1 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.384 OF 2010 Arfanaya S/o.Abas Chavan, Age-32 years, Occu-Agriculture Labourer, R/o.Nipani Jalgaon, Tal.Pathardi, Dist.Ahmednagar APPELLANT VERSUS The State of Maharashtra Through Police Station, Parner, Taluka Parner, Dist. Ahmednagar RESPONDENT Mr.N.K.Kakade, learned counsel for the appellant. Mr.S.D.Kaldate, learned A.P.P. for respondent State WITH CRIMINAL APPEAL NO.478 OF 2010 Togrya Pachya Bhosale, Age-Major, Occu-Agriculturist, R/o.Sayyad Meer Loni, Ta.Ashti, Dist. Beed APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.Vijay Sharma, learned counsel for the appellant. Mr.S.D.Kaldate, learned A.P.P. for respondent State 2 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 27/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants in both these appeals were convicted for an offence punishable u/s. 302, 201 r/w. 34 of the IPC, for which they were sentenced to suffer life imprisonment and to pay fine of Rs.1,000/- each with default stipulation to undergo RI for one year for the first offence and sentenced to suffer RI for 5 years and to pay fine in the sum of Rs.1,000/- each with default stipulation to undergo RI for 6 months for the second offence in Sessions Case No.100/2009 awarded by the Additional Sessions Judge, Ahmednagar by its judgment and order dated 25/08/2010. The appellants have questioned the correctness of their conviction and sentence in these appeals. As both these appeals arises from one and the same judgment in Sessions Case No.100/2009, both these appeals to be disposed of by way of common judgment. 2. Such of the facts as are necessary for the decision in these appeals can be summarized as follows : (a) On 28/09/2008, Police Head Constable Dattatraya Rambhau (P.W.No.3) was on P.S.O. duty in Parner Police Station. Around 21.50 hours or so, phone call was received in the police station from Avinash @ Andusya Lazim Kale (P.W.No.4) that his father 3 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 was killed by cutting the neck by 4 persons and those persons ran away from the spot. He requested to send the police at the spot. Informer also disclosed the names of those 4 persons. Accordingly P.W.No.3 recorded information at station diary entry no.35. P.W.No. 3 then informed to Supe Police O/p. to A.S.I. Somwanshi and P.S.I. Mali, which information is also entered at station diary entry no.36 (Exh.34). (b) A.S.I. Vikas Dhondiba Somwanshi (P.W.No.13) attached to Supa O/p. on receipt of information from P.S.O. Parner Police Station visited the place of incident alongwith P.S.I. Mali (P.W.No.14). Dead body was sent to Parner alongwith P.S.I. Mali. Wife of deceased by name Dekhawan alongwith others have came to Supe O/p. where P.W.No.13 recorded complaint of Dekhawan at Exh.28. Said complaint at Exh.28 was forwarded with report of P.W.No.13 at Exh. 29 to Parner Police Station. On the basis of complaint at Exh.28, offence/crime was registered at CR No.293/2008 u/s. 302 r/w. 34 of the IPC. Investigation in CR No.293/2008 was entrusted to P.S.I.Rajendra Mali (P.W.No.14). (c) During the investigation, P.S.I. R.P.Mali (P.W.No.14) then attached to Parner Police Station conducted inquest panchnama Exh. 37 on the dead body of Lazim at the spot before the dead body was sent to Primary Health Center, Parner. Due to darkness, during the night hours, spot panchnama was not prepared. 4 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 (d) Dr.Prasad Kamble (P.W.No.6) Medical Officer attached to Primary Health Center, Parner, conducted autopsy on the dead body of Lazim on 29/09/2008 in between 11.00 a.m. to 1.35 p.m. During examination of the dead body, he noticed following external injuries - 1. Incised wound on the Rt.hand dorsal aspect, size about 6 cm x 2 cm x 1.5cm/ Edges of the wound are sharp. Caused probably by sharp cutting object. Nature of the wound is simple. 2. Incised wound over the left wrist joint at ulnaro aspect 6 cm x 3 cm x 3 cm. deep. Edges of wound are sharp probablu caused by sharp cutting object – simple. 3. Incised wound over left little finger (at base) Bone seen – fracture dislocation of the finger at base of 5th meta carpel bone. Edges of the wound – sharp cutting. Grevious. 4. Huge contused lacerated wound over the neck at the anterior aspect, starting from middle of the neck till below the left ear, (below left jaw). All internal structure of neck – seen. Size 15 cm x 5 cm x 7 cm deep. (i) Fracture of upper part of trachea, (ii) cut ends of carotid Artery and cut end of external jugular veins seen, (iii) cut muscles of neck seen. 5. Huge wound below (1 cm below the wound) injury no.4 (around neck) at the base of the neck. 10 cm x 5 cm x 8 cm. deep. Injury Nos.4 and 5 are caused probably by sharp, hearty object – Grevious. All above wounds are anti-mortem wounds. 5 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 On internal examination of Thorax - cut throat, carotid cartilage cut from trachea. Both ventricles and Atrea of heart empty. Left carotid artery cut at wound site. Left external jugular vein cut. According to him, probable cause of death is due to Vasovagal and Hypovolmic shock due to huge incised wound around the neck leading to cut throat and cut. Major blood vessels. Accordingly he issued post mortem report at Exh.40. He further opined that the injuries no.4 and 5 are sufficient to cause death in the normal course. According to him, all the injuries are possible due to sharp cutting instrument. (e) P.W.No.14, during further investigation on 29/09/2008, drew spot panchnama (Exh.48) in presence of witnesses. While drawing spot panchnama, he collected sample of controlled soil and blood mixed soil from the house of the complainant and also from the place where the dead body was found lying, one mat soaked with blood (Article 1). On that day, he had recorded statements of witnesses. On the same day, clothes on the person of the deceased were seized under panchnama Exh.49. All those clothes were found soaked with blood. On 16/10/2008, property seized under panchnama Exh.48 and 49 was sent to Chemical Analyser with Police Naik Bhausaheb (P.W.No.10) alongwith covering letter. Appellant Arphanya (Appellant in Criminal Appeal No.384/2010) was arrested on 22/01/2009. Till then, other 3 accused/suspect were not traced and were absconding. Further to the completion of 6 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 investigation, charge sheet was filed against the appellant/accused Arphanya in the Court of J.M.F.C. Parner. (f) It appears that appellant Togrya Bhosale (Appellant in Criminal Appeal No.478/2010) came to be arrested in connection with this CR on 04/05/2009. After arrest of appellant accused Togrya, further investigation in the crime was entrusted to P.S.I. Gopal Gulabrao Bhavsar (P.W.No.8) attached to Parner Police Station. During investigation, while in custody, the appellant accused Togrya made disclosure statement on 06/05/2009 in presence of panch witnesses, which was recorded under memorandum statement (Exh. 43), which leads to the discovery of one sickle conceded below one tree which was seized under panchnama Exh.44 and sent to Chemical Analyser. Thereafter, on 22/05/2009, supplementary charge sheet was filed before J.M.F.C. Parner against the appellant accused Togrya. (g) On committal of trial to the Court of Sessions, learned Lower Court framed charge at Exh.9 against the appellants for an offence punishable u/s. 302, 201 r/w. 34 of the IPC, to which appellants pleaded not guilty and claimed to be tried. Prosecution have examined in all 14 witnesses to prove the guilt of the appellant accused. Defence of the appellant is of total denial and their false implication in the present crime. On appreciation of the evidence of prosecution witnesses, learned Trial Court was pleased to convict 7 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 and sentence the appellants as stated above, which judgment is impugned in the present appeal. 3. For effective appreciation of the submissions of learned counsel for appellants and that of learned A.P.P. for respondent State, it is necessary to advert to the evidence of material witnesses. The conviction of the appellants is based mainly upon the evidence of P.W.No.1 Dekhawan, P.W.No.2 Anitan and P.W.No.4 Avinash @ Andushya, who claimed that they have seen the appellants at the material time carrying deceased Lazim and evidence of P.W.No.7,8 and 11 about the recovery of incriminating articles, instrument of alleged assault at the hands of appellant in Criminal Appeal No. 478/2010. 4. For the sake of convenience, in the remaining body of the judgment, appellant in Criminal Appeal No.384/2010 is referred as accused no.1 and appellant in Criminal Appeal No.478/2010 is referred as accused no.2. 5. It transpired from the evidence of Dekhwan Lazim (P.W.No.1), the wife of deceased that she is residing at village Astagaon with her deceased husband, her son Avinash (P.W.No.4), her daughter in law Rekha, her daughter Anitan (P.W.No.2). Accused no.1 is the husband of Anitan (P.W.No.2). Their marriage was solmnised about 10-12 years back. Since last 4 years prior to the incident, her daughter 8 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 Anitan was residing with them. Their marriage took place about 10-12 years back. As accused no.1 was not behaving properly, her daughter Anitan was residing with them from last 4 years. She has further stated that accused no.1 was demanding Rs.50,000/- from her late husband and was threatening if the amount demanded was not paid, then accused no.1 will cut off head of her husband. Accused no.2 and the absconded accused were boosting to accused no.1. She has further stated that 2 days prior to the incident, both the accused with absconded accused came to her house on their motor-cycle. Accused no.1 demanded money from her late husband and threatened him that he will cut of his head. She has further stated that the incident took place on the day of festival of bullocks known as ‘Pola’. On that day, in the morning, both the accused alongwith absconded accused had came to their house and threatened them. In the evening, bullocks were decorated. Her son had taken the decorated bullocks to the village. At that time, she herself, her daughter, her daughter in law also accompanied her son P.W.No.4 to the village leaving back deceased Lazim at the house. They remained in the village till the festival was over. She has further stated that around 7.30 p.m., when they were returning to house, she had noticed that 2 accused and the 2 absconded accused were carrying something in the sack from their house and were proceeding towards the agricultural land. She and others ran behind them. Both the accused and others abandoned the sack and ran away from the spot. Then all of them came to their house. On their entry, 9 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 they saw pool of blood inside the house. Her husband Lazim was not present in the house. Hence all of them ran towards the place where the sack was left. When the sack was opened, they found dead body of Lazim in the sack. His neck was found partially cut. She has further stated that thereafter her son went to village to call the police. On arrival of police, dead body was taken to Supa. She and others accompanied Police to Supa O/p. where her complaint Exh.28 was recorded. She has further stated in her evidence that she had identified the accused and others in the focus of light coming from the house of neighbourer Poonawala. She has also stated that they noticed dripping of blood from their house to the place where the sack was found abandoned. She has stated in her cross examination that dispute between her daughter Anitan with accused no.1 was placed before Panchayat of the community but there was no solution in the said meeting. She has further stated that her another grand daughter Sarika was murdered after she was residing separately from her first husband. In order to settle that dispute, her husband and her son in law had obtained loan from different persons which was remain un-paid. She has further stated in her further cross examination that her son was convicted in the case of robbery and was detained in the jail at Pune. She has further stated that her family was not willing to send her daughter Anitan to co- habit with accused no.1 and on this ground, there was dispute in between their families. In her further cross examination, she has admitted that their house was surrounded by trees at the eastern 10 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 side like custard apple, tamarind and others. She has also admitted that the accused are not resident of one village, but they are residing separately in different villages. Suggestion was given to her in her further cross examination that on the day of incident, there was Sharawan/Bhadrapad no moon day (Amavasya) and there was full darkness during the night which suggestion was denied. Omissions are proved in her further cross examination that accused no.1 was not treating properly to her daughter and hence she was residing with them. Accused had came to their vasti in the morning of the day of the incident. She had seen accused in the focus light coming from the house of Poonawala. Lazim was alone at home. All these facts were not found recorded in her complaint at Exh.28. In her further cross examination, she has admitted that her daughter is residing in the house situated near the ST bus stop. She has stated in her further cross examination that one of her sister Badami is residing in Raitale village. Daughter Inka was married at village Ghospuri. Daughter of Inka namely Sarika ran away with absconded accused Mahimanya. They were residing together for about 2 years. Accused no.2 acted as a mediator to settle the dispute between their family and the family of Mahimanya for which Rs.1500/- were paid to them. She has admitted that Rs.80,000/- were paid for the settlement of the matter before the Community Panchayat and accused no.2 is the maternal uncle of Mahimanya who is r/o. Sayyadmir in Dist.Beed. She had further admitted that they have gone to village around 6.00 p.m. for the procession of the 11 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 festival. In her further cross examination, certain omissions were brought on record that accused no.2 and absconded accused Mahimanya were speaking in the manner like Sasanya. Prior to 2 days of the incident, accused no.2 and absconded accused Mahimanya came to their house and threatened to cut off the head of her husband if the demanded amount is not paid. House of Poonawala is situated at the western side of their house, 3 houses of Kale are situated on the same side. 6. It is in the evidence of P.W.No.2 Anitan Chavan, daughter of P.W.No.1 that accused no.1 is her husband. Their marriage took place about 15 years prior to the incident. Since last 3 to 3 ½ years, she was residing with her parents as accused no.1 was addicted to liquor, playing gambling and was not properly co-habiting with her. He has also asking her to bring Rs.50,000/- from her husband and then only he will co-habit with her. While giving evidence about the incident, she has stated that the incident took place on the day of ‘Bhadrapad Pola’. 2 days prior to the incident, appellants/accused and absconded accused had been to the residence of her father, at that time, accused no.1 and his brother Astanya approached her while accused no.2 and accused Mahimanya stopped at some distance. Her husband told her father to pay Rs.50,000/- within 2 days and on failure, they will cut off his neck. She has stated that in the morning, both the accused alongwith other 2, were wandering near her house on motor-bike. At about 5 to 5.30 p.m., she 12 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 alongwith her mother P.W.No.1, brother P.W.No.4 Avinash, sister in law Rekha had been to village alongwith the decorated bullocks leaving behind their father alone in the house. They returned back to their house around 7.30 to 7.40 p.m. On their way, they noticed that 4 persons were carrying something in the sack, who were coming from their house and were proceeding towards the agricultural field. She had identified the accused and 2 others in the light coming from the house of Poonawala. She has further stated that when appellants/accused and the others noticed that we were approaching towards house, they dropped the sack and ran away from the spot. She has further stated that when they reached at the house, she did not found her father in the house. There was pool of blood in the house. Hence all of them ran towards the sack abandoned by those 4 persons. They noticed dead body of her father in the sack and his neck was found partially cut. She has further stated that knives were found thrusted in his mouth and his mouth was found torned. She has further stated that blood was found dropped from the house till the place where the sack was found abandoned. Omissions were brought in her cross examination that on 26th, accused no.1 and his brother Astanya came to village Astagaon to their house. Brother of accused no.1 demanded the amount within 2 days. On Sunday, since morning, accused were wandering near their house on motor-cycle. She saw the accused and others in the light coming from the house of Poonawala. She had seen injuries on the hand of her father and injury by knife on his 13 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 cheek. All these facts are not found recorded in her police statement. She has admitted in her cross examination that no complaint was lodged with the police about the alleged harassment by accused no.1 on account of payment of money and threats given to her father. 7. It is in the evidence of Avinash @ Andusha Lazim Kale (P.W.No. 40 son of P.W.No.1 and brother of P.W.No.2, while giving evidence about the incident, stated that 2 days prior to the incident, accused and 2 others came on motor bike and threatened to their father to cut his head and kill us. On the day of ‘pola’, he alongwith his family members had been to village with decorated bullocks. When they were returning to their house, he had seen 4 persons taking something from their house and moving from backside. He identified them as they were his near relatives. Those persons left the sack and ran away. He gave further evidence as to what he noticed which is in the similar manner like P.W.No.1 and P.W.No.2 . He has also stated that he noticed blood stains from his house to the place where the sack was abandoned and he had seen the accused in the focus light coming from the house of Poonawala which is situated to the backside of their house. Omissions are also proved from his evidence that they took something from their house. He identified the accused since they were his close relatives. Injuries were found on the right hand and cheek of his father. All these facts are not recorded in statement before police. He has admitted in his further cross examination that number of criminal cases are pending against him 14 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 in the Parner Court. He has denied that his sister P.W.No.2 and his brother in law Mantrya were prosecuted by accused no.1 in Pathardi Court as accused no.1 was assaulted by them. He has further admitted that he has not lodged any complaint about the alleged threats given by the accused on 26th. According to him,the land of Poonawala is situated at the southern side of their house. In his further cross examination, omission was brought on record that his father Lazim was sick and remain in the house but this fact is not recorded in his statement before police. On the contrary, portion marked A from his police statement was proved through the Investigation Officer as he has stated in his police statement that on the day of incident, his father had gone to Supa and after his return, they went with the bullocks. His father had gone to his sister at village Waghunde on that day. 8. Apart from the evidence of these 3 witnesses, prosecution has further relied upon the recovery of sickle at the instance of accused no.2 which was recovered under seizure memo at Exh.44 and proved through the evidence of panch witness P.W.No.7 Nandkumar More and P.W.No.11 Baban Kale and the Investigation Officer Gopal (P.W.No.8). On perusal of evidence of P.W.No.7, it reveals that he has not supported the prosecution about the recovery of sickle at the instance of accused no.2. Even then he was not declared hostile and cross examined by the prosecution to clear the facts about the admissions given by him in his cross examination. So also we found 15 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 that the evidence given by P.W.No.11 Balu is not reliable evidence. This evidence required to be read in the light of evidence of Investigation Officer to the extent of recovery through whom prosecution tried to get proved Exh.43 and Exh.44. This recovery has taken place after the span of 9 months. By no stretch of imagination, it can be said that the blood could have found on the sickle which was admittedly recovered after a span 9 months. Apart from it, this weapon was recovered from the open space where easy access is available to the public at large. Considering this aspect, we discard the evidence in respect of the recovery of the weapon allegedly used during the commission of the offence. 9. We have heard learned counsel for respective appellants and learned A.P.P. for State. Learned A.P.P. supports the reasoning recorded by the learned lower court. 10. During the course of submissions across the bar, it is rightly urged on behalf of the appellants the judgment of conviction was passed against the appellants only relying upon the evidence of P.W.No.1 wife of deceased Dekhawan, P.W.No.2 Anitan daughter of the deceased/wife of accused no.1 and P.W.No.4 Avinash @ Andushya, son of the deceased, who had seen the appellants/accused and 2 absconded accused in the light coming from the house of Poonawala. It is rightly submitted across the bar that this evidence is an proved omission. It is also rightly pointed 16 Criminal Appeal No.384 of 2010 with Criminal Appeal No.478 of 2010 out by the learned counsel for the appellants that on perusal of the spot panchnama Exh.48, clearly shows that house of Poonawala is not situated at the southern side of the house of alleged eye witnesses, as stated by them in their evidence. On the contrary, the spot panchnama discloses that no residential houses are situated in the close vicinity of the house of these witnesses. Spot panchnama is silent on the point firstly that the house of Poonawala is situated in the land towards the southern side of the house of these witnesses, and secondly that any electricity facility is available in the said land or in the house constructed in the said land. On the contrary, admissions are given by the witnesses that said Poonawala is not residing in his property and the property was un-used. A clear-cut admission was given by the Investigation Officer Shri.R.P.Mali in his cross examination that due to entire darkness around the spot, spot panchnama was not prepared during the night hours. Apart from it,