Cr.Appeal No.276/2009 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.276 OF 2009 Raghoji Dattaram Shinde Age 35 Years, Occ. Agriculturist, R/o Takli, Tq. Mudkhed, District Nanded. ..Appellant Versus The State of Maharashtra Through Police Station Mudkhed, District Nanded. ..Respondent ... Shri U.S.Malte, Advocate for the appellant and Shri D.V.Tele, Additional Public Prosecutor for the respondent ... CORAM : P.V.HARDAS & A.V.POTDAR, JJ. Dated : January 14, 2011 JUDGMENT : (Per HARDAS, J.) :- 1. The appellant who stands convicted for having murdered his own son Anil for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 1,000/- in default of which to undergo rigorous imprisonment for three months and for an offence punishable under Section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for five years and to pay fine of Rs.5,000, in default of which to undergo rigorous imprisonment for one month with a direction that both the sentences shall run concurrently, by the learned Sessions Judge-II, Nanded by judgment dated Cr.Appeal No.276/2009 2 31.3.2009 in Sessions Case No.81 of 2008, by this appeal, questions the correctness of his conviction and sentence. 2. Such of the facts, which are necessary for decision of the appeal may briefly be stated thus; PW 23 Police Head Constable Madhav Hake, who was attached to Mudkhed Police Station, recorded the report of PW 7 Anusayabai on 11.2.2008, which is at Exhibit 26, complaining therein that her son Anil was missing. Upon recording of the said report PW 23 Hake, Head Constable, registered the same as Missing Report No.2 of 2008 and handed over and entrusted further enquiry of the missing complaint to PW 12 Head Constable Bhimrao Thorat, who was posted at Rohi Pimpalgaon Police Out post, was present in Mudkhed Police Station on 11.2.2008. Accordingly, on the same day i.e. on 11.2.2008, PW 12 Head Constable Thorat proceeded to village Takli at about 11.10 a.m. No trace of Anil was found at village Takli and therefore, present appellant, father of Anil, came to be arrested. On 11.2.2008, the appellant was interrogated and during interrogation, he expressed his willingness to point out the place where the dead body of Anil was buried. Accordingly memorandum at Exhibit 12 came to be recorded in the presence of PW 1 Shankar Umate and another panch witness. The appellant / accused led the police and the panch to Yeli Mahati bridge and after alighting from the bridge, the accused proceeded ahead and led the police and the panch to the riverbed of river Cr.Appeal No.276/2009 3 Godavari and pointed out the place in the sand where dead body of Anil was buried. Accordingly, the dead body of deceased Anil was excavated from the river bed and came to be identified by PW 18 Narba Kirkan, grandfather of deceased Anil. It was noticed that around the neck of deceased Anil a scarf was tied and blood was oozing from his mouth. The dead body was robed in read "T" shirt and jeans. It appears that deceased Anil had worn white socks and black shoes and there was one iron bracelet in his hand. The panchanama of the entire sequence came to be drawn at Exhibit 13 in the presence of the witnesses. Entire episode was video graphed and thereafter PW 12 Head Constable Thorat lodged his report at Exhibit 33. Based on the said report, Crime No.15 of 2008 came to be registered and the investigation thereof came to be entrusted to Police Inspector PW 20 Shamkant Tare. PW 20 Tare, PI, accordingly drew the inquest panchanama of the dead body of deceased Anil at Exhibit 15 in the presence of PW 1 Shankar Umate. He drew the scene of offence panchanama at Exhibit 14 in the presence of PW 1 Shankar Umate. The accused came to be arrested under the arrest panchanama at Exhibit 52. The clothes on the person of the accused came to be seized in the presence of panch PW 3 Raju Kachawar, under seizure memo at Exhibit 19. The dead body of deceased Anil was referred for post mortem examination Autopsy on the dead body of deceased Anil was performed by PW 16 Dr. Ajay Lokde. He noticed a printed abrasion over neck region below thyroid cartilage, two inches in width and reddish brownish black in colour. He opined that the external Cr.Appeal No.276/2009 4 injury was ante mortem. On internal examination, he noticed that that the greater cornnae of hyoid bone was fractured and lunges were congested. He did not notice any food particles or fluid in the stomach. He preserved the viscera and reserved the opinion regarding the probable cause of death. The post mortem notes are at Exhibit 39. The viscera was referred for chemical examination and the Chemical Analyser, by its report at Exhibit 41, opined that no poison was detected. PW 16 Dr. Lokde, accordingly, issued his final opinion regarding the cause of death and according to him, the death of Anil was due to cardio respiratory arrest. The death certificate is at Exhibit 40. He has opined that the external injury could be possible by the scarf which was seized and which was found around the neck of the deceased. Letter at Exhibit 42 appears to have been addressed to him by Investigating Officer seeking his opinion as to whether the seized scarf could cause the external injury. After examination of the said scarf, he expressed his opinion at Exhibit 43 that the scarf could cause the external injury. 3. The statements of witnesses came to be recorded and the seized property came to be referred to the Chemical Analyser vide requisitions at Exhibits 54 and 55. PW 20 Shamkant Tare, PI, collected the certified copy of the first information report lodged by Anusayabai against the appellant, in an earlier round of litigation. Certified copy of the first information report is at Exhibit 56 and the judgment is at Exhibit 57. The Chemical Analyzer's reports are at Exhibits 58, 59, 60 and 61. The Circle Cr.Appeal No.276/2009 5 Inspector - PW 14 Gangadhar Bodhamwad was required to draw the sketch of the scene of offence and accordingly he drew the sketch of the scene of offence at Exhibit 36. The extract of the admission register of the school, where deceased Anil was studying, came to be seized at Exhibit 47. Upon completion of the investigation, a charge sheet against the appellant / accused came to be filed. 4. On committal of the case to the Court of Sessions, charge vide Exhibit 6 was framed against the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The appellant denied the guilt and claimed to be tried. The prosecution examined 23 witnesses. The trial Court, upon appreciation of the evidence of the prosecution witnesses, came to the conclusion that the prosecution had established an offence against the appellant beyond the reasonable doubt and accordingly, convicted and sentenced the appellant. 5. Before we advert to the submissions advanced before us by the learned counsel for the appellant and the learned Additional Public Prosecutor, it will be useful to refer to the evidence of the prosecution witnesses. 6. PW 7 Anusayabai states that deceased Anil was 11 years of age at the time of his death. Her daughter Ankita was aged 2 years while the appellant is her husband. She states that the incident occurred on Cr.Appeal No.276/2009 6 Sunday and her husband had come to her house at village Takli at 8.00 am and had taken Anil to Bazar at Mudkhed in order to purchase clothes and shoes for Anil. The time when the appellant left the house of PW 7 Anusayabai was 12 noon. PW 11 Govind Shinde had also accompanied them. On Sunday, neither the appellant nor her son Anil returned home and therefore, she went to the house of Govind Shinde for enquiring about the whereabouts of her son Anil. At about 8.30 pm Govind Shinde informed her that he had brought the clothes of Anil and had asked her to accept the bag containing the clothes of Anil. PW 7 Anusayabai states that she did not accept the said bag and told Govind Shinde that she would accept it on the next day morning and returned home. For the whole night she waited for arrival of her husband and her son Anil but in vain. On the next day i.e. on Monday, she informed the incident to her father PW 18 Narba Kirkan on telephone and disclosed to her father that neither her husband nor her son Anil had returned the home. Narba also tried to contact the appellant on his mobile handset but the appellant was not responding to his call. Thereafter, Narba, Ananda and brother of Anusayabai, namely; Sanjay came to her house at village Takli at about 5 pm. Around that time, the appellant also returned to home alone. Anusayabai enquired from the appellant regarding the whereabouts of Anil and the appellant disclosed to her that Anil was missing from Mudkhed Bazar since yesterday. Anusayabai states that when Anil had gone to Bazar at Mudkhed along with the appellant, he was wearing a red "T" shirt Cr.Appeal No.276/2009 7 and jeans. Anil was also wearing a bracelet around his wrist. She accordingly, lodged a missing report at Mudkhed Police Station and thereafter handed over the custody of her husband to the police. PW 7 Anusayabai further states that on Tuesday i.e. next day, the police called her to the police station and as per the directions she along with others went to Yeli Mahati bridge and thereafter to the riverbed of river Godavari. She states that the appellant was present and the appellant had pointed out the place in the riverbed and took out the dead body of Anil from the riverbed. She states that after the post mortem, dead body of Anil was handed over to her and funeral of Anil came to be performed. She has further stated that she was married with the appellant about fourteen years prior to the incident. She had resided with the appellant for about six months and on account of the ill-treatment given to her by the appellant and her mother-in-law, she was residing at the house of her parents. The appellant, thereafter, also began to reside with Anusayabai at the house of her parents and accordingly resided there for about a year. Since the appellant was a driver he took up an employment as a driver in Andhra Pradesh and for about 2-3 years, he worked in the Andhra Pradesh. The appellant was occasionally visiting her. Thereafter for about 2-3 years, the appellant was residing with her in the house of her parents. Anusayabai gave birth to a son, who was named Anil. The appellant, thereafter, was residing at village Takli where the appellant had performed second marriage with one Janabai. Cr.Appeal No.276/2009 8 Anusayabai states that she had lodged a report against the appellant at the police station and on the basis of her report, a case was instituted in the Court which was ultimately compromised by Anusayabai and her husband on account of intervention of one Anand Kirkan. She further states that the appellant transferred about two acres of land in the name of Anil and therefore, Anusayabai began to reside with the appellant and Janabai at the house of the appellant. Janabai was, however, quarreling with her and the appellant and was insisting on the appellant to also transfer about two acres of land int he name of her son Madhav. In the cross examination, omission has been duly proved that she had not stated in her previous statement that she resided with her husband for about six months and thereafter she was ill-treated by her husband. She has admitted to have stated in her previous statement that the appellant was engaged as a Driver in Andhra Pradesh for a period of four years. She has admitted that after birth of Anil, her husband stopped coming to her and it was after birth of Anil that she has lodged a report against the appellant. She has admitted that upon transfer of two acres of land in the name of Anil, the case was compromised between them and immediately thereafter, she went to reside with the appellant. She has admitted that she was residing in the new Abadi of Takli whereas Janabai was residing in old Takli. She has admitted that no applications were moved either by the appellant or Janabai for cancellation of the mutation entry of two acres of land in the name of Anil. She has admitted that two acres of land now stands recorded in her name, after the death of Anil. Cr.Appeal No.276/2009 9 She has admitted that the appellant was placed in the lockup when the appellant was produced by her and others before the police. She has admitted that she was informed by Ananda that the appellant had committed murder of Anil. She has admitted that on the next day morning the police had informed her that the appellant had committed murder of Anil. The cross-examination of this witness reveals that there is no challenge whatsoever to the statement of PW 7 Anusayabai that deceased Anil was in the company of the appellant and the appellant had returned on the next day and had stated that Anil was missing from the bazar since Sunday. 7. The prosecution has also examined PW 11 Govind Shinde, who had accompanied the appellant and Anil on the fateful day to the bazar at Mudkhed. PW 11 Govind Shinde states that on Sunday at about 10.00 am, he had gone to Mudkhed for attending the bazar and the appellant and his son were also along with him in the bus. After reaching Mudkhed, the appellant had purchased a pair of socks and shoes for Anil and thereafter had gone to a cloth shop. From the cloth shop, the appellant had purchased one white shirt and one khaki coloured pant for Anil. Govind Shinde states that thereafter all of them had gone to the cattle bazar and the appellant had demanded rope from one Butcher. The Butcher informed the appellant that he would return the rope after two days and thereafter, the appellant and Anil had gone towards the Cr.Appeal No.276/2009 10 vegetable market. PW 11 Govind Shinde further states that at about 6.00 pm while he was sitting at the S.T. bus stand Mudkhed, the appellant and Anil came there and the appellant asked Govind Shinde to handover a bag to Anusayabai. Thereafter, the appellant and Anil went away. Govind Shinde states that he returned to village Takli by a bus. Anusayabai had came to his house at about 9.00 to 9.30 pm and had enquired from him regarding the whereabouts of Anil and the appellant. He states that he disclosed to Anusayabai that the appellant had handed over one bag to him and asked him to deliver it at his residence. Anusayabai did not accept the said bag and returned home. He learnt that Anil was missing. In the cross examination he has admitted that he had handed over the bag containing the clothes to the police but he does not know if the police had drawn a panchanama. He has denied to have stated portion marked "A" in his statement that they had started from village Takli for Mudkhed at about 12.00 noon and had reached Mudkhed at about 1.00 pm. Similarly, omission has been duly proved that he has not stated in his previous statement that the Butcher had informed to the appellant that he would deliver the rope to the appellant within two days. The omission is in respect of "two days". Omission has been duly proved that he had not stated in his previous statement that about 6.00 pm he was waiting at the Mudkhed bus stand and the appellant had handed over a bag to him and had asked him to deliver it at his residence. He has denied to have stated the portion marked "B" in his previous statement that he has informed Cr.Appeal No.276/2009 11 Anusayabai that appellant and Anil had gone for an heir cut. From the cross-examination of this witness, it is apparent that though this witness has been cross-examined nothing of importance has been elicited in his cross examination which will dislodge the contention that Anil was in the company of the appellant till evening at Mudkhed. Though omission has been proved that he has not stated in his previous statement about the appellant handing over the bag to him, yet the evidence of PW 7 Anusayabai clearly indicates that Govind Shinde had informed her that the appellant had delivered a bag to him containing clothes of Anil. In such circumstances, therefore, according to us, the omission, which has been elicited in the cross examination, is not a material omission which would affect the credibility of this witness. 8. The Prosecution has examined PW 8 Rahul Mamidwar, owner of the cloth shop from whom the appellant had purchased the clothes for Anil. PW 8 Rahul states that he owns a shop at Mudkhed and on Sunday, the appellant had been to his shop and had purchased one white shirt and a khaki pant for a boy. In the cross examination he has admitted that he was not knowing the accused and the police had shown the accused to him on that day. He has also admitted that no receipt was shown to him. He has also admitted that the clothes alleged to have been purchased from his shop were not shown to him. We, therefore, find that no reliance, whatsoever, can be placed on the evidence of PW 8 Rahul Mamidwar. Cr.Appeal No.276/2009 12 9. The prosecution has also examined PW 4 Sk. Ahmed - the Butcher, to whom, the appellant had requested for a rope. PW 4 Sk. Ahmed states that he knows the accused as the accused was visiting his village and PW 4 Sk.Ahmed had purchased a cattle from the accused about three and half months prior to the incident. He states that at the time of purchasing the cattle from the appellant he had borrowed one rope from the appellant in order to tie the cattle. He states that the appellant had come to his shop and demanded that rope. PW 4 Sk. Ahmed states that he informed the appellant had he was busy and would deliver the rope to him at his residence. Sk. Ahmed further states that the appellant was accompanied by his son. In the cross examination he has admitted that he has no purchase certificate regarding purchasing the cattle from the appellant. He has admitted that he has not received any receipt from the appellant. In the cross examination, omission has been duly proved that he had not sated that the appellant had demanded a rope from him and he had informed him that he was busy. The omission is only in respect of this witness being busy. 10. The prosecution has also examined PW 5 Sk. Pasha, who runs a small hotel in the name and style of "Maharashtra Hotel" at the S.T.Bus Stand of Mudkhed. He states that he knows the appellant who had been to his hotel accompanied by a small boy on Sunday. He states that the appellant had purchased some eatables in his hotel and paid Rs.12/- towards bill of the said eatables. In the cross-examination he has Cr.Appeal No.276/2009 13 admitted that at the time of incident, he was not knowing the appellant and had seen the appellant for the first time. He has admitted that he can not identify all the customers who visit his hotel. According to us, therefore, not much reliance can be placed on the evidence of this witness. 11. The prosecution has examined PW 6 Ananda Kirkan, who states that PW 18 Narba Kiran, grand father of Anil, had come to his house on Monday and had informed him that Narba had received a call on his telephone from his daughter that the appellant - her husband, had purchased clothes for her son, who had not returned home. PW 6 Ananda Kirkan states that at about 5.00 pm, he, accompanied by Narba, had gone to village Takli. One Ragho Shinde had also accompanied them. They had enquired from the appellant about the whereabouts of Anil and the appellant had disclosed that while he was sitting at one place, his son Anil was found to be missing. He then states that thereafter, the appellant was taken to Mudkhed Police Station and Anusayabai had lodged a missing report at Mudkhed Police Station. He then states that on the next day he along with Anusayabai and others had gone to Mudkhed Police Station and the police had disclosed that Anil had been traced and asked them to come to Yeli Mahati bridge and thereafter they had gone to Yeli Mahati bridge and then to the river bed of Godavari, where from the appellant had taken out the dead body of his son. He then states about noticing one scarf around the dead body of Anil and dead body being robed in a red "T" Cr.Appeal No.276/2009 14 shirt and jeans, white socks and black shoes. PW 6 Ananda further states that Anusayabai is the first wife of the appellant. The appellant had married to one Janabai after ten years of marriage with Anusayabai. Anusayabai had, thereafter, lodged a case against the appellant, which came to be compromised on appellant's transferring two acres of land in the name of Anil. After the compromise, the appellant had taken Anusayabai to his residence and started residing with Anusayabai and Janabai. He then states that Anusayabai had complained to him that the appellant and Janabai were quarreling with her and ill-treating her. In the cross examination, he has admitted not to have stated in his previous statement that subsequent to the compromise Anusayabai had disclosed to him that the appellant was quarreling and ill- treating her. He has admitted that the appellant had himself transferred two acres of land on the name of his Anil. He further states that on Monday, at about 11 pm., he had been to Mudkhed Police Station and the police had disclosed to him that the appellant had buried his son in the riverbed. He has admitted that the police had disclosed this fact to him at about 10.00 am. He has admitted that they had suspected the appellant to have committed the murder of his son Anil. 12. The prosecution has examined PW 10 Raosaheb Shinde, who states that on 10.2.2008 he was present at his residence and on Monday at about 11.40 am, the appellant had informed him on his mobile handset Cr.Appeal No.276/2009 15 that Anil was missing from the Bazar and the appellant had requested him to inform this to Anusayabai. He states that the aforesaid call was made by the appellant from mobile No. 9767190177. He states that he has, accordingly, informed Anusayabai and thereafter, had tried to call the appellant but the appellant was not receiving his calls. On the same day at about 4.20 pm he had given call to the appellant and the appellant had informed him that he was coming to village Takli. He has denied that the appellant had informed him that the appellant was searching for his son. He has denied to have stated the portion marked "A" in his statement. 13. The prosecution has examined PW 9 Ramchandra Shinde. PW 9 Ramchandra states that he had been to Mudkhed and at about 5.00 pm had returned back to village Takli. On the next day, he had again visited Mudkhed and returned home at 9.00 pm. He states that he learnt that the appellant and his son had not returned to