1 Criminal Appeal No.222 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.222 OF 2009 1. Dilip @ Ishwarprasad S/o.Brijlal Jaju, Age-45 years, Occu-Business, R/o.Kallam Tal.Kallam, Dist. Osmanabad 2. Babasaheb S/o.Shankarrao Saraf, Age-27 years, Occu-Business, R/o.As above (At present in Jail Custody) APPELLANTS VERSUS State of Maharashtra Through Police Station Officer, Police Station Kallam, Tq.Kallam, Dist. Osmanabad RESPONDENT Mr.V.N.Damle, h/f. Mr.S.S.Rathi, learned counsel for the appellants. Mr.K.S.Patil, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 14/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellants stand convicted for an offence punishable u/s. 302 r/w. 34 of The IPC and were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.10,000/- each, in 2 Criminal Appeal No.222 of 2009 default to suffer further RI for 2 years. They were also 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 pay the fine in the sum of Rs.1,000/- each, in default to suffer further RI for one year, in Sessions Case No.100/2007 vide judgment and order dated 31/03/2009 by Ad-hoc Additional Sessions Judge, Osmanabad. The substantive sentences were ordered to run concurrently. By the present appeal, the appellants have questioned the correctness of the said conviction and sentence. 2. Such of the facts as are necessary for the decision in this appeal can be briefly be stated as follows : a) Rashid Ali Shaikh was attached to Kalamb Police Station as Inspector of Police. On the complaint of Kiran Prakash Lokhande (Exh.92), he registered an offence vide CR No.92/2007 against the present appellants and Mrs.Kiran Dilip Jaju and Ramniwas Brijlal Jaju for an offence punishable u/s. 302, 201 r/w. 34 of The IPC. Investigation in the said CR was entrusted to said R.A.Shaikh (P.W.No.17). b) During the investigation, on the same day, he visited the place of offence, where he noticed one dead body of male, found lying. Kiran Prakash Lokhande (P.W.No.10) identified the dead body of his brother by name Sachin. In the presence of panch witnesses, inquest panchnama (Exh.80) was drawn. Thereafter, the dead body 3 Criminal Appeal No.222 of 2009 was sent for post mortem with Police Constable Shri.Sanjay Mahadeo Naykal. c) Dr.Manju Shelke (P.W.No.1) conducted autopsy on the dead body. While conducting the autopsy, she had noticed following external injuries : 1. Incised wound over sub-mandibular region, transversely placed, more towards right side, 3 x 0.5 cm. 2. Contusion over ant. aspect of neck - Contusion of 1 x 1 cm size, 4 in number over right side, ant. aspect of neck. Contusion of 1 x 1 cm in size 2 in number over left side, ant. aspect forearm. 3. Contusion right side chest, 2 x 2 cm. in size. 4. Contusion right side chest, below injury no.3 measuring 1 x 1 cm. 5. Contusion just below the left eye. 6. Contusion just below right eye 1 x 1 cm. Age of injuries were within 24-48 hours. bleeding through left ear. 7. Multiple abrasion about 4 x 0.2 cm. in size over left and right scapular region, on over left and right infra-scapular region) and age within 24-48 hours. The injuries were anti-mortem injuries. She had also noticed following internal injury. Fracture injury was found to thyroid cartilage. 4 Criminal Appeal No.222 of 2009 Accordingly, she had prepared the post-mortem notes (Exh.61). According to her, death of the deceased was caused due to asphyxia due to throttling. She had also opined that the death might have occurred due to the injuries sustained by the deceased mentioned in coloumn no.17, which are corresponding to injuries mentioned in Coloumn no.20. While conducting the post mortem, she had also collected the blood sample from the body of the deceased for blood grouping, d) Thereafter, P.W.No.17 drew panchnama of scene of offence in the presence of panch witnesses. On the same day, he recorded statements of Rameshwar Shankarappa Mundhe and two others. On 13/06/2007, appellants in this appeal came to be arrested under the arrest panchnama at Exh.119 and 120,. The appellants were arrested at about 22.00 hrs. or so. During the further investigation, on 14/06/2007, he had recorded statements of about 8 witnesses including the statements of Balaji Shankarappa Lokhande, Vaijnath Pandurang Naiknaware and Shrishailya Katte. On 14/06/2007, police constable Sanjay Mahadeo Naykal produced the clothes on the person of the deceased Sachin, which were seized in presence of panch witnesses under the panchnama Exh.88. The said Sanjay Mahadeo Naykal have also collected the blood samples of deceased. On 14/06/2007, clothes on the person of the present appellants were seized under the seizure memorandum (Exh.89) in the presence of panch witnesses. On 15/06/2007, appellant Dilip shows his 5 Criminal Appeal No.222 of 2009 willingness to make a voluntary statement u/s. 27 of The Indian Evidence Act, which was recorded under the memorandum in the presence of panch witnesses at Exh.81. Thereafter, at the instance of appellant no.1, one handkerchief and one raiser generally used by the barber were recovered in the nearby place near the scene of offence and seized under the recovery panchnama Exh.82. On the same day, while in custody, appellant no.2 shown his willingness to make a voluntary statement u/s. 27 of The Indian Evidence Act, of which memorandum was prepared in the presence of panch witnesses (Exh.83). Then the pieces of belt, one pair of chappal and one blood stained T-shirt were seized from the nearby place of scene of offence, which articles were seized under the panchnama Exh.84, drawn in the presence of panch witnesses. On the same day, appellant no.2 again made a disclosure statement while in custody in the presence of panch witnesses, which was recorded in the memorandum at Exh.85 leading to the recovery of one motor-cycle at the instance of appellant no.2, which was kept in the Mangal Karyalaya of appellant no.1, which was seized under the panchnama Exh.86. At the time of seizure of said motor-cycle, some blood stains were noticed on the Mudguard and panel of the said motor-cycle. Those blood stains were wiped out with the help of cotton swab and the said cotton swab was also seized under the said panchnama at Exh.86. During the further investigation, on 18/06/2007, he had recorded statement of Babar Sattar Mirza and 2 others. On that day, complainant Kiran Prakash Lokhande produced some letters, 6 Criminal Appeal No.222 of 2009 greeting cards and chits allegedly written by the daughter of first appellant to the deceased. Those letters, greeting cards and chits were seized in the presence of panch witnesses under the panchnama Exh.78. He has also collected the papers of investigation in the proceeding of chapter case filed against the deceased by the sister of Payal. On 22/07/2007, seized property during the investigation was sent to Chemical Analyser alongwith carrier Police Constable Sanjay Mahadeo Naykal alongwith covering letter Exh.69. On 24/02/2007, his statement was recorded. He had also collected certified copies of the crime registered in Dharur Police Station at Dist. Beed against the 2nd appellant Exh.111,112. During the further investigation, on 31/08/2007, a letter (Exh.94) was addressed to Head Master Savitribai Phule School, Kalamb, calling upon to produce the answer sheets of Payal and her bonafide certificates. Accordingly, those documents were provided by the said school which were seized under the panchnama Exh.109 in the presence of panch witnesses. Then he had recorded statements of Japhar Pathan, Kakasaheb and Dipak Survase on that day. On 03/09/2007, the letters, greeting cards and chits produced by Kiran Prakash Lokhande seized under the panchnama at Exh.78, as well as the answer sheets received from Savitribai Phule School to the Director, Handwriting Expert alongwith covering letter Exh.100. Police Constable Shri.Doke carried these documents to the offence of Director, Handwriting Expert. After receipt of Chemical Analyser's report at Exh.113 to 116, and on completion of investigation, charge 7 Criminal Appeal No.222 of 2009 sheet was filed against the appellants and two others in the Court of J.M.F.C. Kalamb, who in turn committed the trial against the appellants and two others to the Court of Sessions, Osmanabad. e) Record and proceeding received from the Lower Court shows that Ad-hoc Additional Sessions Judge, Osmanabad framed the charge at Exh.32 against the appellants and two others for the offence punishable u/s. 302, 201 r/w. 34 of IPC. The appellants and two others denied their guilt and claimed to be tried. f) Record and proceeding received from the Lower Court shows that prosecution has examined in all 17 witnesses to substantiate the charges lavelled against the appellants. Dr.Manju Uddhavrao Shelke (P.W.No.1) Medical Officer attached to Rural Hospital Kalamb, who had conducted autopsy on the dead body of Sachin, Rameshwar Shankarappa Mundhe (P.W.No.2), and Balaji Shankarappa Lokhande (P.W.No.3) on the point of motive behind the crime, Vaijinath Pandurang Naiknaware (P.W.No.4) on the point of deceased, last seen in the company of these appellants, where deceased has taken drinks alongwith appellant no.2 of which bills were paid by appellant no.1, Shrishailya Katte (P.W.No.5) and Sanjay Mahadeo Naykal (P.W.No.6) police constables attached to Kalamb Police Station, carried the articles respectively to the office of Chemical Analyser and to the office of Director, Handwriting Expert, Shital Shivshankar Ghongade (P.W.No.7) panch witness to the scene of offence (Exh.77) and panch 8 Criminal Appeal No.222 of 2009 witness to the recovery of letters, greeting cards produced by the complainant at (Exh.78), Nilesh Shivraj Honrao (P.W.No.8) panch witness to the inquest panchnama and panch witness to the 3 memorandums, one by the first appellant and second by the second appellant, resulted in the recovery of articles and motorcycle, under the panchnamas respectively at Exh.82, 84, and 86, Sachin Raghunath Chonde (P.W.No.9), panch witness to the recovery of clothes of deceased under panchnama Exh.88 and recovery of clothes of accused under panchnama Exh.89, Kiran Prakash Lokhande (P.W.No.10), brother of the deceased and complainant in this case, who had lodged FIR at Exh.92, Deepak Gowardhan Survase (P.W.No. 11), Japhar Naibkhan Pathan (P.W.No.12), and Sanjay Badrinath Kathar (P.W.No.13), the employees attached to the office of Handwriting Expert, Babar Sattar Mirza (P.W.No.14), on the point of deceased was last seen alongwith these appellants near Kalamb-Kej bridge in the night of 12/06/2007, Gokul Tulshiram Doke (P.W.No. 15), a carrier, Umakant Pandharinath Rajmane (P.W.No.16), a witness to the seizure panchnama Exh.109 about the answersheets and character certificate of Payal produced by the Clerk from Savitribai Phule School and Rashid Alisher Shaikh (P.W.No.17) the Investigation Officer. On appreciation of the evidence of these witnesses, the learned Lower Court pleased to convict the appellants for the offence punishable u/s. 302, 201 r/w. 34 of The IPC, while acquitted Kiran Dilip Jaju and Ramniwas Brijlal Jaju from all the charges. Admittedly, State has not filed any appeal against the acquittal of 9 Criminal Appeal No.222 of 2009 those 2 persons. 3. Before appreciating the submissions of learned counsel for appellants and learned A.P.P. for State, it is necessary to advert to the evidence of material witnesses. 4. It is in the evidence of Kiran Lokhande, P.W.No.10 that deceased Sachin was his younger brother. A girl by name Payal is the daughter of first appellant and acquitted accused Kiran Jaju. First appellant had filed complaint against the deceased in Kallamb Police Station, hence he came to know about the love affair between deceased Sachin and Payal. He requested deceased to give up this relationship with Payal, to which deceased agreed. Deceased disclosed to him that appellants threatened to kill him. Second appellant was serving with the first appellant. He has stated that he met first appellant and his wife Mrs.Kiran Jaju and told them that deceased have stopped his relations with their daughter and requested not to threat the deceased. He had further stated that deceased had left the residence on 12/06/2007 at about 5.00 p.m., and not returned during the night hours. On 13/06/2007, he received call on his cell phone inquiring about the whereabouts of his brother. The caller further informed that deceased was seen with appellants on 12/06/2007 and the appellants are turned up and further informed to inquire about the deceased. The caller was calling from the coin box. Thereafter P.W.No.10 and his relatives 10 Criminal Appeal No.222 of 2009 started search of deceased. On the same day, around 4.30 to 5.00 p.m. dead body of deceased Sachin was found lying in the bushes near small bridge situated on Kallamb-Kaij road. He saw the dead body and noticed injuries on the neck and other parts of deceased Sachin. Black coloured pant was found on the person of deceased. As the appellants were threatening deceased to kill, he suspected that the appellants might have murdered deceased. Hence on suspicion, he lodged the complaint at Exh.92 against the appellants and two others. He identified the clothes of deceased Article 1 and 2 so also the letters and greeting cards allegedly sent by Payal to deceased Article 15 and 16. It was suggested in his cross examination that since the year 1999, he is running a Matka stall, and because of that business, there are number of enemies to them, to which he denied. In his further cross examination, his criminal antecedents and background as well as of the deceased were brought on record. In his further cross examination, he has admitted that deceased was not doing any work, but was depend upon him. Further he has admitted that deceased was not classmate of Payal. He has not collected any document to show that appellant no.1 had really lodged any complaint against the deceased. He has further admitted in his cross examination that no complaints were lodged with the police station about the threats allegedly received from appellant no.1. He has further admitted that no missing report was lodged with the 11 Criminal Appeal No.222 of 2009 police till the dead body of deceased was located even though deceased was not returned in the night of 12/06/2007. His relatives accompanied him when he had gone to Police Station to lodge the complaint. In his further cross examination, he has admitted that there was rain on the day of incident, day prior to the incident as well as day after the incident. The dead body was lying in the mud. 5. It is in the evidence of Rameshwar Shankarappa Mundhe (P.W.No.2) that complainant Kiran Lokhande is the cousin of his wife. He is acquainted with deceased Sachin and appellant no.1 and his daughter Payal. He also knew about the love affair of deceased Sachin with Payal. Appellant no.1 have lodged complaint against deceased. Appellants were insisting deceased to give up the relations with Payal. On that count, they were threatening deceased that they will finish him. On 13/06/2007, dead body of Sachin was located in the bushes by the side of Manjara river. When he reached at the spot, he saw that people were gathered there and were murmuring that deceased might have murdered by the appellants. He had admitted in his cross examination that deceased was serving with him and looking after his Matka business. Criminal Case u/s. 326 of The IPC was pending against the deceased as well as against the complainant. He has further admitted that no complaint was lodged against the appellants about the threats given by them to the deceased. According to him, this statement was 12 Criminal Appeal No.222 of 2009 recorded by the police after about one month of incident. 6. It is in the evidence of Balaji Shankarappa Lokhande (P.W.No.3) that deceased Sachin was his cousin, who had love affair with Payal i.e. daughter of the first appellant. He had further stated that when he learnt about the love affair, he requested the deceased to stop the relations with Payal. Deceased told him that appellant no.2 threatened him to finish him through contracted killers at the expenses of Rs.50,000/-. At his request, deceased told him that he had stopped his relations with Payal. On 13/06/2007, at about 4.00 p.m., he came to know that the dead body of deceased was found lying in the bushes near a river Manjara. Then he visited the spot and noticed injuries on the person of the deceased. This witness also admitted in his cross examination that complainant and deceased were serving with Rameshwar (P.W.No.2) on the Matka business. Criminal Case u/s. 326 of The IPC was pending against the deceased. He has further admitted in his cross examination that no complaint was lodged about the threats given by appellant no.2 to the deceased. His statement was recorded after 15 days of the incident. In his further cross examination, omissions were proved that he had not stated in his statement before police that 4 months prior to the incident near ST stand, appellant no.2 and Mrs.Kiran Jaju threatened to kill the deceased. Further omission was proved in his cross examination that he has not stated in his 13 Criminal Appeal No.222 of 2009 statement before police that appellant no.2 threatened deceased that he will finish him. He has stated that deceased was addicted to liquor. 7. It is in the evidence of Vaijnath Pandurang Naiknaware (P.W.No. 4) that he is working as Manager in the permit room of one Ishwar Markunde, situated at Parali Road. Name of the permit room is Hotel Bhajraj. He was acquainted with deceased. On the date of incident, deceased came in the permit room with one unknown person to whom he identified as appellant no.2 in the Court. They ordered for beer and green whiskey. They occupied cabin no.3 and ordered dinner. They were frequently coming out of cabin no.3. Around 8.15 p.m. or so, appellant no.1 came there and sat in cabin no.4. Appellant no.2 told him to collect the bill from appellant no.1, to which appellant no.1 agreed. Thereafter, deceased and appellant no.2 came out from cabin no.3 and left the hotel. Appellant no.1 thereafter came out from cabin no.4, paid the bill and left the hotel at about 8.30 p.m. or so. On the next day, he came to know that Sachin was killed. He had stated in his cross examination that he know the deceased as the deceased was regular, daily customer of his permit room since last 4 years. Appellant no.1 was not customer of his hotel. One waiter by name Sunder Salunkhe serve the order of dinner and drink to deceased and appellant. His statement was 14 Criminal Appeal No.222 of 2009 recorded 8 days after 12/06/2007. He had admitted that he had not maintained any bill-book about the bill paid by appellant no.1 for appellant no.2 and deceased. He had further stated that complainant is also his regular customer since last 3 years. In his further cross-examination, omission was proved that it is not mentioned in his statement recorded by police that initially deceased and appellant no.2 came out of cabin no.3 and left the hotel followed by appellant no.1. 8. It is in the evidence of Babar Sattar Mirza, P.W.No.14 that he knew the deceased as well as the appellants. On the 12th day of year 2007., of which he do not remember the month, in the night around 8.30 p.m. to 8.45 p.m., he was returning from his field situated at Suradai. In the headlight of the car, he saw the deceased and appellants, who were near Hotel Mitkari. The small bridge is situated at the distance of 100-150 ft. from the said hotel. On the next day, he came to know about the death of deceased Sachin. He has stated in his cross examination that he used to return from his field around 6.00 p.m. He was unable to explain as to why he was late in returning from his field on that day. He has stated that he was driving his car at the speed of 40 km per hour. He has further stated that on that day, there was rain and hence the vision was not clear. According to him, his statement was recorded on the second day of incident. He has further admitted in his cross 15 Criminal Appeal No.222 of 2009 examination that he is having good relations with the complainant Kiran Lokhande. 9. Prosecution have examined Shital Shivshankar Ghongade (P.W.No.7) to prove the spot panchnama at Exh.77. The contents of the spot panchnama shows that due to rain, traces of violence were not noticed where the dead body was found lying. Contents of spot panchnama further discloses that nothing incriminating was recovered or seized from the nearby area where the dead body was found lying. Prosecution have also attempted to prove recovery of incriminating articles at the hands of appellants under recovery memorandum at Exh.82,84, and 86 at the instance of appellants on their disclosure memorandum at Exh.81, 83 and 85 through Nilesh Honrao (P.W.No.8). Sachin Raghunath Chonde (P.W.No.9) was examined to prove recovery of clothes under the panchnama at Exh. 88 on the person of the deceased while the clothes of appellants under panchnama at Exh.89. In addition to this, prosecution wants to rely on the C.A. report at Exh.113 to 116. 10. In the background of this evidence recorded before the Lower Court, we have heard learned counsel for appellants and learned A.P.P. for State. In his submissions, learned A.P.P. supports the findings recorded by the learned Lower Court and prayed to dismiss the appeal. 16 Criminal Appeal No.222 of 2009 11. Learned counsel appearing for appellants urged before us that the case of prosecution based on circumstantial evidence. It is urged that the complainant and his deceased brother have criminal background and due to that they have number of business rivals. It is also urged that it can be gathered from the evidence of complainant (P.W.NO.10) and the evidence of P.W.No.2 and 3 that no complaint was lodged with the police about the alleged threats received by the deceased from the appellants and their family members. In this background, it is urged that the alleged motive of love affair between deceased and Payal was not established by the prosecution. It is also urged that there is no possibility that deceased and second appellant may enjoy the drinks and dinner in the permit room where P.W.No.4 was serving as a Manager and first appellant may pay the bills as deposed by him for the drinks and dinner enjoyed by deceased and 2nd appellant. It is also urged that evidence of P.W.No.14 that he saw deceased alongwith the appellants in the earlier night in the headlights of the car, is not reliable evidence. It is further urged that in the light of facts proved from the spot panchnama, rulled out the recovery of articles in lieu of disclosure statement by the appellants under panchnama at Exh.82, 84, and 86. It is urged that as the circumstances on which prosecution is relying, are not proved and established beyond reasonable doubt and the chain of circumstances was not completed, prayed to allow the appeal. 17 Criminal Appeal No.222 of 2009 12. While considering the rival submissions of learned counsel for appellants and of learned A.P.P., it is useful to give the reference about the observations of the Apex Court about the rule specifically applicable while dealing with the cases based on circumstantial evidence. It is observed by the Supreme Court in the matter of Hanmant Govind Nargundkar versus State, reported in AIR 1952 SC 343 as- In dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1838) 2 Lewin 227) where he said : "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and