Mumbai, Jun 25 : Granting benefit of doubt, the Bombay High Court has acquitted two persons of the charges of murdering a couple at their residence here eight years ago.
The court doubted the prosecution's evidence as the accused were in handcuffs when they had made statements before witnesses who recorded ‘panchnamas' of seized articles suspected to be stolen from the deceased victims.
The judges ruled that in such a condition when they were handcuffed, it cannot be said that the accused had made voluntary statements as there was an apprehension that they might have been pressurized by the investigators.
The court acquitted Shiva Harijan and Raju Chaurashia from the charges of killing Jagdish Kadam and his wife Pratibha who were staying in the western suburb of Vile Parle.
Justices P D Kode and Vijaya Tahilramani also acquitted the duo of other charges such as wrongful confinement (342 IPC), House Trespass (452 IPC), Robbery (392 IPC), Robbery or Dacoity with attempt to cause grievous hurt (397 IPC).
“We are of the opinion that the prosecution failed to prove the case against the duo and they deserve to be acquitted,” the bench said.
On February 16, 2008, the sessions court at Sewri had convicted the two on the charges of murdering the couple in their home. One more accused, namely, Akram Babu Shaikh, was acquitted by the court as there was no evidence against him.
However, Shiva and Raju were given life imprisonment.
Being aggrieved, they filed an appeal in the High Court.
On October 3, 2005, the couple were found lying in a pool of blood at their home.
They were attacked with a knife or a sharp edged weapon.
Their daughter was staying in nearby Navi Mumbai, while son was residing in USA.
The daughter had called up her parent's neighbour to tell them that her mother was not picking up her call.
When the neighbour broke open the door, she found both husband and wife lying injured with blood splattered all over. They bore stab wounds in their stomach. Police filed a case and arrested three persons.
Both the accused filed an appeal in the Bombay High Court against their conviction, pleading that they had not committed robbery in the flat of Jagdish and Pratibha nor have they killed the couple.
There was no eye witness to the crime and prosecution relied upon circumstantial evidence.
The prosecution had relied upon a witness who recorded a panchnama of recovery of clothes and knife at the instance of accused Shiva.
The judges noted, “on going through cross-examination of this witness, we find that he has stated that Shiva was handcuffed at the time when he made a statement before the police and panch witness that he will produce the articles.”
“The fact that Shiva was handcuffed at the time of making statement, shows that the statement made by him was not a voluntary one.
This also shows that he was under pressure of the police and under duress.
In such a case, it cannot be said that the recovery was a voluntary one,” the judges observed.
“Even otherwise, we find that this circumstance of recovery of clothes and knife at the instance of Shiva does not inspire confidence. We say so because the evidence of the panch witness shows that shirt, pant and knife were recovered at the instance of Shiva,” the judges said.
This recovery was shown on October 24, 2005. However, it is pertinent to note that evidence of Dr Chauhan who did the post-mortem records that knife was shown to him on October 4, 2005.
There is only one knife shown as recovered in this case and that is shown to be recovered at Shiva's instance.
Thus, if the knife is shown to Dr Chauhan on October 4 2005, it creates grave doubt regarding evidence in relation to the recovery of knife on October 24, 2005, the Judges said.
In respect of the recovery in relation to the knife, the entire panchanmas would be suspect. In such case, it would also not be safe to rely upon the recovery of shirt and pant also, the bench further held.
Another panch witness Shailesh had deposed saying 13 articles were recovered at the instance of Shiva. However, from among these articles, the family of the victims had identified only a pair of earrings belonging to deceased wife.
The evidence of this witness also showed that Shiva was handcuffed when he went to police station. Thus this evidence is also suspect because it indicates that the accused may have made a statement in duress at the instance of police, the judges said.
Moreover, it is seen that this witness has stated that he was called by the Investigating Officer on October 24, 2005 and he was told that he had to come next day to the police station for the purpose of panchnamas.
“The very fact that this panch witness was told to come the next day, shows that the recovery was not a voluntary one,” the judges remarked.
“If the recovery was voluntary, the police would not have known the earlier day that the appellant was going to make a disclosure statement the next day. This shows that the recovery of articles is not a genuine one,” the bench said.
Moreover, prosecution witness Shailesh has stated that on October 24, 2005, he had seen Shiva in the police station and on the next day when he went to the police station, Shiva was handcuffed. “This further buttresses the fact that recovery was not a voluntary one,” the judges said.
“Thus, we are not inclined to place reliance on the recovery of articles which has been disclosed by witness Shailesh in relation to Shiva,” the bench further said.
As far as accused Raju is concerned, the prosecution has relied upon evidence of Panch witnesses, Shailesh and Prakash. The judges noted that Shailesh had only deposed about the earlier part of the recovery to the effect of recording Raju's statement that he will produce the articles.
However, after the articles were recovered at Raju's instance, this witness did not depose about panchnama being made.
In fact, the witness categorically stated that he did not know what action was taken thereafter, the bench said.
The judges said that another disturbing aspect in this case was that after the recovery was effected, police did not take any care to seal the articles immediately after the seizure.
