-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1208 OF 2002 Gopal Bodhuram Gurjar, age 21 years, ) r/o Chakmithai, Dalaramgadh, Dist. Sikar (Rajasthan) ) At present confined at NasikRoad Central Prison, ) Nasik-422 001 )...Appellant versus The State of Maharashtra, through Dindori Police ) Station, Dindori, Dist.Nasik )...Respondent Ms. Sonia Bankapur (appointed) for the appellant. Smt. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: JANUARY 07, 2010. ORAL JUDGMENT: (Per P.B. Majmudar, J.) This appeal is directed against the judgment and order of conviction and sentence recorded by the first Ad-hoc Additional Sessions Judge, Nashik, dated 25th June, 2002 in Sessions Case No. 191 of 2001. By the impugned judgment and order, the learned Judge convicted the appellant-accused for an offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life. The appellant is also convicted for an offence punishable under Section 201 of the IPC for which sentence of rigorous imprisonment for one year is awarded. Regarding muddemal in question i.e. -2- cash amount of Rs. 27,850/-, the learned Judge ordered that the accused and the deceased were entitled to half the amount each. Accordingly, half amount was returned to the accused and the remaining half amount was paid to the wife of the deceased. Against the aforesaid order, the appellant-original accused has preferred this appeal through jail. 2. The appellant-accused is charged for an offence punishable under Section 302 as also under Section 201 of the IPC. The prosecution case in a nutshell is that during the intervening night of 7th and till about 7.00 a.m. of 8th August, 2001, the accused committed murder of one Sonbabu @ Sonpal Bomaram Gurjar at Nalegaon Shivar, by intentionally or knowingly causing his death by cutting his neck by means of a sickle and after committing the said offence inside the room occupied by him and the deceased threw the dead body of the deceased at a distance in the field after wrapping in a blanket. 3. It is the case of the prosecution that the accused is the nephew of deceased Sompal and he had come to Nasik along with his uncle for doing skilled labour work. Both of them had engaged themselves in a construction work near village Nalegaon. It is the further case of prosecution that the complainant Chandrakant Chaudhari (PW 1), who was serving as an Assistant Engineer, Irrigation Department, Nashik, had purchased about 11 acres of land in Shivar of Nelegaon. After purchase of the said land by the complainant, he -3- had put up a shed consisting of three rooms on his land. One o the sheds/rooms was used by him for storing the agricultural equipments and other articles. It is also the case of the prosecution that after the purchase of the land, complainant had carried out the work of levelling of the land and also sunk a well. The work regarding construction of the ring parapet of the well was handed over to the deceased and the accused at the instance of one Balasaheb Pingle, who was examined as PW 5 in whose field the deceased and accused had also carried out similar work. The complainant thereafter gave a contract of construction of ring parapet of the well to the deceased and accused for Rs. 19,000/-. The said work was completed by 5th August, 2001. Subsequently, a request was made on behalf of the deceased that since he wanted to go back to his native place, his dues may be paid. The complainant by that time paid certain amount from time to time and Rs. 12,000/- were outstanding. The complainant subsequently paid Rs. 10,000/- through his driver one Hiraman Jadhav, who was examined as PW 2. It is the further case of the prosecution that while making preparation to go to the native place, the deceased and the accused were about to collect their dues from the respective persons including from PW 5. At that time deceased had kept Rs. 5,000/- by way of deposit with the said witness PW 5. Subsequently deceased requested PW 5 to clear his account. Thereafter Rs. 15,000/- was paid to the deceased by PW 5. It is the case of the prosecution that after paying this amount, the deceased went away from the Bank. -4- 4. It is the case of the prosecution that about 15 days prior to this incident, the complainant had employed PW 4 Chintaman Waghere as an agricultural servant for looking after his fields as well as to work as Watchman. The said Waghere was residing in one of the rooms given to him wherein he was residing with his family members. The said room is adjoining to the room occupied by the accused and the deceased. After the deceased returned from the Bank, he met the said witness Waghere. At that time the said Waghere requested him to join for dinner but he refused and went to his room. On the next day morning, the said Waghere noticed that there was no response from the occupants of the room. He tried to find out the reason and ultimately found that the articles in the room were scattered and there was a pool of blood. He also found one bundle lying in the field and verified that it was a bundle of a body covered in a quilt and the face was covered by means of a cloth. At that time the driver of the complainant, Hiraman (PW 2) also came at the site. They ultimately approached the complainant and reported the matter to him. The complainant thereafter along with the driver approached Dindori Police Station and gave information regarding the incident to P.I. Chaudhari. The Police Inspector thereafter inspected the said bundle and it was found that it was the dead body of the deceased Sompal. It was noticed that there were injuries on his throat as well as another injury on the head. The police also found sickle with bloodstains. The articles were duly seized under a panchanama at Exhibit-15. The Police Inspector recorded the FIR of the complainant at Exhibit-12. The -5- inquest of the dead body was also held as per Exhibit-10. The post-mortem was also carried at the Rural Hospital, Dindori. At that time was found that the nephew of the deceased, who was occupying the room along with him, was absconding. The post-mortem was carried out by the Medical Officer Dr. Patil who was examined as PW 6 and injuries on the neck as well as on the right temporal occipital region/over the head were also found. It was found that both the injuries were ante mortem. It was found that injury No.1, the throat of the deceased, was practically cut. Subsequently, during the course of investigation, the Medical Officer also examined accused on 14th August, 2001. Since the accused was found absconding, PI Chaudhari deputed one Head Constable Darade (PW 8) for the search of the accused at his native place. Police Patil went to the native place of the accused by providing vehicle along with PW 2 Hiraman. The Police Patil with the help of the local police went in search of the accused at his village but the accused was not found at the said place. Upon enquiry, police came to know that the accused had gone to the place of his maternal uncle. Police Patil went there and ultimately the accused was found out and was duly arrested under a panchanama at Exh. 16. Certain articles were also seized from him and the currency bag containing Rs. 27,000/- was also seized from the accused. The dead body of the deceased was subsequently handed over to his relatives. 5. It is the case of the prosecution that while the accused was in police -6- custody, he showed his willingness to give discovery of the clothes and in pursuance of the statement of the accused, the accused took the police and panchas to the store room adjoining to the room that was occupied by the accused and the deceased. He took out one jerkin along with his pant having bloodstains. The said articles were seized as Articles 17 and 18 under a panchanama at Exh. 19. Subsequently, after the accused was remanded to the magisterial custody, he had shown willingness to give confessional statement. The police approached J.M.F.C., Dindori for recording the confessional statement of the accused. The said Judicial Magistrate was asked to record the confessional statement of the accused. The confessional statement of the accused was subsequently recorded wherein accused gave details as to how he committed the offence. Subsequently when his statement was recored under Section 313 of the Cr.P.C., he resiled from the said confessional statement. The learned Judge framed the charge at Exh. 6. It is alleged that he has committed murder of his uncle during the intervening night of 7th and 8th August, 2001 at Nalegaon,Shivar. With a view to save himself, he threw away the bundle of dead body of deceased wrapped in cloth in another field and thereby committed an offence also punishable under Section 201 of the IPC. 6. On behalf of the prosecution 9 witnesses were examined. The Complainant Chandrakant Chaudhari (PW 1) has stated in his evidence that he had purchased 11 acres of land at Nalegon, Tal. Dindori. He has given -7- description of the land and in his evidence he has pointed out as to why the services of the deceased and accused were taken for the purpose of constructing parapet at the mouth of the well. The witness has stated that both of them were skilled workers from Rajasthan and both of them were introduced to him by his neighbour one Pingle, whose land is adjacent to the land of the complainant. The said witness has stated that he made payment to the said witness in connection with the work in question. The said witness has stated that on 8th August, 2001, his driver came at his house at Nasik and informed him that a murder has been committed in his field. Thereafter the complainant approached Dindori Police Station and along with the Police he went to the field wherein it was noticed that the dead body of the deceased was lying wrapped in quilt. The complaint given by the complainant dated 8th August, 2001 is at page 33 in the compilation wherein he has given similar description about the incident in question. 7. The prosecution has also examined one Hiraman Jadhav (PW 2) who was working as a driver of the complainant. The said witness has clearly stated that on 8th August, 2001 he along with Narayan Waghere had been to the field of the complainant and at that time one Chintaman Waghere informed them that there was a murder in the field. The said witness has stated that they could see one dead body wrapped in a quilt. In the room they noticed that there were bloodstains and a sickle was also found having bloodstains. He thereafter immediately informed the said aspect to his Master i.e. Complainant. Nothing -8- substantial has been brought out from his cross-examination. The panchanama of the scene of offence is produced at page 40 of the compilation. 8. The prosecution has also examined one Manik Waghmare (PW 3) who was called as a panch witness. The said witness has stated that the accused made a statement showing willingness to give the discovery of the bloodstained clothes and the accused took them to the spot where he had concealed the clothes. 9. Prosecution has also examined one Chintaman Wahere (PW 4) at Exh. 20. The said witness was working at the field of the complainant at the time of the alleged incident. The said witness was residing in one of the sheds of the adjoining sheds wherein deceased and accused used to stay together. The said witness has stated that the deceased told him that he wanted to go back to his native place and on the previous day the deceased had gone to Nasik but the accused remained therein at the room located in the field. On the relevant day, in the morning the witness noticed that there was no response from the room of the accused and the deceased. Ultimately it was found that there was blood spilled on the ground as also inside the room. One sickle was also noticed lying in the room. The said witness also ultimately found that the dead body in the quilt with a scarf around the neck and the face. -9- 10. One Balasaheb Pingale was examined at P.W. 5. He has stated in his evidence that on 27th Sonbabu had informed him on telephone that he wanted to go back to his native place and that he should be paid his amount and his accounts be cleared. Thereupon the said witness withdrew Rs. 10,000/- and an amount of Rs. 5,000/- was kept with him as a deposit. After receiving the said amount, the deceased went away and the said witness also went to do his job. On the next day, the said witness came to know about the incident in question. The said witness was examined with a view to show that he had paid an amount of Rs. 10,000/- to the deceased. 11. The prosecution has also examined one Suhas Patil (PW 6) at Exh. 23, who was attached as a Medical Officer, Primary Health Centre, Dindori. The said witness has carried out the post mortem on 9th August, 2001 and noticed certain injuries on the next and head of the deceased. 12. The prosecution has also examined Anil Choudhary (PW 9) at Exh. 44 who was attached to the Dindori Police Station at the relevant time and on receiving the complaint, he went along with the complainant at the site. 13. The prosecution in all examined nine witnesses to prove its case. On going through the evidence of the prosecution witnesses, in our view, it is clear that the prosecution has proved its case beyond reasonable doubt, so far as the -10- alleged act of murder attributed to the accused is concerned. From the evidence on record, it is clear that the deceased along with his nephew i.e. Accused had undertaken the work of construction of parapet wall at the well of the complainant. He was doing the similar work for the adjoining field of one Pingle. It is also established from the record that the accused and deceased were residing in a small room and the adjoining room was occupied by Waghere. On completion of the work, the payment was made to the deceased and the amount was in the custody of the deceased. The motive attributed for the offence is in connection with the dispute about payment in question. As per the panchanama as well as from the evidence of prosecution witnesses, a sickle was found with bloodstains from the room which was occupied by the deceased and the accused jointly. The accused was missing from his residence. Subsequently he was found from a village in Rajasthan. At the instance of the accused, recovery panchanama was carried out and certain articles were seized. Apart from the fact that initially he showed willingness to give confessional statement, though he tried to resile the same later on. The evidence on record clearly suggests the motive for the offence committed by the accused coupled with the fact that immediately thereafter he found missing from the scene of offence. He was traced after some time from another village in Rajasthan. During the course of investigation, the seized articles along with blood samples of the deceased as also that of the accused were duly sent to the Chemical Analyser by the Police Inspector by letter at Exh. 47. The Chemical Analyser gave his report of the blood samples at -11- Exhibits-48 to 50. The injury as per the medical evidence is attributed to the weapon which is seized from the room occupied by the deceased along with his uncle. 14. Apart from the confessional statement of the deceased, there are strong circumstances which clearly establish the guilt of the deceased viz. receipt of money by the deceased, non-availability of the accused from the scene of offence on the very next day coupled with recovery of panchanama at the instance of the accused himself. As per the evidence of PW 4, who was occupying the adjoining room, the deceased had been to his room. The accused was inside the room and the accused was present on the previous night but on subsequent day after the incident he was found missing. It is also required to be noted that the brief case in question which was kept by the accused, which is Article No. 9, contained currency notes. Regarding this aspect the learned Judge observed in para 29 as under. “29. It has already been shown during the course of narration as to how the police after going to the village of the accused ultimately reached at the place of his maternal uncle at village Pachava, where they could apprehend the accused. It has also been detailed during the course of narration that the accused had kept the suit case Art. 9 at the house of his maternal uncle Jaguram and consequently panchanama was drawn up in the matter of arresting the accused as also seizure of the suit case, that contained not only the amount of Rs. 27000/- and odd with two wads of Rs. 100/- totalling Rs. 20000/- and one wad of Rs. 50/- amounting to Rs. 5000/- and two wads of Rs. 10/- each, amounting to Rs. 2000/- and some loose currency notes. All these wads were having seals of Janalaxmi Bank, Central Bank, etc. There were audio cassettes and shirt, blanket etc. in -12- the bag that were duly seized under the panchanama Exh. 41. It has been shown during the course of narration as to how the accused was thereafter produced before the Magistrate and after obtaining necessary orders as per Exh. 42 he was ultimately brought to Dindori, where he was produced before the Investigating Officer with a report Exh. 46 dated 13.8.2001. It is necessary to mentioned here that in the course of cross examination of H.C. Darade or during the course of cross examination of the witness Hiraman, who accompanied the police party, the fact of apprehension of the accused or the visits to his native place etc. could not be and had not been challenged. In fact all this evidence went absolutely unchallenged on record. Though faint attempt was made to contend that the property with the bag was not seized at the instance of the accused from the house of his maternal uncle. It could not be suggested to witness Jadhav or to H.C. Darade or to P.I. Chaudhari, that this property had been taken by the police along with them or it was planted in the name of the accused. In this regard one more aspect is necessary to be mentioned. The spot panchanama Exh. 15 could not be challenged seriously and this spot panchanama Exh. 15 that refers to Articles found in the room occupied by the accused and the deceased did not show existence of the bag Artc. 19 along with the other properties including the amount of Rs. 27000/- and odd. Nor it could be suggested to any of the prosecution witnesses that any such bag was found in the room occupied by the accused and the deceased. The wads of currency notes were duly identified by the complainant PW 1 Chaudhari as also by PW 5 Balasaheb Pingale, as the same that were given by the complainant and the witness PW 5 Pingale on 5th and 7th August 2001 to the deceased. Admittedly, the accused was present when the recovery of amount of Rs. 12000/- was made by Somababu from the complainant PW1 Chaudhari, though he may not be present with Sombabu at the time of collecting the amount of Rs. 15000/- from PW 5 Balasaheb Pingle. In other words, this property namely the wads of currency note in possession of the deceased if not jointly in possession of the accused and the deceased was immediately found in possession of the accused after the incident, that naturally gives rise to a presumption that the accused must be the person who obtained the possession of this property by murdering his uncle the deceased Sombabu.” -13- 15. Considering the evidence on record, we are of the opinion that the said observation is absolutely in consonance with the other evidence on record. In our view, the learned trial Judge was perfectly justified in recording the order of conviction on the basis of strong circumstantial evidence available on record. Apart from the above, the accused subsequently gave a voluntary confessional statement. The learned Judge found that on the basis of the report, the Judicial Magistrate directed the Special Judicial Magistrate to record the confessional statement of the accused and after full enquiry with the accused the said statement was recorded. The learned Judge has found that while recording the confessional statement of the accused as per Exhibits-33 and 34, all procedural requirements were complied with. It is also found that the accused was knowing Marathi language and according to us the confessional statement was just and proper. 16. The accused after having undertaken a joint venture for constructing parapet wall at the well of the complainant, unfortunately killed his uncle in connection with the dispute of apportionment of money. The said fact has been established by overwhelming evidence produced on record by the prosecution. The presence of the accused on the previous day in the room of the accused has been established on record. Immediately after the incident in question the accused was found missing. He was ultimately found from his native place in the State of Rajasthan. At his instance the recovery of the articles was carried out. -14- The suit case in question having currency notes was found from the bag which was in his custody coupled with the subsequent confessional statement which has been given voluntarily. All these aspects clearly show the case of the prosecution that the accused committed the offence in question and in our view the learned trial Judge was perfectly justified in recording the order of conviction by arriving the evidence on record. It can be safely said that the prosecution has proved its case beyond reasonable doubt and in our view the accused is rightly convicted under Section 302 as well as Section 201 of IPC. The learned counsel for the appellant is also not in a position to pinpoint any lacunae in the evidence led by the prosecution in this behalf. 17. We accordingly do not find any substance in the appeal. The appeal is accordingly dismissed. The judgment and order passed by the first Ad-hoc Additional Sessions Judge, Nashik, dated 25th June, 2002 in Sessions Case No. 191 of 2001 is confirmed. P. B. MAJMUDAR, J. R.G. KETKAR, J. -15- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1208 OF 2002 Gopal Bodhuram Gurjar, age 21 years, ) r/o Chakmithai, Dalaramgadh, Dist. Sikar (Rajasthan) ) At present confined at NasikRoad Central Prison, ) Nasik-422 001 )...Appellant versus The State of Maharashtra, through Dindori Police ) Station, Dindori, Dist.Nasik )...Respondent Ms. Sonia Bankapur (appointed) for the appellant. Smt. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: JANUARY 07, 2010. P.C. For the reasons separately recorded in the judgment, the Court passes the following order: “We accordingly do not find any substance in the appeal. The appeal is accordingly dismissed. The judgment and order passed by the first Ad-hoc Additional Sessions Judge, Nashik, dated 25th June, 2002 in Sessions Case No. 191 of 2001 is confirmed. P. B. MAJMUDAR, J. R.G. KETKAR,