L.......T.......T.......T.......T.......T.......T....J IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NNO. 506 of 1994 Sarpuddin Isak Raut .. Appellant V/s State of Maharashtra .. Respondent Shri S.U.Marwadi, Advocate for Appellant Shri K.B.Konde Deshmukh,APP for Respondent CORAM:S.S.Parkar and S.R.Sathe,JJ. DATED:6th Dec. 2004 ORAL JUDGMENT : (Per S.R.SATHE,J.) 1. The original accused in Sessions Case No.151 of 1993 has preferred this appeal against the judgment and order passed by the Court of 2nd Additional Sessions Judge, Kolhapur whereby the accused was convicted for the offences punishable under Sections 302, 201 and 323 of the Indian Penal Code and sentenced to suffer r/i for life, imprisonment for 3 years and imprisonment for 6 months for respective offences. 2. Brief facts giving rise to this appeal are as under :- . The complainant Jumabi, wife of Shamsuddin Tamboli was residing at Fejiwade along with her husband and 2 sons. Her husband had 3 brothers viz. Shahabuddin, Khudbuddin and Badruddin. Khudbuddin was residing in the same village while Shahabuddin and Badruddin were residing at Bombay. Ismail, son of Shahabuddin, aged about 20 years was residing at the house of the complainant. Accused Sarpuddin is the distant uncle of complainant Jumabi. He was having illicit relation with the complainant. On 27-6-1993 at about 2-00 p.m., the complainant and her minor sons Jamir and Ismail were sleeping in the house of complainant. The door of the house was partly closed. At that time accused Sarpuddin went all of a sudden and opened the door of complainant’s house. He found that Ismail was sleeping in the same house, where complainant was sleeping. Sarpuddin got suspicion about Jumabi. He thought that Jumabi and Ismail were having illicit relation with each other. He therefore abused the complainant and told her that she should have taken into consideration the relations and should have behaved accordingly. On so saying he assaulted the complainant with stick. At that time he also assaulted accused Ismail with stick. When the said incident was going on adjoining neighbourer Amjad, a boy of 9 years, went to the house of the complainant. He also requested accused Sarpuddin not to assault Ismail. However, the accused did not listen to him and on the contrary he dragged Ismail out of the house by holding his collar. The accused then took Ismail towards Radhanagari Dam. Amjad, the adjoining neighbourer so also the complainant went towards Radhanagari Dam. After passing seven gates of the dam the accused took Ismail to jungle and assaulted him. He took Ismail on the bank of Laxmi lake and gave a blow with solid stick (Dandake) him on the head of Ismail as a result of which he fell on the ground and died on the spot. Having noticed that Ismail was dead, accused removed the shirt, wrist watch and shoes of Ismail and threw the dead body of Ismail in the lake. Seeing this incident complainant Jumabi became unconscious. The accused thereafter took Jumabi to her house. As the complainant was afraid she did not disclose about the said incident to any one. However, as Ismail did not return home, complainant’s husband and other persons started searching Ismail. On third day i.e. on 29-6-1993 at about 10-30 a.m. dead body of Ismail was floating in the lake. Then complainant and some other persons went to Radhangari Police Station and there complainant Jumabi lodged a complaint wherein she narrated the entire incident and stated that accused assaulted Ismail and threw his body in the water. On the basis of the said complaint Police Registered offence being C.R.No.72 of 1993 for the offence punishable udder Section 302, 201, 323 of IPC... 3. Police then visited the place of offence and drew panchanama Exh.13 and sent the dead body for post-mortem. Doctor on duty at Radhanagari P.H.C. carried out the post mortem and submitted the report Exh.39, wherein the cause of death was shown as "coma due to fracture of skull bone and fracture of nasal bones". Police then started investigation of the said offence and recorded the statements of various persons. Police drew panchanama of the clothes of deceased and arrested the accused on 30-6-1993. When accused was in Police custody he made a statement and showed willingness to produce the brief case of the deceased, the stick used in the crime and to point out the spot of offence. Accordingly, memorandum was drawn in the presence of panchas. Then accused led Police and panchas to M.S.E.B.quarter, which is ahead of Fejiwade. The accused was having a key of the lock of his house. He opened it and produced one brief case before Police. Then accused led the police to the spot of offence. Accordingly police drew the panchanama Exh.12 and 21. During the investigation it transpired that complainant Jumabi had also sustained injuries. She was therefore sent to the Medical Officer for examination. Accordingly, doctor examined her and issued the certificate. After completion of the investigation Police submitted charge sheet against the accused, in the Court of J.M.F.C. Radhanagari. 4. Finding that the accused is charge sheeted for the offence punishable under Section 302 of IPC which is exclusively trible by a Court of the Sessions, the learned J.M.F.C. Radhnagari committed the case to the Sessions Court, Kolhapur. 5. The learned 2nd Additional Sessions Judge, Kollhapur, framed charge Exh.2 against the accused for the offences mentioned above. The charge was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. From the suggestions put to the PWS and statement of accused recorded under Section 313 of Criminal Procedure Code, it appears that it is the case of the accused that as the husband and father of complainant came to know that complainant was having illicit relations with accused, they falsely involved him in this case. 6. In order to bring home the guilt of the accused, the prosecution examined as many as 14 witnesses consisting of complainant Jumabi, Exh.10, other eye witness Amjad Hamid Ambardekar Exh.12, 3 Pancha witnesses viz. Shabbir I, Kolot -Exh.17, Balu Abbas Tamboli -Exh.20 and Yusuf Kashim Tamboli Exh.23. Prosecution also examined Mahadeo Patil,watchman -Exh.24 who was on duty at the relevant time at Radhanagari dam. Sambhaji Raut, Exh.26, Balwant Shankar Kankekar Exh.27. Circle Inspector Dinkar Bhat Exh.29, Police Head Cosntable Vithal Maruti Kadam -Exh.31, ASI Baburao Dhondi Patil -Exh.32, Arvind Gulabrao Mane, P.I. Exh.35 and Dr.Madhukar P. Kamble, Exh.38. The prosecution also produced certain documents viz. Inquest panchanama Exh.13, arrest panchanama Exh.15, Panchanama of production of brief case Exh.18, sketch drawn by Circle Officer Exh.30, post mortem notes Exh.31. The defence did not adduce any evidence. After considering the evidence on record the learned trial Judge came to the conclusion that death of Ismail was homicidal and accused Sarpuddin assaulted him and threw his dead body in the lake. The trial Judge therefore convicted the accused for the offence punishable under section 302, 201 and 323 of IPC and sentenced the accused as mentioned above. 7. Being aggrieved by the above mentioned order the accused has preferred this appeal. 8. In this appeal before us, Shri Marwadi, learned Advocate for the accused has urged 3 points. Firstly, he submitted that the learned Judge has not properly appreciated the evidence on record and has wrongly believed the evidence of complainant Jumabi Exh.10. He submitted that there was considerable delay on the part of the complainant to file the complaint. Besides this, there is no mention of the alleged assault and throwing the dead body in the lack, in the complaint Exh.11. He also canvassed before us that the statements of other witnesses viz. Mahadeo Patil, Sambhaji Raut, Babasaheb Jamdar and Balawant Kankekar are recorded by Police after about 2 months from the incident and as such it is not safe to accept the same and hence the appeal be admitted and accused be acquitted. 9. As against this, the learned P.P. supported the judgment and order passed by the learned trial Judge. 10. It is not in dispute that on 30-6-1993 dead body of Ismail was found floating in Radhanagari dam lake. After dead body was sent for postmortem, Dr.Kamble did atopacy on 30-6-1993 and submitted postmortem notes Exh.39. Following injuries mentioned in column no.17 of the said post mortem notes were found on the dead body. 1. Contusion over rt-thigh appear 1/3rd (ant) 10 cms x 3 cm Transverse 2. Contasion over Rt thigh 2.5 cm. below injury no. 1 11 cms x 3 cms, Transverse, bluish black, disfigured, 3. Contusion over Rt thigh -midportion 13 cm x 2 .5 cms transeverse, bluish black disfigured. 4. Contusion over rt-thigh lower 1/3rd 8 cms x 3 cms, slanting blush black, disfigured. 5. Contusion over -Lt.thigh Midportion (Ant) 23 cmx x 3 cms, transcverse bluish black disfigured. 6. Contusion over Lt.thigh. 3 cms above injury no.5 8 cms x 2.5 cms bluish black disfigured and 7. Contusion over Lt. thigh lower 1/3rd 6 cms x 3 cms bluish black disfigured. . Doctor also noted fracture of bridge of the nose and following internal injuries:- 1) Localized haematoma, over Rt.frontal region laterally 6 cm above upper eye brow (Rt) 11 cm x 4.5 cm fluctuation onsection about 250 cc of bluish black coloured blood expelled under force. 2) Skull - linear fracture of Rt.frontal bone 5 cm. above upper Rt. Eye brow, extending upward vertical, 2.5 cm. in length. Fracture of nasal bones,pieces driven inwards. 3) Brain liquisfied bluishgray colour. No fluids were seen inth pleural cavity. Right lung was soft, collapse, blackish green colour, onsection No blood stained. Left lung was soft,collapse,blackish green. Doctor has clearly stated that internal injuries mentioned above can be caused if a person is assaulted with a stick which is before the Court. Doctor has also stated that at the relevant time there was fracture to the skull as well as wrist. Doctor has also opined internal injury nos 1 and 2 were sufficient to cause death. 11. Shri Marwadi, learned Advocate for the accused argued before us that though it is alleged that deceased was assaulted with stick on head, no external injury was found and as such it cannot be said that death was caused as a result of blow on head. However, while considering this argument we have to take into consideration the fact that the dead body was in water for more than 48 hours. Besides this the doctor has specifically stated that at the relevant time entire body was decomposed and it was of the bluish black colour. Blisters were seen over both arms. So, when such was the condition of the dead body it was not possible to note external injuries on the head and there was non possibility of also having corresponding injuries on the nose and other parts. So, merely because no external injury was found on head we cannot jump to the conclusion that cause of death given by doctor is not correct. So, from the evidence on record and in particular from the post mortem notes it is clear that death of Ismail was homicidal. 12. The main and material question is whether the said death has been caused at the hands of accused Sarpuddin. In order to prove the same, the prosecution is mainly relying on the testimony of complainant Jumabi Exh.10 and other witnesses. At the outset it may be mentioned that it is not in dispute that Sarpuddin i.e. accused is a distant uncle of complainant. It is also not disputed that at the relevant time deceased Ismail was residing in the house of the complainant. Complainant has stated that since 3 years prior to the incident, she was having illicit relation with accused. On the day of incident at about 2-00 p.m. when she was sleeping in her house, her minor son was sleeping near with her and Ismail was also sleeping in the same room. The door was partly closed. Accused came all of a sudden and opened the door and entered the room. Finding that Ismail was also sleeping there, he got suspicion and he thought that there was illicit relation between Ismail and therefore he abused the complainant and took out a stick lying in the house and started beating the complainant. He gave blow with stick on her right and left leg and other parts. Then he started giving abuses to Ismail and then started beating him with a stick. At that time PW 2 Amjad, a boy of 9 years old who was residing by the side of complainant’s house reached there. He requested the accused not to assault Ismail. However, he did not listen to him and ultimately accused held the collar of Ismail and took him out of the house of the complainant. It must be noted that this entire incident is not at all challenged by the defence. Not only that, but even the statement of the complainant that she was having illicit relation with accused for 3 years is not challenged in her cross examination. So, the prosecution has proved beyond reasonable doubt about the earlier incident which had taken place in the complainant’s house. In fact this indicates the motive for crime in question. 13. The complainant has stated that at the relevant time the accused took Ismail towards Radhanagari dam and after crossing seven gates he was taken to jungle and there accused assaulted him and gave blow with a heavy stick (Dandke) on the head of Ismail and as a result of the same Ismail fell on the ground and died on the spot. The accused then removed shirt, wrist watch and shoes of the deceased deceased and threw the dead body in the water of the said lake. Thus the complainant has stated that she has actually seen the accused committing the murder of Ismail. However, the learned Advocate for the defence submitted that the evidence of complainant with regard to this incident cannot be accepted because she has not stated even a single word about the same in the complaint Exh.11 on 29-6-1993. He also submitted that said complaint is lodged 2 days after the dead body of Ismail was found. It was therefore suggested that prosecution has made an improvement in the version and tried to show that alleged incident was actually seen by the complainant Jumabi. It is true that normally when alleged assault was seen by the complainant, she would have disclosed the same while lodging the complaint. However, curiously enough, we find that complainant has not stated in her statement Exh.11 that incident at lack took place in her presence. The learned Advocate for the defence submitted that though in supplementary statement which was recorded three days after the incident there is reference about the same the question arises whether non mention of the said incident in the complaint, by itself is sufficient to discard the testimony of Jumabi. While considering this aspect, one has to take into consideration the circumstances under which the complaint was lodged by Jumabi. Firstly, it must be noted that entire incident between Sarpuddin and Ismail occured because at the relevant time Sarpuddin was having suspicion that Jumabi was having illicit relation with Ismail. In fact Jumabi herself has stated that since 3 years prior to incident she was having illicit relations with accused. The accused is in fact distant uncle of the complainant. So under such circumstances the complainant might have though that nobody should come to know about her relations with Sarpuddin i.e. accused. Besides this she has also stated that at the relevant time when accused assaulted her as well as assaulted Ismail and then took him to jungle and committed his murder, she was terribly frightened. Not only that but she has stated that she apprehend that after finding of the dead body of Ismail she may be involved in the case. So, that was the main reason as to why complainant Jumabai did not tell anybody about the incident and also did not mention the incident at late in the complaint. She thought that if she would disclose in the complaint that she had accompanied the accused and Ismail upto lake and at that place accused assaulted Ismile and threw his dead body in the lake then on the background that she was having illicit relation with accused, she would be involved in the said offence. So in order to save herself she only disclosed the incident which had taken place in her house and did not mention subsequent incident which took place at lake in complaint Exh.11. So, we find that there was in fact justifiable cause for her in not mentioning the incident at lake in the complaint Exh.11. 14. In order to show that accused had taken Ismail to Radhanagari dam and after crossing seven gates he had gone to jungle, the prosecution is not only relying on the complainant’s evidence but prosecution has also examined some other witnesses in that behalf. The first one is Amjad Exh.12. At the relevant time he was of 9 years age. Admittedly, he was residing adjacent to the complainant’s house. He was knowing the complainant as well as deceased. He used to call Ismile as Bhayya. When he saw that accused was assaulting Ismail he even requested accused not to do so. Not only that, but when accused took Ismail out of the house and went towards Radhanagari dam witness Amajad also went in that direction. He has specifically stated that at that time Ismail was having a brief case in his hand and at one point of time he had even handled the said brief case. But again, it was snatched from his hands by the accused. This witness has been declared hostile because he did not support the prosecution by saying that he had actually seen the accused giving blow with a stick on the head of Ismail. However, it is pertinent to note that the said witness has clearly stated that at the relevant time the complainant as well he had gone towards the lake and at that place accused assaulted Ismail, and he snatched the brief case from his hand. As accused gave threat to him, he got afraid and ran away from the said place. It is pertinent to note that he is an independent witness and there is no reason why this witness should depose against the accused and in favour of the prosecution. So, the prosecution case that at the relevant time accused had taken deceased towards Radhanagari dam is also proved from the evidence of witness Amajad Exh.12. 15. The prosecution witness no.6 Mahadeo Patil has stated that at the relevant time he was working as watchman on Radhanagari dam. On the day of incident he saw accused, one woman and a boy going towards dam after crossing seven gates. He has also stated that at about 3 p.m. one bag was kept at the control room. This witness is also declared hostile. However, while answering to the question put to him by learned APP he has categorically stated that at the relevant time he had seen the accused and a boy of 20 years of age proceedings with brief case towards the lake. Merely because the said witness was not in a position to tell how many persons passed through the said road at the relevant time, it cannot be said that testimony of this witness is not reliable. We cannot ignore the fact that as the accused was already known to the said accused it was but natural for him to remember that the accused had passed through the said road. Besides this at the relevant time along with accused there were other persons viz. one woman and one boy of 20 years of age and as a result of the same he was remembering as to what happened on that day. So, the evidence of Mahadeo Patil has corroborated the version of complainant as well as witness Amajad to the effect that on that day the accused had taken deceased towards seven gates. It must be noted that it is nowhere suggested to the said witness that he is having any grudge of grievance against the accused or that he is having any special relation with complainant. So, witness Mahadeo Patil is in fact an independent witness and there is no reason for him to involve the accused falsely in the incident. Similarly, witness Sambhaji Raut Exh.25, has stated that on that day in the evening when he had taken his cattle for grazing in jungle he had seen the accused assaulting one boy near lake. However, in the cross examination he has stated that he did not see the face of the assailant. In view of this admission it was tried to be suggested that this witness had in fact no opportunity to identify the accused as he had not seen the face of the assailant. So the evidence of this witness may not help the prosecution. 16. Prosecution witness no.8, Babasaheb Jamadar Exh.26 has stated that on that day at about 4.15 p.m. he saw the accused, one woman and a boy of 9 years of age passing by the road from the dam towards seven gages. Not only that at that time he asked the accused where he was going. Similar question was asked to the woman. While attacking this witness it was again tried to be argued that this witness was unable to tell as to how many persons had passed through the said road during whole day. It must be noted that several persons might have passed by the said road but there was no reason for the said witness to remember them but so far as the accused is concerned as he was known to him he was in a position to remember that on that day he had seen the accused and other persons passing through seven gates. It is pertinent to note that this witness is also an independent witness. It is not at all suggested that he is having any grudge against the accused. So, there is no possibility of this witness involving the accused falsely. Due weigthage shall have to be given to this independent witness. 17. Witness Balwant Shankar Kankekar, exh.27, has stated that on 28-6-93 when he was h’ving a duty as watchman at seven gates, accused went to the said gate and took away bag which was kept at the control room. Much is made about the fact that the said witness had not made any entry about giving the said bag to the accused or that he had not sought necessary permission from any superior officer before handing over the bag accused. However, we cannot ignore the fact that accused and this witness were known to each other for years together, so under such circumstances, when the bag was admittedly not of department and accused who had kept it was taking it away, there was no reason for the said witness to object or to refuse to hand over the bag. So, merely because there is no evidence that he had not sought for returning the said bag, it cannot be said that this witness is a got up witness. Thus the evidence of complainant is fully corroborated by the evidence of Amajad Hamid Exh.12, Mahadeo Patil, Exh.24, Babasaheb Jamdar, Exh.26 and Balawant Shankar Exh.27 to the effect that at the relevant time accused had taken deceased toward lake. Taking into consideration the evidence of these witnesses and in particular, the fact that they have also stated at the relevant time accused and one 20 years boy accompanied by one woman, were seen going towards dam we have to hold that evidence of complainant that she had taken the deceased towards the lake is trustworthy. 18. There are some other circumstances which also lend support to the prosecution version. It is an admitted fact that at the time of panchanama of