Whether false reply given by accused amounts to incriminating evidence against him?

The first circumstance held as proved against the accused, by the learned trial Court is conduct of the accused. There is no doubt that in terms of 8 of the Indian Evidence Act, 1872, conduct of an accused is relevant if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. Conduct must have nexus with the crime committed. The learned trial Court has extensively relied on the Judgment of the Apex Court in the case of Maharashtra v. Suresh to come to the

conclusion that denial of what has been stated by the prosecution witnesses could be considered as one of the missing links in the chain of circumstances. That was a case where certain injuries were found on the person of the accused which were noted by the doctor who had examined him. The Apex Court observed that the significant impact of the said incriminating circumstance was that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he had not sustained any injury at all and in such a situation the Apex Court held that a false answer offered by the accused, when his attention was drawn to the aforesaid circumstance, renders that circumstance capable of inculpating him, and, in such a situation like that a false answer could also be counted as providing a missing link for completing the chain. Those observations could hardly be of any relevance as far as the facts of the case are concerned, when none of the circumstances connecting the accused with the crime were proved by the prosecution beyond reasonable doubt. The learned trial Court entirely lost sight of the fact that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that if there is any infirmity in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court.

Bombay High Court

Deepesh Raiker Son Of Late Anand ... vs State on 2 June, 2008

Bench: R Khandeparkar, N Britto

Citation;2008 (3) MH L J(CRI)348

1. This appeal is by the accused(i.e. accused no. 1) in Sessions Case No. 16/2004 who has been convicted and sentenced under Sections 302 and 201 I.P.C. for life imprisonment and R.I. of 7 years, respectively, and, in addition to pay a fine of Rs. 5000/- on each count.

2. The accused got civilly married to the deceased Ms. Supriya Lotlikar on 24-11-2003. The deceased was working as a Laboratory Technician in the Pathology Laboratory of Dr. Raikar/PW5 and as the evidence shows she was a girl of good character and jovial in nature. The accused owns a jewellery shop. Theirs was an arranged marriage and a formal engagement as well as religious marriage were yet to take place for which no dates were fixed. It is common knowledge that until celebration of religious rites, civilly married couples do not reside together. On 12-12-2003 the accused along with his mother and a friend by name Amol Lotlikar visited the deceased on the occasion of her birthday and thereafter visited her on two or three occasions with his said friend Amol. On 23-2-2004 the accused took the deceased for a drive, from her work place, and this incident was narrated by her at home to her parents and sisters. That was after the Page 1676 deceased was called from her work place by a phone call that she should come down and meet him. That trip was a subject matter of discussion in the family of the deceased for about 2 to 3 days and there is nothing on record even to remotely suggest that the said trip between the accused and the deceased did not go well. On 26-2-2004 the deceased went to the Laboratory in the morning and left the same at about 2.45 p.m. after receiving a phone call in a happy mood, never to return again.

3. As the deceased did not return home by 7.30 p.m., her brother Sanjiv Lotlikar/PW2 contacted Dr. Raikar/PW5 in his Laboratory who confirmed that the deceased had left at about 2.45 p.m. by keeping her belongings. Thereafter Sanjiv/PW2 went to the shop of the accused at about 8.15 p.m. only to find that the shop was closed. Sanjiv Lotlikar/PW2 then contacted the friend of the accused, namely, Amol Lotlikar and ultimately the accused, on telephone. At about 10.45 p.m. Dr. Raikar/PW5 was called to the house of the deceased and little later the accused also arrived there. Thereafter, Dr. Raikar/PW5, Sanjiv/PW2 and the father of the deceased Manohar/PW3 went in the car of Dr. Raikar/PW5 and the accused on his bike, in search of the deceased all over Margao but did not find her anywhere. Then, a decision was taken to file a missing report. As per Sanjiv Lotlikar/PW2 the accused was reluctant to come with them to the Police Station out of fear that he may be arrested but according to the accused he was told to go home. The missing report was lodged at about 1.40 hours on 27-2-2004. At this very stage, it must be stated that this missing report goes against the version given by Sanjiv Lotlikar/PW2 to which a reference in greater detail will be made hereinafter. As there was no headway in tracing the deceased, on 1-3-2004 upon legal advice, a complaint came to be filed by Sanjiv Lotlikar/PW2 under Section 365 r/w 34 I.P.C., and, this again inspite of the fact that the deceased was otherwise a legally wedded wife of the accused. The accused was arrested on 2-3-2004. Pursuant to the said complaint also, no headway was made in the investigations which were still being looked after by PSI Sudesh Naik/PW25.

4. All of a sudden the investigations were taken over by Police Inspector Shri Shirwaikar/PW30 on the evening of 6-3-2004 with the involvement of Bijay Singh/PW8 another accused involved in another murder case.

5. The case of the prosecution, as can be seen from the concise statement in the charge-sheet, is that on 26-2-2004 at about 14.30 hours accused no. 1/Deepesh Raikar and accused no. 2/Ms. Rajeshree Tarekar conspired to commit murder of Ms. Supriya Lotlikar with whom A-1/Deepesh was civilly married and in pursuance of the criminal conspiracy accused no. 1/Deepesh took Supriya Lotlikar from her office in his Maruti Zen car bearing No.GA-02-J-9168 on the pretext of going to Sai Service at Verna, Goa, and upon reaching there assaulted her in the said car on her forehead causing her injury and thereafter pressed her nose, mouth and neck with his hands and killed her and thereafter buried the dead body at Gogol, Margao by the side of the compound wall, next to the eastern bye-pass highway destroying the evidence as the accused had illicit relations Page 1677 with Rajeshree Tarekar/A-2 and did not want to marry the deceased Supriya Lotlikar to whom he was legally married. It was also the case of the prosecution that Evaristo/A-3 who was in police custody at Margao along with the accused(in a theft case) upon the instruction of the accused knowingly agreed to dispose of the dead body of Supriya after his release on bail from the custody, and as per his instructions went to the place and covered the dead body by putting more mud and thereby tried to destroy the evidence and thus committed an offence punishable under Section 201 I.P.C.

6. By Order dated 12-8-2004 of the learned Additional Sessions Judge, Margao, Rajeshree Tarekar/A-2 came to be discharged. The said order was not challenged by the prosecution. Evaristo/A-3 who was charged under Section 120-B and Section 201 I.P.C. along with the accused, came to be acquitted by the impugned Judgment. The prosecution has not challenged the order of acquittal of Evaristo/A-3.

7. In discharging Rajeshree Tarekar/A-2, the learned Additional Sessions Judge observed that the evidence on record did not even create reasonable doubt regarding the complicity of the said Rajeshree Tarekar/A-2 in any offence. The learned Additional Sessions Judge also observed that there was nothing on record to show as to where was Rajeshree Tarekar/A-2 between 13.30 hours to 16.00 hours on 26-2-2004 and the mere fact that the accused did not want to marry the deceased and liked Rajeshree Tarekar/A-2 could not be of any use as against Rajashree Tarekar/A-2 and that at the most might have been a motive to commit the offence. In acquitting Evaristo Pereira/A-3, the learned Sessions Judge observed that the prosecution had failed to prove the aspect of criminal conspiracy between the accused and Evaristo/A-3 as to the involvement of Evaristo/A-3 in destroying the evidence and therefore Evaristo/A-3 came to be acquitted under Sections 120-B and 201 I.P.C.

8. In the trial which followed against the accused(i.e. A-1) and Evaristo/A-3, prosecution examined 30 witnesses.

9. Upon consideration of evidence, the learned Sessions Judge found that the death of the deceased was homicidal in nature. The learned Sessions Judge held that the extra judicial confession made by Bijay Singh/PW8 was inadmissible in evidence. This the learned Sessions Judge did by relying on the decision of this Court in Ganesh Tate and Anr. v. State of Maharashtra ); but on the basis of (i) the

conduct of the accused prior to and after 26-2-2004, (ii) the evidence of recovery under Section 27 of the Evidence Act and (iii) the answers given by the accused under Section 313 Cr. P. C., proceeded to convict the accused as aforesaid.

10. The post mortem examination on the dead body was conducted by Dr. Pujari/PW20 on 8-3-2004, who found on the dead body, two injuries which have been described by him as follows:

1. On dissection of the scalp there is evidence of blood infiltration in layers of scalp on frontal area on either side of midline upto hairline over an area of 10 x 4 to 6 cms. There was no evidence of any fresh Page 1678 ante mortem fracture of scalp bones and mandible. The blood infiltration was red, fresh and caused by hard and blunt object and either side lambroid point on parietal area, ante mortem in nature on right and left side respectively 4 x 5 and 4 x 2 cms.

2. On dissection of neck below chin and submendugularly on either side, there is evidence of extra vasitation of blood in underline tissue, muscles on upper part of the neck, defused and gross over an area of 4 x 5 cms and 4 x 3 cms. respectively on right and left side. The underlying hyoid bone and fractures at both the cornu with evidence of blood infiltration and staining effect in surrounding tissues. and Dr. Pujari/PW20 opined that the death was due to violent compression of neck associated with head injury.

11. We do not propose to critically examine the evidence of Dr. Pujari/PW20 which has been considered by the learned Sessions Judge to come to the conclusion that the death of the deceased was homicidal. It had to be homicidal and certainly could not have been suicidal or accidental as the dead body was found buried. That would not have happened in case the death was suicidal or accidental. This aspect has been dealt in detail in paras 24 to 33 by the learned Additional Sessions Judge whilst considering point No. 1 framed by him.

12. As far as the identification of the dead body is concerned, it has been noted by the learned Sessions Judge, and in our view rightly, that the missing report mentioned that the deceased was wearing purple churidar with embroidery and white dupatta. The learned Sessions Judge has also observed that the prosecution witnesses, namely Evita D'Silva/PW7, Aurea Correia/PW9 and Shanti Hegde/PW26 also confirmed about the clothes which the deceased was wearing on that fateful day and they had also disclosed about the hair band with wooden beads. Sanjiv Lotlikar/PW2 identified the dead body on the basis of the clothes the deceased was wearing, namely, the purple colour churidar with embroidery design which fact is corroborated by Anuradha/PW10 who was the panch witness to the inquest panchanama. This identification was done at the morgue in Hospicio Hospital. The learned Sessions Judge also noted that the dead body was identified not only on the basis of the dress but also other items such as hair band with wooden beads and also took note that the sister of the deceased namely Yati Lotlikar/PW4 would have been in a better position to identify the said dead body with dress as they used to exchange their dresses and other items. A gold chain with pendant was found on the neck of the dead body. However, instead of attaching the same the Investigation Officer chose to hand over the same to the brother of the deceased, namely, Sanjiv Lotlikar/PW2, mention of which has been made in the inquest panchanama but no separate receipt was obtained from Sanjiv Lotlikar/PW2 by the Investigation Officer. Similar is the case of the ear studs. The ear studs were handed over to the brother of the deceased and a receipt was obtained to that effect. It was certainly expected of the Investigation Officer to have seized the said gold chain and the studs for the purpose of further investigations and not handed over the same to the brother of the deceased. These are but serious lapses on the part of the Investigation Officer. The body could have been identified and Page 1679 has been sufficiently identified as that of deceased Supriya Lotlikar, on the basis of churidhar and hair band with wooden beads.

13. Admittedly, the case of the prosecution is based on circumstantial evidence and as stated by the Apex Court in catena of decisions the law on this aspect is well settled. First, the circumstances from which the conclusions of guilt is to be drawn should be established by proof beyond reasonable doubt. Second, the circumstances proved must be consistent with the guilt of the accused and inconsistent with his innocence. Third, all the circumstances proved when taken together should point out to the guilt of the accused i.e. sufficient to conclude that within all human probability it is the accused who committed the crime. In this case, none of the three circumstances sought to be proved to connect the accused to the murder of deceased, and held as proved by the learned Sessions Judge, are free from doubt. Before dealing with the said circumstances, we will refer to the story of motive.

14. The motive which was alleged by the prosecution is that the accused did not wish to marry the deceased Supriya Lotlikar because of his illicit relationship with Rajeshree Tarekar/A-2. It is nobody's case that the accused was forced to marry civilly the deceased Supriya Lotlikar and if that was the case there might have been room to suggest that the accused did away with the deceased because of his relationship with Rajeshree Tarekar/A-2. There is no doubt that there is a motive behind every crime and that is why the Investigating Agency as well as the Courts while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. Motive therefore is always relevant and in a case based on circumstantial evidence it is of special importance but is of no consequence if the evidence is strong. The proof of motive fell to the ground with the discharge of Rajeshree Tarekar/A-2. The evidence produced by the prosecution only shows that Rajeshree Tarekar/A-2 who was working for Sunil/PW15 came to be a friend of the accused as the latter was a client of the said Sunil Shanbhag/PW15. Shanbhag/PW15 has clearly stated that he did not notice anything unusual regarding the relationship of the accused with Rajeshree Tarekar/A-2. It is not anybody's case that the accused went to meet the said Rajeshree Tarekar/A-2 any time other than when the accused went to meet the said Sunil Shanbhag/PW15. The prosecution has not produced any evidence even to remotely suggest that the accused had any special relationship much less an affair or illicit relationship with Rajeshree Tarekar/A-2 inasmuch as the prosecution also did not produce any evidence to prove that the relationship between the accused and the deceased were strained. On the contrary there is sufficient evidence to conclude, and as stated by Sanjiv/PW2, that everything had gone very well when the accused and deceased went out for a ride on 23-2-2004 and even on that fateful day assuming the deceased went after she received a call from the accused, she went in a happy mood. Assuming that the accused wanted to marry Rajeshree Tarekar/A-2, the accused could have always got his marriage with the deceased annulled and we see no reason why the accused had to Page 1680 take the extreme step of strangulating and murdering the deceased, as alleged by the prosecution. This is a clear case where motive was alleged by the prosecution and the prosecution has failed to prove the same. In a case based on circumstantial evidence and where the evidence is very weak motive was of special significance to the prosecution and the prosecution having alleged it but having failed to prove the same, certainly it does break one link in the chain of the circumstances. This is a view held by a Division Bench of this Court in the case of Shiri alias Shrikant Ramchand Gaonkar v. State of Goa 2006(2) Bom.C.R.(Cri.) 353 and needs to be followed in this case as well.

15. The first circumstance held as proved against the accused, by the learned trial Court is conduct of the accused. There is no doubt that in terms of 8 of the Indian Evidence Act, 1872, conduct of an accused is relevant if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. Conduct must have nexus with the crime committed. The learned trial Court has extensively relied on the Judgment of the Apex Court in the case of Maharashtra v. Suresh to come to the

conclusion that denial of what has been stated by the prosecution witnesses could be considered as one of the missing links in the chain of circumstances. That was a case where certain injuries were found on the person of the accused which were noted by the doctor who had examined him. The Apex Court observed that the significant impact of the said incriminating circumstance was that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he had not sustained any injury at all and in such a situation the Apex Court held that a false answer offered by the accused, when his attention was drawn to the aforesaid circumstance, renders that circumstance capable of inculpating him, and, in such a situation like that a false answer could also be counted as providing a missing link for completing the chain. Those observations could hardly be of any relevance as far as the facts of the case are concerned, when none of the circumstances connecting the accused with the crime were proved by the prosecution beyond reasonable doubt. The learned trial Court entirely lost sight of the fact that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that if there is any infirmity in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court.

16. The only conduct which could be considered against the accused is that he did not go to the Police Station to lodge the complaint. There is no last seen circumstance proved in this case. Admittedly no one saw the accused and the deceased going together on 26-2-2004. As per the case of the prosecution, particularly as stated by Aurea/PW9, the deceased is stated to have left her office in a happy mood after she received a telephone call which was taken by her colleague Evita da Silva/PW7. Page 1681 In her evidence, Evita/PW7 stated that on 26-2-2004 at about 2.45 p.m. she attended the phone call and the person from the other side had asked for Supriya/deceased and the said Supriya at that time was in the neighbouring office and she was called and she attended the call and told her that she was going out and would be back within half an hour. Admittedly, Supriya/deceased did not tell her with whom she was going. Evita/PW7 also categorically stated that she did not know where and with whom Supriya went on that day as she did not disclose anything to her. Admittedly, the Investigation Officer for best reasons known to him chose not to verify the identity of the caller who had called Supriya. Evita/PW7 further stated that in the same evening she received a call at her residence from the sister of the deceased inquiring about the deceased and she told her that she had gone out stating that she would be back within half an hour. In other words, the evidence of Evita/PW7 does not prove any conduct on the part of the accused which could connect the accused with the crime.

17. Aurea Correia/PW9 was working in the adjoining office of a Chartered Accountant and according to her the deceased was her good friend. As regards the incident of 23-2-2004 she stated that Supriya had told her that she had gone to Verna along with Deepesh/Accused to meet his friend and came back without meeting the said friend. As regards the incident of 26-2-2004 she stated that she met Supriya at 1.15 hours and when they were talking Deepesh/Accused came near her office, peeped and went away even before she could say anything about it to Supriya and thereafter they continued to talk and at about 2.30 p.m. Deepesh/Accused came near her office and he talked with Supriya for about 5 to 10 minutes and Supriya returned back to her office and after about 10 minutes Evita/PW7 came to the office and informed that there was a call for her and Supriya went to attend the said call and returned back and told her that the call was from "him" which she understood as a call from Deepesh and thereafter she went down the stairs after informing Shanti/PW26 who was working in another adjacent office of Advocate Shri Bale. She also stated that Shanti/PW26 told Supriya "Best of Luck" and while going down the steps Supriya was in a happy mood and thereafter she and Shanti/PW26 went to the window to peep outside and saw Supriya walking on the road going up to the main road. In cross-examination she stated that Supriya did not disclose to her the name of the person who had called her and who was waiting for her.

18. Shanti Hegde/PW26 stated that on 26-2-2004 she had opportunity to meet Supriya between 2.30 and 3.00 p.m. and at that time she was going down the stairs from the building and she was going to meet her fiance but did not disclose the name of her fiance. As per her, she along with Aurea Correia/PW9 went towards the window to watch the said Supriya going downstairs and saw her reaching up to the main road and then she went towards the left and then they could not see her. In cross-examination she stated that Supriya did not tell her as to where she was going to meet her fiance nor did she disclose where her fiance was waiting for her. Admittedly and as stated by Shanti/PW26 Supriya was a girl of good character and very jovial in nature. The evidence of Page 1682 Aurea Correira/PW9 shows that earlier the said Supriya had referred to the accused by his name i.e. Deepesh. The learned trial Court noted that there were discrepancies in the evidence of Aurea Correira/PW9 and Shanti/PW26 but they were of minor character and on that count their testimonies could not be viewed with suspicion or discarded. We are unable to accept this line of reasoning. Already stated, nothing had prevented Supriya from telling either Aurea Correira/PW9 or for that matter Shanti/PW26 and particularly Evita/PW7 who was working in her office itself that she was going with Deepesh(i.e. accused). In the circumstances of the case, it is difficult to accept that Supriya/deceased referred to the accused to Aurea Correia/PW9 as "him" and to Shanti/PW26 as "fiance" as the person she was going to meet and it is more than probable that these two witnesses have improved their versions subsequently. Nothing prevented the Investigation Officer to track down the source of the call and get the identity of the caller established. None of the said three witnesses, Evita/PW7, Aurea Correia/PW9 and Shanti Hegde/PW26 had seen the deceased going with the accused. The deceased had not told them that she was going with Deepesh/Accused. The contradiction in the evidence of Aurea Correia/PW9 and Shanti/PW26 as to how the deceased referred to the accused was a material contradiction, and in such a situation it is difficult to believe that Aurea/PW9 and Shanti/PW26 knew that the deceased had gone with the accused appears to be an improvement in their versions. That the deceased went with the accused and this fact was known either to Aurea Correia/PW9 or Shanti/PW26 stands further falsified by the evidence of Sanjiv Lotlikar/PW2 who gave a missing report and which would not have been given, in case by then Sanjiv Lotlikar/PW2, the brother of Supriya, knew that Supriya had gone along with the accused. In his cross-examination, he states that he was informed by Evita/PW7 that his sister had gone with the accused and this he knew at about 7 or 8 p.m. Evita/PW7 herself did not know with whom the deceased had gone and if Sanjiv/PW2 knew on the same day that the deceased had gone with the accused the pertinent question to be asked is, as to why he gave a missing report and not a complaint against the accused, and, for which question there is no answer. The only answer is that till the missing report was lodged no one knew as to with whom the deceased had gone. Sanjiv Lotlikar/PW2 has admitted this position by stating that on 26-2-2004 they did not suspect about the kidnapping of his sister by anyone and it is obviously because no one knew with whom Supriya had gone after she had received the phone call while she was in the office.

19. Prosecution has alleged that refusal of the accused to go to the Police Station to lodge the complaint shows his complicity in the crime. There is no dispute that the accused joined the search of the deceased.

20. As per Sanjiv/PW2, after the search they decided to lodge a complaint regarding the missing of his sister and it was around midnight at that time and when they were discussing about filing of the complaint to the Police Station, the accused got afraid and was reluctant to come with them to the Police Station and even the accused stated that the Police might arrest him. He further stated that the accused failed to come to the Police Station Page 1683 and he straightaway went to his house and he along with his father/PW3 and Dr. Raikar/PW5 went to Margao Police Station. Manohar Lotlikar/PW3, the father, has improved the version slightly. As per Manohar/PW3 when they decided to come to the Police Station, the accused told them that he is not ready to come to the Police Station and further stated that he should not be involved in it and ultimately he along with Dr. Raikar and his son Sanjiv/PW2 went to Margao Police Station and whereas the accused left to his house. It is interesting to note that Dr. Raikar/PW5, who is an independent witness has not supported any of the versions of Sanjiv/PW2 and Manohar/PW3. According to Dr. Raikar/PW5, when he returned at the Laboratory at about 4.15 p.m. he found that Supriya was not present and when he inquired with Evita/PW7 he was told that she was expected to return within one hour. He further stated that by 7.30 p.m. Supriya had not returned and by 7.35 to 8.00 p.m. Manohar/PW3 called him on phone and requested him to come to his house. He has confirmed that the search was conducted and he along with the father and brother of Supriya went in his car while the accused went on his bike. He has stated that they returned from Monte Hill and then decided to file a missing report and after that he along with the father and brother of the said Supriya went to the Police Station but the accused did not accompany them to the Police Station. The case of the accused has been that he was asked to go home. If the refusal of the accused to come to the Police Station had made Sanjiv/PW2 and Manohar Lotlikar/PW3 to think that the accused was involved in the disappearance of Supriya then again the question would be as to why they still filed a missing report and not a complaint against the accused for kidnapping the deceased or again why they took another three days to file the said complaint of kidnapping on 1-3-2004. It is also to be noted that the accused had met Sanjiv/PW2 between 26th to 29th February, 2004 about 4 to 5 times out of which the accused had visited them at their house on two occasions. This conduct of the accused militates against the involvement of the accused in the crime. This circumstance was not free from doubt and therefore could not have been said to have been conclusively proved. At this juncture, it would be relevant to refer to certain observations of the Apex Court in Sharadchandra Sarda v. State of Maharashtra wherein

the Apex Court stated that in view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which might have not been stated to them at all. Not that this is done consciously but even unconsciously, the love and the affection for the deceased would create a psychological hatred against the supposed murderer. The Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses Page 1684 in order to see that the offender is punished. This is human psychology and no one can help it. This is evident in this case when Sanjiv Lotlikar/PW2 asserted that Evita/PW7 had told him on 26-2-2004 at 7 or 8 p.m. that his sister had gone along with the accused when it is not the version of Evita/PW7 itself that she did not know with whom Supriya had gone.

21. Recovery of the dead body at the instance of the accused has been held as proved against the accused. Before we deal with that evidence, it is necessary to find out where and how the body of Supriya was found. According to the Investigation Officer Shri Shirwaicar/PW30 the accused took them to an open and isolated place where there were no houses near it. This place was by the side of a compound wall which was about 5 to 6 meters from the edge of the road and there were heaps of mud there. As per the panch witness Shri Amstrong Rodrigues/PW1 this place was at a distance of about 30 meters away from the edge of the bye-pass road. We proceed on the assumption that the dead body was found at a distance of about 5 to 6 meters by the side of the bye-pass road. According to Shri Shirwaicar/PW30 there was foul smell coming from the said place and this fact has been recorded in panchanama but Amstrong/PW1 sought to deny it by stating that the stink came after the mud was removed over the dead body and he was confronted with the panchanama. Nevertheless, Amstrong/PW1 conceded that when they reached the spot they had noticed that a part of the hand of the human body could be seen from above the surface. The photographer Deepak Sakhalkar/PW21 also stated that whilst taking the initial photograph, hair was visible partly, but according to Amstrong/PW1 the hair of the female lady could be seen only after removing the mud. The scene as described by the aforesaid witnesses gives a very clear picture that the body of the deceased was found by the side of the road and the place was stinking and the hand and the hair of the said dead body could be seen and therefore there was nothing to be discovered on the information given by the accused. The existence of the body of the deceased at that place could have been known to the Police on being informed by any passer by.

22. As per Shri Shirwaicar/PW30 on 6-3-2004 he took over the investigations from PSI Naik/PW25 and during evening hours Constable Rohan Naik/PW11 informed him that Bijay Singh/PW8 had informed him that accused who was in custody along with him had killed Supriya and had buried her body, whereupon he interrogated the accused and during interrogation he disclosed that he was ready to say the facts and thereafter the accused disclosed that he had buried the dead body of Supriya near Maruti Temple and he was ready to show the same. As per Amstrong/PW1, Shirwaikar/PW30 requested him to act as a panch witness and the accused had told them that he was ready to show the place where he had dumped the dead body by the side of the bye-pass road and thereafter the accused took them to the place where there was a heap of mud and asked to stop the jeep. He further stated that the accused showed the place where there was a big stone and they stayed there and one Police Officer went to arrange for labourers as well as Page 1685 photographer and when the labourers started to remove the mud from the said place and after removing the mud they noticed hair of the female/lady and they also noticed that the dress which was of purple colour. It is interesting to note that Shirwaicar/PW30 was asked how deep was the dead body buried and he stated that he was unable to disclose the depth of the layer. He also could not say about the depth of the portion from where the dead body was recovered. In cross-examination, Amstrong/PW1 stated that he had acted as a panch witness in two to three cases of Margao Police Station. He stated that he had not acted as a panch of Maina-Curtorim Police Station. He admitted that he had acted as a panch witness in two cases of Cuncolim Police Station all pertaining to recovery panchanamas. He denied the suggestion that he along with Leo Moraes the other panch witness were stock witnesses of the Police appearing together in recovery panchanamas. It was brought to his notice that he had stood as a panch witness on 17-11-2003 in a case pertaining to Colva Police Station and he admitted the same. He also admitted having stood as a panch witness at Margao Police Station on 10-3-2004, 27-8-2004, 25-8-2004, 9-12-2002, 5-9-2003, etc. However, what turns up from the evidence of PSI Sudesh Naik/PW25 is that Amstrong/PW1 stood as a panch witness in 8 cases pertaining to Margao Police Station, one of Colva Police Station and two of Cuncolim Police Station. In other words, the cross-examination of Amstrong/PW1 as well as Sudesh/PW25 clearly shows that Amstrong/PW1 is a person who easily could be termed as a stock panch witness and thus a pliable witness in the hands of the Police.

23. Learned Public Prosecutor has placed reliance on State of U.P. v. Zakaulla and has submitted that an acquiantance with the Police by itself would not destroy a man's independent outlook. Learned Public Prosecutor has also placed reliance on State of Maharashtra v. Muner Ahmed Shaikh 2000 Vol.(1) Crimes 376 and has contended that in case Amstrong/PW1 could not be believed it is well settled law that the evidence of the Investigation Officer could be believed. In our view, the correct law, in a controversy like this, has been indicated by a Division bench of this Court in the case of Usman H. Shaikh v. State of Maharashtra 1991 Cri.L.J. 232. That was a case where the panch witness had stood as a panch witness in 5 - 6 cases and it was contended that he was actually a stooge in the hands of the Police and the learned Division Bench came to the conclusion that his evidence was not that of an independent witness and he ought to have been considered as a witness who was amenable to Head Constable Kasurde and therefore no reliance could be placed on his evidence. It was then held that once the Police who raided the accused had taken the panch witnesses and when one of the said panch witnesses is examined in Court as a prosecution witness and it is clear from his evidence Page 1686 that he could be held to be a person amenable to a member of the raiding party, it does not lie in the mouth of the prosecution then to contend that the evidence of panch witness should be discarded and the evidence of the Police Officers ought to be relied upon. This is not a case where the panch witness has turned hostile and the evidence of Shirwaicar/PW30 is otherwise reliable. On behalf of the accused, reliance is placed on the case of Shri Bhagwant Singh Gaud v. State of Goa Manu/MH06848/1988. That was a case where Leo D'Cruz/PW3 was labelled as a stock witness and thus a pliable witness and it was again contended that the evidence of the Police Officer Shri Gopal Jadhav/PW4 ought to be relied upon. The learned Division Bench observed that the very fact that he did not make(PW4) any effort in securing independent panch witness does not make his deposition unimpeachable. The Division Bench also observed that in the facts and circumstances they did not find deposition of the Police Officer of such sterling worth that they could safely rely in sustaining the conviction of the accused for the offence under Section 20(b)(ii) of the N.D.P.S. Act. In Hiralal v. State of Haryana 1971 Cr.L.J. 290 the Apex Court observed that when a witness appears for the prosecution 4 to 5 times in Police cases his evidence can hardly carry any value inCourt. In Tar Kumar v. Delhi Administration 1994 Supp.(3) SCC 367 the Apex Court stated that no reliance could be placed on a witness who had appeared in more than 5 cases for the prosecution and was also related to the deceased. As far as the facts of this case are concerned, and as we shall point out little later, the evidence of Shri Shirwaikar/PW30 is not at all convincing and acceptable apart from other sins of omissions and commissions, committed by him in relation to the investigations of this case which also will be pointed out little later. Considering the location and the manner the body was found it is quite probable that the existence of the body at the place was known to the police through other sources and story of discovery could be fabricated only with the assistance of a pliable witness. Considering the facts of the case, we find that Amstrong/PW1 was totally a pliable witness in the hands of Shri Shirwaikar/PW30 and no reliance can be placed on his evidence. It is interesting to note that Amstrong/PW1 nor the accused are seen in the 9 photographs taken by the photographer Deepak/PW21. According to Shri Shirwaikar/PW30, Amstrong/PW1 was standing near PSI Naik which could be seen in the C.D. It does not appear that anyone saw the C.D. or confronted him with it. However, according to Sudesh/PW25 he did not remember whether he had seen Leo Moraes or Amstrong/PW1 at the spot. It is therefore doubtful whether either of them was at all present. As a result, it cannot be said that the prosecution has proved beyond reasonable doubt that the dead body of Supriya was recovered at the instance of the accused. In fact, one fails to understand why only on 6-3-2004 the investigation should have been taken over in a Page 1687 tearing hurry by Shri Shirwaikar/PW30 from Sudesh Naik/PW25 and the dead body recovered at about 11 p.m. In fact, Shri Shirwaikar/PW30 was asked in cross-examination as to the time when Constable Rohan Naik/PW11 informed him about the disclosure made by Bijay/PW8 and he stated that he did not recollect the exact time. However, it can be seen from the evidence of Tara Rajput/PW12 that the car of the accused bearing No.GA-02-J-9168 was seized at about 5 p.m. and it is mentioned in the panchanama that the car was taken in custody by the Police because in that car the deceased Supriya was killed and was used to transport the body by the accused who was in custody. In other words, the said panchanama Exh.39 gives a clear impression that the involvement of the accused was known to the Police prior to 5 p.m. and therefore there could be no acceptable explanation as to why the recovery of the dead body had to wait till about 8.30 p.m. This appears to be a clear case of manipulation. It is well settled that the Courts should be very vigilant to ensure the credibility of evidence by the Police because the provision of Section 27 of the Evidence Act is so vulnerable to abuse. In our view, the discovery in this case was stage managed. It is wholly suspect and could not have been accepted as proved beyond reasonable doubt.

24. False answers or false explanations given by an accused can be considered as missing links in the chain of circumstances when other links are proved by the prosecution and not otherwise. In this case since the prosecution has failed to prove the conduct of the accused showing his nexus to the crime as well as the recovery of the dead body at his instance, there was no question of considering any of the answers given by the accused in his statement under Section 313 of the Code as missing links to complete the chain of circumstances. There is a vital difference between an incomplete chain of circumstances and a circumstance that which after the chain is complete, is added to the chain of circumstances mainly to reinforce the conclusion of the Court.

25. As stated by the Apex Court in Sharadchandra Sarda(supra) it is well to remember that before a false explanation or false plea by the accused can be used as an additional link to the chain of circumstantial evidence, the following essential conditions would be satisfied:

(i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(ii) The said circumstance points to the guilt of the accused with reasoning definiteness.

(iii)The circumstance is in proximity to the time and situation.

26. The prosecution has also led much irrelevant evidence. It can be seen from the evidence of Jitendra Dessai/PW17 that on 26-2-2004 the accused had taken his car during the afternoon i.e. much before the accused could have met the deceased in her office as alleged by the prosecution and at that time Jitendra/PW17 attended to the said car and Page 1688 he found that there was a dent on the left hand side quarter panel and there was a damage to the bumper which was estimated at Rs. 1,800/- and when the accused was told to keep the car the accused told them that he would bring the car on the next day and in fact on 27-2-2004 the denting and painting was attended to. Sirish Kulkarni/PW16 has confirmed that on 27-2-2004 the work of denting, painting and washing of the vehicle was done and the vehicle was taken out on the next day i.e. on 28-2-2004 at about 3.30 p.m. The evidence of Francis Rodrigues/PW13 and Gajanan Jadhav/PW14 shows that the sun control film was changed and the steering cover was also changed. Admittedly, none of the aforesaid witnesses found anything suspicious against the accused whilst dealing with the car, and as rightly pointed out on behalf of the accused the servicing and washing was done in routine manner and this evidence does not at all help the prosecution to prove the case against the accused in any manner whatsoever.

27. The recovery of the phenyl bottle and the chappal also does not take the prosecution anywhere. Shri Shirwaikar/PW30 stated that after the recovery panchanama on 6-3-2004 he was interrogating the accused regularly, and, if that is so one fails to understand as to why the accused did not disclose to him about the phenyl bottle and the chappal(of the left leg) which as per prosecution, came to be recovered on 12-3-2004. As per Shirwaikar/PW30 the accused disclosed to him that he was ready to show him the place where he had thrown the phenyl bottle and the sandal of the deceased and the same was recovered in the presence of Nisser Dias/PW6. Nisser Dias/PW6 has confirmed having received a phone call from Shirwaikar/PW30 and after the accused voluntarily disclosed that he was ready and willing to show the phenyl bottle and the sandal they proceeded to eastern bye-pass where the accused directed to stop the vehicle and the said bottle was found after the accused searched for the same, inside the compound wall. Although, the said sandal has been subsequently identified by Yati Lotlikar/PW4 as that of the deceased the fact remains that it is nobody's case that the deceased was wearing the same on 26-2-2006. As rightly pointed out on behalf of the accused it has not been established by the prosecution that phenyl was ever used on the dead body. In fact, one wonders as to why phenyl had to be used on the dead body. After all no accused would be interested to preserve the dead body but it appears that the Investigation Officer was under a mistaken belief that phenyl could have preserved the dead body, longer. The recovery of phenyl bottle was therefor inconsequential. The sandal has been identified by Yati Lotlikar alone and not as sandal which the deceased was wearing on that day. It is also interesting to know that this recovery was made after six days of the first recovery i.e. on 6-2-2004 and after twelve days after the accused was arrested. If the accused was regularly interrogated by Shri Shirwaikar/PW30 as stated by him, one fails to understand as to how this recovery had to wait till 12-3-2004. It is to be noted that delay in recovery certainly diminishes the value to be attached to it. In other words, delay, without any explanation, only adds to suspicion. This is a principle which has been consistently followed by this Court first in Page 1689 Ahmad alias Ahmad Chakri and others v. State of Maharashtra 1994 Cr.L.J. 274 and thereafter in the case of Shiri alias Shrikant Ramchandra Gaonkar v. State of Goa 2006(2) Bom. Cr.R.(Cri.) 353 and again in Sarvanand alias Soiru Gaonkar v. State of Goa 2007 (2) AIR Bom Reporter 29. This circumstance therefore appears to be of doubtful character. In case a sandal of the left leg was found inside the compound and the dead body was found outside the compound Shri Shirwaikar/PW30 ought also to have found out as to what had happened to the other sandal i.e. of the right leg. No effort had been done in that direction. In any event, the recovery of the phenyl bottle and the sandal has not been proved beyond reasonable doubt against the accused and therefore cannot be used to connect the accused in the crime.

28. The learned trial Court has rightly rejected the evidence of Bijay Singh/PW8 and along with his evidence the entire genesis of the case sought to be built up by Shirwaikar/PW30 needs to be rejected. However, two facts, as stated by Bijay/PW8 stare at our face. Admittedly, Bijay/PW8 is also an accused who was involved in a murder case and who came to be acquitted presumably on the very day he was examined before the Sessions Court. In his examination before the trial Court he stated that he did not recollect the date when he was arrested though according to the prosecution he was arrested on 26-2-2004. He admitted that the charge against him was one of murder but next stated that he did not know about the said matter. In other words, he feigned ignorance even regarding the allegations made against him and went to the extent of stating that he had not even perused the charge-sheet which was given to him. He further stated that the accused used to visit his(accused's) house for the purpose of taking bath and at that time he used to return to the lock-up at about 3 to 4 hours and the accused used to go out of the cell along with one Samir who is an assistant to the Police Inspector. This statement if true, shows, the treatment Shri Shirwaikar/PW30 was giving to the accused. First of all, it must be stated that an extra judicial confession is a weak piece of evidence and it is difficult to believe that the accused in this case would make such a confession to a person like Bijay/PW8 who was otherwise not known to the accused except in custody. According to the prosecution, Bijay/PW8 was their star witness and as per the very prosecution the complicity of the accused was established only after he gave the information. If the story about the involvement of the accused was told to Bijay/PW8 two or three days prior to 5-3-2003 one fails to understand as to why he did not disclose that story to anyone until 6-3-2004. In our view, the learned trial Court placing reliance on the case of Ganesh Tate and another v. State of Maharashtra 2001 Vol.2 Bom. Criminal Cases 12 has rightly rejected his evidence as inadmissible. What the learned Division Bench held in that case is that any confession made by the accused when he is in Police Lock-Up either to a Police Officer or to any other person is inadmissible and hit by Section 26 of the Evidence Act. The manner in which Bijay/PW8 was examined on the very day when the case against him was fixed for Judgment Page 1690 also leaves much to be desired. His story that accused no. 3 visited the lock-up after he was released on 4-3-2004 is a story which is difficult to be accepted. One fails to understand as to how the accused after a lapse of about 10 days or so should have decided that the body of the deceased should be covered with more mud. The evidence of Bijay /PW8 apart from the fact that it was inadmissible also does not inspire confidence. In our view, his evidence was rightly rejected by the trial Court.

29. The learned trial Judge noted that the gold chain with pendant was found around the neck of the deceased and it was handed over to the brother of the deceased i.e. Sanjiv Lotlikar/PW2. The learned Sessions Judge also noted that it was highly objectionable on the part of the Investigation Officer to have handed over to the relatives or the person identifying the dead body as it was one of the important links towards the identification of the dead body and the said gold chain ought to have been attached under the panchanama. The learned Sessions Judge then held that no much importance could be placed on the said gold chain for the purpose of identification of the dead body. One fails to understand as to why Shri Shirwaikar/PW30 who is a Police Inspector chose the said method. It was his duty to have attached the said gold chain with pendant in the course of the said inquest panchanama. Similarly, is the case of studs which were handed over by Dr. Pujari/PW20 whilst conducting autopsy. If personal articles on the dead body like a bra, panty, petticoat could be seized under panchanama there is no reason why the said studs also could not be taken in his possession by the Investigation Officer under the same panchanama rather than handing over the same to the said brother Sanjiv Lotlikar/PW2. If it was the case of the prosecution that the deceased was assaulted on her forehead causing her injury and then strangulated then it was expected on the part of the I.O. to have made some effort to have found out with what weapon the deceased was assaulted but there is total silence in that regard. In case the sandal of the left foot was found at the instance of the accused it was also expected on the part of Shri Shirwaikar/PW30 to have made some efforts to find out where was the sandal of the other foot. No effort was at all made by either Shri Naik/PW25 or Shri Shirwaikar/PW30 to track down the person who gave a call to the deceased. It appears that the investigations were carried out in a most casual manner and it is one of the reasons that the accused deserves to be given benefit of doubt. Once it was established that none had seen the accused and the deceased going together, the least which was expected on the part of Sudesh/PW25 or for that matter Shirwaikar/PW30 was to have found out the source of the telephone call which for reasons best known to Shirwaikar/PW30 he did not do as an Investigation Officer.

30. It is well settled that the case of the prosecution has to be tested independently of the defense version. Falsity or weakness of the defense version does not establish the case of the prosecution. The Court has to be cautious and avoid the risk of allowing mere suspicion however strong to take the place of proof. A mere moral conviction or a suspicion however grave it may be cannot take the place of proof. The distance between "may be true" and "must be true" should be fully covered by reliable evidence Page 1691 adduced by the prosecution. This is a case where none of the circumstances sought to be proved by the accused have been proved beyond reasonable doubt and therefore the accused was entitled to be given benefit of doubt and acquitted.

31. We therefore allow the appeal and set aside the impugned Judgment. Consequently, the accused shall stand acquitted under Sections 302, 201 r/w 120-B I.P.C. The accused shall be set to liberty forthwith, in case the accused is not required in any other case.