1 Criminal Appeal No.216 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.216 OF 2010 1. Ramesh S/o.Limbaji Satpute, Age-40 years, Occu-Agriculturist, 2. Sangeeta W/o.Ramesh Satpute, Age-28 years, Occu-Agriculturist, Both R/o.Village Paradgaon, Tq.Ghansawangi, Dist.Jalna APPELLANTS VERSUS State of Maharashtra RESPONDENT Ms.Varsha Ghanekar h/f. Mr.N.S.Ghanekar, learned counsel for the appellants. Mrs.S.D.Shelke, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the first appellant, who stands convicted for an offence punishable u/s. 302 of The IPC and was sentenced to suffer RI for life and to pay fine in the sum of Rs.5,000/- with the default stipulation to undergo further RI for one year and both the appellants, who stand convicted for an offence punishable u/s. 201 r/w. 34 of the IPC and were sentenced to suffer RI for 3 years and to 2 Criminal Appeal No.216 of 2010 pay fine in the sum of Rs.1,000/- each with the default stipulation to undergo further RI for 6 months in Sessions Case No.98/2008 vide judgment and order dated 05/05/2010, passed by the Ad-hoc Additional Sessions Judge-1, Jalna, have questioned the correctness of their conviction and sentence in the present appeal. 2. Briefly stated the prosecution case is as under: (a) On 04/04/2008, Ganesh Limbaji Satpute (P.W.No.1) lodged report Exh.49 in Ghansawangi Police Station that his son by name Keshav was missing since 5.00 p.m. of 03/04/2008. During search, dead body of Keshav was found at 12.00 noon of 04/04/2008. On the basis of this report, ADR was registered vide AD No.14/2008. During the inquiry of this AD, he visited the spot and drew the inquest panchnama Exh.59. Then the dead body was referred to Rural Hospital, Partur to perform autopsy. (b) Dr.Santosh Manikrao Kale (P.W.No.12) then performed the autopsy on the dead body and noticed following injuries on the person of deceased Keshav Ganesh Satpute : 1. Incised wound of size 4 x 2 x bone deep on dorsome of right wrist with sharp margins, 2. Incised wound sharp and clean cut margins of size 4 x 2 cms x bone deep anterior to left ear around left TM joint, 3. Multiple incised wounds with sharp and clear cut margins which are 5 in numbers of size approx. 5 x 3 cms x bone deep 3 Criminal Appeal No.216 of 2010 over right parietal region, 4. Multiple incised wounds which are 3 in number with sharp and clean cut margins over left parietal region. Measuring 7 x 3 cms x bone deep, 5. Crush injury to right index finger, 6. CLW on left pinna lying superiorly exposing cartilage of size 3 x 1 x 1 cms. 7. Contusion over forehead, above left eye brow of size approx. 5 x 3 cms. He opined that all these injuries were anti-mortem injuries and prepared post mortem report Exh.69 accordingly. He further opined that the injuries mentioned in coloumn no.17 are possible due to sharp weapon like a knife. He opined the probable cause of death due to hypovalenic shock due to head injury. (c) While conducting post mortem, clothes on the person of the dead body were seized under panchnama Exh.60. Thereafter, P.W.No.9 Ramrao Deorao Ahire drew panchnama of place of offence (Exh.63) in the evening of 04/04/2008. Further inquiry in the said AD was entrusted to P.I. Shri.Raosaheb Bapurao Bhosale (P.W.No.16). Further inquiry revealed that the death of deceased Keshav was not an accidental death but it was a homicidal death. On 10/04/2008, P.W.No.1 Ganesh lodged complaint to that effect (Exh.44) against the present appellants. On the basis of this complaint, an offence was registered vide CR No.36/2008 in Ghansawangi Police Station for an 4 Criminal Appeal No.216 of 2010 offence punishable u/s. 302, 201 r/w.34 of The IPC against the appellants. Investigation in the said offence was taken over by A.P.I. Bhosale (P.W.No.16). During the investigation, he visited the spot as disclosed in the FIR that is the residential premises of the appellants and drew spot panchnama Exh.57. From the spot, he had seized one bag, one cycle, one religious book, pieces of partly burnt gunny bag, sample of ash, simple soil and seized under the panchnama. He had recorded statements of certain witnesses. On the next day, he arrested both the appellants. On 12/04/2008, appellant no.1 made disclosure statement, which was recorded under memorandum panchnama Exh.71, leading to the discovery of one knife, found concealed below the fertilizer bag in the house of first appellant and seized under panchnama Exh.72. On 16/04/2008, property seized during the investigation was forwarded to Chemical Analyser. During further investigation, certified copy of the AD register (Exh.89 and 90) was collected. On completion of investigation, charge sheet was filed against the appellants before J.M.F.C. Ambad, Dist. Jalna. (d) After committal of trial to the Court of Sessions, learned Trial Court framed charge against the appellants for an offence punishable u/s. 302, 201 r/w. 34 of the IPC, to which both the appellants pleaded not guilty to the charge and claimed to be tried. During the trial, to substantiate the charge lavelled against the appellants, prosecution have examined 16 witnesses. Defence of the appellants is of total denial and that they are falsely implicated in the 5 Criminal Appeal No.216 of 2010 present case, as there is some dispute over the landed property. Defence have examined D.W.No.1 Dr.Rajendra Shivajirao Patil, Medical Officer attached to the Central Prison, Aurangabad, who has treated appellant no.1 for his ailment as he is suffering from HIV and declared HIV positive patient. Perusal of the evidence of defence witness no.1 and the documents produced by him in his evidence has nothing to do with the incident. Hence evidence given by the defence witness is not required to be considered. On appreciation of the evidence laid by the prosecution, learned Lower Court pleased to convict the first appellant for an offence punishable u/s. 302 of The IPC and convicted both the appellants for an offence punishable u/s. 201 r/w. 34 of The IPC, which judgment is impugned in the present appeal. (3) Case of the prosecution is rests on the circumstantial evidence. For better appreciation of the submissions of learned counsel for appellants and of learned A.P.P. for State, it is necessary to advert to the evidence of material witnesses examined during the trial and the documents proved through these witnesses. (4) It transpired from the evidence of Ganesh Satpute (P.W.No.1), father of deceased victim Keshav that on 03/04/2008, he was working in his field while his wife Panchpula was at his residence. His son Keshav was school going child and had gone to the school. During the night, he stayed in his field. When on the next day 6 Criminal Appeal No.216 of 2010 morning, he returned to his residence about 7.00 a.m., at that time, P.W.No.2, his wife, inquired with him about their son Keshav. He has further stated that he and his family members, his brothers and relatives started search for Keshav. In the afternoon, his sister in law Vandana informed that she had noticed one dead body in the water of the stone quarry, where she had gone to wash the clothes. He has further stated that on getting this news, they alongwith other villagers went to stone quarry and took out the dead body. That dead body was identified as the dead body of his son Keshav. In the meantime, some villagers intimated Police and Police reached at the spot. At that time, he had no suspicion about the death of his son Keshav. Stab wounds were noticed on the neck, head of Keshav, one cut injury was noticed to the right hand index finger hence initially he lodged accidental death report in the police station. He had further stated that after 5-8 days, Sima Ramesh Satpute (P.W.No.4) daughter of appellant no.1, begotten from his first wife, informed him that her parents have killed Keshav. Thereafter, he lodged complaint (Exh.44) against the appellants in Ghansawangi Police Station. He has stated in his cross examination that appellant no.1 is his brother, who is residing in the locality known as Pardhiwada. Since last 15 years, appellant no.1 is residing separately from his other family members, but there is no dispute between appellant no.1 and his other relatives till date. He had further stated that till date, he has no suspicion against appellant no.1 and appellants have participated in the funeral and post funeral ceremonies alongwith the family 7 Criminal Appeal No.216 of 2010 members. During this period, P.W.No.4 Seema had visited his house, so also his other relatives have also visited the residence of Ramesh. He has further stated that even though he and his other family members have affection with Ramesh and his children, but as Ramesh, appellant no.1 is suffering from Aids, other family members of appellant no.1 are not on visiting terms with his residence. He has further stated that the stone quarry is situated at the distance of about 100-200 mt. at the southern side of the village. Pathway is proceeding from stone-quarry to Gram Panchayat Office. Villagers used to wash clothes in the stone-quarry. Children used to take bath and swim in the stone-quarry. Depth of the stone quarry is about 30-35 ft. There are pointed stones in the said quarry. He has admitted that police were daily visiting the village since recovery of the dead body of his son Keshav till lodging of the complaint. He has further stated that even though he used to meet other relatives, the fact was disclosed by Seema to him after 9 days, after recovery of the dead body of Keshav. (5) P.W.No.2 Panchpula, wife of Ganesh has corroborated the evidence given by P.W.No.1 on all counts. In addition to that, she has stated that daughters of appellant no.1 Meena and Seema ( P.W.No.3 and 4 ) informed them on the next date of the incident that their parents killed Keshav in their house and carried the dead body of the deceased and threw in the stone quarry. This part of the evidence of is a proved omission in her cross-examination. On the contrary, she 8 Criminal Appeal No.216 of 2010 has admitted in her cross examination that appellants were also searching for Keshav alongwith her husband and other relatives. (6) Meena Ramesh Satpute (P.W.No.3) and her sister Seema Ramesh Satpute (P.W.No.4) are the star witnesses of the prosecution. They have examined by the prosecution on the point that appellant no.1 is their father and appellant no.2 is their step mother. While deposing about the incident which allegedly took place on 03/04/2008, P.W.No.3 Meena has stated in her evidence that on that day, they returned from the school at 12.00 noon. Appellant no.1 told them to go to field and to bring dried cotton sticks. Accordingly, they took meal and went to their field in bullock-cart. After some time, they came at home, and again went to their field to bring more cotton sticks. After they returned to their residence on second occasion, P.W.No.4 asked her younger sister P.W.No.3 to bring drinking water for her. P.W.No.3 has further stated that at that time, she noticed that door of their house was fastened from inside. By putting the hand inside, she opened the door and saw that the appellants were present in the house. She noticed the body of Keshav below the cot. Blood stains were spread in the room. Her father came out of the house by covering his body with Shawl. He threatened P.W.No.3 not to disclose the facts which she had noticed, otherwise he will kill her. When she was proceeding to her sister, P.W.No.4 Seems, her step mother also came out of the house. She has further stated that she informed P.W.No.4 Seems about the 9 Criminal Appeal No.216 of 2010 scenario she had seen in their house. On hearing the information, P.W.No.4 Seema threw the pot of drinking water and ran towards the house of her uncle to inform him about the incident. Appellant no.1 called them back. She has further stated that she saw hands of appellant no.1 smeared with blood . Appellant no.1 asked Seema to bring water which she brought and then he cleaned his hands. Then appellant no.1 told appellant no.2 and Seema to wash the floor. Accordingly, appellant no.2 started cleaning the floor, but P.W.No.4 Seema refused. Being annoyed with such refusal by P.W.No.4 Seema, appellant no.1 pushed her and she fell on the body of Keshav, and ultimately her school uniform gets stained with blood of Keshav. Thereafter, Seema P.W.No.4 also washed the floor. She has further stated that then both the appellants put the dead body of Keshav in one gunny bag. The time was about 5.30 p.m. The gunny bag with the dead body was kept below the cot. She has further stated that appellant no.1 told P.W.No.6 Akshay, their brother, to bring the bi- cycle at 7.30 p.m. and accordingly, P.W.No.6 brought bi-cycle from P.W.No.5. She has further stated that she, P.W.No.4 and P.W.No.6 slept outside the house. Around 11.00 to 11.30 p.m. or so, appellants carried the gunny bag on the bi-cycle and went to stone-quarry. After some time, appellants returned back with empty gunny bag. She has further stated that appellant no.1 then burned the blood stained gunny bag, his clothes and blood stained shirt of Seema. They were threatened by appellant no.1 not to disclose the facts witnessed by them otherwise he will kill them like Keshav. She has 10 Criminal Appeal No.216 of 2010 further stated that on the 10th day after the incident, she disclosed this fact to the police. She has stated in her cross examination that on the day of recording of her evidence, she was brought in the Court by P.W.No.1 Ganesh, her uncle. She has further admitted that P.W.No.1 Ganesh and police instructed her how to depose in the Court. She has admitted that at the relevant time, their examinations were in progress. She has admitted that in her further cross examination that after the death of Keshav, she alongwith her sister and brother were residing in the house of P.W.No.1 Ganesh. She has further admitted that in between 4th day to 10th day after the incident, police were continuously visiting the house of P.W.No.1 Ganesh for inquiry but she had not disclosed the facts witnessed by her to the police or to her uncle. For the first time, she is deposing the facts witnessed by her in the Court. She has further admitted that personally, neither she nor her sister have witnessed that appellants have killed Keshav. She has admitted that her father have 3½ acres of agricultural land which P.W.No.1 intends to cultivate. P.W.No.1 also intends to perform the marriage of Seema. Our attention is drawn to the fact that the evidence of P.W.No.3 Meena is totally silent on the point that on the next day, or at any point of time, she had disclosed the facts which she herself and her sister have allegedly witnessed in their house about finding of dead body of Keshav at her residential premises. P.W.No.4 Seema, elder sister of P.W.No.3 have corroborated the evidence given by P.W.No.3 on material points. However, she has also stated in her cross 11 Criminal Appeal No.216 of 2010 examination that she had not witnessed that the appellants had assaulted or killed Keshav. She has admitted in clear terms that there was no dispute between the appellants and her uncle P.W.No.1. She has also stated in her further cross examination that their residential house is surrounded by other houses. She has further admitted that on that day, she had not seen Keshav coming to their house. She has admitted in clear-cut terms in her cross examination that she is residing with her uncle since her parents are in jail. Police had been to their house on the 4th day, so also thereafter, but she did not disclose the facts to the police or to others. Suggestions were denied that as they were not happy with their step mother, appellant no.2, at the instance of their maternal uncle, they are giving false evidence. By bringing this evidence to our notice, it is urged that this witness has also not supported the evidence given by P.W.No.1 and P.W.No.2 that they disclosed the facts witnessed by them to P.W.No.1 and P.W.No.2. (7) Prosecution have examined Sharad Devidas Dhore from whose shop the bi-cycle was hired by son of appellant no.1 Akshay. He has only stated that in the evening of 03/04/2008. Akshay P.W.No.6, son of appellant no.1 had taken the bi-cycle on rent from his shop, which was returned by Akshay on the next day morning at 10.00 a.m. to 10.30 a.m. Even though nothing important was elicited from his evidence, it is urged that if P.W.No.5 is running a shop, no register was seized from his shop mentioning therein that in the evening of 12 Criminal Appeal No.216 of 2010 03/04/2008, Akshay has really taken hired bi-cycle from his shop and returned on the next day morning. In the ordinary course, when P.W.No.5 is running a cycle shop, then he ought to maintain the register, but no such evidence is coming before the Court, hence his evidence is not free from doubt. It is also urged on behalf of appellants that 2nd panchnama, discloses that there was one bi-cycle in the house of appellants. If the appellants have their own bi-cycle, then what is the necessity to hire a bi-cycle from P.W.No.5 on that day. It is also urged that this bi-cycle allegedly hired by Akshay from the shop of P.W.No.5, was not examined and not seized during the investigation to find out the truthfulness of the version given by P.W.No.3 and 4 so as to find out whether there are any traces of blood on that bi-cycle or not. It is urged that as the bi-cycle was not seized, nor examined, then there is no corroborative evidence to prove the fact stated by P.W.No.3 and P.W.No.4 that the dead body of Keshav was carried on the said bi-cycle. (8) P.W.No.6 Akshay is the real son of appellant no.1. He is examined on the point that on 03/04/2008, he hired a bi-cycle from the shop of P.W.No.5 and gave it to his father. He has stated in his cross examination that for the first time he saw the dead body of Keshav when taken out from the stone quarry. He has also admitted in clear terms that on the day of incident, he had not seen Keshav at his house, but seen the dead body of Keshav when taken out from the stone quarry. By drawing our attention to the evidence given by 13 Criminal Appeal No.216 of 2010 this witness, it is urged on behalf of the appellants that evidence of this witness is silent that the gunny bag in which dead body of Keshav was kept, was carried out by his parents to the stone quarry or anything was carried on the bi-cycle in the night by his parents. In substance, according to the learned counsel for appellants, the evidence of this witness is silent on the point that the bi-cycle was used by his parents to carry the dead body of Keshav and accordingly not supported the testimony of P.W.No.3 and 4 on this point. It is also urged that the evidence of this witness is silent on the point that Keshav was seen in his house either alive or dead. (9) P.W.No.7 Vandana Arjun Satpute is examined by the prosecution only on the point that the dead body of Keshav was found in the stone quarry when she had been to stone quarry to wash the clothes. (10) Mahadeo Londhe (P.W.No.13) is examined by the prosecution on the point that while in custody, on 11/04/2008, appellant no.1 made disclosure statement of which memorandum is at Exh.71, leading to the discovery of one knife concealed below the fertilizer bag, which was recovered and seized under panchnama Exh.72. This witness has identified the knife (article 6) before the Court. He has admitted in his cross examination that physical condition of appellant no.1 was very weak, his voice was very weak and he was unable to walk properly. 14 Criminal Appeal No.216 of 2010 (11) By drawing our attention to the evidence of this witness, it is urged that perusal of the oral evidence given by this witness, so also the panchnama about discovery and recovery of Article 6 knife is silent on the point that at the time of seizure of Article 6-knife, it was sealed in his presence. (12) Mohd.Taher S/o.Zia-ul-Haque (P.W.No.15) is examined by the prosecution to prove the spot panchnama Exh.67 drawn on 10/04/2007 by which one suit-case, one bi-cycle, remnants of burned ash, religious book and plain soil was seized from the residential house of the appellants under panchnama Exh.57. He has identified Article A-Ash, Article B-Book and remaining articles C-suitcase and D-bi-cycle. But, according to him, the bi-cycle produced in the Court was not seized under panchnama Exh.57. It is also brought to our notice that the articles seized under panchnama Exh.57 were not sealed while drawing the spot panchnama. (13) We have heard learned counsel for appellants and learned A.P.P. for State in the light of above evidence laid by the prosecution before the Trial Court. Considering this evidence, the fact is clear that the case of the prosecution rests on the circumstantial evidence, which circumstances are as follows : 1. Prosecution witness no.3 Meena and P.W.No.4 Seema saw the dead body of Keshav in their house and blood was spread on the floor in their house. 15 Criminal Appeal No.216 of 2010 2. P.W.No.3 and 4 disclosed this fact to P.W.No.1 and P.W.No.2. 3. Dead body of Keshav was put in the gunny bag and that gunny bag was thrown in the stone quarry, by carrying it on the bi- cycle by the appellants. 4. Finding of blood on the religious book and the suitcase during the panchnama of the house of appellants at Exh.57. (14) During the course of arguments, our attention is drawn towards the facts that since the evening of 03/04/2008, Keshav was missing which was reported by P.W.No.2 Panchkula to her husband Ganesh on the next day morning. Around 12.00 noon or so, P.W.No. 7 Vandana, sister in law of Ganesh noticed the dead body in the water of stone quarry and when the dead body was taken out from the stone quarry, it was identified as the dead body of Keshav. Thereafter, AD report was lodged in Ghansawangi Police Station vide A.D.No.14/2008. Till that time, there is no suspicion in the mind of parents of deceased Keshav that appellants might have committed something wrong with their son Keshav. According to P.W.No.3 and 4, in the afternoon of 03/04/2008, they have seen the dead body of Keshav in their house and found blood on the floor of the room, so also hands of the appellants no.1 were also found smeared with blood. Even though P.W.No.2, mother of deceased Keshav deposed that P.W.No.3 and P.W.No.4 disclosed this fact to them on the very next day, it is not corroborated by the evidence of P.W.No.3 and 4 as according to them, due to the threats given by appellant no.1, they 16 Criminal Appeal No.216 of 2010 have not disclosed what they have witnessed to anybody till 9th day of the incident. On clear perusal of the evidence given by P.W.No.3 and P.W.No.4, it reveals that they have not disclosed the facts allegedly witnessed by them either to P.W.No.1 and 2. In the premise, evidence of P.W.No.2 Panchkula, mother of the deceased, is not supported by the evidence of P.W.No.3 and 4 on the point that the incident witnessed by them was informed by them to P.W.No.1 and 2. Apart from it, they have stated in their evidence that from the date of