1 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.73 OF 2010 Arun Dinkar Golhare, Age-18 years, Occu-Agriculture, R/o.Patil Wada, Pratap Chowk, Chalisgaon, Dist. Jalgaon APPELLANT VERSUS The State of Maharashtra, Through Police Station, Jalgaon, RESPONDENT Mr.A.B.Girase h/f. Mr.P.D.Bachate, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State. VERSUS CRIMINAL APPEAL NO.279 OF 2011 Bunty @ Manoj @ Sachin S/o.Diliprao Chavan, Age-25 years, Occu-Nil, R/o.Patilwada, Pratap Chowk,Chalisgaon, Dist. Jalgaon APPELLANT VERSUS The State of Maharashtra, RESPONDENT Mrs.S.S.Jadhav, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State. 2 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 16/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants in both these appeals have questioned the correctness of their conviction u/s. 302 r/w. 34 of The IPC, for which they were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.5,000/- with the default stipulation to undergo further RI for one year in Sessions Case No.109/2007 by the judgment and order dated 15/01/2010 passed by The Additional Sessions Judge, Jalgaon. As both these appeals are arises out of the judgment and order passed in Sessions Case No.109/2007, both these appeals to be disposed of by way of common judgment. 2. Such of the facts as are necessary for the decision of these appeals are as follows : a) On 24/03/2007, Sudam Dada Warke, P.W.No.15, attached to Chalisgaon Police Station recorded complaint Exh.32 of one Bhalchandra Bhaskar Deshmukh (P.W.No.7). On the basis of that complaint, he had registered an offence vide CR No.72/2007 for an offence punishable u/s. 302 r/w. 34 of The IPC against the appellants and one Bhushan Yuvraj Rajput r/o. Chalisgaon, Dist. Jalgaon, for the murder of one Anil Bhausaheb Chavan R/o.Hirapur 3 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 Road, Chalisgaon. P.W.No.15 took over the charge of investigation in the said crime. Following to the registration of an offence, immediately, he went to the spot shown by Bhalchandra Deshmukh alongwith API Jadhav and his other staff. He had noticed one dead body at the spot, which he sent to Municipal Hospital, Jalgaon for post mortem. One constable was deputed at the spot as due to darkness, it was not possible for him to draw spot panchnama. During the night, one rikshaw bearing no.MH-19-J-5417, owned by one Vijay Bharat Shetye, P.W.No.5 allegedly used to take the victim to the spot by the persons arrayed as an accused in the complaint was seized. Then he recorded statement of the said Vijay Shetye. During night hours, appellant Arun (appellant in Criminal Appeal No. 73/2010) and Bhushan Rajput (acquitted accused) were arrested under arrest panchnama Exh.56 and 57. Clothes on the person of appellant Arun were seized under the seizure panchnama. On 25/03/2007, he drew inquest panchnama (Exh.25) in Municipal Hospital in presence of panch witnesses. b) Dr.Devising Govind Chavan (P.W.No.13), attached to Rural Hospital, Chalisgaon, then conducted autopsy on the dead body of Anil. During post mortem, he had noticed following external injuries on the dead body : 1. Head injury, compound fracture of bone fronto parietal region of head. Size 7 x 2 cm bone deep. Oblique in direction. Red 4 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 in colour. 2. Palpable fracture of right wrist point. 3. Palpable fracture over right thigh. 4. Contusion over both sides of face, ranging 4 x 5 cm oblique in direction, red in colour. 5. Multiple abrasions over the body. He also noticed following internal injuries on the dead body during post mortem. 1. Compound fracture injury under the scalp. 2. Skull fracture over fronto parietal temporal region of head size 7 x 2 x bone deep. Age of injuries might be with 12 to 18 hours. 3. Brain matter lacerated. Covering were lacerated. According to him, the injuries found on the dead body were anti- mortem injuries and the age of the injuries might be within 12-18 hours. Accordingly, he had prepared notes of post mortem (Exh.43) and also issued advance certificate of death of the deceased. While conducting the post mortem on the dead body, he had opined the cause of death of the deceased due to head injury. While conducting the post mortem, he had collected the blood sample of the deceased. 5 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 c) P.W.No.15 then visited the spot where the dead body was found on the earlier day and drew spot panchnama Exh.30 in presence of panch witnesses. While drawing spot panchnama, he had collected blood mixed soil, plain soil, packet of chilly powder, metal finger ring, one small comb, one button of the shirt, 2 pieces of wood admeasuring 8 inch and 10 inch, one motor-cycle MH-19- AD-1925, mobile phone battery, one diary containing driving license and other papers, one ball pen, 6 small blood stained clothes. (Article A to F and H to J). Photographer Rajendra Patil was called at the spot, who took the photographs of the situation at spot. On that day, statement of priest of Jai-Malhar temple Swami Aditya Anand Saraswati was recorded. On 25/03/2007, PSI Shinde arrested the appellant in Appeal No.279/2011 by name Bunty alias Sachin Chavan, who was arrested under arrest panchnama (Exh.58). At the time of his arrest, trouser on his person, stained with blood (Article Q) and one mobile phone (Article R) were seized from his person. Seized articles were deposited with the muddemal clerk of the police station. Statement of the photographer was also recorded. On 26/03/2007, statement of priest of Hanuman Temple, Balakdas Bhagwandas Bangalibaba was recorded. On that day, a correspondence was addressed to the Tahsildar for conducting identification parade and recorded supplementary statement of the complainant. During the investigation, appellant Arun made disclosure statement in presence of witnesses (Exh.16) leading to the 6 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 discovery of one mobile phone (Article K) at his instance, which was seized under seizure panchnama Exh.61. On 28/03/2007, statement of wife of deceased Vaishali Anil Chavan (P.W.No.11) and 4 other witnesses were recorded. On 29/03/2007, papers in respect of TI parade, conducted by the Tahsildar were collected. On 01/04/2007, appellant Bunty made disclosure statement (Exh.63) in presence of witnesses leading to the discovery of one blood stained stone weighing 20 to 22 kg, concealed in the grass, which was also seized under seizure panchnama Exh.64. On 03/04/2007, while in custody, appellant Bunty made further disclosure statement (Exh.66) leading to the discovery of his shirt from the house of one Nilesh Prataprao Deshmukh from Aurangabad (Article T), seized under seizure panchnama (Exh.67). He had also recorded statement of Nitish and Nilesh on that day. Tahsildar, Chalisgaon held identification parade in respect of appellant Arun and acquitted accused Bhushan. On 12/04/2007, blood sample of the appellants were taken. On 13/04/2007, property seized during investigation was forwarded to Chemical Analyser alongwith covering letter Exh.51. After receipt of C.A.report and on completion of investigation, charge sheet was filed against the appellants and the acquitted accused before J.M.F.C. Chalisgaon, who, committed the trial to the Court of Sessions. d. On being committal of the trial to the Court of Sessions, 7 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 learned Lower Court framed the charge against the appellants and acquitted accused Bhushan Rajput vide Exh.14 for an offence punishable u/s. 302, 201 r/w. 34 of The IPC. During the trial, to substantiate the charge lavelled against the appellant and acquitted accused, prosecution has examined total 17 witnesses. Defence of the appellants is of total denial and their false implication in the said offence. On appreciation of the evidence led by the prosecution, learned Lower Court was pleased to acquit the appellants and Yuvraj for an offence punishable u/s. 201 r/w. 34 of The IPC, so also acquitted original accused no.3 Yuvraj for an offence punishable u/s. 302 r/w. 34 of The IPC, while convicted and sentenced the appellants for the offence punishable u/s. 302 r/w. 34 of The IPC as stated above. Admittedl, State has not preferred any appeal against the acquittal of original accused no.3 Yuvraj for an offence punishable u/s. 302 r/w. 34 of IPC, so also against the acquittal of the present appellants for an offence punishable u/s. 201 r/w. 34 of IPC. 2. For better appreciation of the submissions of learned counsel for appellants and learned A.P.P. for State, it is necessary to advert to the evidence of material witnesses led by the prosecution before the Lower Court. It is to be noted that it is not under dispute that the death of deceased Anil is an un-natural death. It is disputed that the death of Anil is homicidal as according to the defence, death of Anil is an accidental death during the vehicular accident. The case 8 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 of the prosecution is totally based on the circumstantial evidence. 3. It is in the evidence of prosecution witness no.1 Balakdas Bhagwandas Bangalibaba, priest serving in Bhagwan Hanuman Temple situated in Bodra Shivar that on the day of incident, at about 4.15 p.m. he was distributing ‘prasad’ in the temple as there was celebration of “Navaratri”. He has stated that one person came near his hut and started washing his face by water from the pot kept in front of his hut. He heard that the said person told to one Anil and Kalu to arrange for a vehicle to go to Chalisgaon. He told the devotees to take care of the said person. He has further deposed that one tempo was proceeding to Chalisgaon. 2-3 persons alighted from the said tempo. That person declined to go in that tempo to Chalisgaon and returned to the temple. 2 persons tried to pull that person. When they were requested to maintain the peace in the temple, they informed him, not to worry as it is their personal problem. That person had gone with those boys towards Chalisgaon. He has further deposed that around 6.00 p.m., Anil and Kalu returned to temple. They were frightened and informed him that the said person was killed by pelting stone. He has stated in his cross examination that he was never called to participate in the identification parade. He has admitted in his further cross examination that the boy who was washing his face with the water, was not known to him. At the outset, nothing was elicited from his 9 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 cross examination. 4. It has transpired from the evidence of P.W.No.7 Bhalchandra Bhaskarrao Deshmukh that the deceased Anil was his brother in law i.e. husband of his sister Vaishali P.W.No.11. Deceased was working as a LIC agent and was residing in a rental premises at Chalisgaon. While giving evidence about the incident dated 24/03/2007, he has deposed that it was holiday on account of 4th Saturday and he was in his house. At about 5.00 p.m. or so, he had received a call on his cellphone no.9226865319 from cellphone no. 9850266506 of Anil that he was in the temple of Hanuman, situated at Chalisgaon- Kannad Road at Bodre Phata. Anil also informed him that half furlong earlier to Jai Malhar Temple, appellants and Bhushan throw chilly powder in his eyes and have assaulted him. Anil also requested him to meet him immediately, hence he proceeded to the spot, informed by Anil on phone by auto. He has further deposed that he went to Hanuman temple. He met the priest of the Hanuman Temple, who informed that 3 persons have just taken one person towards Jai Malhar Temple. He proceeded to Jai Malhar Temple. While he was proceeding to Jai Malhar Temple by Ghat Road, one rikshaw was passed from opposite side. He saw appellants and Yuvraj in that rikshaw. The rikshaw was bearing no.MH-19-J-5417. Even though he tried to stop the auto, but the auto was not stopped and proceeded towards Chalisgaon. He has 10 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 further deposed that then he proceeded towards Jai Malhar temple. When he was searching for Anil, ½ km prior to Jai-Malhar temple, he saw packet of chilly powder lying by the side of the road. Some blood was also noticed on the road. Motor-cycle of Anil was found lying at the right side of the road. Dead body of Anil was found lying in one ditch near the said motor-cycle. He had noticed that blood was oozing from his head and ears. Clothes of Anil were stained with blood. The time was around 5.45 to 6.00 p.m. He has further stated that immediately, he went to Chalisgaon Police Station, where he lodged the report Exh.32. He has further stated that from the rikshaw driver, he came to know that the appellants threw chilly powder in the eyes of Anil and killed him. He has further stated in his evidence that 2 years prior to the said incident, appellant Bunty and deceased have jointly purchased one plot in village Kadgaon bearing gat no.210 on 17/01/2005. The plot was purchased by the deceased from appellant Bunty, however according to Bunty, the deceased had paid less price of the plot and was demanding Rs. 1,00,000/- from the deceased. That might be the reason behind the murder of Anil. He identified the articles found at the spot as the articles belonging to Anil. He has produced the sale deed of the plot at Exh.33, which was jointly purchased by deceased and appellant Bunty. He has admitted in his cross examination that he was not present at the time of purchase of plot under the registered sale deed at Exh.33 on 17/01/2005. He has further admitted that Bunty and 11 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 Yuvraj are not relatives of deceased Anil. He has further admitted that deceased never disclosed about any quarrel between himself and appellant Bunty and accused Yuvraj. So also, no litigation was pending between the appellants and deceased in any Court. He has further stated in his cross examination that the motor bike noticed at the spot was of deceased Anil. He has further stated that Ghat Road Police Chowky is situated near Ghat Road rikshaw stop, but he has not given any intimation in that police chowky. He has further stated that the Hanuman Temple is at the distance of 6 kms from Ghat Road rikshaw stop. From Hanuman Temple, Fata of Jai Malhar Temple is at about 1.75 km. He has further stated that on that day, he had not gone to Jai-Malhar temple. From the spot, he came to Chalisgaon Police Station. Deceased was known to the priest of Hanuman Temple. Omissions are proved in his further cross examination that he has not stated in his complaint before police that the rikshaw driver disclosed him that the appellants threw chilly powder in the eyes of deceased, assaulted deceased with stones and committed murder. He has also not stated in his complaint that appellant Bunty and deceased have purchased plot no.26 and 34 and appellant Bunty was demanding Rs.1,00,000/- towards the price of cloths from the deceased and therefore committed the murder of the deceased Anil. 5. Prosecution witness no.11 Vaishali is the wife of deceased Anil. 12 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 She has stated in her evidence that since the year 2003-04, she is residing at Chalisgaon alongwith her husband and son. Her husband was working as a LIC agent. Earlier they were residing in Deshmukh Galli of Chalisgaon City. Appellant Bunty was also R/o.Deshmukh Galli. She has further stated that appellant Bunty and her deceased husband have jointly purchased one plot situated at Chalisgaon-Dhule Road. She has further stated that appellant Bunty had sold his portion of plot to her husband. Her husband had initially paid Rs.50,000/- to appellant Bunty and paid remaining amount of consideration in installments and she has further stated that due to increase of the price of landed properties, appellant Bunty was saying her husband that he had received less amount of consideration. While deposing about the incident dated 24/03/2007, she has stated that in the afternoon, her husband had gone to village Talegaon and returned around 1.30 p.m. At about 3.00 p.m. or so, her husband received phone call of appellant Bunty to come at Ghat road to collect money. Accordingly her husband had gone to Ghatroad on his motor-bike. She has further stated that at about 5.00 p.m., she had received phone message from Madhuri Bhalchandra Deshmukh that chilly powder was thrown in the eyes of her husband by appellant Bunty and his colleagues committed murder of her husband near Jai-Malhar Temple. She has stated in her cross examination that the plot was situated at village Kadgaon shivar. Appellant Bunty was her distinct relative. She had learnt 13 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 from her husband that appellant Bunty was demanding Rs.50,000/-. She came to know about this fact when her husband received phone message. 6. We have heard learned counsel for appellants followed by the submissions of learned A.P.P. for respondent State, who has supported the judgment of the learned Lower Court. Considering the submissions advanced across the bar by both the sides, it is a fact that the case of prosecution rests on circumstantial evidence as there is no direct evidence of eye witness disclosing the death of deceased Anil Chavan. As the case is based on circumstantial evidence, those circumstances can be formulated as follows : 1. There is dispute between appellant Bunty and the deceased on account of consideration of the plot sold by appellant Bunty to deceased Anil. 2. Appellant Bunty gave call to deceased on his mobile phone and asked him to come at Ghat Road to receive the amount. 3. Deceased Anil went to Ghat road. 4. Appellants threw chilly powder in the eyes of deceased and assaulted him half km. prior to Jai-Malhar Temple. 5. Deceased Anil informed about the incident from his mobile to his brother in law Bhalchandra. 6. When Bhalchandra proceeded to the place disclosed by the deceased in Auto, on his way, he saw appellants sitting in the 14 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 auto, which proceeded towards Chalisgaon. 7. Complainant noticed dead body of deceased Anil and his motor cycle near Jai-Malhar temple. 8. Articles belonging to the deceased were found near the motor- cycle. 9. Death of the deceased is an un-natural death. 10.Recovery of the incriminating articles at the instance of the appellant. 7. Before considering the submissions of learned counsel for appellant and of learned A.P.P. for State, it is to be noted here that P.W.No.3 panch witness to the arrest panchnama of arrest of appellant Bunty turned hostile, so also panch witness Ramchandra Govind, about the memorandum statement made by the appellant Arun, turned hostile. P.W.No.3 Vijay Bharat, rickshaw driver also turned hostile. Panch witness Kiran Patil, panch witness to the disclosure statement of appellant and recovery of mobile at the instance of appellant Arun, panch witness Bablya Nizam Khatik about the disclosure statement by appellant Bunty and recovery of stone at his instance, were also turned hostile. Witness Nilesh Pratap (P.W.No.12), from whose house blood stained clothes belonging to appellant Bunty were recovered, were also turned hostile and hence these recoveries are not proved. 15 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 8. As the case of the prosecution rests on circumstantial evidence, it is necessary to establish the motive behind the alleged crime, which according to the prosecution is that after the plot was jointly purchased by appellant Bunty and deceased situated at village Kadgaon, share in the plot of Bunty was sold by him to deceased, for which he received less consideration and due to that there was dispute between deceased and appellant Bunty. Moreover, perusal of evidence of wife of deceased namely Vaishali revealed that on the date of incident, phone message was received by the deceased from appellant Bunty to come to Ghatroad to collect Rs.50,000/-. We feel that there is some typographical error in the evidence recorded in the language of the Court, hence we perused the evidence recorded in vernacular language. We did not find any typographical error, but this evidence discloses that it was the message that appellant Bunty called deceased to Ghat road to receive the amount. The fact remains that if according to the prosecution, there was dispute between appellant Bunty and the deceased, as Bunty had received less consideration amount, then no question arose that appellant Bunty may call deceased to receive the amount as the amount is due towards Bunty and not due towards deceased. As this is the only evidence before the Trial Court about the motive behind the crime, according to us, prosecution failed to establish the motive behind the crime. 16 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 9. The next circumstance or the circumstance which linked with the earlier circumstance that deceased received call on his cellphone from appellant Bunty to come to Ghat Road. So also, witness Bhalchandra, brother of Vaishali and brother in law of deceased also received message on his cell-phone from the deceased that appellants have assaulted him prior to half furlong of Jai-Malhar temple and threw chilly powder in his eyes and requested to rush to the spot immediately. On receipt of this message, witness Bhalchandra rushed to the spot. It is a fact that during the investigation, no call details were collected from the service provider mobile company, even though as per the evidence collected by the Investigation Officer, cell phone was recovered at the instance of Arun and battery of the cell phone was recovered at the place of incident. Thus the communication soon before deceased was called by the appellant, by giving call on his cell phone is not established, so also soon before the demise of the deceased, he contacted Bhalchandra on his cell- hone from his cell phone, is also not established. 10. In this connection, we may take the note about the actual message allegedly received by the complainant Bhalchandra from the deceased and the situation of the spot. As per the actual message, as deposed by the complainant, that when the message was given, deceased was in the Hanuman Temple and the incident took place some distance prior to road proceeding towards Jai-Malhar Temple. 17 Criminal Appeal No.73 of 2010 with Criminal Appeal No.279 of 2011 Then in natural course, Jai-Malhar Temple is prior to Hanuman Temple, then the evidence given by the Bhalchandra that on receipt of this message, he had been to Hanuman Temple, which is ahead of Jai-Malhar Temple appears to be improper. Then coming to next circumstance that after locating the dead body of the deceased, complainant lodged the report in Chalisgaon Police Station, in the evening of 24/03/2007. In the early morning of 25/03/2007, inquest panchnama (Exh.25) was drawn on the dead body and thereafter the dead body was sent for post mortem which was conducted by P.W.No. 13 Dr.Devising. Thereafter, in the presence of panch witnesses, spot panchnama Exh.30 was prepared. Injuries noticed on the dead body by Dr.Devising (P.W.No.13) and injuries noticed on the dead body while drawing inquest panchnama disclosed that the injuries are on the front side of the face, on the chest and on the stomach. As per the story of the prosecution, appellants banged the stone weighing 20-22 kg on the head of the deceased and then the dead body was dragged and thrown in the ditch. First, this story of the prosecution do not match with the