drp {1} Cri. Appeal No.200/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.200 OF 2009 Baban s/o Ananda Dange APPELLANT Age-45 years, Occ-Agriculture R/o Vaijapur VERSUS The State of Maharashtra Through Police Station Kalamnuri, Dist-Hingoli RESPONDENT ....... Mr.B.R.Kedar h/f Mr.S.B.Talekar, Advocate for appellant Mr.K.S.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20th December 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By this appeal, the appellant has challenged his conviction u/s 302 and 201 of the Indian Penal Code awarded vide judgment and order dated 25.11.2008 by the Additional Sessions Judge, Hingoli in Sessions Trial No.25/2005. By the said judgment the appellant is sentenced to life imprisonment and to pay a fine of Rs.5000/-, in default to suffer SI for six month and drp {2} Cri. Appeal No.200/2009 Rigorous Imprisonment for three years and to pay a fine of Rs. 500/-, in default to suffer SI for 15 days, respectively. 2. Brief facts of the case can be summarized thus- a) Prakash Vishwanath Ghongade (PW-1) lodged a missing report on 17.04.2005 in Narsi police station that his brother Badrinath was missing. Investigation of the said complaint was entrusted to Beet Jamadar. On 18.04.2005 PW-1 Prakash lodged complaint (Exhibit-22) against the present appellant and hence offence punishable under section 302 and 201 of the Indian Penal Code was registered against the appellant at Crime No. 17/2005. Investigation of the said offence was entrusted to PW-10 Baburao Chavan. Thereafter, the appellant came to be arrested in connection with the said offence. b) After the arrest, the appellant made a disclosure statement (Exhibit-24), in presence of Pancha witnesses. Accordingly, Executive Magistrate / Tahsildar was requested to remain present at the spot. From the spot shown by the appellant in presence of Pancha witnesses and the Executive Magistrate, dead body, which was buried in the agricultural field, was recovered. The dead body was identified by PW-1 Prakash and others as the dead body of Badrinath. Panchanama (Exhibit-24-A) so drp {3} Cri. Appeal No.200/2009 also inquest Panchanama (Exhibit-25) were prepared at the spot in presence of the Pancha witnesses. Medical Officer was called at the spot. c) Dr.Vibhutkar (PW-9) performed the Postmortem on the dead body at the spot. He noticed the following external injuries on the dead body. 1. CLW of forehead right side measuring 5X2X1 cm. 2. Stab injury at centre of forehead measuring 2x2cm 3. CLW below right orbit measuring 3x2x1 cm with fracture of zygometic bone right side. 4. Fracture of nasalbidge 5. CLW on left parietal region measuring 5X1X1 cm 6. CLW on left zygomatic bone measuring 3x2x1 cm 7. CLW on left parietal occipital region measuring 7x2x2 cm 8. Left ear external pinne folded 9. Dempending at right parotio region measuring 4x4x1 cm On the internal examination medial officer noticed that the injuries under scalp and skull-vault were corresponding to the injuries mentioned in column No.17. Brain was congested showing evidence of intracranial hemorrhage in left occipital and parietal drp {4} Cri. Appeal No.200/2009 region and left temporal region. The right and left lungs as well as pericardium were congested. Right chamber was full of blood, left chamber was empty. The Medical officer has opined that the probable cause of death is due to shock due to intra cranial hemorrhage due to head injury. Accordingly, Postmortem report (Exhibit-41) was prepared. d) Clothes on the person of the deceased were removed and were seized under Panchanama (Exhibit-30). e) On 19.04.2005, appellant shown the spot of incident, which was in his field, in presence of the Pancha witnesses. Spot Panchanama (Exhibit-29) was drawn in presence of the Pancha witnesses. From the place of the incident, blood stained grass, leaves and broken handle of axe, blood mixed soil and plain soil were seized under Panchanama. On 20.04.2005, the appellant made further disclosure statement (Exhibit-27) in presence of Pancha witnesses, which lead to recovery of one axe with broken handle and one stone, stained with blood and one torch, which were concealed below the fodder. The said articles were seized under recovery Panchanama (Exhibit-27A). On 21.04.2005, again the appellant made a disclosure statement (Exhibit-28) in presence of Pancha witnesses, drp {5} Cri. Appeal No.200/2009 which lead to the recovery pickaxe and spade, which were concealed below the soil and Dhoti, shirt, banian and cap from the roof of the hut, which were seized under Panchanama (Exhibit-28A). f) Statements of certain witnesses were recorded during the investigation and the seized articles were sent to the CA along with forwarding letter. After receipt of the CA report and after completion of the investigation, charge sheet was submitted before the JMFC, Hingoli, who committed the trial to the Additional Sessions Judge, Hingoli. g) The trial court framed charge (Exhibit-14) against the appellant for an offence punishable u/s 302 and 201 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. It appears that the prosecution had examined in all 10 witnesses to prove the guilt of the appellant. The witnesses examined before the trial court were – PW-1 Prakash Ghongde- complainant and brother of the deceased; PW-2 Pandurang Ghongde- Pancha witness to the disclosure memorandum by the appellant, which lead to recovery of dead body and also a Pancha witness to the inquest Panchanama; PW-3 Namdeo Pawar- a Pancha witness to the disclosure memorandum which lead to the recovery of the weapons drp {6} Cri. Appeal No.200/2009 used to assault the deceased as well as a Pancha witness to the disclosure memorandum which lead to the recovery of material to conceal the dead body and the clothes of the appellant, this witness was also the Pancha to the spot Panchanama; PW-4 Bhagwan Ghongde and PW-5 Gajanan Ghongde– witnesses on the point deceased was last seen together with the appellant proceeding towards Vaijapur; PW-6 Vithal Ghongde-a witness who took out the dead body, which was buried in the agricultural field; PW-7 Vishwanath Ghongde-father of the deceased; PW-8 Shivkumar Swami- Tahsildar / Executive Magistrate in whose presence the appellant had pointed out the spot from where the dead body was recovered; PW-9 Dr.Pandurang Vibhutkar- Medical Officer who had performed the postmortem and PW-10 Baburao Chavan- the investigating Officer. The trial court accepted the evidence of these witnesses and convicted the appellant accordingly. 3. From the evidence of the prosecution, it is clear that the case of the prosecution rests on circumstances. It is also not disputed that the death of Badrinath is a homicidal one. Bearing in mind these aspects, before we embark upon the rival submissions, it is necessary to advert to the evidence of the material witnesses. 4. It is in the evidence of PW-1 Prakash that he is brother drp {7} Cri. Appeal No.200/2009 of deceased and was residing with his parents, wife, brother Badrinath and wife of Badrinath. In the night of the incident, Badrinath had gone to Maruti temple to attend Kirtan (religious preaching). Appellant had came to their house and had enquired about Badrinath at that time he had informed the appellant that Badrinath had gone to the temple. In that night, Badrinath did not return to the house. In the next morning, announcement was made for Badrinath to return home. Gajanan (PW-5) and one Ramesh informed that Badrinath went along with the appellant. Thereafter Prakash, along with his father and others, approached the appellant and enquired with him about Badrinath, to which it was informed that he had sent Badrinath to Mumbai to bring his son. Prakash suspected some foul play. Badrinath knew about the illicit relations of the appellant with his daughter in law and hence Prakash suspected that in order to save from defamation, the appellant might have killed Badrinath and therefore, complaint (Exhibit-22) was lodged with the Narsi police station. He has further stated that after arrest of the appellant, dead body of Badrinath was recovered from the field of the appellant at the instance of the appellant. Prakash had identified the dead body from the clothes (Articles-1 and 2) and shoes (Article-3). 5. In the cross examination of PW-1 Prakash it is brought on record that the date of incident was 14th April and in that night police were present in the village due to Dr.Ambedkar Jayanti bandobast. He has also stated in the cross examination that the drp {8} Cri. Appeal No.200/2009 appellant had visited their house around 9.30 p.m. and Badrinath had gone to the temple at about 9.00 p.m. He has admitted in the cross examination that missing report was lodged in the police station on 17.04.2005 i.e. a day prior to the lodging of the complaint. 6. PW-7 Vishwanath Ghongde, father of the deceased, supported the evidence of PW-1 Prakash, except that Bhagwan (PW-4) had came to their house and had informed that Badrinath went along with the appellant from Maruti temple. 7. It is in the evidence of Bhagwan (PW-4) that he was present in the temple where Kirtan (religious preaching) was arranged. He has stated that Badrinath had also attended the said programme. He has further stated that the appellant came there to call Badrinath (deceased) and Badrinath had accompanied the appellant. On the next day there was announcement from the temple. Thereafter, he came to the house of Badrinath and informed that Badrinath had accompanied the appellant. He has stated in his cross examination that Gajanan was not present in the temple. According to him he went to the house of Badrinath after hearing the announcement from the temple. He has stated that he is not aware as to whether there was anything in the hands of the appellant when he came to the temple to call Badrinath. 8. It is in the evidence of Gajanan (PW-5) that in the drp {9} Cri. Appeal No.200/2009 night, at about 10.00 p.m. he had gone to answer the nature’s call by the side of road at that time he saw that Badrinath and appellant were proceeding towards Vaijapur. On his inquiry, Badrihand had told him that he would go and return back. At that time Badrinath was holding torch in his hands. On 15.04.2005, on hearing the announcement from the temple, he and Ghanshyam had went to the house of Prakash and informed him that Badrinath had accompanied the appellant to Vaijapur. He has admitted in the cross examination that he had not gone to the temple to attend the Kirtan. He saw the appellant and Badrinath in the street light. There was torch in the hand of Badrinath when he enquired with him. 9. It is in the evidence of PW-2 Pandurang that on 18.04.2005, he was called in Narsi police station and in his presence and in presence of co-Pancha, the appellant made disclosure statement. Thereafter they went to the field of the appellant along with police. In the agricultural filed, the appellant pointed out the spot in presence of Tahsildar. After digging about 2 feet, one dead body was found buried. From the clothes on the person of the dead body, Prakash identified that it was of Badrinath. Accordingly, recovery Panchanama was drawn in his presence. He has further stated that thereafter Tahsildar Swami drew Inquest Panchanama on the dead body. He identified the clothes (Articles 1 and 2) and shoes (Article-3). It has come in his cross examination that the dead body was recovered from field drp {10} Cri. Appeal No.200/2009 Survey / Gut No.592 and the same belonged to the appellant. The agricultural field was ploughed. He has further stated that he knew Tahsildar, who was present at the spot and drew the inquest Panchanama. 10. The prosecution proved recovery of weapon used for assault on the deceased from the disclosure memorandum (Exhibit-27) and recovery Panchanama (Exhibit-27A) as well as the material used to conceal the dead body and the spot where the incident had occurred, on disclosure statement made before the Pancha witness Namdeo Pawar, who is the witness to these Panchanamas. 11. From the evidence of the prosecution witnesses it is clear that the case of the prosecution revolves round the evidence, which is circumstantial in nature. The circumstances, relied upon by the prosecution are – i) motive ii) deceased was last seen together with the appellant iii) discovery of dead body at the instance of the appellant, under disclosure memorandum which was found buried in his agricultural field iv) discovery of incriminating articles at the instance of the appellant and v) absence of explanation by the appellant. 12. Learned counsel for the appellant has urged that it is the defence of the appellant that merely because the dead body was recovered from his field, he was falsely implicated in this case. drp {11} Cri. Appeal No.200/2009 It is also urged that the place from where the dead body was recovered, was already within the knowledge of the police officers, and hence it cannot be held that the dead body was discovered at the instance of the appellant. It is also urged that the motive behind the crime was not established by the prosecution witnesses. Evidence on the point of last seen together, of witnesses Bhagwan and Gajanan is not believable. According to the learned counsel for the appellant, there is no reference of information given by Bhagwan, in the oral testimony of Prakash so also there is no reference of Gajanan in the evidence of the father of the deceased. It is further urged that the CA report does not disclose that the blood found on the seized articles as well as on the clothes of the deceased was of the blood group of the deceased. The CA report indicates that the result of the analysis of the blood group is inconclusive. According to the learned counsel for the appellant, the circumstances relied upon by the prosecution are not established beyond reasonable doubt and hence benefit of doubt be given to the appellant and the appeal be allowed by setting aside the conviction. In support of his submissions, learned counsel for the appellant placed reliance on the observations of the Division Bench of this Court in para 7 of the judgment in the matter of “Santosh Changdeo Dhanade V/s State of Maharashtra” 2005 ALL MR (Cri) 928; on the observations of the Division Bench of this Court in paragraphs No.8 and 10 of the judgment in the matter of “Bhausaheb Maruti Kalane V/s State of Maharashtra” 2006 ALL MR (Cri) 1130 and on the observations of the Division drp {12} Cri. Appeal No.200/2009 Bench of this Court in the judgment in the matter of “State of Maharashtra V/s Bittu @ Gurumitsingh” 2006 ALL MR (Cri) 1059. The facts and circumstances of the case in hand and the facts and circumstances in the judgments relied upon by the appellant are clearly distinguishable. Therefore, the ratio laid down in the above referred judgments, according to us, is not applicable to the present case. 13. Further reliance is placed by the learned counsel for the appellant on the judgment of the Apex Court in the matter of “Sattatiya @ Satish Rajanna Kartalla V/s State of Maharashtra” 2008 (1) Crimes 191 (SC). Observations in para 8 of the said judgment is a settled law in respect of appreciation of evidence based on circumstances. Therefore, no discussion is required about the said observations. 14. Per contra, learned APP supported the impugned judgment and urged to dismiss the appeal thereby confirming the conviction and sentence awarded to the appellant. 15. At this juncture, it may be useful to refer to the observations of the Apex Court, in the mater of “State of Maharashtra V/s Suresh” (2000) 1 SCC 471, relating to the recovery of dead body / bodies u/s 27 of the Evidence Act, which reads thus - drp {13} Cri. Appeal No.200/2009 26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in section 27 of the Evidence Act.” 16. It may also be useful to refer the position of law in relation to section 27 of the Evidence Act, as observed by the Apex Court in the matter of “Geejaganda Somaiah V/s State of Karnataka” 2007 AIR SCW 1681. The Apex Court, in the said judgment has observed thus- “23. The position of law in relation to section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others V.s Emperor [AIR 1947 PC 67] Wherein it was held : “Section 27, which is not artistically worded, provides drp {14} Cri. Appeal No.200/2009 an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to and thereuopn so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr.Megaw, for the crown has argued that in such a case the ‘fact discovered’ is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban can be inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to drp {15} Cri. Appeal No.200/2009 suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are admissible since they do not relate to the discovery of the knife in the house of the informant.” 17. Considering the rival submissions, in the light of the above legal position, now we may deal with the circumstances, on which the prosecution has relied upon. The motive behind the crime is that Badrinath knew about the illicit relations of the appellant with his daughter in law, which finds place in the oral testimony of PW-1 Prakash, brother of the deceased and PW-7 Vishwanath, father of the deceased. Daughter in law of the appellant is the niece of the deceased (daughter of sister). It is the drp {16} Cri. Appeal No.200/2009 version of the prosecution witnesses that apprehending that if Badrinath would disclose the illicit relations, then defamation would cause to appellant and his daughter in law and hence he was killed by the appellant. This evidence is not challenged by the appellant in the cross examination of the witnesses. Thus, it can safely be inferred that the motive behind the crime stands established by the prosecution. 18. The second circumstance is that the deceased was last seen in the company of the appellant, as stated by PW-4 Bhagwan and PW-5 Gajanan. Though it is vehemently urged that there is no reference of Bhagwan informing that Badrinath accompanied the appellant from the temple in the evidence of PW-1 Prakash so also there is no reference of PW-5 Gajanan informing that Badrinath accompanied appellant in the evidence of Vishwanath, yet on careful perusal of evidence of PW-4 Bhagwan and PW-5 Gajanan it is clear that though Bhagwan has admitted that Gajanan was not present in the temple yet it is not the evidence of Gajanan that he was present in the temple. It is in the evidence of PW-4 Bhagwan that the appellant called and collected Badrinath from the temple and it is in the evidence of PW-5 Gajanan that he saw the appellant and Badrinath while proceeding towards Vaijapur. No doubt, there is no reference of information received from both in the testimony of Prakash and Vishwanath, yet merely on that ground their evidence cannot be discarded. It is to be noted that it has come in the evidence of PW-4 Bhagwan that the appellant drp {17} Cri. Appeal No.200/2009 collected Badrinath from the temple while it is in the evidence of PW-5 Gajanan that he saw Badrinath proceeding with the appellant to Vaijapur. Therefore, it can also safely be inferred that the circumstance of last seen together, is also stand established. 19. Now, the third and most important circumstance about the discovery of the dead body of the deceased at the instance of the appellant from his agricultural field. We are not in agreement with the submission advanced by learned counsel for the appellant that the police were aware that the dead body of Badrinath was in the field of the appellant.