1 APEAL-1375-03 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1375 OF 2003 Deepak Maruti Parte, ] Aged about 22 years, ] Occ. : Labour, residing at ] S.No.12, Laxminagar, near ] Urdu School, Yerawada, ] Pune. ] ..APPELLANT [Orig.Accused No.1] Versus 1. The State of Maharashtra, ] (At the instance of Yerawada ] Police Station, Pune vide ] C.R. No.22 of 2001). ] 2. Vitthal Narayan Tulse, ] 3. Mohanabai Vitthal Tulse, ] Laxinagar, Yerwada, Pune ] ..RESPONDENTS. 2 APEAL-1375-03 ......... Ms.Rebecca Gonsalvez, Advocate for the Appellant. Mrs.A.S. Pai, A.P.P., for the State. ......... CORAM : D.D.SINHA & A.R.JOSHI, JJ. DATE OF RESERVING ) : 14.9.2010 THE JUDGMENT ) DATE OF PRONOUNCING ) : 24.9.2010 THE JUDGMENT ) ORAL JUDGMENT (PER A.R.JOSHI,J.): 1. Present Criminal Appeal is preferred by the appellant-orig.accused No.1 against his conviction for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and for the offence punishable under Section 4/25 of the Arms Act. 2. Present appellant/accused No.1 along with two other co-accused was tried by the learned Additional Sessions Judge, Pune in Sessions Case No.172 of 2001. Finding the evidence of 21 prosecution witnesses worthy of acceptance and finding the supporting evidence by way of documents and recoveries against 3 APEAL-1375-03 the present appellant, he was convicted for the offences charged, by impugned judgment and order dated 20.9.2003. Original accused Nos.2 & 3 were acquitted by the said impugned judgment and order finding the evidence deficient in order to establish the charges leveled against them. 3. Present appellant/accused No.1 was sentenced to suffer rigorous imprisonment for life and fine of Rs. 5000/- for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for one year for the offence punishable under Section 4/25 of the Arms Act. The substantive sentences of imprisonment were directed to run concurrently. 4. The case of the prosecution and the material brought before the learned Additional Sessions Judge can be narrated as under :- According to the prosecution, the motive behind killing of deceased Nitin Tulse was the illicit relations the deceased was having with one woman by name Babita Naidu. Said Babita Naidu was 4 APEAL-1375-03 residing as a tenant along with her husband and three children in the vicinity of the house of the deceased. Though she was a married woman, she had illicit relations with the present appellant/accused No.1. Admittedly, appellant and deceased Nitin were friends. Appellant was not stranger to the family members of the deceased and specifically to his brother (PW-1) and his parents (PW-3 & PW-5). Without going into much details as to the specific dates, suffice it to say that though allegedly the appellant and said Babita Naidu had illicit relations, she had also developed such relations with the deceased and sometime in July 2000 she and the deceased Nitin left Pune and stayed at some place in Goa for four months. They returned to Pune prior to Diwali of the year 2000. Initially Babita stayed in the family of the deceased however such stay was not accepted by the parents and other family members of the deceased, hence she was taken to the house of her parents within short time. Apparently Babita Naidu did not continue to stay 5 APEAL-1375-03 with her husband and her children. 5. It is also case of the prosecution that on occasions, appellant visited the house of deceased and gave threats of dire consequences to the deceased raising objections against the conduct of the deceased as to dislodging the friendship norms between them on account of behaviour of the deceased with Babita Naidu. Allegedly, one of such threats, was given by the appellant to the deceased on the same day when Babita was taken to her parent's house by the deceased. Thereafter, somewhere on 27.12.2000 there was similar altercation between appellant and deceased. That time, deceased assaulted appellant and police complaint was lodged by appellant in which deceased was arrested by the police and subsequently released on bail. Such lodging of complaint and arrest of the deceased has been substantially accepted by the appellant as per his defence and also as per the specific answer given by him during his statement recorded under section 313 of Cr.P.C. at the conclusion of recording of the evidence in the 6 APEAL-1375-03 Sessions Case. At this juncture, the answer given by the appellant to question No.45 is reproduced :- "Q.45 : Do you want to say why prosecution witnesses depose against you ? Ans. : Nitin had assaulted me. I had lodged complaint against him, therefore, witnesses are deposing against me." 6. Even shelter of the above factual position has been taken on behalf of the appellant in order to substantiate his defence as to his false implication in the matter of murder. The actual incident of murder occurred in the afternoon of 15.1.2001. At this juncture, it must be mentioned that earlier described incident of appellant reprimanding the deceased on account of deceased having illicit relations with Babita Naidu, is required to be taken as motive, being proximate to the death of deceased. Such earlier incident occurred on 27.12.2000 and death of deceased occurred on 15.1.2001. 7. On the afternoon of 15.1.2001, the deceased was assaulted in the same locality where he was staying 7 APEAL-1375-03 and it was allegedly witnessed by two women (PW-18 Smt.Sharda & PW-19 Smt.Bilkis). At this juncture, it must be mentioned that both these witnesses do not support the case of the prosecution and had turned hostile in as much as mentioned not to have witnessed the incident of assault. In view of this factual position, it must be said that there was no direct evidence supporting the case of the prosecution and as such entire case of prosecution is based on circumstantial evidence which is discussed in detail hereunder at the appropriate place. 8. According to the case of the prosecution, on the afternoon of 15.1.2001, deceased was assaulted by present appellant/accused No.1 by means of sword causing severe bleeding injuries. According to the prosecution, original accused Nos.2 & 3 were present on the spot, and being associates of appellant and also assaulted the deceased with fist and kick blows. Considering the factual position that accused Nos.2 & 3 were acquitted by the learned Additional Sessions Court, Pune and there is no appeal against such 8 APEAL-1375-03 acquittal preferred by the State, in the present appeal only the evidence adduced as against present appellant is required to be analyzed. 9. According to the prosecution, appellant made extra-judicial confession before the parents of the deceased i.e. PW-3 & PW-5), independently. Allegedly appellant disclosed the incident and his role as doing away with the deceased, to the mother of deceased Smt.Moharbai (PW-5) when she was at home, whereas he made independent disclosure of such event to the father of the deceased i.e. Vitthal (PW-3) when said witness was playing cards along with his friends (PW-8 & PW-9). 10. Also according to the case of prosecution, in that evening one boy reached the house of the deceased and informed one Sukhadeo (PW-1, brother of the deceased) that deceased was assaulted and lying outside the house of Smt.Yamunabai Parte near the public toilet in the same locality where deceased was staying. On knowing this, he rushed to the spot and saw that other witnesses i.e. PW-4 Atish and PW-6 9 APEAL-1375-03 Vikas took the deceased (then in injured condition) in an autorikshaw. Thereafter along with PW-6 Vikas and another person by name Chilya Adagale, PW-1 Sukhadeo carried the deceased in the autorickshaw to the Sasoon Hospital for treatment. According to the case of the prosecution while on the way to Sasoon Hospital, deceased made a dying declaration to PW-1 Sukhdeo and also to PW-6 Vikas and stated that present appellant and two other persons assaulted him with sharp weapon and with kick and fist blows. 11. When deceased was taken to Sasoon Hospital after about 6:00 p.m. or so in the same evening, he was examined and declared dead on arrival, by the attending Doctor. PW-1 Sukhadeo lodged complaint before the police which was treated as First Information Report and offence was registered against the present appellant and other co-accused for the offences charged against them. 12. Appellant was arrested on the next day i.e. on 16.1.2001 in the evening. At this juncture, it must be mentioned that it is the defence of the appellant that 10 APEAL-1375-03 he surrendered himself to the police and at that time the clothes (he was then wearing) were stained with blood and were recovered under the panchnama by the police. During the arguments, learned Advocate Ms.Gonsalvez for the appellant took an exception to such alleged recovery of blood stained clothes by submitting that it is unnatural to accept that any person will surrender to the police still wearing the clothes having blood stains. Again at this juncture the answer given by the accused during his examination conducted under the provisions of Section 313 of Cr.P.C. is of much importance. The said question No.46 and the answer of the appellant, are reproduced for ready reference as under : "Q.No.46 : Do you want to say anything more about this case ? Ans. : I was caught by police from my house and they had lodged false case against me." This answer do not suggest in any way that he himself surrendered to the police. As such, the 11 APEAL-1375-03 argument advanced on behalf of the appellant as to unnatural conduct of a person surrendering to the police station with blood stained clothes, is of no significance. 13. According to the prosecution, on 17.1.2001 two swords were recovered at the instance of appellant as per the provisions of Section 27 of the Evidence Act. During recording of evidence before the Sessions Court, prosecution examined 21 witnesses and relied on various documents such as F.I.R., spot panchnama, inquest panchnama, postmortem report, extract from MLC register of Sasoon Hospital and memorandum and discovery panchnamas. 14. Now coming to the evidence allegedly available against the present appellant, at the threshold it must be mentioned that though there are two eye witnesses - PW-18 & PW-19, both these witnesses turned hostile to the case of the prosecution and apparently barring their evidence the present case is based only on the circumstantial evidence and these circumstances are required to be analyzed in order to ascertain 12 APEAL-1375-03 whether the learned Additional Sessions Judge, Pune had rightly appreciated the said circumstances to come to the only hypothesis of guilt of the appellant and none else. 15. Circumstances alleged against the appellant are as follows :- [i] Motive to do away with the deceased is illicit relations appellant and also the deceased had with one woman by name Babita Naidu. [ii]Oral dying declarations made by the deceased to his brother PW-1 Sukhdeo and one PW-6 Vikas while deceased was being taken to Sasoon Hospital in an autorickshaw. [iii] Extra judicial confession given by the appellant confessing the fact of assaulting the deceased. Such extra- judicial confession was made independently to PW-5 (mother of deceased) and PW-3 13 APEAL-1375-03 (father of the deceased). [iv]Recovery of two swords on 17.1.2001 at the instance of the appellant and finding of blood of "AB" group on the said swords. [v] Recovery of blood stained clothes of the appellant at the time of his arrest on the evening of 16.1.2001 and finding of blood of "AB" group on the said clothes. 16. At this juncture, it must be mentioned that the blood of the present appellant/accused is independently analyzed and was found to be of "A" group, whereas the clothes of the deceased were smeared with blood of "AB" group. The Chemical Analyzer has not analyzed the blood sample of deceased for determining the "origin". 17. For the first circumstance as to motive, the substantive evidence of PW-1, PW-3 & PW-5 is vehemently assailed by learned Advocate Miss.Gonsalvez for the appellant. It is submitted that these 14 APEAL-1375-03 witnesses are interested witnesses, being brother and parents of the deceased and no independent witness was examined by the prosecution on the alleged illicit relations appellant had with one Babita Naidu. It is a factual position, as brought to our notice that Babita has not been examined. Moreover her parents and family members are also not examined. Even the neighbours of the appellant, deceased or said woman Babita were also not examined on this count. It is further submitted that other witnesses i.e. PW-4 Atish, PW-6 Vikas, PW-8 Datta Gaikwad, PW-9 Sanjay and two women alleged eye witnesses PW-18 & PW-19 did not say anything regarding such alleged illicit relations, present appellant and also the deceased had with Babita. It is vehemently submitted that though PW-4 & PW-6 happened to be the friends of the deceased, they did not mention anything regarding such motive. These arguments on behalf of the appellant are to be viewed in juxtaposition with the factual circumstance, which is also an admitted position, that appellant had a quarrel with the deceased few days prior to the death of the deceased 15 APEAL-1375-03 and due to which deceased had assaulted the appellant and infact criminal complaint was lodged against the deceased on this count. This circumstance prompts us to accept the testimony of PW-1, PW-3 & PW-5 though they are close relatives of the deceased and apart from them nobody else had commented on the illicit relations of Babita with the deceased and appellant. Though it is true that substantive evidence of Babita Naidu would have more strengthen the case of the prosecution so far as motive is concerned and though it would have been the best evidence, still non- examination of said Babita, for whatever reasons, cannot be taken as a mitigating circumstance to the case of prosecution and on that count the substantive evidence of PW-1, PW-3 & PW-5 cannot be discarded. 18. Again on this aspect of motive, it is submitted on behalf of the appellant that there is much time gap between the alleged illicit relationship deceased had with Babita and the death of the deceased on 15.1.2001. It is brought to the notice of this Court that as per the substantive evidence of prosecution 16 APEAL-1375-03 witnesses PW-1, PW-3 & PW-5, after 30.10.2000 there was no direct communication/contact between deceased and Smt.Babita and as such the motive of alleged illicit relations is a stale motive. On this aspect, the substantive evidence of PW-1, PW-3 & PW-5 again cannot be ignored in as much as according to them the deceased had taken Smt.Babita to Goa and they stayed there for about four months and after coming back she resided in the house of the deceased for few days and thereafter she was taken to her parents and in the intervening period appellant was visiting the deceased and giving threats of dire consequences and infact there was lodging of complaint, as mentioned above, leading to the arrest of the deceased. What is required to establish guilt of accused is the proof beyond reasonable doubt and what quantum of material is necessary to establish a particular fact, depends on the facts and circumstances of each case. So far as the aspect of illicit relations is concerned, in our view, the material brought on record through substantive evidence of PW-1, PW-3 & PW-5 is 17 APEAL-1375-03 sufficient and beyond reasonable doubt to accept that there was a motive for the appellant to do away with the deceased. Moreover whether or not there was communication/contact between deceased and Smt.Babita after 30.10.2000 till the death of the deceased, is of no significance. In other words, such alleged time-gap of two months, for apparently not having any direct communication, cannot be such a big period so as to accept the arguments advanced on behalf of the appellant to render the motive irrelevant. 19. Regarding second circumstance of oral dying declarations made by the deceased to his brother Sukhadeo (PW-1) and Vikas (PW-6) while on the way to the hospital, much is argued on behalf of the appellant and also shelter of various authorities is taken. It is further argued that considering the weak evidential value of oral dying declaration, there should not be two different versions coming from the different witnesses otherwise such oral dying declaration is required to be discarded. In order to appreciate this argument, the actual oral dying 18 APEAL-1375-03 declaration as stated before these two witnesses can be reproduced with advantage. Oral dying declaration before PW-1 "when my brother was carried to Sasoon Hospital, I asked him who had assaulted. At that time, he disclosed that Deepak Parte and his three associates had assaulted him with sharp instruments and with kick and fists". Oral dying declaration before PW-6 "when we carried Nitin to the hospital I asked him who had assaulted him at that time he disclosed that Deepak and his two friends had assaulted him with long and sharp instruments. We then took Nitin to Sasoon Hospital.". By pointing out the above substantive evidence of PW-1 & PW-6, it is argued that both the witnesses did not use the exact words as allegedly uttered by the deceased. On this count, ratios propounded by the following authorities were taken shelter of. The said authorities are as under :- [1] AIR 1991 SC 31 Baldev Singh Vs. State of Punjab [2] 1995(4) SCC 225(SC) Darshana Devi Vs. State of Punjab 19 APEAL-1375-03 [3] AIR 2000 SC 59 Heikrujam Chaoba Singh Vs. State of Manipur 20. After going through the ratios of the above authorities, it must be said that whether or not a particular dying declaration is to be accepted, is a question to be determined on the facts of each case and on availability of other attaining circumstances so as to have any corroboration to the case of the prosecution. In that view of the matter, we find that there is no much substantial variance in both the dying declarations and as such, in substance, the dying declarations are acceptable and cannot be doubted. Again on this aspect, it is brought to our notice by taking us to the relevant substantive evidence of PW-2 Dr.Shrikant of Sasoon Hospital and PW-15 Dr.Arjun C.M.O. of same hospital that the condition of the deceased was very much deteriorating and as such there was hardly any possibility of said victim taking the names of his assailants. We have gone through the substantive evidence of PW-2 20 APEAL-1375-03 Dr.Shrikant wherein he had opined that, "In the instant case, looking to the nature of injuries over the head and internal injuries death might have occurred within two minutes." We have also observed the substantive evidence of PW-15 Dr.Arjun wherein he had stated that, "I examined him and found that there was no spontaneous expression, pulse not palpable, B.P. was not accordble. No heart sound. No respiratory sound was there. Pupils were dialeted and fix and not reacting to light. After examination I declared him dead." 21. Medical witnesses inspected the deceased after his death whereas dying declarations were made when the victim was being carried in an auto-rickshaw to the Sasoon Hospital. Again the recording of FIR on the complaint of PW-1 is almost immediate after the incident & on declaration of the deceased as dead and as such hardly there was any scope for PW-1 and for PW-6 to concoct the story of dying declarations and 21 APEAL-1375-03 to take name of the present appellant along with other associates. 22. Again on the above aspect of oral dying declarations, our attention is drawn towards certain answer given by PW-6 during his cross-examination to the following effect. PW-6 had admitted in cross- examination that "it is true that Nitin himself did not speak anything on the spot." This answer cannot be taken in support of the defence in as much as it is not the case of the prosecution that on the spot there was some dying declaration made by the deceased Nitin. On the contrary, it is case of the prosecution that said dying declaration was made when deceased was being taken to Sasoon hospital in an auto-rickshaw. It is also tried to argue that there are certain contradictions as to who carried the deceased from the spot upto the auto-rickshaw, however, in our view this contradiction, as PW-6 & PW-4 stating story in rather variance, do not go to the root of the matter in as much as the proved factual position that deceased was taken in an auto-rickshaw in injured condition on the 22 APEAL-1375-03 spot and at last PW-1 & PW-6 were definitely present in the auto-rickshaw. 23. Again on the same aspect, as to oral dying declaration and contents thereof, it is brought to our notice that admittedly there is no mention of the names of the assailants when history of assault was given to the medical officer on duty. By pointing out this it is further argued that had it been the case of PW-1 & PW-6 knowing the name of at least the appellant, said name should have been told while giving the history of assault to doctor. During cross examination of PW-15 Dr.Arjun it is brought on record that relative who brought the patient did not inform the names of the assailants and in respect of the spot of the incident. What is mentioned is "brought by brother Sukhadeo Vitthal Tulse at 6:45 p.m. on 15.1.2001 with alleged history of assault at 5:00 p.m." When this aspect was put to the PW-1 during his cross-examination, the specific answer is given by PW-1 that he did not inform the doctor that Deepak and his friends had assaulted. According to the learned 23 APEAL-1375-03 Advocate Ms.Gonsalvez for appellant not giving the full history, still knowing the names of the assailants, is a mitigating circumstance and required to be viewed in favour of the appellant. Considering the situation, then prevailing, that the brother of PW-1 was assaulted severely and was brought to the hospital and was declared dead, in our view it is not warranted that each and every detail as to the history of assault, is required to be given to the medical officer. Needless to say that there is no such law requiring giving of such details at least to the medical officer. Admittedly all such details had been given by PW-1 while lodging the complaint and hence this argument also cannot be accepted. 24. On the third circumstance of extra-judicial confession, various authorities are cited, some of them are : [1] 1974 SCC (Cri) 657 Jagta Vs. State of Haryana [2] (2008) 17 SCC 128 Gopal Sah Vs. State of Bihar [3] AIR 2007 SC 2188 Ajay Singh Vs. State of Maharashtra 24 APEAL-1375-03 After going through the ratios propounded by the above authorities, no doubt it is an admitted position that extra-judicial confession is a weak type of evidence and if it is lacking in probability there would be no difficulty in rejecting the same. However whether or not to believe such extra-judicial confession is again a question dependent on circumstance of each case and the credibility of the witnesses. In other words, it must be said that on the facts and circumstances of each case, the evidence of extra-judicial confession is required to be assessed and accepted. 25. So far as the present case is concerned, allegedly appellant had made extra-judicial confession to the mother (PW-5) and father (PW-3) of the deceased. It is vehemently argued by learned Advocate Ms.Gonsalvez that considering the animosity between the appellant and the family of the deceased, it is improbable that the appellant would make extra- judicial confessions to the parents of the deceased. 25 APEAL-1375-03 It is further submitted that PW-3 & PW-5 are partisan witnesses, being parents of the deceased person. It is further argued that there was no reason to accept that appellant had confessed to