B.A. Masodkar, J.
1. On the sprawling outskirts of Greater Bombay lies the area which is known as Versova, an erstwhile fishermen village now turned into a concrete jungle. In Yari Galli of this area was situate Ratanshaw Bungalow. It was a house standing as if a lone island surrounded on all sides by huge and tall concrete structures developed and erected by builders. This Ratanshaw Bungalow was tenanted property and one R.R. Todiwalla appears to be its landlord. It is said that one Harbachansingh Sidhu was the original tenant.
2. The record shows that Harbachansingh Sidhu left Bombay for Punjab some time before 1980. The tenement was occupied by his wife Pritipal, the victim of the homicidal death, and Miss Bhupinder Kuar, accused No. 3. The occurrence, according to the prosecution, took place between the night of April 18 and April 19, 1983 during which Mrs. Pritipal was done to death and her dead body was buried in the compound near the fencing lying to the back side of this bungalow. Mrs. Pritipal was in her fifties. The post-mortem report made by Dr. Subhash Khanolkar (P.W. 16) shows that she must have been killed after she had taken food. The contents of the stomach noted in the post-mortem notes at Exhibit 38 collectively go to show that she had recently taken food material without any odour. The homicidal death of Pritipal is not in dispute. The testimony of Dr. Subhash Khanolkar (P.W. 16) further goes to show that when he examined the dead body of Pritipal on April 21, 1983 between 10.30 a.m. and 1.15 p.m., he found external injuries, being contused lacerated wounds, mostly located on the forehead and occipital regions. Similarly, he found abrasions and contusions. Upon internal examination, he found it possible to opine that pressure must have been applied on the neck of the deceased and that the death might have occurred within 24 hours prior to the hour the dead body was brought to the hospital. The doctor opined that the cause of death was strangulation associated with the injuries which could be fatal.
3. This unfortunate lady who succumbed to such a homicidal attack and whose dead body was found in the pit, according to the police, near the fencing of this bungalow, Ratanshaw Bungalow, was residing there with the family consisting of her husband and her daughter, including accused No. 3. The tenancy of this bungalow was quite old one and the record shows that it was much prior to 1959. One R.R. Todiwalla appears to be the landlord. By reason of threats to this tenements from builders and also for the purposes of security, it appears that accused Nos. 1 and 2 were called and were staying in the family of the deceased Pritipal. Thus, on the day of the incident, accused Nos. 1 and 2 were the occupants along with accused No. 3 of the bungalow.
4. Accused No. 3 is a young lady and appears to be usefully engaged and as the prosecution evidence shows was working as a Telephone Operator in the Ambassador Hotel. The defence states that at the relevant time she was working with the Starways Hotel.
5. It is the case of the prosecution that during the night at about 1.15 a.m. accused No. 2 approached the D.N. Nagar Police Station and made certain report, which was recorded as per Exhibit 40 by Sub-Inspector Bhikusingh Chavan (P.W. 17). This report led to the registration of the offence concerning abduction and assault on the deceased Pritipal from the Ratanshaw Bungalow. After the report was so taken, the D.N. Nagar Police Station sprung into action and first went to the scene of offence, i.e., the bungalow itself, and recorded panchnama as per Exhibit 8. It is the case of the prosecution that statements of accused were recorded at about 5 or 6 a.m. and after that they were allowed to go back, while it is the case of the three accused that they were detained in the Police Station. The Police then got in touch with builder Virendrakumar Jhamb (P.W. 15) and he having reached the Police Station by 7 a.m. his statement was recorded. At about 10 a.m. the accused were again brought to the Police Station. In the examination-in-chief, the Investigating Officer, Mahadev Zende (P.W. 20), accepts that dog squad was called at about 10 a.m. and it was used at the area of the Ratanshaw Bungalow. No record on that aspect has been produced. At about 2 p.m. on April 19, 1983, according to the evidence of Manohar Kalekar (P.W. 13), the Sub-Inspector attached to the D.N. Nagar Police Station, Finger Print Expert Anand Maruti Pote was summoned and taken to the bungalow. The Police minutely searched for the prints and made a panchanama (Exhibit 15). The Finger Print Expert's Report, which is not produced on record, does not implicate the accused. Thereafter, it is not in dispute that Virendrakumkar Jhamb (P.W. 15) was allowed to leave the Police Station. Somewhat, simulatneously, it is the case of the prosecution, accused No. 1 was questioned and pursuant to his statement recorded in the presence of panch Ramakant Patil (P.W. 5), the police traced the dead body and recovered it from a pit nearby the fencing. The panchanama is at Exhibit 10-A, which appears to have been completed by 4 p.m. Followed by this alleged discovery, at 4.30 p.m. it is the case of the prosecution that accused No. 2 volunteered to discover articles. His statement as per Exhibit 11 in the presence of the same panch was recorded and articles were discovered as per Exhibit 11-A. These articles consisted of wooden Dhota or wooden block, which was recovered from behind the bungalow, and two wearing appeals, namely, full bush shirt and one black coloured full pant, which were recovered from a bucket said to be in the bathroom inside the bungalow. After completion of this discovery at about 5.30 p.m., at about 6.15 p.m. in the presence of panch Ganesh Iyer (P.W. 6), accused No. 3 purported to make statement as per Exhibit 13 and from the same bungalow, the police is said to have attached a bunch of keys from the rearmost room of the bungalow and from outside the bungalow one navy blue coloured middy having white and purple colours was attached. This discovery was said to be completed by 7.15 p.m.
6. The dead body was sent to Dr. Subhash Khanolkar (P.W. 16) for post-mortem examination which was taken charge of by the police initially when it is alleged to have been discovered pursuant to the statement of accused No. 1. The photographs of the dead body in the pit are at Article 1 collectively, taken by photographer Alokkumar Mitra (P.W. 1). So also photographs of the bungalow and the surrounding are at Article 2 collectively, taken by Anand Kulkarni (P.W. 2). It is significant that though the claim of the investigating agency is that the dead body was discovered by accused No. 1, none of the photographs corroborate that accused No. 1 was present when the dead body was taken out of the pit. There is no separate inquest panchanama, but the description of the dead body is made the part of seizure made in the discovery proceedings. During the course of these discovery proceedings or after that the offence was registered against all the three accused for having committed murder of Pritipal and for having disposed of her body by putting it in the pit in the bungalow. Eventually, this being the only investigation, all the three accused were charge-sheeted. Ruling out their defence of total non-involvement and the case being a pure frame-up at the behest of the builder. Virendrakumar Jhamb (P.W. 15), the learned Additional Sessions Judge, Greater Bombay, who tried the accused, has convicted them of the offences under section 302 read with section 34 and so also under section 201, with section 34 of the Indian Penal Code. That is how the matter is before us in appeal.
7. As far as the conviction of the accused is concerned, it rests merely on the circumstantial evidence, alleged to implicate all the three accused, said to consist of (i) motive, in that the deceased Pritipal and accused No. 3 were not having cordial relations, (ii) the discoveries said to have been separately made by accused Nos. 1, 2 and 3, and (iii) the false report regarding abduction and assault lodged with the D.N. Nagar Police Station by accused No. 2. As many as 20 witnesses were examined by the prosecution to prove these circumstances. Most of them are panchas and Police Officers. We were taken through all the relevant evidence by the learned Counsel appearing for the appellants-accused and for the State. The learned Additional Sessions Judge, while convicting the accused, enumerated the circumstances in paragraph 82 of his judgment so as to conclude the culpability of all the three accused. He enumerated 11 circumstances but as we have indicated, they form part of three heads. We may at once indicate that the judgment does not take care in reading the evidence led by the prosecution and there are factual errors even with regard to the references made to the evidence. To illustrate Item No. 8 in the circumstances narrated in paragraph 82, the learned Additional Sessions Judge appears to be thinking that the recovery of human blood stains on the clothes was a circumstance and enumerated those articles being Articles Nos. 14 and 15 by accused No. 1, Articles Nos. 20 and 21 by accused No. 2 and Article 23 by accused No. 3, now, except Article 21, none of the articles have human blood. Exhibit 52, which is the report of the Assistant Chemical Analyser, indicates that this is misreading of the evidence. When serious matter of such kind are brought before the Court and the fate of the accused persons depends upon the circumstantial evidence, it is primary that care should be taken to correctly read evidence of such matters and then draw inferences from the same. Even the prosecution did not dispute before us that this is a mis-statement which is available in Item No. 8. So is the position with regard to the observations made in paragraph 70 of the judgment concerning the finding of human blood on the frock or middy. It is an admitted position before us that this would be wrong. We are similarly surprised by the statement somewhat casual and general statement at the end of paragraph 71 of the judgment to the effect, referring to Articles Nos. 12, 13, 17, 18 and 21, that all of them had human blood and either of accused Nos. 1, 2 and 3 did not offer any explanation why all these articles and clothes had stains of human blood. As we have indicated earlier, Ex. 52 shows that except the spice pounder (Article 13), the wooden log (Article 17) and full pant (Article 21), no other article has been found to have human blood in the Assistant Chemical Analyser's Examination and yet we find such a surprising statement in the judgment under appeal. We can only style it as all careless and unfortunate.
8. Turning now to the prosecution case with regard to the motive, the prosecution relied on the report and complaint of the year 1981, one being at Exhibit 22 given by the deceased Pritipal, another of August 24, 1981 given by accused No. 3 and the third spoken to by Shaikh Rahim Shaikh Amir (P.W. 11). Now, it is no doubt true that the prosecution is not bound to establish motive nor the adequacy of the motive in commission of the given offence. It is enough if some motive is established which will indicate that it could be the accused who was interested in doing away with the victim. In this case, we find, even by going through this evidence of witness Shaikh Rahim Shaikh Amir (P.W. 11) and Exhibits 22 and 23, that there were merely quarrels between mother and daughter who were residing together. As we have already indicated earlier, the father had left Bombay and abandoned the premises. The motive has no immediate connection, for the offence has taken place, even according to the prosecution after, two years. All the happenings between these two years and how the relations between accused No. 3 and her mother-the deceased Pritipal were, are not indicated by this evidence. In fact, accused No. 3 appears to be the bread-winner and there is hardly any material to show that she possessed such an ill Will. As far as other accused are concerned, even this suggested motive is also not there. The circumstance of the alleged motive of accused No. 3, pressed in aid, by the prosecution is too flimsy as providing a circumstance. We reject the same.
9. That takes us to the other circumstance-that is the discoveries, said to have been made in sequence, first by accused No. 1, then by accused No. 2 and then by accused No. 3. In the present case, we have clear admission from the Investigating Officer in the cross-examination that the police had entered the bungalow at 2 a.m. to 2.30 a.m. itself, much before time of discovery, and had made panchanama (Exhibit 8). Thereafter they had gain entered by opening the premises for the purpose of examination by Finger Print Expert and that was about 2 p.m. In between they had also engaged the dog-squad to search out the entire premises. In the background of these factors when premises are virtually taken charge of by the police, we have to appreciate the case set up by the prosecution that articles were discovered seriatim by the accused after the offence was registered. Once the place is of such a type under the control of police, hardly theory of discovery can be accepted.
10. The principles concerning discovery by accused are no more in doubt. Not only the article and the place from where the article is taken out should not be within possible knowledge of the police and, in other words, should be within the exclusive knowledge of the accused but also such article must be and should be shown to have some relevance or some connection with the crime in issue. On the first test, discoveries of most of the articles, particularly said to have been made by accused Nos. 1, 2 and 3 are deemed to fail, for every article except probably the dead body is found in open and unconcealed position either from within the bungalow or from its precincts to which police had all access. It is well-nigh impossible to believe the story of Sub-Inspector Chavan (P.W. 17) and Police Inspector Zende that these articles said to have been recovered from the bungalow or from the surroundings of the bungalow would not be available to them but for the discoveries. But the Investigating Officers and the panch speak contrary to the panchanamas, in that the place was not disclosed by the accused while in the Police Station and so also we find that there is a studied attempt on the part of the Investigating Officers to put before the Court articles which could be visible to naked eye when anyone visits bungalow like Ratanshaw Bungalow and yet not taken charge of. The first panchanama (Exhibit 8) is of the scene of offence and that of the bungalow and the police were there from 2 a.m. to 2.30 a.m. It is not possible to accept their assertions that they would not search the precincts of the bungalow or the inside of the bungalow, including the bathroom, or would not find the articles which were, eventually, said to have been discovered by the accused. We are left with a very uneasy feeling after reading the evidence of the Investigating Officer, Sub-Inspector Chavan (P.W. 17) and Police Inspector Mahadev Zende (P.W. 20), and panch that the prosecution here in trying to dramatise the evidence by putting forward the statement of discoveries and keeping back the evidence like that of the result of the dog squad inspection and the result of the Finger Print Expert's examination. No attempt appears to have been made to connect the chance prints said to have been taken by the expert.
11. Except recovering articles from the bungalow and around its precincts and the body, we hardly find any investigation in the present case. Surely, if this type of investigation were to pass the test of legal satisfaction, anyone could be arranged did charge-sheeted. When serious offences are reported, the investigating agency is bound to apply its mind fairly and independently and not carry on investigation in a mechanical or dramatic way. For that gives an impression that some other agency was guiding their path. After going through the evidence, we have not been able to dispel this impression about the investigating machinery's fairness. For except recording the discovery panchanamas, nothing which could have thrown light on the circumstances under which the poor lady met with her homicidal death are traced or put forth. Further discoveries or seizures too are mechanical. Even items having no connection even remotely such as bunch of keys are also attached. Unless these items have any connection with crime, the seizure would be irrelevant.
12. Reverting to the evidence, it is obvious that the dog squad was moving in the precincts of this bungalow at about 10 a.m. to 11 a.m. It is thereafter, is the case of prosecution, that in the presence of panch Ramakant Patil (P.W. 5) the first discovery panchnama was recorded at the Police Station at about 2.30 p.m. or 2.45 p.m. It is interesting to go through the testimony of Ramakant Patil (P.W. 5) and compare it with the evidence of Sub-Inspector Chavan (P.W. 17) and Police Inspector Mahadev Zende (P.W. 20). According to panch Ramakant Patil (P.W. 5), first he was called between 2 or 2.30 p.m. along with his friend to the Police Station and the police explained to him the facts. Thereafter, Zende asked him to hear what accused No. 1 were to say and it is then accused No. 1 volunteered to show the place where the dead body concealed in the compound of the bungalow. After the record, he has stated that the police staff led by Sub-Inspector Chavan and all of them went there and accused No. 1 showed the place, started removing earth with the assistance of the police staff and the dead body was noticed. The Finger Print Expert was called and the photographer took the photographs. He identified the articles which were on the person of the dead body, being the mighty (Article 3) one petticoat (Article 4), one wrist watch (Article 5) and one ring (Article 7). Then he described the position of the dead body. In the same process and in his presence, the dead body, was taken out and then accused No. 1 led them to the kitchen and took out one spice pounder from kitchen stand. Accused No. 1, then led them to the bathroom. There was one bucket and from that bucket he took out light blue coloured pyjama and one white banian. The police took charge of all these articles, being articles Nos. 13, 14 and 15. Accordingly, a panchnama was drawn as per Exhibit 10-A. He further remembered after reading the panchnama that a pair of sandals (Article 16) was taken charge of pursuant to disclosure. Then the party returned to the Police Station. In the same room again Police Inspector Zende. Police Sub-Inspector Chavan and staff brought accused No. 2 whose voluntary statement was recorded and the police party along with accused No. 2 went to the same place. From near the latrine, he (accused No. 2) took out two pieces of wooden block (Article 17). Again, that accused too led them to the kitchen and took out one spade and iron bar from under the kitchen stand (Articles 18 and 19). That accused too took them to the bathroom and from the bucket he took out one blue coloured full bush shirt and black coloured full pant (Articles 20 and 21). All this was taken charge of under panchnama. In his cross-examination, all these discoveries were seriously questioned and he was contradicted with his earlier statement with regard to his visit to his friend. He has admitted that he was produced before Police Inspector Zende by one constable. At that time, there were five or six policemen with him. He resided in the close neighbourhood of the place of offence and knew the deceased Pritipal as well as accused No. 3. He has further stated that new buildings have been constructed surrounding that bungalow and after the incident, the Ratanshaw bungalow, the scene of offence, was demolished. At that place, construction work was going on. He denied to have heard the name of Mr. Jhamb. He did not know who has constructed all those buildings. When he was confronted with the narration in Exhibit 10 and his substantive evidence with regard to the alleged information attributed to accused No. 1, he had to admit that there was no reference to Bablu's mother in the panchanama and had to explain as to why he said Bablu's mother. Eventually, he has stated that on the very day he had come to know the name of the mother of Bablu. Further, he was not knowing where to go, which appears to be a lie because the panchanama record otherwise. Though he has asserted that he did not even hear the name of Ratanshaw Bungalow, the panchanama does mention it. According to him, the same story was repeated when they came back to the Police Station and the statement of accused No. 2 was recorded. He was unable to state the name of the photographer. He has stated definitely that the spice pounder was on the plank of the kitchen stand and the clothes were not dried when they were taken charge of. As soon as the dead body was seen, the photographer was called. He did not know how many photographs were taken. So is the story with regard to other discoveries and findings of other articles from the Bungalow.
13. The evidence of Ganesh Iyer (P.W. 6) is with regard to the alleged discovery by accused No. 3. According to him, he was called at about 6.15 p.m. at the D.N. Nagar Police Station to act as a panch. Accused No. 3's information was recorded and the police party reached the same place and accused No. 3 is said to have taken the police party to the rear side of the bungalow and from in between the roof and tiles, she took out the bunch of keys (Article 22 collectively). Then accused No. 3 took them in the compound behind the bathroom and picked up one middy (Article 23). The evidence of these panchas goes to show that the article could not be treated to be the same in any manner. Further, as we have indicated above, their connection in the crime has not been established. The discoveries of several articles in this manner cannot enhance the prosecution case. With regard to the alleged discovery of the dead body, we have serious doubt about the whole affair. It is enough to observe that the photographs which were taken, according to the panchas, immediately after the dead body was seen, do show only the police officials and not the panchas nor the accused. It is inconceivable that if the police wanted to put forth the recovery of the dead body at the behest of accused No. 1, who was said to be present and who was also moving the earth by hand his photographs would not be there, near the dead body. The process of photography was simultaneous and there is no good reason not to find accused No. 1 or the panch in the photographs and only the police officials. It is similarly farcical to accept that accused No. 1 was handcuffed by one hand would dig out and remove the block of earth as body appears to have been found under three feet layer of earth. Place of this pit, it is significant to observe, is almost touching the construction area, which does not seem to be in exclusive possession of accused No. 1. We have, thus, serious doubts about the police claim of coming to know of the place only reason of the alleged information given by accused No. 1. As we have indicated above, the police had pressed in service and called the dog squad. The admitted position is that nearby the place of occurrence, the articles connected with the crime and possibly indicating the track by reason of some blood-stains were found. If the dog was given a small to reach the dead body, which must have been done in the ordinary course, the dog would take the master to the spot or atleast move around the area where these articles were lying, particularly when there were some blood-stains. All that evidence of search through the dog squad has been kept back and we are asked to believe the discoveries of such kinds. This appears clearly an attempt somehow to link the accused with the crore. Further, we have already referred to the fact that since 2 a.m. in morning the police were on the scene and the evidence of Sub-Inspector Manohar Kalekar (P.W. 13) shows that they had even the keys of the bungalow, that the bungalow was opened while all the accused were in Police Station and that was again at 2 p.m. In all probability the entire area must be in charge of the police.
14. It is strange then that the police would not be in a position to notice incriminating articles, particularly when the evidence of this witness (P.W. 13) shows that they had minutely examined several articles for the purpose of finding finger prints. Thus, having access to the entire area and in possibly keeping the entire area in their own guard, it is not impossible to find such short of evidence and then to put in as the piece of evidence discovered at the behest of the accused. The testimony of Sub-Inspector Chavan (P.W. 17) and Police Inspector Zende (P.W. 20) clearly shows that they had access to the bungalow and hardly we can believe the prosecution case that the police would not be in a position to find out the articles which were either lying on the ground or in the bath room or in the kitchen room or would not be able to reach the pit from where the dead body was recovered. It is not as if that these articles could not be visible to naked eye or that they were kept in a concealed position. Further, the same have not also been shown to have connection with the crime. The articles like spade and crow bar, attached from the kitchen, are articles commonly used in construction work. Finding them inside should have alerted the police to trace their origin. That is not done. The finding of such articles and the dead body in this manner while keeping back the evidence with regard to the dog squad leads us to conclude that none of the discoveries have been established.
15. That leaves us with third aspect of the circumstances concerning the alleged false report said to have been lodged with the police reiterating the abduction and assault on the deceased Pritipal. On this aspect too, we are not very much satisfied, for the investigation as we have indicated had a short time schedule, in that it began with 1.15 a.m. ended almost by 7.15 p.m. on 19th April, 1983. There was hardly any over all or comprehensive investigation in the alleged complaint that had reached the police. Only because the prosecution suggests that some complaint is false, it does not become false, particularly when the matter is reported to the police, they are duty bound to investigation into it in a comprehensive manner and not follow one track investigation.
16. The evidence of Sub-Inspector Chavan (P.W. 17) and Police Inspector Zende (P.W. 20) clearly goes to show that for the purpose of the alleged complaint said to be of Babusingh (accused No. 2), he was trying to reply upon the statement said to have been made by all the three accused at about 1.15 a.m. That is how he registered the offence under C.R. No. 211 of 1983 against four unknown persons. Actually, the First Information Report was given only by Babusingh (accused No. 2) and yet the officer stated that all three accused reported to the Police Station. Within about half an hour he went to the Ratanshaw Bungalow and searched the bungalow and the vicinity of the bungalow. He found that the bed was disturbed and blood stains were there over the razai, cover of mattresses and on the floor in the premises. According to him, he only took charge of the cover of razai, cover of mattresses and scrapping of blood (articles Nos. 8, 9 and 28). From the outskirts, he took charge of towel, napkin and one piece of white cloth (articles Nos. 10, 11 and 12) under the same panchanama (Exhibit 8). Thereafter, he brought back the accused and recorded the statement of accused No. 3. According to him, he recorded the statement of the builder, Mr. Virendrakumar Jhamb (P.W. 15). It was he who narrated the discovery of accused No. 1. He called the photographer, took charge of the dead body and other alleged articles said to have been recovered by accused No. 1. Further, according to him, after completion of the discovery panchanama by accused No. 1, he registered the offence against all the three accused. He also spoke in the further examination about the two other discoveries. In the cross-examination, he was made to admit that his assertion that all the accused came at 11.30 and narrated was incorrect. Eventually, he stuck to the version that it was accused No. 1 who narrated the entire incident and thereafter accused No. 2 and 3 came one after another. Before that, the First Information Report was recorded. He has admitted that after recording the statement of accused No. 3 in the case of abduction and assault, he had to call the builder, Mr. Virendrakumar Jhamb (P.W. 15). He has further admitted that he apprised the builder about the allegations against him. At Exhibit 40 is the First Information Report drawn by this Police Officer. His cross-examination shows that not only he committed mistakes but wanted to improve upon the record. This is particularly so when the contents of the panchanama were put to him and he was confronted with the omissions in Exhibit 10 with regard to the statement alleged to have been made by accused No. 1. He has not recorded the statement of Babulal Wardhan, although Mr. Virendrakumar had indicated that he had passed on the property to him. He has admitted that he did not make any attempt to find out what were the allegations of the deceased Pritipal against Mr. Jhamb in the suit filed in the Court of Small Causes at Bombay, although he knew about the suit. He has admitted that after the statement of Virendrakumar Jhamb was recorded, he was allowed to go and he was never contacted again. In the morning of April 19, 1983, he admitted that police dog was called and the dog moved in the bungalow and the compound, but, according to him, he did not receive any clue. All this is stated in the cross-examination, but not a whisper in the examination-in-chief. He has further admitted that even after interrogating accused No. 3, he did not contact again. In the morning of April 19, 1983, he admitted that police dog was called and the dog moved in the bungalow and the compound, but, according to him, he did not receive any clue. All this is stated in the cross-examination, but not a whisper in the examination-in-chief. He has further admitted that even after interrogating accused No. 3, he did not contact anybody from the Starways Hotel. He feigned ignorance about the spade and the iron bar which could be used for construction purposes. He has, eventually, admitted that he did not question any of the labourers from nearby the construction site. He has admitted that on the opposite side, construction work was going on. According to him, building construction was going on at a distance of 30 feet to 40 feet from the road. He did not remember whether the search lights of the jeep that was taken to the spot of offence were on. He did not remember what articles he had found at the time of personal search of accused No. 3. He even did not remember whether accused Nos. 1, 2 and 3 were shown when Virendrakumar Jhamb's statement was being recorded. He has further admitted that he did not make any enquiry with the owner or from anybody from Mogal Mehal Restaurant about the key chain, Article 22 collectively. The First Information Report, alleged to have been lodged has not been shown to be false by carrying on any investigation unless we were to accept the evidence of discovery tendered by the prosecution, which we have already rejected. The complaint of accused No. 3, which is produced as the statement said to have been recorded, goes to show that Virendrakumar Jhamb was persistently asking all of them to vacate the plot and that her mother had already filed a civil suit and obtained injunction. According to her complaint further, earlier Mr. Virendrakumar Jhamb had come to the place and had threatened her and her mother to vacate the bungalow.
17. The evidence of Police Inspector Zende (P.W. 20) does not throw any further light with regard to the alleged complaint involving disappearance of the mother of accused No. 3. He too went along with Sub-Inspector Chavan (P.W. 17) and was present when the panchanama (Exhibit 8) was recorded. According to him, he sent his staff for making enquiries about the abducted lady. He has stated that outside the bungalow, they took charge of some towel and red coloured napkin (Articles Nos. 10 and 11). Again he questioned accused Nos. 1, 2 and 3 and recorded their statements. Sub-Inspector Chavan too recorded the statement of accused No. 3. According to Police Inspector Zende (P.W. 20), these accused were allowed to go at about 5 or 5.15 a.m. which fact is not corroborated by any other evidence. The builder, Mr. Virendrakumar Jhamb (P.W. 15) was contacted and his statement was recorded by Sub-Inspector Chavan. After that, Babulal Wardhan was questioned, but his statement was not recorded. Then he (Police Inspector Zende) recorded the statement of Sub-Inspector Chavan and registered the offence under section 302 of the Indian Penal Code. It was thereafter, according to him, the other discovery panchanama were made, with regard to the digging out of the dead body, he said that accused No. 1 started digging with his hand and the police helped him. Photographer was called and photographs were taken. The spice pounder was attached from under the kitchen table. The Pyjama (Article 14) and the banian (Article 15) were taken out from the bucket in the bucket in the bathroom by accused No. 1. Thereafter, after returning to the Police Station, the Police Officer Zende's assertion is that he ordered Sub- Inspector Chavan to alter the charge. The entire evidence of Police Inspector Zende, which we have gone through carefully, goes to show that it was Sub-Inspector Chavan (P.W. 17), who was carrying on the investigation under his directions, as he has asserted. We have referred to the evidence of Sub-Inspector Chavan, which does not throw any light with regard to the alleged investigation to have been carried on by the police in matter of abduction and assault of the deceased Pritipal. The cross-examination of Police Inspector Zende (P.W. 20) shows that he is not even aware of the deceased Pritipal having lodged complaints with D.N. Nagar Police Station and he was admitted that he had not made any enquiry with regard to those complaints. He has admitted that he did not think it either necessary or important to find out the N.C. Complaints filed against the builder, Mr. Virendrakumar Jhamb (P.W. 15), for the purpose of the present investigation. Except once, the builder was not contacted by the police. Even he has spoken about the contents of Exhibit 10-A, which mentions the place where accused No. 2 was going to lead, by stating that he did not know whether the party was going to the Ratanshaw Bungalow, even when confronted with the panchanama Exhibit 10-A. He has also admitted that the clothes were recovered from the same bucket by accused Nos. 1 and 2. He has admitted that they had gone to the dining-cum-kitchen room.
18. This type of evidence can hardly prove the circumstance alleged by the prosecution that complaints were false as lodged, unless we were to accept the other case of the prosecution. We, therefore, hold that it has not at all been proved that the deceased Pritipal was not, in fact, taken away from the place of her residence during the course of that night by some unknown persons.
19. On this aspect further, we cannot but refer to the testimony of two of the witnesses, being Sub-Inspector Anand Chavan, (P.W. 14) and builder Virendrakumar Jhamb (P.W. 15), who have been produced by the prosecution so as to dispel the possible defence suggestion.
20. Before referring to that evidence, it will be necessary to refer to the admitted positions available on record. As we have stated earlier, the Ratanshaw Bungalow was tenanted premises and the tenancy was very much alive. It was in the protection of the Bombay Rent Act. No landlord without following the procedure of that law could determine the lease or take possession of that property. Surely, we expect the State and the Police to be aware of this position. In the background of this statutory protection available to the tenant and the tenanted premises, the defence was consistently suggesting that some other agency interested in pulling down the premises was responsible for doing away with Pritipal, the resisting occupant and putting others behind the bar. On record, we have a picture emerging that within months after the murder and arrests of the occupants, the property was erased and construction work had been put up. This antecedent as well as the subsequent events and their impact have been clearly ignored by the investigation.
21. This defence suggestion and the defence theory has a strong support in the record of this case and inherently as suggested in the evidence of the builder, Mr. Virendrakumar Jhamb (P.W. 15) to whose testimony we will refer in details a little later on. At Exhibit 29 is a complaint, dated July 20, 1981, made by the deceased Pritipal to the Chief Minister of Maharashtra against the builder Mr. Virendrakumar Jhamb (P.W. 15) and Sub-Inspector Anand Chavan (P.W. 14). In that complaint she had stated that she was occupying the Ratanshaw Bungalow as the tenant. Her husband was residing in Punjab, being an ex-service man. She had two daughters one married and another in her teens. Accused No. 1 described in that complaint was the builder who had taken the property for development and who was after her to vacate the bungalow. He was sending goondas to her place giving her threats so that she should run away from the said place. She had made repeated complaints to the D.N. Nagar Police Station in that respect and she was assured that her life would not be in danger. She has further narrated that her daughter was working in Amabassador Hotel and the Sub-Inspector Anand Chavan (P.W. 14), would be driving her away through goondas and she has connected that Sub-Inspector with the builder, Virendrakumar Jhamb (P.W. 15). She has further stated that they are nut to extort a writing from her to the effect that all the right in respect of the bungalow should be transferred to her daughter. She suspected foul play in that Sub-Inspector Chavan had joined hands with builder Jhamb. She further stated that on June 30, 1981 her daughter did not return to her place. Both the builder and the sub-Inspector, according to her, were responsible for the disappearance of her daughter, because they wanted to force her to leave the place and to blackmail her. We have no material with regard to the investigation into this complaint, but it does appear that the matter did reach the D.N. Nagar Police Station and was before the Police Station since 1981. Meanwhile thereafter and quite close to the fateful day, the deceased Pritipal filed an injunction suit against her landlord described as Mr. Todiwalla and the builder Mr. Virendrakumar Jhamb (P.W. 15). That plaint is at Exhibit 33-D. She also prayed for an interim injunction from the Court so as to protect her possession of the Ratanshaw Bungalow. The plaint filed in the Court of Small causes at Bombay described the property and asserted how after obtaining the property for development the builder was threatening her and pressurising her to vacate that bungalow. She was further stated that since about 1978 the landlord, Mr. Todiwalla, was not even accepting rent. She alleged that the builder had employed a number of hirelings, agents and servants so as to get vacant possession from the tenant The plaint then went on to narrate the incidents of June 1981, July 1981 and February 1982. In the last incident, she had stated how defendant No. 2, i.e., the builder and his servants, agents employees and contractors committed acts of trespass in the area of the bungalow by breaking the fencing and how she felt helpless being the lonely woman in the premises. She has referred to the N.C. Complaint filed with the D.N. Nager police Station on February 7, 1982 in this regard. It is surprising that Mr. Todiwalla, who was the landlord, did not appear to have entered any denial on this aspect and it is the builder who filed the affidavit which is at Exhibit 34-D. In that affidavit, he questioned the jurisdiction of the Court as well as denied the allegation that the plaintiff was the tenant, He has further stated that he was a stranger to the plaintiff and that the Court had no jurisdiction. He denied the employment of hirelings but asserted that he was constructing flats so as to solve the problems of the public who were in need of houses. He stated in paragraph 10 of his affidavit that he was solving to some extent the housing problem of the public whereas sitting tight on right to use entire bungalow for two persons was criminal waste of space and detrimental to the interest of public. He further stated that the plaintiff had no right to the fencing. He stated that defendant No. 1 had and has right to remove the fencing. He denied the other allegations of harassment. He denied the allegations with regard to the trespass. It does appear that after hearing the parties, the Civil Court made the order granting injunction against the defendants therein, which included Mr. Todiwalla, the landlord, and Mr. Jhamb the builder. That order is at Exhibit 32. Prima facie, the Civil Court felt satisfied, as is recorded in that order, that there was a need to protect the property from the acts of the threatened trespass. The Civil Court has recorded the finding that the apprehension on the part of the plaintiff entered against the defendants in respect of the alleged dispossession of the suit premises was justified in the circumstances of the case. This order was made on August 30, 1982, and almost within eight months Pritipal met with the homicidal death. We have no indication from the record nor from the testimony of the builder, Virendrakumar Jhamb (P.W. 15), as to whether this order was in any manner questioned in any superior Court.
22. Now, we must turn to the evidence of Sub-Inspector Anand Chavan (P.W. 14) and the builder, Virendrakumar Jhamb (P.W. 15). The evidence of Sub-Inspector Anand Chavan shows that he was having friendly relations with accused No. 3 who was then serving in the Ambassador Hotel as a Telephone Operator. He has admitted that some report was made by the deceased pritipal against him and that Departmental Enquiry was also held against him, but he has asserted that the relations between him and accused No. 3 were not in any manner objectionable. He denied to have any concern with the builder, Virendrakumar Jhamb (P.W. 15) and stoutly repelled the suggestion that the builder had instigated him to prevail upon accused No. 3 to vacate the bungalow. He also denied that the deceased pritipal was in any manner doubting their relations. The evidence of Anand Chavan, thus, is hardly of any relevance either to the defence or to the prosecution.
23. That leaves the testimony of the builder, Virendrakumar Jhamb (P.W. 15) and we will carefully consider the same. He has admitted that he is a builder, developer and Theatre owner. He has admitted that he has purchased properties from Todiwalla and others some time on March 4,1980, admeasuring about 1,30,000 square yards. He has sold some of the area to different other builders. He has personally kept three plots . He has sold plot No. 18-B in which the deceased pritipal was staying to one Babulal Wardhan some time on March 9,1980. The deceased pritipal was occupying that bungalow. There were litigations between her and Todiwalla. According to him, he was holding Power of Attorney from Mr. Todiwala concerning that suit. The document concerning Babulal Wardhan has not been produced and we have a surprising statement from the investigating Officer that even his statement was not recorded, though he was questioned orally. Jhamb has further stated that in that suit injunction was obtained restraining him and his servants and agents from dispossessing the deceased pritipal. He has tried to state that Babulal Wardhan was made a party when that suit was settled. The suit was settled on August 2, 1983, i.e., four months after the death of pritipal. He recognised those consent terms which are at Exhibit 31. Thus, the suit ended, according to him, upon the consent terms being filed at Exhibit 31. He denied to be concerned with the Ratanshaw Bungalow in April, 1983 as he had already sold the bungalow to Babulal Wardhan. He denied the charge that he had, at any time, abducted the deceased Pritipal or assaulted her. He was called to the Police Station and his statement was also recorded. He was allowed to go after that. In the cross-examination, he has stated that when he was in the Police Station at about 7 a.m. he did not notice the accused. He has admitted that he was in the Police Station upto 2.30 or 3 p.m. though his statement was already recorded at 9 a.m. He has denied to have any goondas hired by him or some goondas being in his employment. How ever, he has admitted that he had stood surety for seven or eight members of his staff, but he did not recollect when that happen even by year. According to him, that was prior to the murder of pritipal. Out of them two or three are working with him. He had paid the surety amount in Andheri Court. He himself is a Graduate from Agra University. He asserted that some corrections were made by the police in his statement. He has stated that he was not aware that pritipal was dead when he was questioned. About the suit, he has stated that it was the deceased pritipal who had served the summons as well as the injunction order upon him. When it was put to him that he had not disclosed to the Court about Babulal Wardhan taking the property, he stated that he had already instructed his advocate and his advocate did not embody it in his reply. He had not read the affidavit filed in the suit before signing it. When the plaint allegations are shown to him with regard to harassment, trespass and threats, he denied the same. About the appeal, he has no certain reply and eventually to the Court question, which appears to be quite obliging, he has stated that as he was suffering from heart disease and was not attending the Court he was unable to say about the filing of the appeal. The suggestions with regard to his threats on several occasions and the lodging of N.C. complaint with the D.N. Nagar police Station were put to him, which he has denied Those N.C. complaints in the D.N. Nagar Police Station are at Serial Nos. 3928 and 3929 of May 5,1981. One Khatijabi, who was also a tenant of Todiwalla, vacated after she was paid money. He has admitted that he was interested in getting the place vacated. When he was pressed with regard to his interest in the Ratanshaw Bungalow, he has stated that he was not interested in vacating the deceased pritipal. When his affidavit was put to him, he feigned ignorance as to whether he had instructed so to his advocate. He has admitted that he had purchased, plot No. 18-B for development, including the Ratanshaw Bungalow. He was, however, not the owner of the plot and according to him, he had sold the development rights to Babulal Wardhan. He has admitted, eventually that between the deceased pritipal and himself there was a civil dispute and injunction was running against him and Todiwalla till the death of pritipal and that consent terms were filed after her death. According to him, it was Babulal Wardhan and the husband of the deceased pritipal who settled that dispute. He feigned ignorance as to whether the bungalow was pulled down thereafter and construction began. Eventually, he was made to admit that when he visited the bungalow after the alleged settlement, it was not in existence. He has further admitted that he was once charged for robbery along with four others, but he was acquitted. He was called to the C.I.D. office but he did not know who was the other accused in that complaint. He has, however, admitted that allegations were made by the deceased pritipal to the effect that he had kidnapped her daughter, accused No. 3. When he was also put the other allegations against him, said to be made by the deceased pritipal about the place of the deceased pritipal, he stated that he never visited that house. It was suggested to him that he had gone there on April 17, 1983, i.e., a day before her death, and had administered threats and had committed the act of murder on April 18, 1983 by engaging hirelings. According to him, the entire plot No. 18-B was sold by him to Babulal Wardhan for Rs. 35,000/-. He was also asked about the money paid to the husband of the deceased pritipal. The testimony of builder Jhamb clearly proves that the deceased was in conflict and under threat as well as under great pressure with regard to the property. It is further surprising that there is no evidence with regard to the alleged transaction with Babulal Wardhan nor even the landlord Todiwalla. With regard to the circumstances on which reliance was being placed by the defence, including the possible involvement of the builder, Virendrakumar Jhamb (P.W. 15), and the landlord, Mr. Todiwalla, there is no enquiry nor any investigation. Left to itself and keeping away the circumstances of discovery, the record tendered in this case clearly shows that the investigating machinery was having in their possession the material which could, possibly, suggest the motive, as was suggested by the defence, against builder Jhamb and there was a case clearly made out so as to investigate the circumstances as to the happenings after the injunction was obtained by the deceased pritipal. The testimony of the Investigating Officers clearly shows that there was no such effort made by that agency.
24. The litigations initiated by the deceased pritipal, her police complaints, her apprehensions about the threats to her life provide the reasonable ground to investigate as to the movements of those who were interested in evicting the deceased pritipal from the Ratanshaw Bungalow and taking its possession. Even the alleged person who is said to have subscribed to the compromise at Exhibit 31, as is deposed to by Virendra Kumar Jhamb (P.W. 15), has not been examined. That document shows that Rs. 1,00,000/- were paid. Under what circumstances that document came to be executed and how the suit end immediately after the death of pritipal are all matters left in mystery. The finding of the dead body behind the Ratanshaw Bungalow and the finding of the articles like the wooden bar and the spade, which the prosecution suggested were the articles concerning the offence, should have also agitated suspicion, for it is an admitted position that the dead body was found just near the construction work. That position is available in the photographs and even the Investigating Officer has placed the distance of 20 to 40. There is clear allegation made in the plaint that the fencing was broken by the agents and workers of Virendrakumar Jhamb, the builder. It is equally possible that the dead body was recovered from the area well within the domain and operative control of the builder, Virendrakumar Jhamb (P.W. 15).
25. The investigation on this line suffers from obvious omissions, and as we have stated, it has ended by finding the dead body and recording three discovery panchanamas. Surely, the investigating machinery is called upon to be fair, particularly when liberty of the citizens is in issue.
26. Thus, the evidence against the accused collected by the investigating machinery and put before the Court was hardly enough even to file a charge-sheet, leave aside reaching to the conclusion of conviction. In the matters of circumstantial evidence, not only it must be shown that all the circumstances are satisfactorily established but they are consistent only with the inference of guilt of the accused and none else. Even assuming that separate discoveries are alleged by the prosecution, it is, indeed, difficult to sustain the conviction on such a charge of all the three accused.
27. The pathos that surround the present crime are too poignant to put in terms of words. In fact, after going through the record of all the 20 Witnesses examined by the prosecution, which was read over to us, our conscience was stirred, for all the while we felt that there had been obvious miscarriage of justice. This has been because we have come across in this case a totally unequal fight that ended in the death of Pritipal and after that her only fortress seemed to have been demolished. As is not unusual, the fight was between two unequals, one striving to stand by the statute and her tenement and the other, as our doubts suggest, a rich, prosperous and ambitious man in hurry to demolish the property without recourse to law. That is why the question still remains unanswered as to whether pritipal was slain by reason of her persistent pursuit to stick to her property and avoiding the land sharks who wanted to evict her and demolish the tenancy. The record is replete with her singular lonely battle against rapacious threats to her person and her premises which she alleges and which did not appear to have been investigated. Noteworthy it is, that we have not amongst the array of witnesses any of those who must be working on the construction or residing nearby in the apartments that have sprung up all around the bungalow and which are clearly seen in the pictures produced by the prosecution. The miscarriage of justice is further heightened by the fact that as soon as pritipal was killed and the other occupants were put behind the bar, swift steps were taken to obtain the consent terms at Exhibit 31. We do not know nor are we sure about the identity of the person who posed himself to be the husband of the deceased pritipal. Apart from this, the intriguing feature is that the property after the crime was in charge of the police and should have remained so. The Public Prosecutor told us that it was under its look and key. Within almost three months after the crime, it is further surprising that the property was handed over, allegedly, to the husband of the deceased pritipal. Although the case was triable by Sessions Court. The order for release of this property was taken from committal Magistrate and the order stated that the police had no objection to hand over entire possession of the property. It is not as if that the husband of the deceased pritipal and father of accused No. 3 was the occupant and yet it appears that effort was made to hand over the property to him and thereafter immediately it was erased and it became the part of the developing construction of the builder. We do not know, for there is no investigation, as to who erased this property and who built it upon. Further, we are not in a position to accept the statement of the builder, Mr. Virendrakumar Jhamb (P.W. 15), that he had no interest in the property or that he had passed that property to somebody else who has taken charge thereof. If we compare his affidavit filed in the Civil Court to which we have already made reference, until the injunction he was very much on the scene for himself and also the landlord and the Civil Court had injected him and his servants and contractors working through him not to take law in their hands. The reasonable inference could be that he may now be putting up some other name so as to cover the truth.
28. All these factors could have been investigated into and that would have thrown light on the circumstances surrounding the homicidal death of the victim of this offence. Sensitive nose of the investigation and its sensible drive can always follow the path of truth and take the lead off the crime, notwithstanding the intricacies of the foulplay. We are left to guess and surprise that the police could not contact anyone, though construction activity was going on surrounding the bungalow and, in fact, constructions were already in existence and even some of them appeared to have been occupied, so as to find out the movements of the suspicious characters who could harbour motives to do away with pritipal. No labourers, contractors, workmen or the residents, who possibly could have spoken about the movements at the site or nearabout, have been produced. Since 1981 and even immediately before six months of her death, pritipal had alleged that criminal hirelings were engaged to threaten her and make her run away from the property and that there was criminal force being used for making her to vacate the premises. She had even mentioned the acts of forcible trespass. It is only after comprehensive and all-sided investigation and to remove the doubt that is raised by the initial circumstances by reason of the allegations attributing motive to the builder, the investigating machinery could have thought of putting such a case. The investigation, to say the least, is farcical and that has resulted in serious miscarriage of justice. We cannot but express our concern as to the legal rights of the tenants which are tried to be transgressed and extinguished by taking no illegal means.
29. Poor, struggling and resourceless-vs-rich, exploitative and resourceful is the social scenario in India. Law's effort should naturally be to support those who are support less. It is to them guarantees of social justice has meaning for otherwise the goods of liberty and freedom are illusory dreams. We think the Court's function is not done, merely by recording the sense of dissatisfaction and acquitting the accused. The Court could be further obliged to keep the goods of liberty in an operative form. When persons and families appear to have been raised down by overpowering forces which might have been motivated by unseen machinations and where the Court comes across the situations which appears to be sinking, it is bound to extent its helping hand and as far as possible restitute the victim. Unless this should be done, the institutional faith in the Court would be lost. People tend to cling to the Court as the last resort, in their supreme effort to survive out of wreckage.
30. There is no direct provision covering such type of cases where the Court can appropriately award compensation. However, we think it inherent in the process of the justice that the Court should not, under the circumstances, be powerless. The inherent power of this Court is this regard is enacted in express terms by section 482 of the Code of Criminal Procedure, although even without it such power is possessed by the Court. We have no hesitation in the present case, under the circumstances, to invoke the same for the purpose of recommending to the State Government to pay the compensation so as to meet the ends of justice only in a token way. The underlying principal that is spelt out by enacting section 482 of the Code of criminal procedure is expressed by the maxim ex debito justitias, in that the Court can always do real and substantial justice and pass necessary orders while administer justice for which Courts are constituted. The ending Clauses of section 482 of the Code of Criminal Procedure to the effect 'or otherwise to secure the ends of justice' is independent of the other two clauses and leaves the matter to the Court and its administration. Advisedly, legislation cannot conceive all types of matters that would arise and the generality is meant to keep free the applications of the provision to the given case, depending upon the circumstances and the compelling reasons to do justice. We do not think that would be inconsistent with any other provision of the Code of criminal procedure. The provisions of section 250 of the Code of Criminal Procedure are restrictive in character and operate against the person upon whose complaint or information the accusation was made and enable the concerned Court to make award of compensation. They enact conditions, in that when there was no reasonable ground for making the accusation, an order for compensation as stated therein could well be made. The principle underlying is similar and, in fact, supplementary to our purpose. Those provisions are enacted to further restrictive justice, so that the process of the Court is not abused and innocent people thereby are not harassed see Emperor v. Jehangir, A.I.R. 1948 Bom. 6. That cannot be read as inconsistent with the order of compensation by resort to inherent power conferred by section 482 of the Code of criminal procedure. On the other hand, if power is exercised, in such a case, by directing the State to pay the compensation, it would be quite consistent with the underlying principle of section 250 of the Code of criminal procedure. Further, we do not find any other provision that would cover such a contingency. It is only when matters are specifically covered by statute that the Court may be disabled to resort and exercise inherent power. There is no inflexible rule foe exercise of such power and matter depends on the facts of each case. See R.P. Kanpur v. State of Punjab : 1960CriLJ1239 and Talab Haji Husain v. Madhukar Purshottam Mondkar : 1958CriLJ701 . Looking to the harassment as well the apparent injury to person and tenanted premises and the farcical character of the investigation, we have come to the conclusion that we should, in furtherance of restrictive, direct the State to, pay token compensation as stated above.
31. All the factors herein are compelling in themselves. Looking to the value of the period during which all these accused, without good reason, have languished in jail and further they have lost the roof of the tenanted premises, we think it fit to recommend to the State Government that each of the accused be paid a sum of Rs. 3,000/- as token amount of compensation which would provide some measure of restitute justice We hope that this recommendation will be carried out as early as possible and, if possible by payment within one month.
32. In the result, recording our total sense of dissatisfaction with regard to the investigation as well as with regard to the judgment under appeal, we accept the present appeal. All the accused are acquitted of the offences for which they have been found guilty. They be released forthwith and also be paid Rs. 3,000/- each as token compensation as indicated earlier.
33. Having found that the investigation was one-sided and suffered from the obvious omissions, we are inclined to think that, we should hear the State as well as the landlord, Mr. Todiwalla, and the builder, Mr. Virendrakumar (P.W. 15), as to why directions should not be issued to the Commissioner of Police, Bombay, to direct fresh investigation into this offence through some other agency, particularly by reason of the suspicious which we have recorded in the body of the judgment.
34. Notices to issue to Mr. R.R. Todiwalla and Mr. Virendrakumar Jhamb (P.W. 15). The state to supply the addresses. The notices returnable on August 5, 1985.
35. The other connected matters, namely, Criminal Appeal No. 819 of 1984 and Criminal Revision No. 435 of 1984, in view of the order of acquittal of the accused, to stand dismissed.