B.P. Dharmadhikari, J.
1. Accused Mahendra Bhaskar Pavre has been sentenced to death by Additional Sessions Judge (Link Court), Mehkar vide judgment dated 16.05.2016 in Sessions Trial No.42/2014. Prosecution case in brief is P.W.5 Chhaya is his wife. Deceased Ku. Kalyani (5 years) and deceased Ku. Shital (2 years) were their daughters. They have a son by name Yuvraj, who was then 7 years old. On 24.01.2014, father of Chhaya by name Tejrao Vithoba Thorve (P.W.6) came to her residence at village Jaulka at about 3 p.m. Accused returned back to home at about 5 p.m. in an inebriated condition. He asked Chhaya why her father had arrived, quarreled with her, beat her up by fists and slaps. He also slapped Tejrao when latter tried to save his daughter. Chhaya then cooked food and after dinner family went to sleep. Chhaya and her two daughters slept inside the room, while Tejrao and Yuvraj slept in verandah of house of Bhaskar, who happens to be father of accused. Accused slept in front of the house. Chhaya had bolted door from inside. In the night, accused shouted and asked to open the door, but, Chhaya did not open it. Next day i.e. on 26.01.2014 between 6.30 to 7 a.m., Chhaya after opening the door, gave water to accused to wash mouth. Mahendra [accused] then woke up daughters Kalyani and Shital. He lifted Shital in his arms and led Kalyani by holding hand. He told them that they would go to bring biscuits and chocolates.
2. At 7.30 a.m. Mahendra informed Bhimrao Salve (P.W.4), that he had thrown both the daughters in a well located in the field of said Bhimrao's brother by name Arjunrao (P.W.3). Bhimrao informed this to Chhaya, Tejrao and Bhaskar. They rushed to the well and found body of Kalyani floating on water. Shital was not seen. Chhaya then approached police station, Kingaon Raja and lodged report. Crime No.12/2014 for offences punishable under Sections 302, 323, 504 and 506 of Indian Penal Code came to be registered. PW-10 Police Inspector Sunil Hood carried out the investigation. He visited the spot shown by the informant Chhaya. Dead bodies were taken out; spot panchanama and other formalities like inquest etc, were carried our. Dr. Jagannath Chate, Medical Officer (P.W.8) conducted post mortem and opined that cause of death was asphyxia, due to drowning. The Police Inspector Shri Hood (P.W.10) completed rest of the investigation.
3. After committal, charge Exh.9, was explained to the accused. He pleaded not guilty and came to be tried. As per his request, legal aid was provided and Shri Pawar, Advocate came to be appointed to defend him.
4. Defence of accused is that of denial. In Section 313 Criminal Procedure Code statement, in reply to question no.69 he stated that when he was going with his two daughters, his uncle Sahebrao Pavre came there and took custody of girls for taking them back to home. When accused came to Kingaon Jattu diversion at about 8 a.m., he learnt that his uncle Sahebrao had killed his daughters by throwing them into the well.
5. Admittedly, there is no eyewitness and conviction is based on circumstantial evidence. Trial Court has found that motive also is not established. In paragraph no.124 of its judgment, the trial Court has found the following circumstances to be proved:
(i) That Sau. Chhaya slept with her daughters Ku. Kalyani and Ku. Shital inside the house during the night of 25.01.2014.
(ii) That accused who slept outside was repeatedly asking Sau. Chhaya open the door and extending threats of killing all.
(iii) That accused woke-up Sau. Chhaya and both the daughters about 7.00 7.30 from sleep.
(iv) That accused took both the daughters out with him on pretext of feeding them chocolates and biscuits.
(v) That soon thereafter, dead bodies of both the daughters were found in the well situated in a field out of village.
(vi) That explanation offered by accused is unreasonable, improbable and unsatisfactory.
6. Additional P.P. Shri S.M. Ukey, along with Shri N.B. Jawade, learned A.P.P., arguing the confirmation case submitted that as per report lodged by P.W.5 Chhaya, after beating his wife, in previous evening and also in night, accused had threatened to kill his daughters. Even in the morning while carrying daughters, he repeated those threats. Accused Mahendra himself informed fact of killing and place where bodies could be found to P.W.4 Bhimrao. P.W.4 Bhimrao informed this to is brother Arjun (P.W.3) and others. P.W.5 Chhaya, P.W.6 Tejrao and other relatives rushed to the Well and found body of Kalyani floating, while other body was not to be seen. Immediately F.I.R. was lodged. Thus, bodies of daughters and fact of death was discovered due to extra judicial confession, which has been established as per law. Mahendra was last seen with his daughters who were dependents who gave false explanation to save himself and hence, attempted to implicate Sahebrao. He could not establish it. Body of Shital which could not be seen, was searched and discovered in the Well due to his confession under Section 27 of the Evidence Act. Thus, all these events disclose a motive and also constitute a complete chain pointing out the Mahendra as offender. Hence the finding of guilt cannot be interfered with. Selecting and killing daughters too young to understand anything, that too on account of domestic quarrel with wife is nothing, but, inhuman act arising out of gender bias and hence, punishment also does not call for interference.
7. He has taken us through the entire evidence on record and various judgments to point out how the circumstances need to be seen as aggravating circumstances and absence of the mitigating circumstances in the matter.
8. Shri S.P. Gadling with Shri N.B. Rathod, learned counsel appearing for the accused, have opposed the arguments of learned A.P.P. and also argued the appeal of accused seeking acquittal.
9. He submits that the circumstances looked into for reaching the finding of guilt do not form of a chain at all, and alleged chain is also not complete so as to implicate nobody else, but, only the present accused. Daughters in company of father cannot by itself constitute an incriminating circumstance and cannot be viewed as a last seen event so as to reach a finding of guilt on its basis. Mere custody or failure to support the explanation offered by the accused in defence cannot result in his conviction. P.W.3 or P.W.4 do not support the so called extra judicial confession and in cross-examination their credit is destroyed. Prosecution could not muster courage to place relevant material to the investigating officer P.W.10 Shri Hood. Thus, their testimony has brought something new for the first time on record during trial.
10. Inviting attention to evidence of P.W.3 Arjun, it is pointed out that the bodies are not discovered at the instance of the accused, and there is no discovery under Section 27 of the Evidence Act on record. Time mentioned in various panchnamas is also pressed into service to urge that the investigation also is not free from doubt. Attention is invited to cross-examination of P.W.5 Chhaya to state that the defence raised by the appellant/ accused cannot be labeled as not reasonable. Emphasis is given on the fact that mother P.W.5 does not refer to P.W.4 Bhimrao as person who first communicated the gruesome act to her. Entire evidence of prosecution therefore, falls short to meet the prescribed standards and hence deserves to be discarded.
11. Our attention is also drawn to the judgment of learned trial Court to urge that only by applying theory of last seen and after recording satisfaction about failure on the part of the accused to substantiate his explanation in answer to question no.69, a finding of guilt has been reached. It is submitted that the motive is not proved at all and hence in case based only on circumstantial evidence, conviction is not justified. In the alternate and without prejudice, Shri Gadling, learned counsel contends that as conviction here is based only on inference [surmises], even otherwise, recourse to a punishment like death is unwarranted and unsustainable, in law.
12. Both sides have relied upon several judgments to substantiate their contentions and also to demonstrate the propriety or otherwise of selection of death penalty. We will make reference to said judgments as and when occasion therefor arises.
13. Perusal of judgment dated 16.05.2016, impugned in the appeal filed by the accused and referred for confirmation, shows that the trial Court has framed points in paragraph no.9 of its judgment. From paragraph no. 10 onwards the reasons begin. In paragraph no.19, the learned trial Court has reached a conclusion that the prosecution failed to prove beyond reasonable doubt that the accused on 25.01.2014 at or about 5 p.m. voluntarily caused hurt to P.W.5 Chhaya or P.W.6 Tejrao. The discussion by the learned trial court is sufficient to negate theory of any utterance disclosing intention to kill both the daughters by the accused on that day. Because of this discussion, the learned trial court has answered point nos. 1, 2 and 3 against the prosecution and exonerated the accused of the offence punishable under sections 323, 504 and 506 of Indian Penal Code.
14. From paragraph no.20 onwards in said judgment, it has discussed point nos. 4 and 5 together. The scene of occurrence at Exh.20 is accepted by the trial court vide its discussion from paragraph nos. 23 upto paragraph no.32. From paragraph no.33 onwards upto paragraph no. 43, it has ascertained cause of death and from paragraph no.44 upto paragraph no.54, it has considered the aspect of time of death. It has accepted asphyxia due to drowning as cause of death of both the girls and also accepted the opinion of Dr. Chate (P.W.8), that approximate time of death of both the girls was between 4 to 6 hours from their last meal.
15. None of the parties before this Court have advanced arguments on the cause of death or time of death.
16. From paragraph no.60 upto paragraph no.66 the learned trial Court considers the circumstance of extra judicial confession by the accused to P.W.4 Bhimrao along with the evidence of P.W.3 Arjun and refused to rely upon it.
17. From paragraph no.67 onwards it has looked into the confession allegedly given by the accused and evidence of P.W.9 Shivaji, adduced by the State to prove it. It concludes in paragraph no.68 that no recovery was made in pursuance of that memorandum statement Exh.46, and demonstration panchnama Exh.47. As such, both the documents are found irrelevant.
18. From paragraph no.69 onwards it has embarked on the discussion about admissibility of evidence of P.W.5 Chhaya who happens to be wife of accused and mother of two minor victims. It appears that Section 122 of Evidence Act was pressed into service on behalf of the accused claiming the same to be privileged. In paragraph no.75, Trial Court discards it. The conclusion reached is, evidence given by P.W.5 Chhaya is admissible against her husband. Again accused has not assailed this exercise and finding before us.
19. From paragraph no.76 upto paragraph no.94, circumstance of last seen has been discussed. Discussion is in the background of answer given by the appellant / accused to question no.69 in his statement recorded under Section 313 of Criminal Procedure Code. Fact that accused was last seen with the daughters is accepted by the learned trial Court.
20. From paragraph no.95 upto paragraph no. 111 impact of Section 106 of the Evidence Act and therefore, special knowledge to accused has been discussed. It is found that as he was last person in whose custody the daughters were seen, hence, burden was upon him to explain later events which were within his special knowledge. Answer given by him to question no.69 is then reproduced and it is found unsatisfactory. On account of this unsatisfactory unsubstantiated answer, it is held that the accused failed to discharge the burden cast upon him by Section 106 of the Evidence Act.
21. While discussing motive aspect, in paragraph no. 112 to paragraph no.119, it is found that though the prosecution could not bring on record any motive, absence of motive was not sufficient to view the prosecution story with suspicion. In paragraph no.120 to 123, aspect of conflict between medical and ocular evidence has been looked into. The fact that as per P.W.5 Chhaya on 25.01.2014 food was cooked between 7.30 to 8 o clock, and parties thereafter had dinner, is evaluated in the background of the approximate time of death brought on record through evidence of P.W.8 Dr. Chate. It is concluded that time of death deposed by Dr. Chate is approximate and hence, on the basis of such material, no inconsistency or contradiction between ocular evidence and medical evidence could have been worked out.
22. It is in this background that in paragraph no.124, 6 circumstances, mentioned above, are found to be established and on said basis, a finding of guilt has been reached. This judgment of learned trial court therefore, reveals that only because of custody of daughters lastly with the accused and his failure to explain what happens to them thereafter, due to Section 106 of Evidence Act, inference of his guilt has been reached.
23. Though learned Addl. P.P. has urged that the extra judicial confession made by the accused to P.W.4 Bhimrao has been established, the material on record does not support this contention. Test of proof beyond reasonable doubt needs to be used. Bhimrao has deposed that on 26.01.2014, he was going to a village by name Dusarbid, between 7 to 7.30 a.m. by motor cycle. Accused met him below Hiwra tree at Jaulka bifurcation. He demanded mobile and when Bhimrao has asked as to why he needed a mobile, accused told him that he wanted to call his elder brother at Aurangabad. Bhimrao asked why he wanted to make that phone call, and thereupon accused informed that he pushed both his daughters in to the Well of Bhimrao's brother Arjun. Thereafter PW-4 immediately returned back to village and informed the same to his brother Arjun. He also communicated it to Bhaskar Pavre viz. father of accused.
24. His cross-examination reveals that police never approached him and never recorded his statement. He accepted that facts deposed to by him were spoken for the first time in Court. He has categorically stated that he did not make any statement before the police, thereby disowning the one under Section 161, which police filed in present case. He was not declared hostile and P.W.10 Investigating Officer was not asked about this statement by Bhimrao. The investigating officer does not say that he has recorded statement of P.W.4 which formed part of chargesheet. Facts denied by Bhimrao in cross examination militating with his Section 161 statement are also not specifically put to PW-10. The prosecution through PW-10 nowhere brings on record an assertion that he (PW-10) correctly written the facts stated by Bhimrao while recording his Section 161 Criminal Procedure Code statement.
25. Other important witness on extra judicial confession is P.W.3 Arjun. He stated that at about 8 a.m., P.W.4 Bhimrao gave him message that accused pushed daughters in to Well situated in the field of this witness. He went to the field and peeped into the Well, he saw one dead body floating and other at the bottom. He also states that many villagers were already present in the field before he reached there. His cross-examination reveals that the dead bodies of girls were taken out at about 10 to 11 a.m. He further stated that the police enquired from him and he told police that when he peeped into the Well, another body was at the bottom. He could not explain as to why this fact is not appearing in his statement. In cross, he denied the statement that the incident deposed by him before the Court were not informed earlier by him to any body. Again prosecution has not brought necessary evidence in this respect either by declaring him hostile or then by putting necessary question to investigating officer P.W.10. and drawing necessary explanation.
26. Fact that several persons were at the Well when Arjun went there, is not in dispute before this Court. Even P.W.1 had stated that many villagers had gathered at the spot of incidence. Police have not examined Bhaskar, father of accused to whom Bhimrao allegedly gave information. P.W.5 Chhaya states that her husband disclosed throwing of daughters into Well to a person . She therefore, does not name that person and avoided to mention any name. She further deposes that said person informed this fact to her and her parents-in-law. They went to the Well of Arjun. Kalyani was seen floating, while Shital was not to be seen. She has proved her complaint Exh.29, printed FIR Exh.30 and her statement under Section 164 of Criminal Procedure Code at Exh.131. She did not depose about the events leading to crime in court and hence, the same do not form part of record. Again, the prosecution did not make attempts to bring it on record
27. Considering the nature of crime and impact of adjudication on social fabric, facts not coming on record also need brief mention here. Perusal of her oral report Exh.29, or printed FIR shows that a quarrel and beating on 25.01.2014 evening by accused to her and her father. At that time the accused also threatened to kill children by throwing them into Well. In the night, intervening between 25th and 26th January, again he reiterated the threat that he would kill Chhaya and daughters by throwing them into Well. On 26.01.2014, while taking daughters away, he told her that he would kill both the daughters by throwing them into Well. Chhaya has stated in her report that she never apprehended that a father would kill his own daughters and therefore, did not raise any alarm. These threats, if real, were very vital in this matter. All this material which is present in her report, is not deposed to by her and prosecution has failed to bring in on record. We, may only say here that reasons therefor are also not on record.
28. P.W.6 Tejrao is Chhaya's father. He has deposed about enquiry by accused in evening of 25.01.2014, as to why father of Chhaya had come. It appears that his arrival had irked Mahendra. Tejrao states that Mahendra after inquiry, also started beating Chhaya and when he tried to intervene, Mahendra also beat him. Mahendra was muttering that he would kill all. He also deposed that in the night, Mahendra was asking Chhaya to open the door and expressing that he would beat and kill. In the morning, Chhaya told him that Mahendra had taken daughters for purchasing biscuits and toffees. His cross-examination by the learned counsel for the accused shows that his statement was recorded by police 10 to 15 days after lodging of report. His statement was also recorded in Court. He accepted that before Court and before police he told that Chhaya s marital life went on smooth till she gave birth to a son, and thereafter accused started beating her under influence of liquor. He has spoken about certain other facts, which may have bearing on the conduct of the accused Mahendra, but, he could not explain why those facts were not appearing in his statement. He further states that after learning about the incidence, he immediately went to the spot and about 100 to 150 villagers had already gathered there. Statement at Exh.34 given by Tejrao under Section 164 of Criminal Procedure Code is dated 14.03.2014.
29. Deposition of Tejrao or Chhaya therefore, does not show that it is either Bhimrao (P.W.4) or then father of the accused Bhaskar, who informed the fact of throwing of girls in Well to them. The mother P.W.5 mentions vaguely that she got knowledge through a person without disclosing his name. She also did not depose about threats allegedly given by the accused on 25.01.2014 in the evening or then on 26.01.2014 in the morning or in the intervening night. There is no effort by these witnesses to bring any motive on record. Prosecution also has not made any efforts to at least safeguard investigation undertaken. Thus, the evidence only shows that daughters were taken by the accused for the purpose of purchasing chocolates and biscuits.
30. Trial court had already found that extra judicial confession is not established. Similarly, it has also found that prosecution has failed to bring on record any motive. We endorse said findings.
31. Memorandum statement alleged to be under Section 27 of the Evidence Act by accused is rightly found irrelevant by the Trial Court. These document at Exhs. 46 and 47 do not lead to any discovery. Many villagers had already gathered at the Well and PW-3 Arjun is not the first person to find body floating in pursuance of extra judicial confession. Thus, exclusive character of knowledge with Mahendra of fact that bodies of both the girls were in the Well, also could not be brought on record by the prosecution. Exh.46 is memorandum statement and Exh.47 is demonstration panchnama. These documents are therefore, rightly discarded by the learned trial Court.
32. P.W.1-Datta Taur has proved the spot panchnama of Well from which dead bodies were removed. The fact that dead bodies were taken out of that Well is not in dispute before us. His deposition shows that police reached at the spot at about 1.30 p.m. to 2 p.m. and 34 hours was required to take out the dead bodies. He accepted suggestion in court that the said work continued at spot upto 5.45 p.m. to 6 p.m. He denied that he was not present and accepted the police obtained his signature at about 5.45 to 6 p.m. after completion of panchnama. But, immediately added that police obtained his signature at 1.30 to 2 p.m. after completion of panchnamas. Perusal of panchnama reveals that it started at about 13 hours and concluded at 14 hours on 26.01.2014. Shankar Wanjare and Raju Sangle were asked to get into the Well to search for body of Shital. All these facts are mentioned in the panchnama. Other panch Vilas Chipte (P.W.2) has proved inquest panchnama Exh.22 and 23. He is signatory to panchnama Exh.23. He states that inquest panchnama was prepared between 1 p.m. to 1.30 p.m. after preparation of spot panchnama. Exh.22 shows that recording was done between 14.35 hours to 15 hours, while Exh.23 shows that recording was done between 14 hours to 14.30 hours.
33. In this background, two other documents i.e. Exhs. 46 and 47 need to be seen. Exh.46 is memorandum of statement of admission. It is dated 28.01.2014. In it date and hour of arrest is mentioned as 26.01.2014 at 17.30 hours. Admission given by the accused are recorded in Exh.46. These admissions are about events which transpired on 25.01.2014 in the evening. He does not speak of any quarrel or beating or threat, but, only of some arguments. He thereafter, points out that in the morning he left with his daughters. He carried them to a pond, located in shivar of Jaulka, fed them some chivda and water and then took them to a Well in the field of P.W.3. He then threw elder daughter Kalyani in to Well and thereafter younger daughter into it. While returning, he met Kaushal Datta Nagre and Bhimrao Rambhau Salve, from his village. They enquired from him as to why he was coming back so early in the morning. He stated that he was returning after throwing his daughters in the Well of P.W.3. He returned home and disclosed it to his wife, father-in-law and father also. After this one demonstration panchnama to bring on record this sequence is also drawn and it is at Exh.47. Trial Court has rightly concluded that these documents are irrelevant. Evidence of P.W.4 Bhimrao militates with what accused has disclosed in Exh.46. Prosecution has not examined Kushal Datta Nagre to bring on record the enquiry made by him with accused or alleged incriminating answers given by the accused to him. Investigation to bring before the Court material which could have revealed exclusive nature of the knowledge of the facts being recorded enabling Court to infer about that sequence, and therefore put forth Mahendra alone as author is obviously absent. Exhs. 46 and 47 are therefore, inadmissible and have been rightly discarded by the learned Trial Court.
34. Thus, only because daughters were with father, and father is not in a position to explain their whereabouts or substantiate his version, the learned trial Court has drawn an inference of guilt. The inference is based upon Section 106 of the Evidence Act. The learned Trial Court has found that fate of daughters ought to have been explained by the accused, as it was a fact within his special knowledge.
35. It is no doubt true that the accused for the first time in his Section 313 Statement attempted to bring on record explanation that his daughters were taken by Sahebrao Deorao Pavre and he killed those daughters. He also explained reasons behind it by pointing out that Sahebrao and his son Vinod were demanding memory card which contained objectionable shooting about his Sister Swati. Mahendra claimed that they also threatened to with kill his son Yuvraj. Explanation is not satisfactory and there is no reason to inform about it to police, to facilitate prosecution to gather relevant proof in support.
36. Cross-examination of wife of accused (P.W.5 Chhaya) in paragraph no.9 reveals that Vinod Pavre had a sister by name Swati whose father is Sahebrao. Swati was married in village Raheri. Chhaya was not knowing Mukesh Salve or Shriram Salve. But, she accepted that Salve family resided in the village. She also accepted that she had seen Mukesh and Shriram, but, would be unable to identify them definitely. She accepted that there were disputes between Vinod Pavre, Sahebrao Pavre and accused Mahendra. At this juncture on 24.08.2015, her cross examination was deferred. It was resumed on same day after recess. She, in further cross-examination stated that she was not aware whether Swati was not staying with her husband and at the relevant time was in the village. She accepted that at the time of incident, Swati was in the village. Swati was also sister of her husband. Chhaya (witness) belonged to Boudha community, while Mukesh Salve belonged to Matang community. She was not aware whether there were illicit relations between Mukesh Salve and Swati. She was not aware whether Mahendra disclosed this fact to Vinod and Sahebrao Pavre. She was not aware that because of this there was dispute between Vinod, Sahebrao and Mahendra; and due to it, they had beaten Mahendra. She was not aware whether Mahendra had recorded physical relationship between Mukesh and Swati in his mobile phone.
37. Apart from this suggestion given to P.W.5 Chhaya by accused, there is no effort to bring on record the material to substantiate any enmity with Sahebrao Pavre or Vinod Pavre on the ground of alleged shooting showing Swati with Mukesh in compromising position.
38. Her cross-examination in paragraph nos. 13 and 14 reveals that on receipt of information about the death of two daughter, she received shock and therefore was not conscious. She was weeping and was not paying attention to others. She could not state approximate time at which she reached the Well. She however, denied that she was not in a position to precisely state as to why and in which manner incident took place. She could not state when ashes were collected. She accepted that she did not remember the same because she had lost her mental balance. She went to her parents house on the day of death itself. She accepted that people gathered there were saying that lodging of report was necessary as bodies of girls were to be taken out of the Well. She accepted that it was decided to lodge report against Mahendra and thereafter, her cousin father-in-law took her to lodge report. Ankush Pavre i.e. her cousin father-in-law, Village Sarpanch Shri Nagre, were with her at the time of lodging report. She accepted that Ankush Pavre, happens to be brother of Sahebrao Pavre and uncle of Swati. She denied that persons accompanying her told police about the incidence and Officer in-charge then asked them to produce mother of deceased daughters before him. She stated that she personally narrated the everything to police station officer.
39. This material on record therefore, shows that though prosecution could have brought on record special knowledge of the fact that bodies of both the daughters were in the Well, prosecution could not succeed in doing it. Kushal Nagre was not produced as witness and P.W.4 Bhimrao could not establish extra judicial confession. P.W.4 Bhimrao did not support the prosecution case and even there after, prosecution did not examine Kushal Nagre. P.W. 3 Arjun also did not support prosecution. There is no investigation to find out who first reached the Well and saw dead bodies therein. Who was that person, source of his information would have been important factors. There is no investigation to find out whether said person learnt about the bodies lying in the Well because of extra judicial confession allegedly given by the accused. There is absolutely no justification as to why such an investigation could not be undertaken.
40. Neither P.W.5 mother of the deceased, nor her father P.W.6 have supported the prosecution case fully to bring on record any motive. Though P.W. 6 speaks about beating him and his daughter (P.W.5-Chhaya) on previous evening, P.W.5 does not support him. Statement of P.W. 6 has been recorded belatedly. The first disclosure by the accused either to Bhimrao or Kushal and events thereafter are also not satisfactorily brought on record by prosecution, apparently because of reluctance of P.W.4 Bhimrao, P.W.3 Arjun and P.W.5 Chhaya. Alleged incriminating circumstances are not proved beyond reasonable doubt. Whether there was any incident in previous evening or night and whether there were any threats to eliminate daughters therefore is the moot question. Why P.W.5Chhaya did not speak as per her police report in Court or did she lodge an incorrect report, and in either case, reasons which persuaded that particular course of action, can not be ascertained now. Its impact on prosecution story also becomes incomprehensible.
41. Taking over all view of the matter, we find that merely because daughters were last seen with their father and their dead bodies are found in the Well thereafter, an inference of guilt of father cannot be reached. Inability to explain whereabouts of daughters by a father by itself is not a circumstance which can be construed as missing link in this situation. When the witnesses who could have provided missing link or other links to complete the chain, have avoided to do so, it is apparent that there is no legal evidence before the court to connect the accused with the alleged act of throwing two minor daughters in the Well. When there is no eyewitness to that act of throwing or to presence of the accused Mahendra in its vicinity, circumstantial evidence falls short to indicate him only as offender. Only failure to explain or substantiate his defense, can not, in present situation, in absence of any motive, be viewed as an adverse circumstance against Mahendra.
42. In this situation we find circumstances on record insufficient to prove beyond reasonable doubt guilt of accused and to convict him with murder of his two minor daughters.
43. In view of the discussion above, it is not necessary for us to look into various judgments relied upon by the respective counsel while advancing their contentions.
44. All these lacunae have tilted balance in favour of the accused. When we stick to the cherished principles of let thousands guilty persons go unpunished, but, one innocent person should not be punished, or implement the principles of presumption of innocence, the same is on account of absolute faith of framers of Constitution reposed in us and acquiesced in by us, when we accepted the Constitution of India and committed ourselves to honour it with words We the people of India .
45. Appellant/accused Mahendra also did not point out alleged involvement of Sahebrao or threats to him. It may have prevented investigation in right direction. These persons have dishonoured that faith and protected the real culprit. We find that the entire society/village is out to assist them in their design and have not come forward to assist police in the matter. The villagers in village have thus permitted two innocent female child to be killed and have not bothered about it.
46. In this situation keeping in mind the observations of Hon'ble Apex Court in the case of State of Gujarat .vrs. Kishanbhai ((2014) 5 SCC 108), we find it appropriate to issue notices to acquitted accused Mahendra Bhaskar Pavre; his wife P.W.4 Chhaya Mahendra Pavre, witnesses P.W.3 Arjun Rambhau Salve, P.W.4 Bhimrao Rambhau Salve and A.P.P. P.T. Lahudkar, as to why action for not bringing on record or suppressing material facts and not assisting the State in punishing the guilty person should not be taken against them. Their reply/ explanation should be filed within a period of six weeks from today.
47. Had P.W.5 stood by her report in Court while deposing, the situation would have been different. Prosecution could not examine Bhaskar Pavre to whom P.W. 4 Bhimrao allegedly communicated the admission of murder by Mahendra (extra judicial confession) first. This confession coupled with finding of bodies in pursuance of such extra judicial confession could have provided a link. But the prosecution could not do so. It is apparent that in cases where the relatives of deceased and society do not want accused to be punished, in absence of legal evidence, benefit thereof needs to be extended to the accused.
48. Accordingly, we extend the benefit of doubt to the appellant/accused Mahendra Bhaskar Pavre. Judgment dated 16.05.2016, holding him guilty of offence punishable under Section 302 of Indian Penal Code delivered by the Additional Sessions Judge, (Link Court), Mehkar in Sessions Trial No. 42/2014 is quashed and set aside.
49. Consequently, the sentence of death imposed upon him does not survive, therefore, Criminal Confirmation Case No.2/2016 is answered accordingly.
50. Criminal Appeal No. 276/2016 filed by the accused stands allowed. The appellant Mahendra Bhaskar Pavre is exonerated of offence punishable under Section 302 Indian Penal Code, by giving him benefit of doubt. He be set free, if his custody is not required in any other matter.
51. Muddemal property be dealt with as directed by the learned trial Court after expiry of appeal period.
52. For compliance with the directions contained in paragraphs 44 to 46 and action, if necessary, matters be listed on board on 01.12.2016.