Case: Varsha Vs. State of Maharashtra

A.P. Bhangale, J.1. The appellants viz. Namdeo Dashrath Kawale and Varsha Baba Itankar were tried before 4th Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Case No.96 of 1997 for offences punishable under Section 302 read with Section 34; Sections 364, 109 and 120-B of the Indian Penal Code. The learned trial Judge vide order dated 27.1.2003 convicted the accused (appellants herein) for said offences and sentenced them to undergo imprisonment for life and also imposed fine in the sum of Rs.1000/- on each count for offences punishable under Section 302 read with Section 34, Sections 364 and 109 of the Indian Penal Code. The accused were also sentenced to undergo rigorous imprisonment for two years for offence punishable under Section 120B of the Indian Penal Code.2. Aggrieved by the aforesaid conviction and sentence, accused have preferred these appeals.3. Prosecution case briefly stated is as under:On 9.6.1997 one Shri Dilip Janardan Nibrad, Police Patil of Pipri Dhanora, Tahsil and District Chandrapur reported to Chandrapur City Police Station about the unknown person wearing a shirt and a pant was lying dead in the pool of blood with injuries seen on the neck and the fingers of the left hand of the deceased (vide exhibit 22). The body was lying near a field on the Pipri Dhanora Road at a distance of about one km. from village Pipri. First Information Report was recorded as CR No.125/97 under Section 302 of the Indian Penal Code (vide exhibit 23). Inquest was held over dead body (exhibit 25). P.W. 13 Abdul Razzak, Police Inspector, holding charge as Police Station Officer of Chandrapur Police Station took over investigation. Clothes of the deceased; viscera etc. were seized under panchanama (exhibit 47). The accused No.1 Namdeo was taken into custody from Samudrapur and was brought to Chandrapur Police Station and arrested under panchanama (exhibit 27) on 10.6.1997 at about 11.30 p.m. On 11.6.1996, accused No.2 Varsha wife of Baba Itankar (wife of deceased) was arrested under panchanama (exhibit 48).During the course of investigation accused No.1 Namdeo made disclosure statement leading to his residential quarter and discovery of dagger (weapon used in offence); love letters received by him from accused No.2 Varsha, a packet containing five photographs of accused No.1 and accused no.2. In one of the photographs, accused No.1 was seen taking kiss of accused No.2. The photographs were along with negatives; three greeting cards sent by accused no.2 to accused No.1 with message of love; leather cover of petrol tank of motor-cycle were seized under panchanama (exhibit 33). During the house search, five photographs of accused No.2 were seized. One of the photographs on front side borne words, "I love you W" and one of the photographs mentioning, "I love you Warsha" on reverse side. House Search panchanama (exhibit 34) was drawn during the course of which video cassette of blue film; motor-cycle; a rubber grip; clay and blood stains on rubber grip was also seized. Specimen handwriting of both the accused were collected during the course of investigation and were referred for handwriting experts opinion. Muddemal articles seized were sent to chemical analysers office. Thus, the case of the prosecution appears to be that accused No.1 and accused No.2 had developed illicit relations and conspired to kill the deceased Baba (husband of accused no.2).4. After completion of investigation, the accused were chargesheeted for offences punishable under Section 302 read with Section 34 and Sections 109, 364 and 120B of the Indian Penal Code. Learned Judicial Magistrate, First Class, Chandrapur committed the case to the Court of Sessions at Chandrapur. The charges were framed and read over to the accused Nos.1 and 2 who pleaded not guilty and claimed to be tried. Their plea were separately recorded. Their defence is of total denial.5. During the trial, fifteen witnesses were examined by the prosecution. There is no direct or ocular evidence as to the incident. The prosecution case rested on circumstantial evidence.6. The learned trial Judge believed the evidence led by the prosecution and convicted and sentenced the accused-appellants, as stated earlier. Hence these appeals.7. We have heard Mr C.R. Thakur, learned counsel for appellant Varsha and R.M. Daga, learned counsel for appellant Namdeo and Mr D.M. Kale, learned Assistant Public Prosecutor for State in both the appeals. Mr Daga, learned counsel for the appellant-accused Namdeo made reference to following rulings :1) K.T. Palanisamy v. State of Tamilnadu reported in 2008 (3) SCC 100. 2) Malleshappa v. State of Karnataka reported in 2008 All MR (Cri) 280 SC.3) Eknath Vitthal Wakle v. State of Maharashtra reported in 2007 All MR (Cri) 3019.4) Hanuman Kisanrao Kadam v. State of Maharashtra reported in 2006 All MR (Cri) 1654.With reference to Palanisamys case (supra), Mr Daga submitted that when all witnesses are related to the deceased and all saw deceased accompanying the accused one after the other at different places, chances of their deposing false cannot be ruled out. We have perused the ruling. In the case cited, corpus delicti was not proved and several discrepancies were brought on record. On analysis of the entire material the only evidence was purported recovery of chain at the instance of the appellant-accused. In the absence of evidence as to death, the Apex Court found it difficult to rely upon the sole circumstance of the deceased having been last seen with the appellant by prosecution witnesses who were all interested and partisan witnesses. In the facts and circumstances of that case, judgment of conviction was found unsustainable.The next reliance was placed upon Malleshappas case (supra) in order to submit that circumstance of last seen together coupled with non-explanation by the accused was by itself held insufficient to hold the accused guilty. The Apex Court found that there was no reliable and trustworthy evidence about murder in that case. In view of too many surmises and conjectures it was found highly dangerous to convict the accused. Hence, the Apex Court concluded that prosecution did not establish the charges under Sections 302, 364 and 201 of the Indian Penal Code.8. Mr Daga vehemently submitted that suspicion howsoever strong cannot take place of proof and the court will have to look for corroboration. He referred to the ruling in Eknath Vitthal wakle v. State of Maharashtra (supra) to which one of us viz. brother Rohee, J was the party. The principle argued by Mr Daga is indisputable that corroboration is required for the evidence of the "last seen together" -deceased seen by witnesses in the company of accused prior to the occurrence of offence and suspicion howsoever strong cannot take the place of proof.9. Mr Daga also made reference to Hanuman Kisanrao v. State of Maharashtra (supra) to argue that motive by itself cannot be made basis of conviction under Section 302 of the Indian Penal Code. In the circumstances of the case, it was held that Section 106 of the Evidence Act could not be pressed into service by the prosecution as it had chosen to lead evidence of an eye witness account as to what happened in the field of accused No.1 in that case. Therefore, since evidence of sole eye witness was disbelieved, Section 106 of the Evidence Act could not be pressed into service in favour of the prosecution to consider non-explanation by the accused as basis for conviction.10. All the above rulings cited cannot come to the rescue of appellants-accused herein in the facts and circumstances established in this case. Notwithstanding discrepancies or omission here or there pointed out in the record of evidence by Mr Daga, we find that there was sufficient evidence before the trial Court to arrive at the conclusion of guilt of both the accused. The facts and circumstances established appear consistent only with the hypothesis of guilt of the accused and both the accused adopting defence of total denial chose not to explain the incriminating evidence established against them. The chain was formed so complete in itself to furnish reasonable ground for the learned trial Judge arrive at the conclusion of guilt and conviction of both the accused. There was ample evidence of homicidal death of deceased Baba Itankar and the circumstances were established connecting both the accused with the offence. The circumstances though incriminating remained unexplained by or on behalf of the accused making it plain and simple for the trial Court to conclude conviction for both the accused on the basis of sufficient evidence beyond reasonable doubt against both of them. The criticism that the witnesses deposing about the circumstances of "last seen together" were close relatives of the deceased and were interested witnesses cannot persuade us to disbelieve them or to suspect veracity of their evidence. Their evidence appears natural, reliable and cogent. We cannot expect strangers to come forward and give such evidence. The PWs no axe to grind against the appellants and had occasions as deposed to see the deceased in company of accused prior to crime.The defence counsel also criticised the evidence as to recovery of knife as unbelievable. We do not agree. There is ample evidence about disclosure statement recorded under panchanama as made by accused Namdeo which led to discovery of incriminating articles duly recovered under panchanama. The trial Court has already dealt with pros and cons of the material produced before the Court as also submissions advanced in this regard. The trial Court concluded after examining the facts and circumstances that there was a pre-arranged plan between accused No.1 and accused No.2 to finish Baba (deceased-victim) to maintain their illicit relations inter-se. Presence of accused No.1 Namdeo at the house of accused No.2 prior to the incident on 8.6.1997 till 04.00 p.m.; at night at about 09.30 p.m.; accused no.1 taking away Baba on the motor-cycle long away at lonely place on Dhanora-Pipri Road to kill him there and his appearing at the house of accused no.2 to inform her that their work was completed, does lead to irrestible inference as to meeting of minds between accused No.1 and accused no.2 that they had common design to kill Baba and accordingly Baba was killed by accused no.1.Letters and documents discovered at the instance of accused No.1 Namdeo has further strengthened the prosecution case giving rise to inferences that the accused No.1 and accused No.2 were in illicit relationship with each other and thus accused No.2 had reason to instigate accused no.1 Namdeo to remove the hurdle of Baba from their way as she had communicated with accused No.1 Namdeo that her husband was beating her mercilessly and she could not come to accused No.1 Namdeo unless he does the work. The trial Court has referred to details of the letters/greetings between the accused No.1 and accused No.2 categorically indicating the existence of common intention of both the accused No.1 and accused No.2 to kill Baba. The fact that after the incident, accused No.1 appeared on his motorcycle at the house of accused No.2 on 9.6.1997 at about 07.00 a.m. to tell the accused No.2 that their work was complete ("Kam Zale Aahe") is very relevant and strong circumstance against both the accused to hold them equally liable for the offence of murdering Baba as a result of common design; abetment from accused no.2 Varsha and criminal conspiracy between accused. We do not find any sound or rational reason to upset the verdict impugned herein. After hearing submissions at the bar and perusing entire material on record, in our judgment the appeals have to be dismissed for the following reasons.11. Prosecution had examined PW 14 Dr Hazaray who carried post-mortem of the body of deceased Baba. During post-mortem, said doctor noticed following injuries on the person of deceased Baba :"1) Incised wound 3 cm x 1 cm x deep penetrating & underlying Fracture Raml of left mandible.2) Incised wound 9 cm x 2 cm x deep penetrating Extending from left Lateral Side of neck to Back of neck.3) Incised wounda) 4 cm x 1 cmb) 1 cm x 1 cm over left shoulder4) Incised wound 4 cm x 2 cm underlying fracture rib left mammary region.5) Incised wound 8 cm x 5 cm x deep penetrating intestine loop protruding out from loanf. Right Hypo-chondrium.6) Incised wound 4 cm x 2 cm inter costral spae between 11th & 12th rib (Rt) lateral side of7) Incised wound 4 cm x 3 cm with underlying fracture Bone left wrist.8) Incised wound 8 cm x 2 cm web space between Index finger & thumb left hand with underlying fracture 1st meta couple.9) Incised wound left fore arm 4 cm x 2 cm.10) Incised wound 5 cm x 2 cm below left elbow (+) lateral aspect.11) Incised wound 3 cm x 1 cm x deep penetrating with underlying fracture 6th rib Right renal angle area.Fracture - mandible, Fracture 3rd Rib left at mid-clavicular line. Fracture 6th rib right side."Dr Hazaray has deposed that all injuries described by him in the post-mortem report were possible by the weapon viz. dagger (Article D) which was shown to him. He deposed that cause of death of deceased Baba was shock due to haemorrhage on account of injuries described in column Nos.17 and 18 of them post-mortem report, reproduced above. It is thus sufficiently established on record that death of Baba was homicidal and it was neither accidental nor suicidal. In cross-examination it was clarified further that the external injuries and internal injuries were corresponding and injuries No.4, 5, 6 and 11 were singly as well as collectively dangerous for life.12. Although there is no direct evidence about the incident of murder of Baba, there is strong circumstantial evidence forming chain of events leading to the inescapable conclusion as to the guilt of the accused Nos.1 and 2.13. The prosecution has examined PW 7 Dadaji, PW 8 Subhash and PW 9 Ramdas who deposed as to having seen accused no.1 Namdeo in the company of deceased Baba prior to the incident. According to PW 7 Dadaji, father of the deceased, accused No.1 Namdeo while he was unmarried, was residing as tenant in the house of Baba. He had love affair with accused No.2 Varsha (wife of Baba). Hence, P. W. 7 had given understanding to Baba not to keep accused No.1 Namdeo as his tenant. Thereafter accused No.1 got quarter in L & T Company, but had continued to visit to the house of Baba while Baba was on duty and while accused no.2 Varsha used to be alone in the house. P. W. 7 deposed that he had seen accused no.1 Namdeo driving the two-wheeler and his son Baba as a pillion rider at about 9.45 pm (a night prior to the incident). On the following day, PW 7 was informed by police about death of Baba. PW 8 Subhash, brother of deceased Baba also deposed that he had seen accused Namdeo at the house of Baba on 8.6.1997 at about 04.00 p.m. and also at about 09.30 p.m. he had seen Baba and Namdeo going on vehicle (Kawasaki Bajaj). On the next day morning at 07.00 a.m. accused No.1 Namdeo was seen telling accused No.2, "our work is completed" before leaving on his vehicle. PW 9 Ramdas (brother-in-law of deceased) also deposed having seen accused no.1 Namdeo and deceased Baba at Gadchandur on 8.6.1997 while they were going on vehicle belonging to Namdeo (accused No.1) who was driving while Baba was pillion rider on the vehicle. PW 9 Ramdas was waiting for truck at Gadchandur for going to Nanda. PW 9 also deposed about love affair between accused No.1 Namdeo and accused no.2 Varsha and that he had told Baba once or twice to give understanding to his wife (accused no.2 Varsha).All these witnesses were cross-examined in detail but their evidence in the main remained unshattered barring minor discrepancies here or there. Thus, the prosecution led evidence that the deceased Baba was seen in the company of accused No.1 Namdeo prior to the incident of murder as also about motive which accused No.1 and accused No.2 had to eliminate deceased Baba from their way of illicit relations. The criticism that all these witnesses were partisan and interested in conviction of the appellants, has no sound basis.14. The prosecution appears to have further bolstered up its case by adducing evidence as to recovery of incriminating articles. PW 4 Anil although declared hostile by the prosecution, admitted that accused No.1 was arrested and seizure panchanama (exhibit 29) shown to him borne his signature. Blood stained shirt and pant were seized. C.A. Report indicating that said articles sent as exhibits 12 and 13 were found stained with human blood group "B". The accused No.1 Namdeo and deceased Baba were found having the same blood group "B", but the accused No.1 Namdeo when he was arrested soon after the incident had no injury at all so as to explain otherwise the blood stains found on his clothes. No explanation was adduced by accused No.1 Namdeo as he chose to adopt defence of total denial. No marks of any injury were found on his body when accused No.1 Namdeo was arrested under panchanama (exhibit 27). There is no explanation given by accused No.1 Namdeo about blood stains detected on his clothes belonging human blood group of "B".15. Accused no.1 Namdeo was found in possession of incriminating articles. PW 6 Devidas deposed about discovery at the instance of accused No.1 Namdeo of the weapon of offence from his residence. The knife (suri), weapon of offence, seized under panchanama (exhibit 23) was also referred to chemical analyser and it was reported that it was found with human blood stains of "B" group. The motor-cycle, Kawasaki Bajaj, which accused No.1 Namdeo found possessed lent further corroboration to the evidence of PW 7 to PW 9, witnesses who had seen deceased Baba in the company of accused no.1 Namdeo while they both were travelling by motor-cycle Kawasaki Bajaj to which PW 9 specifically referred. The said motor-cycle was claimed by accused No.1 Namdeo during pendency of case, leather packet cover and rubber grips of the motor-cycle were seized and sent to chemical analyser which were reportedly found stained with human blood; so also sample of earth collected from the spot of offence.16. Photographs along with negatives, three greeting cards, handwritten chits, blue film video cassette seized and watched under separate panchanama such articles seized at the instance of accused No.1 Namdeo is evidence of tell-a-tale effect when read along with evidence of handwriting expert (PW 15) reliably indicating the nature of illicit relations which accused No.1 and accused no.2 had developed between themselves with strong motive to eliminate deceased Baba (who was husband of accused No.2 Varsha). Thus, evidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refined cross-examination by defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals.

Decision:
0[ds]We do not find any sound or rational reason to upset the verdict impugned herein. After hearing submissions at the bar and perusing entire material on record, in our judgment the appeals have to be dismissed for the followingHazaray has deposed that all injuries described by him in thereport were possible by the weapon viz. dagger (Article D) which was shown to him. He deposed that cause of death of deceased Baba was shock due to haemorrhage on account of injuries described in column Nos.17 and 18 of themreport, reproduced above. It is thus sufficiently established on record that death of Baba was homicidal and it was neither accidental nor suicidal. Init was clarified further that the external injuries and internal injuries were corresponding and injuries No.4, 5, 6 and 11 were singly as well as collectively dangerous for life.12. Although there is no direct evidence about the incident of murder of Baba, there is strong circumstantial evidence forming chain of events leading to the inescapable conclusion as to the guilt of the accused Nos.1 andevidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refinedby defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals.