own versions, for the first,
time in the open Court after the date of the incident.
We do not appreciate the competence of these witnesses
to identify a person whom they say they had seen in
the company of Bhagwat on the day in question. The
explanation given by the investigating officer that the
accused after being arrested on 5th of Oct, 1975 had
been kept in the lockup at Tembhurni police Station and,
therefore, an identification parade would not have served
any purpose because the identifying witnesses might
have seen the accused in the lockup is so hopelessly
unacceptable that it is to be rejected out of hand. It was
2
 Criminal Law Journal
the duty of the investigating officer to see that a person
mho is to be identified by the prosecution witnesses
who had not seen him before must be kept in such
circumstance that he would not be exposed to the view
of the persons who were going to identify him later in
the trial. The absence of the identification parade, in out
opinion cuts at the very root of the testimonies of these
witnesses who for the first time after 4th of Oct. 1975
are identifying the accused in the Court. In our opinion,
the second circumstance mentioned in para 15 of the
judgement of the Court below is not established at all.
10. For the same reason we hold that the third
circumstance mentioned in para 15 of the judgement
of the Court below is also not established. That
circumstance is that the accused was seen running away
from the scene of offence. No reliance can be placed
upon any of the witnesses who pretend in the Court to
have identified the person who was running away from
the scene of the offence.
11. The fourth circumstance, namely the disappearance
of the deceased Bhagwat on the day is no circumstance
at all which should have been pressed into service by
the prosecution. That the deceased Bhagwat disappeared
is an admitted fact. It is a fact which is the basis of the
investigation because Bhagwat had died.
12. The most important circumstance which is sought
to be utilised by the prosecution against the accused
is the alleged discovery of the wakas at the instance
of the accused. We now proceed to examine this
circumstance in somewhat greater details P.W. 3
Pandurang Deshmukh is the panch who is examined
for the purpose of proving the alleged discovery of
the Wakas pursuant to a statement allegedly made by
the accused under S.27 of the Evidence Act. He has
mentioned that on 5th Oct. 1975 the accused who was
in Tembhurni Police Station made a statement in his
presence and in the presence of another panch that he had
kept the Wakas at Bembale and that he would produce
the same. At this stage itself we must underline
@page-CriLJ2059
the fact that the accused has not mentioned that he has
hidden the wakas at any place or that he had kept it in
any particular place. What has been mentioned by him
is that he had kept the Wakas at Bembale which is a
ADV ANAND BRAHMBHATT AND ASSOCIATES
Copyright © AIR Infotech
village inhabited by several hundred of people. He has
also mentioned, according to the panch, that he would
produce the same. The memorandum of this statement
was reduced to writing and n is at Ex. 11. We are
satisfied, after reading Exhibit 11, that, if anything was
said by the accused it was this that he had kept the Wakas
at Bembale village and not at any particular place.
13. Thereafter according to panch Pandurang, the police
party along with the panchas and the accused went in a
goods truck to Bembale. The truck was stopped at the
S.T. Stand. Thereafter all of them got down and followed
the accused who, according to the panch, took them to
a house. It is mentioned by the panch himself that the
Wakas was in the corner of the house, which shows
that it was not discovered. The Wakas was stained with
blood. The panchanama of this discovery was made and
it is at Exhibit 12. Exhibit 12 shows that the accused
made a statement that the house in which the Wakas has
been kept belongs to his uncle Arjun Bopu and so saying
he went into the house and removed the Wakas which
had been kept in the right hand corner of the house. It
is not necessary to make any detailed comments upon
this circumstance which is so hopelessly weak and in
fact irrelevant to the determination of the guilt of the
accused before the Court. It is an elementary principle
incorporated in S.27 of the Evidence Act that what is
not covered cannot be discovered. In the instant case,
the Wakas was kept in an open place in the corner
of a house which was not belonging to the accused.
The statement made by the accused did not distinctly
lead to the discovery of this particular weapon. In our
opinion, therefore, this circumstance has to be rejected as
irrelevant to the determination of the guilt of the accused.
14. The next circumstance was the alleged extra-
judicial confession made by the accused to his brother,
Mercifully the learned Sessions Judge himself has
rejected this circumstance and it is not necessary for us
to dwell upon the same.
15. The seizure of a satchel which was, according to the
prosecution witnesses, carried by the accused on 4th Oct.
1975 from the shop of the brother of the accused on 5th
Oct. 1975 has also been pressed by the prosecution in
its service. We do not see how the seizure of an article
from the shop of the accused's brother can be said to be
a circumstances against the accused. This circumstance
also has to be rejected as having no relevance.
3
 Criminal Law Journal

16. The motive, which was also alleged as one link

in the chain of circumstantial evidence, has not been
satisfactorily proved. The motive alleged was that the
deceased had abused the accused on the basis of his caste
some months before the incident took place. The motive
is hopelessly inadequate and, in any case cannot form the
basis of a finding regarding the guilt of the accused, at
least on the facts of this case.

17. We thus notice that this case which is based entirely

on circumstantial evidence must fail on the grounds
which have been urged by Mr. Patankar and those
grounds we have already mentioned in the earlier part of
this judgement.

In the result, this appeal must succeed. The order

of conviction and sentence recorded by the learned
Sessions Judge of Solapur in Sessions Case No. 42 of
1976 is set aside and the accused is acquitted of the
offence with which he had been charged.

Bail bond of the accused is cancelled.

Appeal Allowed .

ADV ANAND BRAHMBHATT AND ASSOCIATES

Copyright © AIR Infotech 4