1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.6 OF 2008 Shahadeo s/o Wamanrao Shinde, Age : 49 years, Occ.Agriculture, R/o Antarwanpimpri, Tq & Dist. Beed ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.J. Salunke, Advocate for the appellant; Mr V.D. Godbharle, A.P.P. for the respondent - State. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 17th November, 2009 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code on the allegations that the appellant had committed murder of his wife Kiskinda in the night intervening between 9th December and 10th December, 2006, by the Additional Sessions Judge, Beed, by judgment dated 20.11.2007, in Sessions Case No.27 of 2007 and sentenced to imprisonment for life and 2 fine of Rs.500/-, with a default condition of undergoing further R.I. for six months in the event of non payment of fine, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.8 Deelip Patil was attached to police station Pimpalner as a P.S.I. On 10.12.2006 he recorded the complaint of P.W.1 Sunil Shahadeo Shinde at about 1.30 p.m. at Exh.17. On the basis of the said complaint an offence vide Crime No.118 of 2006 came to be registered under section 302 and 504 of the Indian Penal Code. The investigation of the said crime was entrusted to P.W.8 P.S.I. Patil. He accordingly immediately proceeded to the scene of the offence which was at village Antharwan Pimpri at the house of appellant Shahadeo. He drew the scene of the offence panchnama in the presence of panchas at Exh.26. From the scene of the offence he seized one sledge-hammer. The sledge-hammer is Article 6. He then recorded the inquest panchnama of the deceased in the presence of panchas at Exh.11. The dead body thereafter was referred for post mortem examination to the Civil Hospital, Beed. Post mortem examination on the dead body of deceased Kiskinda came to be performed by P.W.9 Dr. Arti Pawar. P.W.9 Dr. Pawar noticed the following external injuries :- 3 1. Crush injury involving left frontal bone above left maxilla, mandible of size 4 1/2" x 3" x 4" deep. 2. CLW of 2 x 2 cm. in between two eye brows 3. CLW of 3" x 1" on right maxilla 4. Incised wound with protruding part of intestine, 5 x 4" organ deep 5. Incised wound on right side of abdomen 3" x 1" x organ deep 6. Fracture mandible left 7. Fracture maxilla left 8. Fracture frontal bone left. She noticed peritoneum 3" above the umbilicus with protruding part of intestine. Incised wound involved the stomach, part of small intestine and mesentery. She opined that except injury to the stomach, all injuries were possible due to sledge-hammer Article 6. She opined that injury to the stomach was possible by a sharp weapon. On the same day the appellant/accused came to be arrested at 5.00 p.m. under the arrest panchnama at Exh.33. The clothes of the deceased came to be seized vide Exh.26. During custodial interrogation on 13.1.2006 the accused expressed his willingness to produce his clothes and the knife. Accordingly the memorandum came to be recorded in the presence of panchas at Exh.28. The appellant/accused led the police and the panch to his house and from a room where the family deities were placed, produced his clothes Articles 8 & 9 and Article 7 knife. The panchnama 4 came to be scribed on the reverse of the memorandum at Exh.28. Statements of the witnesses came to be recorded under section 164 of the Code of Criminal Procedure. The seized property was referred to the Chemical Analyser and the report of the Chemical Analyser is at Exh.31. The report of the Chemical Analyser discloses that the knife and the clothes of the appellant/accused were found stained with blood of "B" group, while the clothes of deceased were also found stained with blood of "B" group. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant/accused for offence punishable under section 302 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined nine witnesses. The defence of the appellant/accused was of denial. According to him, on the day of the incident he was at the house of his father and the deceased was not in his company. He has also stated that his children used to frequently demand money from his wife towards he payment of loan instalments. It is tried to be suggested to the prosecution witnesses that it was in fact P.W.1 Sunil who had committed murder of wife of accused. The Trial Court repelled the defence of the appellant/accused and convicted and sentenced him as aforestated. 5 4. The evidence against the appellant/accused comprises of circumstantial nature. It is useful to remember that in cases resting on circumstantial evidence it is obligatory on the prosecution to establish and prove each and every circumstance on which it proposes to rely. The circumstances so established should be of a conclusive nature and should form a complete chain which should exclude every hypothesis of innocence of the accused and should unerringly point to the guilt of the accused. Since the present case is a case resting on circumstantial evidence, we propose to examine if the prosecution has been able to establish the circumstances so as to exclude every hypothesis of innocence of the accused. 5. The prosecution relies on the following circumstances :- (i) Persistent demand by the appellant/accused with deceased Kiskinda for transferring the amount of compensation received from the Government for the sugarcane crop; (ii) Deceased being last seen alive in the company of the appellant/accused; (iii) Recovery of blood stained clothes of the accused and knife at his behest; (iv) The clothes and knife being found stained with blood group matching the blood group of the deceased. 6 6. In respect of the first and the second circumstance, prosecution has examined P.W.1 Sunil and P.W.2 Anil, children of deceased Kiskinda and sons of the present appellant. P.W.1 Sunil states that about fifteen days prior to the incident his father (appellant) was insisting deceased to record the sale of sugarcane in his name. The appellant used to abuse his wife. He states that his house has a wall on all sides and a door towards the western side. He states that his uncle Jalindar, aunt Pushpa and their family members reside in the same house but separately. He further states that on 10.12.2006 he along with P.W.2 Anil had dinner at about 9.00 p.m. and went towards their agricultural field. They returned back on the morning of 10.12.2006 at about 6.30 a.m. According to him they had given call to their mother for opening the door. According to him, his mother used to generally wake up early in the morning. The door was however chained from inside. According to him, his father was inside and was muttering that "I have killed". His father thereafter opened the door and on opening the door he noticed his mother lying on the floor in a pool of blood. Her face had been crushed and there was injury on her stomach from where the intestine were protruding out. According to him his father was under influence of liquor and his clothes were blood stained. The appellant/accused was wearing white shirt and trouser. He states that upon seeing their mother, he and P.W.2 Anil were overcome by grief and, therefore, started weeping. He states that thereafter he had gone to the police station and had lodged complaint at Exh.7. He states that near the dead body of his mother he had noticed one sledge- 7 hammer stained with blood and knife. He has accordingly identified the sledge-hammer and the knife. In cross-examination on behalf of the appellant/accused he has stated that his grandfather and grandmother are alive. He states that his father had two brothers, namely Mahadeo and Babasaheb. The appellant/accused is the youngest amongst the brothers. His grandfather had partitioned the property between his children. His sugarcane crop was sown in Gut No.281. He has admitted that the said Gut number belongs to his grandfather and grandmother. He has admitted that apart from sugarcane crop in Gut No.281, sugarcane crop was not sown in any other part of the agricultural field. He has denied the suggestion that his grand parents were personally cultivating Gut No.281. He has admitted that he had received the compensation from the Government. He has admitted that the compensation was received about a month prior to the incident. The compensation was received as the sugarcane was not supplied to the sugar factory in the previous year. He has admitted as true that the compensation was received by his grand parents. He has further stated that Gut No.218 is in his name and his three brothers. He has denied the suggestion that the door of the house does not have any planks. He has admitted that his father's share in the house is towards the south-west while his uncle Jalindar's share is on the eastern side. He has admitted that his grandfather resides in the north-east corner while the share of his uncles Rajabhau and Suryakant is towards the western side of his father's share. He has admitted that there is an open space in the middle 8 of the house as a sort of the courtyard. He has admitted that there are two doors to the eastern side of his house. He has denied the suggestion that any one can enter into the house from the ventilator/space on the upper side of the door on the eastern side. He has also admitted in cross-examination that his mother was looking after the affairs of the house. He has admitted that she used to work in the agricultural field. He has admitted that about a year and half prior to the incident he had purchased auto-rickshaw on loan and had also purchased one tractor through Bank. He has denied the suggestion that the Bank/finance company had seized the auto-rickshaw and the tractor on account of the failure to pay the instalments. He has admitted that he had voluntarily handed over the tractor to the finance company as there was no one to look after the agricultural land after the death of his mother. He has admitted that on the day of the incident he along with his brother and mother had taken dinner while his father was sitting by the side. He has further admitted in cross-examination that his father came out of the house and left the house wearing the blood stained clothes. He has admitted that his father was present in the police station when he had lodged the complaint. Importantly, he admits that his father was not wearing the same clothes which he was wearing earlier. He states that he had changed his clothes. P.W.1 Sunil was unable to state as to when the appellant/accused had changed his clothes. He states that his father was in the custody of the police when he reached the police station. He has admitted that he had stated to the police that he had seen a knife in 9 the house on the floor. He could not state whether the police had seized the knife at the time when dead body was taken in custody. He later on admitted that knife was seized along with other articles. In further cross- examination he has stated that he had stated before the Magistrate during his statement that the knife was not seen near the dead body of his mother. He has further admitted to have stated in his statement recorded by the Magistrate that his younger brother had fallen unconscious. Omission has been duly proved that he had not stated in his statement that his father was muttering that he had killed his wife. 7. Prosecution has examined P.W.2 Anil, who deposes on similar lines as that of P.W.1 Sunil. He states that when they had reached the house, his aunt P.W.3 Pushpa was present and Pushpa had also given call to his mother but his mother had not opened the door. He also states about the appellant/accused quarreling with deceased Kiskinda on account of payment of the compensation received for the sugarcane crop. Importantly, this witness does not state about the presence of knife near the dead body of his mother Kiskinda. In cross-examination he has admitted as true that his mother used to look after the household affairs. He has also admitted as true that all the money collected used to be kept with his mother. In respect of land at Gut No.281 he has admitted that it is irrigated land while the other land is a dry crop land. He has also admitted that sugarcane is planted only in that survey number. He has denied the suggestion that the sugarcane crop was in the name of his 10 grand parents as per the record maintained by the sugar factory. He has admitted to have received compensation for the sugarcane in his own name. He has denied the suggestion that the compensation was received in the name of his grand parents. He has maintained that it was received in his name. Further the witness states that he had received the amount of the compensation as his name was recorded. He has also denied the suggestion that there is space on the top of the door for any person to wriggle inside the house. Omission has been duly proved that he had not stated in his statement recorded during investigation that he had asked aunt Pushpa as to why his mother had not awakened and Pushpa had told him that she had also given call to his mother. Omission has been duly proved that he had not stated that his father was muttering that he had killed. Omission has been duly proved that he had not stated that he heard his father muttering when he placed his ear against the door. Omission has been duly proved that he had not stated in his previous statement that his father was quarreling with the mother since last fifteen days prior to the incident. 8. P.W.3 Pushpabai states about P.W.1 Sunil and P.W.2 Anil arriving at the house about 7.00 a.m. in the morning and inquiring from her as to whether their mother deceased Kiskinda had awakened. Pushpa states that she had informed him that she too had given a call but she did not wake up. P.W.1 Sunil and P.W.2 Anil thereafter gave a call to their mother for opening the door. She states that the accused opened the door and 11 thereafter P.W.1 Sunil and P.W.2 Anil started weeping. She states that she also went inside and noticed Kiskinda lying on the floor with her face crushed and lying on the floor with her intestine protruding out. In cross-examination she has admitted that father of the accused was indisposed on the day of the incident. She has also admitted that accused used to look after his father. She has feigned ignorance as to whether the appellant was sleeping at his father's house as his father was not feeling well. She states that at about 7.00 a.m. she was working in the house. She states that she heard cry of weeping in front of the house of accused. She had seen Sunil and Anil weeping on seeing the dead body of their mother. She states that the appellant and his parents came out while Sunil and Anil were weeping. She has also admitted that Sunil used to demand money from her mother for payment of loan of tractor and auto-rickshaw. She has denied the suggestion that P.W.1 Sunil had attempted to stab his mother on 2-3 occasions on this ground. 9. Shri Salunke, learned Counsel for the appellant has urged before us that the prosecution has failed at establishing the motive for the appellant to have committed the crime. According to the learned Counsel for the appellant, the land at Survey no.281 stood in the name of the parents of the appellant and consequently compensation, if any, must have been received by the parents of the appellant and the appellant, therefore, could not have demanded the said amount from his wife i.e. deceased Kiskinda. It is true that there is no positive evidence as to in 12 whose name the land at Survey no.281 stood in the revenue records. P.W.1 Sunil claims that the land stood in the name of his grand parents but the compensation was received by him. Similarly, P.W.2 Anil states that compensation had been received by him. All these admissions about receipt of the compensation by P.W.1 Sunil and P.W.2 Anil have been elicited in the cross-examination. Apart from eliciting these admissions, there is no further cross-examination on this aspect on behalf of the appellant to show that no amount of compensation was in fact received by the prosecution witnesses and consequently could not have been kept with deceased Kiskinda. Deceased Kiskinda as has been admitted by P.W.2 Anil was looking after the financial matters of the household. P.W. 2 Anil has admitted that all money used to be deposited with her. In such circumstances, therefore, according to us the prosecution has been able to establish that deceased Kiskinda was being subjected to harassment at the hands of the accused for payment of the compensation received for the sugarcane crop. The prosecution, therefore, has been able to establish the motive against the appellant for committing the crime. It is no doubt true that in cases resting on circumstantial evidence motive as a circumstance assumes importance. However, it is not necessary that the prosecution would fail in each and every case where the prosecution is unsuccessful in proving the motive. If the other circumstances established by the prosecution are cogent and the chain of the circumstantial evidence is complete, failure of the prosecution to establish and prove motive may not be fatal to the prosecution case. However, in 13 this case, according to us the prosecution has been able to establish motive for the accused to have committed the offence. 10. The next circumstance on which reliance is placed by the prosecution is that the deceased was last seen alive in the company of the accused. According to us, this circumstance has been established by the testimony of P.W.1 Sunil and P.W.2 Anil. The appellant claims that he had gone to the residence of his father as his father was indisposed. In other words, the appellant has taken the defence of alibi. Apart from a bald statement under section 313 of the Code of Criminal Procedure, the appellant has not been able to establish by preponderance of probabilities that he was not present in the house on the night of the incident. In such circumstances, therefore, according to us the appellant has failed in establishing that he was not present in the house. The prosecution has, therefore, succeeded in establishing that deceased Kiskinda was last seen alive in the company of the appellant/accused. If that be the case, it was for the appellant to have explained as to how deceased Kiskinda had sustained the injuries and met her death. The face of deceased Kiskinda was virtually reduced to a pulp on account of blows being given by a sledge-hammer. Evidence of P.W. 4 Kisan, a Blacksmith indicates that the appellant/accused had borrowed a sledge- hammer from him on the previous evening. He has identified the sledge- hammer as the same one which the appellant had borrowed. In such circumstances, therefore, the fact that it was the same sledge-hammer 14 which the appellant/accused had borrowed from P.W.4 Kisan, which was used for inflicting the injuries to deceased Kiskinda has been established. Coupled with this, presence of the appellant in the house on the night between 9th December, 2006 and 10th December, 2006 has been established. The additional circumstance is a false explanation which is put forth by the appellant/accused that he was sleeping at the house of his father, which fact he has failed to establish. 11. Prosecution next relies upon the circumstance of discovery of knife and blood stained clothes of the appellant/accused at his behest as per the memorandum at Exh.28. It is no doubt true that the panch witness to the memorandum was declared hostile and did not support. The burden, therefore, squarely rests upon the testimony of P.W.8 P.S.I. Deelip to establish and prove the disclosure memorandum alleged to have been made by the appellant/accused. P.W.8 P.S.I. Deelip states that on 13.12.2006 the appellant/accused has expressed his willingness to point out the place where the clothes and the knife were hidden. Accordingly memorandum at Exh.28 came to be drawn. The appellant/accused led the police and the panch to that part of the house where the family deities were placed and removed his clothes and the knife which was concealed by him. The clothes and knife were found stained with blood of "B" group, which matched that of the deceased. Shri Salunke, learned Counsel for the appellant/accused has urged before us that the recovery of knife at the behest of the appellant smacks of artificiality as P.W.1 15 Sunil has admitted that knife was seen besides the dead body. 12. P.W.1 Sunil no doubt states about presence of knife near the dead body of deceased Kiskinda and also states about the seizure of the knife by the police, but the cross-examination on behalf of the appellant/accused clearly indicates that P.W.1 Sunil had made an incorrect statement about seeing a knife near the dead body. P.W.1 Sunil had admitted that he had stated in his statement under section 164 of the Code of Criminal Procedure that knife was not seen near the dead body of his mother. In fact, the scene of the offence panchnama also does not refer to seizure of any knife from near the dead body of deceased Kiskinda. Obviously, P.W.1 Sunil has made an incorrect statement and that statement has been proved to be incorrect not only by the cross- examination of the appellant but on the basis of evidence of P.W.2 Anil and P.W.8 P.S.I. Deelip Patil. These two witnesses, P.W.2 Anil and P.W.8 P.S.I. Deelip have clearly not referred to the presence of knife near the dead body of deceased Kiskinda. The knife ultimately came to be recovered under the memorandum at Exh.28. As pointed out by us above, the knife and the clothes of the appellant were found stained with blood of "B" group, which matched that of deceased. A vain attempt was made by the learned Counsel for the appellant to urge before us on the basis of the evidence of P.W.1 Sunil and P.W.2 Anil that the appellant/accused never used to wear a trouser, the seizure of trouser at the behest of the appellant stands falsified. P.W.1 Sunil has clearly 16 stated about the clothes which were worn by the appellant/accused when he opened the door were blood stained. He has identified these clothes as the same clothes which were worn by the appellant. Merely because the piece of apparel which was seized was a trouser would not indicate that it was not worn by the appellant/accused. The appellant/accused has produced the same and the knife. In his statement under section 313 of the Code of Criminal Procedure the appellant has offered only a bald explanation of denial. 13. It was lastly urged by Shri Salunke, learned Counsel for the appellant that there was an aperture which enabled any other outsider to gain an entry in the house. The fact about an