1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.188 OF 1990 The State of Maharashtra .. Appellant V/s 1. Ananta Kondiba Desumukh, Age 35 years, 2. Prabhavati Dagadu Thengal, Age 26 years, Both residents of Fata No.61, Malshiras, District Solapur. .. Respondents WITH CRIMINAL REVISION APPLICATION NO.64 OF 1990 Smt.Kasabai Sukhdeo thengal Aged about 75 years old, C/o.Krishna T.Thengal, At & Post: Malshiras, Taluka: Malshiras, Dist: Solapur .. Petitioner V/s 1. Ananta Kondiba Desumukh, Age 35 years, 2. Prabhavati Dagadu Thengal, Age 26 years, and 3. The State of Maharashtra. Respondent Nos.1 & 2 above both residents of Phata No.61, Malshiras, District Solapur. .. Respondents 2 Mr.H.J.Dedhia, APP for the State. Mr.B.A.Lawate h/f. Mr.J.D.Mane for Respondent Nos.1 & 2 in Appeal No. 188/1990. None for Petitioner in Revision Application No.64/1990. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 23rd August, 2010 JUDGMENT: (Per R.G.Ketkar, J.) 1. Criminal Appeal No.188 of 1990 is preferred by the State of Maharashtra against the Judgment and order dated 27th November, 1989 passed by the learned Additional Sessions Judge, Solapur in Sessions Case No.40 of 1988. By that judgment, learned Sessions Judge acquitted Respondent Nos.1 & 2 who are the original accused of the offences punishable u/s.302 read with Section 34, Section 201 read with Section 34 Indian Penal Code, 1860 (for short IPC). 2. Criminal Revision Application No.64 of 1990 is preferred by Kasabai Sukhdev Thengal, mother of deceased Dagadu and who was the complainant. The said revision is also directed against the judgment and order dated 27th November, 1989 passed by the learned Additional Sessions Judge in Sessions Case No.40 of 1988. By order dated 12th November, 1990 this revision was ordered to be heard alongwith the 3 criminal appeal. By this judgment, we dispose off the Appeal as also the Revision Application. 3. The case of the prosecution is that PW7 Kasabai made an application to the Police Officer of Malshiras on 1st December, 1987 contending therein that her son Dagadu left the house on 30th November, 1987 informing her that he is going to Malshiras. He however did not return from Malshiras. He was also not found inspite of enquiries made with all the relations where he would probably go. PW7 Kasabai went to Police Station of Malshiras on 2nd December, 1987 and gave her First Information Report (FIR) that Respondent No.2 - Prabhavati, who is the original Accused No.2 and wife of her son Dagadu had illicit relations with Respondent No.1-Ananta, original Accused No.1. The Respondents were giving threats to them. Because of threats given by the Respondents, PW7 complainant started residing at the house of her brother Maruti Baganwal and her son Dagadu started residing at the house of one Kshirsagar. It is the further case of the prosecution that Respondent No.1-Ananta & Respondent No.2-Prabhavati were living together in their land as husband and wife. 4. It is the case of the prosecution that three weeks prior to the incident, complainant’s son Dagadu made an application to the police setting out 4 therein that he was apprehending danger to his life from the Respondents. On the basis of said application Respondent No.1-Ananta was detained by the police in custody for one day. Because of this, the relations between Dagadu and Respondents were strained. When Dagadu left the house on 30th November, 1987 and did not return, the complainant PW7 made enquiries with the Respondents. It is the case of the prosecution that Respondent No.1-Ananta told complainant that Dagadu was obstacle in his love affair with Prabhavati and that he had made complaint against him to the police, so he had finished him. Respondent No.1-Ananta further alleged to have threatened complainant that she should keep quiet otherwise she will have to face the same fate as that of her son Dagadu. PW7 Kasabai immediately went to the police station and gave her FIR on 2nd December, 1987. On the same day, Respondents were arrested. It is the case of the prosecution that Respondent No.1-Ananta while in custody on 3rd December, 1987 made a statement about the place where dead body of Dagadu was burried and it was Respondent No.1-Ananta who showed the dead body of Dagadu by excavating the ditch. The dead body was identified by PW-10 Krishna, cousin of deceased Dagadu. Inquest panchanama of the dead body was drawn and the Doctor was called on the spot for carrying out post mortem examination as the dead body was not in a condition to remove from that place. The residence of the Respondents was searched 5 in presence of the panchas and blood stains were found on the floor and the door. Investigating Officer also found blood stained clothes and the blood stained stone roller. Respondent No.2 Prabhavati was present at that time and showed place near her house where blood stained clothes were dumped. Respondent No.1 was taken to his house where he produced bicycle and the wrist watch, photograph of himself and Prabhavati and also one blood stained paijama. Investigating Officer also seized the clothes which were on the body of the deceased Dagadu under Panchanama. All the discoveries, recoveries and search of the house were completed on 3rd December, 1987. On 10th December, 1987, on disclosure statement made by Respondent No.1-Ananta, one knife was recovered from the land belonging to deceased Dagadu. All the articles that were seized were sent to chemical analysis and after completion of investigation chargesheet was filed against the Respondents in the Court of learned Judicial Magistrate, First Class, Malshiras, for the offences punishable u/s.302 read with section 34 and Section 201 read with Section 34. Since the offences were exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions. 5. In support of their case, the prosecution examined as many as 15 witnesses who can be broadly classified as under:- 6 Pancha Witnesses: (i) PW1-Dashrath Krishnanath Chormale who acted as panch to the Panchanama of dead body dated 3rd December, 1987 at Exh.13. In his presence statement was made by Respondent No.1-Ananta on 3rd December, 1987 at Exh.12 to the effect that he had buried the corpse and he expressed his willingness to show the dead body. He is also panch to the Inquest Panchanama dated 3rd December, 1987 at Exh.14. (ii) PW2-Gopal Waghmode at Exh.15. He is panch to the Panchanama of attachment of articles dated 3rd December, 1987 at Exh.16. (iii) PW4-Hanmant Maruti Waghmode at Exh.22. He is panch to the Panchanama of attachment of wrist watch, bicycle and one photograph. The said panchanama is drawn on 3rd December, 1987 and is at Exh. 23. (iv) PW5-Tanaji Sopan Waghmode at Exh.25. He is panch to the panchanama of recovery of knife at the instance of Respondent No.1 dated 10th December, 1987 at Exh.27. (v) PW9-Hamid Rasool Inamdar at Exh.34. He is panch to the 7 panchanama of seizure of clothes of the deceased dated 4th December, 1987 at Exh.35. Relatives of the Deceased: (i) PW7-Kasabai Sukhdev Thengal at Exh.29. She is mother of deceased Dagadu, who had made complaint dated 2nd December, 1987 at Exh.30. (ii) PW8-Hanmant Dagadu Thengal, son of deceased Dagadu at Exh. 32, (iii) PW 10-Krishna Tukaram Thengal, cousin of deceased Dagadu at Exh.36 6. In addition to the above, the prosecution has examined following witnesses: (i) PW3-Dr.Shivgund Annappa Kullolli at Exh.17. He was working as a Medical Officer at Akluj at the relevant time. He carried out post mortem examination of the dead body of deceased on the spot. The post mortem report is at Exh. 19. 8 (ii) PW6-Ranganath Dattatray Kulkarni at Exh.28, who made an application on behalf of deceased Dagadu for getting protection from the Respondents. The said application is at Exh.31 and is dated 16th November, 1987. (iii) PW11-Haribhau Bapu Bhise at Exh.37. His house is near the house of deceased Dagadu, as also the land belonging to him is adjoining to the land belonging to the deceased Dagadu. (iv) PW12-Shriniwas Pralhad Kulkarni at Exh.38. He recorded FIR dated 2nd December, 1987 at Exh.30 given by PW7-Kasabai. (v) PW13-Eknath Pandharinath Bhudwant at Exh.39. He is the Investigating Officer. (vi) PW14-Mama Thakurdas Gaikwad at Exh.51. He arrested Respondents at 7.30 p.m on 2nd December, 1987 pursuant to the FIR dated 2nd December, 1987 given by PW7-Kasabai. He prepared panchanama dated 5th December, 1987 regarding two pillows stained in blood. (vii) PW15-Saheb Hajrat Karim Inamdar at Exh.54. At the relevant time 9 he was working as police head constable. He carried out enquiry pursuant to the application dated 16th November, 1987 made by deceased Dagadu at Exh.31. 7. After the evidence adduced on behalf of the prosecution was over, the statement of the Respondents u/s.313 of Code of Criminal Procedure were recorded. Both of them pleaded complete innocence and contended that they were falsely implicated by PW10-Krishna Thengal. After considering the evidence on record, by the impugned judgment and order dated 27th November, 1989 learned Additional Sessions Judge, Salapur acquitted the Respondents. It is against this judgment and order the State of Maharashtra has preferred the above appeal and the original complainant-Kasabai has preferred Criminal Revision Application No.64 of 1990. 8. In support of this appeal, Mr.H.J.Dedhia, learned APP submitted that the prosecution’s case is based on circumstantial evidence. The prosecution relied upon the following circumstances to establish the guilt of the Accused Respondents. They are as under:- (i) Strong motive for the Respondents to commit murder, (ii) Discoveries made at the instance of the Respondents, (iii)Recovery of belongings of deceased Dagadu from the house of 10 Respondent No.1, (iv) Recovery of incriminating articles such as blood stained stone, blood stained floor, blood stained clothes from the house of Respondent No.1, (v) Deceased Dagadu was last seen by the witnesses in the company of the Respondents, and (vi) Alleged extra judicial confession made by Respondent Nos.1 & 2 to PW7-Kasabai, mother of the deceased. 9. In order to establish the first circumstance viz.that the Respondents had strong motive to commit murder of deceased Dagadu, the prosecution relied upon the evidence of PW7-Ksasbai, PW10-Krishna Thengal, PW11-Haribhau Bhise, PW8-Hanmant, son of deceased Dagadu. With the assistance of the learned counsel, we have gone through the evidence of these witnesses. PW8-Hanmant, son of deceased Dagadu deposed that he alongwith his brother Vijay and Respondent No.1- Ananta and Respondent No.2-Prabhavati, his mother were residing together. When his evidence was recorded his age was 12 years. In the entire evidence he did not allege that there were illicit relations between the Respondents. In so far as evidence of other witnesses is concerned, it has come on record that the Respondents were living together as husband and wife for about six months before the incident in question 11 had taken place. Their evidence also shows that deceased Dagadu had accepted the relationship of Respondents and he had started living separately. The learned trial Judge has considered this aspect in paragraph Nos.10 to 14 of the impugned judgment and came to the conclusion that the prosecution has failed to establish that the Respondents had strong motive to commit murder of deceased Dagadu. We do not find any reason to take a different view on this aspect. 10. Another circumstance is about several discoveries made at the instance of Respondents. The learned Sessions Judge has considered this aspect in paragraph No.15 of the impugned judgment. The case of the prosecution is that PW7-Kasabai had made an application to the police on 1st December, 1987 at Exh.57 wherein it was set out that deceased Dagadu had left house informing her that he was going to Malshiras and not to his land. If at all Dagadu had left the house for going to his land and had he not returned on the same day, PW7-Kasabai would have certainly gone to the house of the Respondents. However, it has come on record that PW7-kasabai had gone to the house of Respondent No.2 Praphavati on 2nd December, 1987. As noted earlier, deceased Dagadu left his house on 30th November, 1987 informing PW7-Kasabai that he is going to Malshiras. PW7-Kasabai deposed that when she visited Respondents on 2nd December, 1987 she was given threats by them. 12 She gave FIR on 2nd December, 1987. It has come in her evidence that PW10-Krishna was accompanying her and that the FIR was dictated by PW10 while she was waiting outside the police station and she simply put her thumb impression on the said FIR. It has come in the evidence of PW7-Kasabai that Krishna was demanding share in the pipeline and well, but deceased Dagadu refused to give it to him. Respondent No.2 Prabhavati was also alleging that PW10-Krishna did not have any share either in the well or in the pipeline and the same were acquired by deceased Dagadu. Respondent No.2 Prabhavati was insisting not to give share to Krishna. Respondent No.2 Prabhavati also alleged that PW10-Krishna had grabbed the land by defrauding deceased Dagadu and PW7-Kasabai, and she was insisting to obtain the land from PW10-Krishna. Learned Sessions Judge, after considering the material on record, came to the conclusion that when Kasabai had given information about the missing of deceased Dagadu on 1st December, 1987, she did not raise any suspicion against the Respondents. There is every reason to believe that someone had given information implicating the Respondents in the murder of deceased Dagadu and therefore there is every reason to believe that the discoveries at the instance of the Respondents of the dead body of deceased Dagadu and the weapons used in the commission of offences and so also the place where deceased Dagadu was killed, are doubtful. 13 11. The next circumstance relied upon by the prosecution is about the recoveries made at the instance of the Respondents. Perusal of the panchanamas discloses that the space for writing time was left blank and even in some panchanamas space for writing the name of panch witnesses seems to have been left blank and subsequently filled in. The panch witnesses were staying two kilometers away and instead of taking panch witnesses who could have been easily available, the panch witnesses were taken from a particular place which is about two kilometers away. Learned Sessions Judge considered this aspect in paragraph No.16 of the impugned Judgement and came to the conclusion recoveries shown to have been made at the instance of the Respondents are false and not reliable. Similar is the case about discovery of dead body of deceased Dagadu at the instance of Respondent No.1. The said discovery is sought to be established on the basis of evidence of PW1-Dashrath. This aspect has been considered by the learned Sessions Judge in paragraph No.17 of the impugned Judgment. PW1-Dashrath deposed that confessional statement was made by Respondent No.1-Ananta at Exh.12, which is not admissible. It is further case of the prosecution that at the instance of Respondent No.1-Ananta the dead body of deceased Dagadu was recovered from the land belonging to deceased Dagadu, in which sugarcane was standing. It 14 has come on record that even before Kasabai could give FIR, the police had brought the Respondents to the police station, which creates doubt about the discovery of dead body at the instance of Respondent No.1, as there is every reason to believe that somebody gave information to the police about the finding of dead body and suspecting the hands of the Respondents. Even the PW1-Dashrath is residing at the distance of three kilometers away from Malshiras police station. In between his place and the police station, there are number of hotels and S.T.stand and the Investigating Officer could have got panch witnesses from the nearby place. Considering the evidence on record, the learned trial Judge held that the discovery of dead body at the instance of Respondent No.1, cannot be said to have been proved beyond doubt. 12. The next circumstance relied by the prosecution is about recovery of incriminating articles such as blood stained stone, blood stained floor, blood stained clothes from the house of Respondent No.1. In order to substantiate this circumstance, the prosecution relied upon evidence of PW2-Dhula Waghmode and PW13-Eknath Pandharinath Bhudwant, the Investigating Officer. During the course of deposition of PW2, it has come on record that the Investigating Officer was already at the house of Thengal before arrival of panch witnesses and Respondent No.2 Prabhavati was also present in the house before arrival of the panch 15 witnesses. As against this, PW13 deposed that panch witnesses alongwith the Investigating team went by a jeep and they were led by Respondent No.1 Ananata to a land wherein sugarcane crop was standing for discovering dead body of deceased Dagadu. At that time, Respondent No.2 Prabhavati was called there and at her instance samples of blood soaked earth, blood stained stone, blood stained blue saree, blood stained petticoat were seized in the presence of panchas. The pancnanama at Exh.16 was started at 10.30 a.m and was completed at 11.30 a.m. PW2 Dhula who is also panch witness to the panchanama at Exh.41 does not make reference in the entire deposition about this panchanama. On the contrary, he deposed that after panchanama at Exh.16 was drawn, he went to Malshiras to attend the bazar and at about 5.00 p.m he came back to the house. From the material on record it is evident that panchanama at Exh.16 was drawn first and immediately thereafter panchanama at Exh.41 was started. Though PW2-Dhula claims to be panch to panchanamas at Exh.16 and 41. He had however deposed only in respect of panchanama at Exh.16 and has not referred to panchanama at Exh.41 in his entire evidence. Learned trial Judge has considered this aspect in paragraph No.19 of the impugned judgment and recorded a finding that both the panchanamas might not have taken place in the presence of PW2 and without attending panchanamas he had deposed as if he were the panch witness to both the panchanamas. 16 In so far as recoveries of various articles is concerned, learned trial Judge further observed in the same paragraph that it was impossible that the place where deceased Dagadu was killed in the house, Respondent No.2 Prabhavati would keep her blood stained clothes hanging to dry and therefore discovery at the instance of Respondent No.2 Prabhavati seems to be a farce. Considering the material on record, learned Trial Judge ultimately recorded that the alleged recovery of incriminating articles from the house of Respondent No.2 Prabhavati under the panchanama Exh.16 is not proved beyond doubt. We do not find any infirmity in the finding recorded by the learned trial Judge. 13. Next circumstance relied by the prosecution is discovery of bicycle and a wrist watch, which deceased Dagadu had with him when he left the house on 30th November, 1987. It is alleged that these articles were found in the house belonging to Respondent No.1 Ananta. After considering the evidence of PW4 as also PW13, learned trial Judge recorded a finding that the alleged recovery of bicycle, wrist watch and blood stained trouser from the house of Respondent No.1-Ananta, at his instance, as shown under panchanama Exh.23 is impossible at it is not at all believable that Respondent No.1-Ananta would keep such incriminating articles in his house so that it can be easily detected. Learned trial Judge further observed that the prosecution has not come 17 out with the case that the murder of deceased Dagadu was committed by Respondent No.1-Ananta for these articles. It is therefore impossible that after committing murder of deceased Dagadu, Respondent No.1- Ananta would remove the wrist watch of deceased Dagadu and keep it in his house. It is equally inconceivable that Respondent No.1 Ananta would keep bicycle which was used by deceased Dagadu to the knowledge of all others after commission of offence. The panchanama at Exh.23 is shown to have been drawn from 17.30 p.m to 18.30 p.m on 3rd December, 1987. The copy of the remand report at Exh.50 shows that Respondents were produced before learned Magistrate at 06.00 p.m on 3rd December, 1987. Learned trial Judge considered this aspect and recorded that the panchanama at Exh.23 is false and the appearance of panchanama also shows that the space for writing time was left blank and it was filled in subsequently. Considering this aspect, learned trial Judge held that the entire investigation is doubtful and unworthy in credence to rely upon. 14. The next circumstance is discovery of knife at the instance of Respondent No.1-Ananta. It is the case of the prosecution that the discovery of knife was made on 10th December, 1987. The discovery of knife is sought to be proved through the evidence of PW5-Tanaji and panchanama at Exh.27. The said panch witness is resident of the place 18 which is 2 kilometers away from the police station. In between the place of his residence and the police station, there are many houses and the police could have selected panch witness from the place near to the police station. Learned trial Judge considered this aspect in paragraph No.21 of the judgment and from panchanama at Exh.27 it is described that Respondent No.1-Ananta straight away went to a particular spot where sugarcane crop was standing and took out the knife. Said recovery is impossible as the knife could not have been straight away taken out from the place without searching here and there. Learned trial Judge also found that the blade of the knife was 3 inches in length. The medical officer deposed in his evidence that the injuries sustained by deceased Dagadu could have been caused with the said knife, but taking into consideration the nature of injuries which were found on the body of deceased Dagadu, it is difficult to believe that such injuries could have been caused by a weapon having a blade so short. Learned trial Judge ultimately recorded that the prosecution failed to establish all the recoveries and discoveries satisfactorily by producing cogent evidence. On the contrary, some of the discoveries were blatantly false. We do not find that the learned trial Judge committed any error while arriving at this conclusion. 15. The next circumstance relied by the prosecution is that the deceased 19 Dagadu was last seen by the witnesses in the company of the Respondents. In order to establish this circumstance, the prosecution relied upon the evidence of PW8-Hanmant and PW11-Haribhau. In the evidence of PW8-Hanmant, he deposed that his father Dagadu came to their place on bicycle. At that time, Respondent No.1-Ananta as also his mother Respondent No.2-Prabhavati were present. The quarrel ensued between his mother and father. In the cross-examination he admitted that, in the statement recorded by the police, he had stated that when his father came to his house, Respondent No.1-Ananta was present. He could not assign any reason as to why the said fact does not find place in the statement recorded by the police. Thus the PW8-Hanmant has made improvement during the course of deposition. It also does not stand to reason that when deceased Dagadu and PW7-Kasabai would allow PW8-Hanmant and his brother Vijay to stay with Respondent No.2 Prabhavati who was residing with her paramour. In so far as the oral evidence of PW 11-Haribhau is concerned, he deposed that while he was going to village for purshasing fertilizer he saw deceased Dagadu, Respondent No.1-Ananta and Respodnent No.2-Prabhavati sitting at the door of his house. However, when he returned at 2.30 p.m he saw only the Respondents sitting at the door. It is inconceivable that after commission of the offence of murder, the Respondents would sit together at the door of their house. The Respondents made suggestion 20 that PW10-Krishna had promised PW11-Haribbau of selling some of his land and therefore PW11-Haribhau was deposing against them. Though PW11-Haribhau denied that suggestion, he had admitted that on 8th December, 1988 he had purchased 10R of the land from PW10-Krishna. Learned trial Judge has considered this aspect in paragraph No.23 of the judgment and recorded a finding that