drp {1} Cri.Appeal No.191/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.191 OF 2010 Madhav s/o Sayyaji Redas APPELLANT Age-25 years, Occ-Labourer R/o Karla Bk. Tq-Biloli Dist-Nanded VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellant Mr. N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 23 rd June 2011 ORAL JUDGMENT (PER A.V.POTDAR. J.) : 1. By the present appeal, the appellant has challenged his conviction for an offence punishable u/s 302 and 201 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.5000/- with default stipulation to undergo further RI for one year and RI for one year and to pay a fine of Rs.3000/- in default of which to undergo further RI for 3 months, respectively, by the Additional Sessions Judge, Biloli, vide judgment and order drp {2} Cri.Appeal No.191/2010 dated 29.03.2010 rendered in Sessions Case No.18/2009. 2. Prosecution case, as unfolded during the trial, is as under : a) On 06.01.2009, at about 9.00 am the appellant himself appeared in Biloli police station and lodged a report (Exhibit-43) in respect of concealment of dead body of Madhav in a pipe. Pursuant to lodging of the said report, an offence at crime No. 1/2009 came to be registered against the appellant u/s 302 of the Indian Penal Code. b) When the appellant came in the police station, clothes on his person were stained with blood and he was holding an axe. Blood stained shirt (Article-5) and blood stained axe (Article-4) came to be seized from the appellant vide Panchanama (Exhibit-44). c) Investigation of the said crime was taken over by PW-11 Police Inspector Prakash Kulkarni. The investigating officer visited the place of incident, as disclosed by the appellant where dead body of a male was found. Thereafter, Inquest Panchanama (Exhibit-32) was drawn and the dead body was referred for Postmortem examination. Subsequently, spot Panchanama (Exhibit-13) was drawn. Blood mixed soil, plain soil and some stones, stained with blood, came to be seized from the spot of drp {3} Cri.Appeal No.191/2010 incident. Thereafter, statements of some witnesses came to be recorded. Clothes on the person of the deceased came to be seized vide Panchanama (Exhibit-18). d) The appellant was also referred for medical examination. On 07.01.2009 statements of some more witnesses came to be recorded. On 08.01.2009 the property, which was seized during the investigation, was forwarded to the Chemical Analyzer. On 09.01.2009, while in custody, the appellant made disclosure statement (Exhibit-45), which led to the recovery of one mobile handset (Article-9), which was seized under Panchanama at Exhibit-46. On 10.01.2009 blood sample of the appellant was collected and tested, of which report is at Exhibit-38. After receipt of the Postmortem report (Exhibit-31) and C.A. report and after completion of the investigation, charge sheet came to be filed against the appellant before the JMFC, Biloli. e) On being committal of the case to the Court of Additional Sessions Judge, Biloli, trial court framed charge (Exhibit-6) against the appellant for an offence punishable u/s 302 and 201 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. Prosecution, in support of its case, examined in all 11 witnesses. Defence of the appellant was of total denial and that he was forced to sign the report (Exhibit-43). The trial court, after appreciation of the evidence on record, convicted the appellant for an offence punishable u/s 302 and 201 of the drp {4} Cri.Appeal No.191/2010 Indian Penal Code and sentenced him as aforestated. 3. Admittedly, the case of the prosecution rests on circumstantial evidence. Considering the submissions advanced before us, it would be useful to advert to the evidence of material witnesses examined before the trial court. 4. The appellant has admitted the Postmortem report (Exhibit-31), which indicates the following injuries - 1. Incised wound over fale left side in front of left ear, horizontal eutend’s over left ear pinna & frigum of left ear edges are clean cut sharp margin 4 x 3 x 3 cm. 2. Incised wound over head behind left ear mastoid region eultnding medially up to angle of mandible edyes are clean cut sharp margin 6 x 6 x 3 cm. 3. Incised wound over occipital area below occipital protrubanle horizontal edyes are clean cut sharp margin 5 x 3 x 3 cm 4. Incised wound over left side of posterior upper of neck edges are clean cut sharp margin 2 x 1 x 1 cm 5. Incised wound over neck left side below th injury edyes are clean cut sharp margin 2 x 1 x 0.5 cm 6. Abrasion : small, multiple abrasion all over right and left side of chest (mammary region and below mammary region) and all over abdomen. Sub cutaneous tissue & muscles under the incised wounds are injured and haemotoma’s are drp {5} Cri.Appeal No.191/2010 present subcutaneous tissue under abrasion are echymosed and fine glots are present. According to the medical officer, incised wounds are caused by heavy sharp weapon. On internal examination of the dead body, fracture was detected under injury No.3 and occipital bone was fractured horizontally. Extradural haemotoma (100 gm) was found over occipital lobe of brain. The brain matter covering was pale. According to the medical officer, the cause of death was due to intra cranial hemorrhage due to head injury. Injuries mentioned in the Postmortem Report (Exhibit-31) are supported by the surface injuries noted in the Inquest Panchanama (Exhibit-32). Considering the evidence on record, there cannot be duality of opinion that death of deceased Madhav is a homicidal death. 5. It transpired from the evidence of PW-2 Yadav Rama Jaklod that on 06.01.2009, he was called on Bodhan-Biloli road near a school where dead body of Madhav was found kept in a cement pipe under a small bridge. He further states that there were marking of dragging of dead body up to the bridge. He also noticed blood on some stones, which were lying near the cement pipe. He also states about collection of blood mixed soil and plain soil by the police and drawing of scene of offence Panchanama (Exhibit-13). This witness has not been cross examined. drp {6} Cri.Appeal No.191/2010 6. PW-1 Mahadappa Motimukund, another Pancha witness to the spot Panchanama, has supported the evidence of PW-2 in respect of finding of the dead body in cement pipe below a bridge. At the same time, certain admissions are brought on record in his cross examination, on which much stress is given by learned counsel for the appellant and hence the same need to be considered with the angle as to whether the same affects the prosecution case or not. PW-1 states in his cross examination that he knew deceased as well as the appellant. He has further stated that on 05.01.2009 some programme was arranged for Moharram festival, which he had attended between 8 and 11 p.m. He saw that deceased was present in the said programme and had also performed one item. After the said programme was over, he went to his house while the deceased went to his house. Certain admissions are brought in his cross examination that relations of the deceased were on inimical terms with several local residents. He has further admitted that witness Chandrakant was on inimical terms with the appellant over some dispute relating to rent. Surprisingly, though this witness is cross examined at length, yet the fact that dead body of Madhav was found concealed in the pipe and was not easily visible to by passers, is nowhere challenged. Furthermore, the fact that dead body was recovered in presence of Pancha witnesses is also not disputed by the appellant. drp {7} Cri.Appeal No.191/2010 7. It is in the evidence of PW-5 Sheelabai Sayalu, sister of the deceased that on the day of the incident, her brother (deceased) had came to Karla from Pune. The deceased had disclosed her that some quarrel had taken place between him and the appellant. Thereafter, appellant and one Shrikant had came to their house to call the deceased, but as it was told to them that the deceased was sleeping, they had returned back. In the evening, after the deceased had finished his dinner, appellant had came to call him at their house and deceased had accompanied him. Thereafter, the deceased did not return. On the next day morning at about 8.30 a.m. she, after coming to know about finding of dead body of Madhav in a pipe, had rushed to the spot and in her presence the dead body was located. Certain injuries were noticed on the neck and head of the deceased. Though she states that her statement was not recorded by police, yet record shows that her statement was recorded during the investigation. Careful perusal of the cross examination of this witness reveals that her evidence in respect of deceased accompanying the appellant on the earlier day of the incident, discovery of the dead body and the way and manner in which the same was hidden, is not shaken at all. 8. It transpired from the evidence of PW-6 Chandrakant, cousin of the deceased, that on 05.01.2009, deceased had came to their village from Pune and had met him while he was proceeding to his house. In the evening, around 6.30 p.m. the deceased and the appellant had came to his grocery shop and requested him to drp {8} Cri.Appeal No.191/2010 accompany them to the programme of Moharram to which he had declined. On 6th January 2009, around 9.00 a.m. he came to know about death of Madhav. Accordingly, he visited to the spot and in his presence the dead body was discovered. He has admitted in the cross examination that from 6th January 2009 he was continuously with the police, but his statement was recorded for the first time on 12.01.2009 and till that time he had not disclosed that the appellant and the deceased had came to call him in the evening of 5th January 2009. He has denied that he is tenant of the appellant and had some dispute with the appellant over payment of rent of the shop. 9. It is in the evidence of PW-10 Dr.Nagesh that he had collected blood sample of the appellant and after conducting the pathological test, determined that blood group of the appellant is “O” positive and accordingly issued a letter (Exhibit-38). He has also produced the register and copy of entry at serial No.29 dated 10.01.2009 is at Exhibit-39. Evidence of Dr.Nagesh, PW-10 is not shaken in his cross examination. 10. We have heard learned counsel for the appellant so also learned APP, in the light of the evidence discussed above. Learned counsel for the appellant urged that the report / complaint (Exhibit-43), on the basis of which offence was registered, is lodged by the appellant himself and hence, the same is inculpatory in nature and as the same is self incriminatory, is drp {9} Cri.Appeal No.191/2010 not admissible in the evidence. It is further urged that the recitals of the spot Panchanama disclose that the dead body of the deceased was found at the spot as pointed out by the mother of the deceased and hence, it cannot be said that the dead body was discovered at the instance of the appellant. 11. Considering the fact that the case of prosecution rests on circumstantial evidence, the circumstances, incriminating against the appellant, can be formulated thus- 1. Dead body of deceased Madhav was discovered on the disclosure made by the appellant. 2. When the appellant reported in the police station, shirt on his person was found stained with blood. 3. Appellant was found carrying an axe stained with blood, while he reported in the police station. 4. Appellant had collected the deceased from his house in the previous night of the incident. 5. Blood found on the axe matches with the blood of the deceased. 6. Deceased and appellant were staying together at Pune and came together at Karla. 7. Death of Madhav is a homicidal one. 12. As pointed out by us above, learned counsel for the appellant has urged that the dead body was pointed out by the drp {10} Cri.Appeal No.191/2010 mother of the deceased and she is not examined by the prosecution. It is, therefore, urged that it cannot be inferred that the dead body was discovered at the instance of the appellant. We are not in agreement with this submission. It is rightly pointed out by learned APP that it has transpired from the evidence of the investigating officer that after the appellant reported in the police station they had gone to the spot disclosed by the appellant. Additionally, we may refer to the evidence of PW-5 Sheelabai, who states that in the morning of 06.01.2009, at about 8.30 a.m. her mother, who was attending Anganwadi school, was informed about the death of Madhav and then she reached at the spot. In the premise, it cannot be inferred that the dead body was pointed out by the mother of the deceased. As per the endorsement on Exhibit-43, the report was lodged in the police station around 9.30 a.m. on 06.01.2009 and the spot Panchanama was drawn between 11.00 and 11.45 a.m., however, prior to that inquest Panchanama was drawn between 10.00 and 10.45 a.m. Though it is mentioned in the spot Panchanama that mother of the deceased was present there, yet record does not disclose that the spot where the dead body was hidden was shown by the mother of the deceased. The record shows that the disclosure statement made by the appellant led the police to the spot where the dead body was discovered in presence of Pancha witnesses. There is no challenge to this aspect in the cross examination of the prosecution witnesses. Prosecution has clearly established, from the evidence of the Investigating Officer that the dead body of Madhav was discovered at the drp {11} Cri.Appeal No.191/2010 instance of the appellant. Therefore, we hold that the dead body was discovered at the instance of the appellant. 13. Learned counsel for the appellant urged that as the Pancha witnesses, to the recovery of axe, did not support the prosecution case and hence it has to be inferred that the recovery of axe is not proved. However, evidence of the Investigating Officer discloses that the shirt on the person of the accused so also the axe, carried by him, were not seized under disclosure memorandum of the appellant u/s 27 of the Evidence Act, but the shirt and the axe were produced by him and were seized under Panchanama (Exhibit-44). As these articles are seized from the applicant himself, hence it can safely be inferred that the recovery of these articles is proved. 14. Considering the observations of the Apex Court, in the matter of “State of Orissa V/s Brahmananda Nanda” (1976) 4 SCC 288, wherein it is observed that if the witness does not disclose name of the murder for a day and half, creates doubt about his creditability, and as PW-6 Chandrakant, though was with the police throughout, did not disclose about seeing appellant in the company of the deceased in the evening of 05.01.2009, we discard his evidence. However, evidence of PW-5 Sheelabai discloses that in the evening of 05.01.2009 the appellant had collected the deceased from his house to proceed to the Moharram festival and other than suggestion of denial, her evidence is not at drp {12} Cri.Appeal No.191/2010 all shaken even in her cross examination. Therefore, it can safely be inferred that the appellant was in the company of the deceased in the evening of the incident. 15. The appellant has admitted report of CA (Exhibit-5), which discloses that blood found on the clothes of the deceased, on the blade of the axe, on the stones and soil collected from the spot, was of “A” group. Blood group of the appellant is “O”. As per the CA report, the blood found on the clothes of the deceased, soil and stones, sent for examination, was of the blood group of the deceased. Even the blood found on the axe, carried by the appellant, was of the blood group of the deceased, which circumstance also goes against the appellant. 16. Evidence of PW-5 Sheelabai that the appellant and the deceased came together from Pune, is nowhere disputed by the appellant. Additionally, the Postmortem Report (Exhibit-31) and Inquest Panchanama (Exhibit-32), which are admitted by the appellant, clearly establish that the death of Madhav (deceased) is a homicidal one. 17. Thus, the circumstances, which are incriminating against the appellant, which we have discussed above, clearly establish that the chain of circumstances is complete, which unerringly point out to the guilt of the appellant and leave no reasonable ground for the conclusion consisting innocence of the drp {13} Cri.Appeal No.191/2010 appellant. In the premise, we are of the considered view that the conclusion drawn by the trial court that the appellant is guilty of the offence punishable u/s 302 and 201 of the Indian Penal Code, requires no interference. Consequently, the appeal, being sans merits, stands dismissed, confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel191-10