{1} Cri. Appeal No.292/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.292 OF 2010 Samadhbhai s/o Virjibhai Parmar APPELLANT Age-35 years, Occ-Driver R/o Bhatiya, Tq-Kalyanpur, Dist-Jamnagar (Gujrath) VERSUS 1. The State of Maharashtra RESPONDENTS 2. Hansabai Govindbhai Parmar, Age-28 years, Occ-Household R/o Bhatiya, Tq-Kalyanpur Dist-Jamnagar (Gujrath) ....... Mrs.Sadhana S.Jadhav, Advocate for appellant Mr. N.R.Shaikh, APP for respondent No.1. Mrs.K.P.Mutatkar, Advocate for respondent No.2 (Appointed) ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 18 th July 2011 ORAL JUDGEMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for offence punishable u/s 302 r/w 34 and 201 r/w 34 of the Indian Penal {2} Cri. Appeal No.292/2010 Code, and sentenced to imprisonment for life and to pay a fine of Rs.10,000/- with default stipulation of undergoing further RI for two years for the first offence and to suffer RI for 3 years and to pay a fine of Rs.1000/- in default of which to suffer RI for two months for the second offence, by the Additional Sessions Judge, Nandurbar vide judgment dated 23.06.2010, rendered in Sessions Case No.28/2008, by this appeal, questions correctness of his conviction and sentence. The trial court has further ordered that if the fine amount of Rs.10,000/- is paid by the appellant, the same be given to PW-11 Hansabai, present respondent No.2, wife of the deceased. 2. Prosecution case, as unfolded during the trial, may briefly be stated thus- a) On 19.07.2008, at about 8.00 am PW-2 Gobaji Gavit saw that a dead body was lying by the side of a road near his field and the deceased had sustained multiple injuries. PW-2, Gobaji, thereafter, rushed to hotel of PW-4 Suresh Gavit where PW-1 Gulabsing Gavit, village Police Patil, was summoned. Thereafter, all the three, PW-2, PW-4 and PW-1 went to the spot where the dead body was lying. PW-1 Gulabsing, Police Patil, lodged report (Exhibit-25) with Visarwadi Police station. Pursuant to the lodging of the report, offence at Crime No.55/2008 came to be registered against unknown persons. Thereafter, PW-20 Assistant Police {3} Cri. Appeal No.292/2010 Inspector Vijay Sonawane visited the spot. A photographer was also arranged, who had taken photographs of the dead body (Article-B). Thereafter, Inquest Panchanama (Exhibit-31) came to be drawn and the dead body was sent for Postmortem examination. b) Dr.Kiran Patil, PW-7, performed postmortem on the dead body and noticed the following external injuries on the person of the deceased- 1. Abrasion on forehead left side of size 4 x 3 cm. 2. Stab wound on face left side above mandible elliptical in shape, running posteriorly from left to right upward of size 3 x 2 x 1 cm 3. Incised wound on neck at cricoid level transverse in direction 2 x 1 x 1 cm in size. 4. Stab wound on supra sternal region (penetrating wound elliptical at entrance of size 8 x 3 x 2 cm wound of exit was in lower cervical region elliptical in shape 8 x 2 x 2 cm running posteriorly. 5. Stab wound in fifth right ICS elliptical in shape along with anterior axillary line running posteriorly medially and upward in size 3 x 2 x 1 cm. 6. Stab wound in sixth left ICS along with ant axillary line posterior left to right upward elliptical in shape in size 7 x 3 x 2 cm. {4} Cri. Appeal No.292/2010 7. Incised wound in left infra axillary region, running obliquely downward medially 4 x 2 x 1 cm in size. 8. Stab wound in epigenetic region, elliptical in shape running posterior inferiorly 7 x 3 x 2 cm in size part of peritoneal fat coming out of it. 9. Stab wound in left loin (lateral side) running posteriorly, left to right upward elliptical in shape 5 x 2 x 1 cm in size. 10.Stab wound lumber region, lateral to spine on left side, running anteriorly left to right upward, elliptical in shape 7 x 5 x 2 cm in size 11.Stab wound in infra-scapular region on left side running anteriorly, left to right upward, elliptical in shape 4 x 3 x 2 cm. 12.Stab wound in infra scapular region on left side, laterul to No.11, running anteriorly left to right upward, elliptical in shape 4 x 2 x 1 cm in size. 13.Fracture of 5th and 6th ribs on left side along the mid claviculer line. During the postmortem, it was noticed that the internal injuries were in the form of rupture wounds to lower lobe or right and left lungs each of 3 x 2 x 1 cm and ruptures of left ventricle. It was also noticed that the internal injuries were corresponding to the external injuries. Certain wounds were also noticed to abdominal wall and blood was collected in {5} Cri. Appeal No.292/2010 peritoneum and plural cavity. There was rupture in supra sternal regional of esophagus and in stomach. It was also noticed that there was stab wound on left lobe of liver and there was contused laceration over superior aspects of spleen. There was stab wound of 3 x 2 x 1 cm on left side in kidney running obliquely and medially. Partially digested food particles were noticed in the stomach and small intestine and fecal material in large intestine. c) According to the medical officer, the deceased must have died within 6 hours after his last meal and around 12 to 24 hours before the postmortem was conducted on 19.07.2008. As per the medical officer, the cause of death was due to cardiac arrest due to hemorrhagic shock resulting from multiple injuries. It was further opined that the injuries must have been caused by sharp pointed weapons. According to the medical officer, the elliptical shape of injuries might have been caused by sword and other incised small stab wounds might have been caused by knife. Accordingly, Postmortem report (Exhibit-41) came to be prepared. d) Clothes of the deceased came to be seized under seizure Panchanama. Thereafter, Spot Panchanama (Exhibit-29) came to be prepared. Tyre marks of a truck on the rough side strips near the spot at the distance of about {6} Cri. Appeal No.292/2010 15 feet from the dead body were noticed. Marks of dragging of a dead body from the tyre marks to the spot where dead body was lying, were also noticed so also blood stains were found on the track and mile stone showing Dhule 86 km was also noticed at the distance of 40 feet from the spot so also one currency note of Rs.100 denomination was found entangled with a bush. From the spot blood mixed soil as well as plain soil and stones stained with blood were seized. Thereafter, the photograph of the dead body was displayed all over with a request to identify the dead body and inform the police accordingly. The news of finding of unidentified dead body was flashed in newspapers as well as on local news channels. e) On 21.07.2008 the dead body was disposed of. On 29.07.2008 police constable from Jamnagar informed that the dead body was of Govindbhai from Bhatiya (Gujarat). On 30.07.2008, father of the deceased, PW-18 Premji Parmar, identified the photo and clothes of the deceased. Thereafter, statements of witnesses came to be recorded including the statement of PW-11 Hansabai, wife of the deceased. Accordingly, appellant and two others came to be arrested in connection with the said crime. f) While in custody, the appellant made voluntary disclosure (Exhibit-36), which lead to the recovery of a truck, {7} Cri. Appeal No.292/2010 which was met with an accident and was lying in abandoned condition on Dhule-Surat Highway near Vishnu Dhaba at Dahiwel. The appellant identified the truck and at the instance of the appellant one sword, stained with blood, was recovered from the tool box of the said truck, which came to be seized along with one blanket, leather belt and seat cover of the truck, under seizure Panchanama (Exhibit-37). Copy of the seizure Panchanama (Exhibit-37) was provided to the appellant and the appellant had also signed the same in token of receipt of the copy. g) On 13.08.2008 accused Dahyabhai made disclosure statement (Exhibit-89), which lead to the discovery of one knife, which came to be recovered vide seizure Panchanama (Exhibit-19). Thereafter the seized property was sent to Chemical Analyzer for examination. On 10.09.2008 test identification parade was conducted by PW-21 Tahsildar Deoram Ahire in which the witnesses identified the accused. Thereafter, charge sheet came to be filed against the appellant and original accused No.2, before JMFC, Nandurbar. h) On 16.12.2008, two more accused came to be arrested in the said crime. Thereafter, the further investigation was entrusted to PW-23, PSI Nilesh Nikam, who arrested accused No.3 Sikander and accused No.4 Anil and they were brought {8} Cri. Appeal No.292/2010 from Gujarat. Thereafter, supplementary statement of the hotel owner PW-14 Sonu Bishnoi came to be recorded. Thereafter supplementary charge sheet came to be submitted against the accused, who were earlier shown as absconding. i) On committal of the case to the Court of Sessions, initially, on 13.01.2009 charge was framed against appellant and accused No.2 at Exhibit-7 in which accused No.3 to 6 were shown as absconding. After arrest of accused No.3 and 4, additional charge (Exhibit-7A) came to be framed on 21.03.2009. Trial court charged all the accused for an offence punishable u/s 302, 201 r/w 34 and 120B of the Indian Penal Code. All the accused abjured their guilt and claimed to be tried. Prosecution, in support of its case, examined in all 23 witnesses. Defence of the appellants was of total denial. On appreciation of the evidence on record, trial court convicted the appellant as aforestated, however, acquitted the other accused of all the charges. Admittedly, acquittal of the other accused from all the charges as well as acquittal of the appellant for the offence punishable u/s 120B of the Indian Penal Code is not challenged. 3. Admittedly, the case of the prosecution rests on circumstantial evidence, as there is no eye witness to the incident. In order to effectively deal with the submissions advanced before {9} Cri. Appeal No.292/2010 us, it would be appropriate to advert to the evidence on record. 4. From the postmortem report (Exhibit-41) and inquest Panchanama (Exhibit-31) coupled with the evidence of Dr.Kiran Patil (PW-7), it is crystal clear that death of Govind (deceased) is a homicidal one and by no stretch of imagination it can be inferred that it was an accidental death. 5. PW-10, Dileepbhai Parmar, cousin of the deceased states that he is acquainted with the deceased as well as with the appellant and he also knew that the deceased was working on the truck of the appellant since one year prior to the incident. He has further deposed that on 26.07.2008 while returning from Solapur, he noticed a poster stuck on the wall with photograph of the deceased Govind, which he identified and accordingly informed PW-18 father of the deceased. According to him, deceased Govind was working with the appellant at the relevant time. Omission has been duly proved in his cross examination that he has not stated in his statement before police that he had seen Govind proceeding along with the appellant. He tried to explain that as police did not ask him in this respect, he did not disclose the same to the police earlier. 6. It transpired from the evidence of PW-11 Hansabai, wife of the deceased that 6 months prior to the incident the deceased was serving as a cleaner on the truck of the appellant. {10} Cri. Appeal No.292/2010 She states that she gave birth to a female child on 06.07.2008 and at that time her husband (deceased) was with her till she was discharged from the hospital on 14.07.2008. On 14.07.2008 her husband (deceased) boarded on the truck of the appellant at 2.30 p.m. at Jamnagar while she was shifted to the house of her brother in Jamnagar itself. On 18.07.2008 around 4.20 p.m. deceased contacted her on phone and informed that he was with the appellant and will be back within 2 / 3 days. The deceased had contacted PW-11 from his mobile on the mobile of her brother of which she had also given numbers. She further deposed that thereafter for 3 / 4 days she continuously tried to contact her husband on his mobile, at least 10 to 15 times daily, but the mobile was switched off. Her father in law had already lodged a missing report in the Kalyanpur police station. PW-10 Dileep had informed her father in law about noticing a poster with photograph of the deceased. Thereafter, they had been to Visarwadi police station where they identified the photograph and the clothes of the deceased. In cross examination, she states that though her husband had informed her that he was boarding the truck of the appellant, yet she had no personal knowledge as to whether the deceased had really along with the appellant on his truck or not. Omission has been duly proved in her cross examination that she had not disclosed the mobile number of her brother while her statement was recorded by the police. She denied that her husband had informed her that he was not along with the appellant. She states that while she had a talk with her husband {11} Cri. Appeal No.292/2010 on phone on 18.07.2008, she was not knowing as to who else were present along with her husband and the appellant in the said truck. Admittedly, the appellant, in answer to question No.29 of his examination u/s 313 of the Code of Criminal Procedure, has stated that on 18.07.2008 at about 4.00 p.m. he was along with the deceased. Thus, admission given by PW-11 is of no avail to the defence. 7. It is in the evidence of PW-14 Sonubhai that he runs hotel Vishnu near Dahiwel village. On 19.07.2008, he had noticed that a truck, bearing No.GJ-12-6501, was standing opposite his hotel and was met with an accident. He had also noticed that 5/6 persons were sitting in the adjacent field, who were injured and they were connected with the said truck. According to him, nature of the injuries sustained by the said persons, was minor. On 03.08.2008 police had been to his hotel along with the appellant and accused Dahyabhai. He identified them as the persons amongst injured who were sitting near the truck which had met with accident. In the test identification parade conducted by the PW-21 Tahsildar, he had identified the appellant and accused Dahyabhai. The injured persons had left the truck in damaged condition and it was there for about 10 to 15 days. He had intimated the Dahiwel police that the truck had met with an accident, however inspite of his intimation the police from Dahiwel did not visit the spot where the truck was standing. Thereafter police from Visarwadi had deputed a policeman to guard the truck. {12} Cri. Appeal No.292/2010 After the Test Identification parade, his supplementary statement was not recorded by the police. 8. It is in the evidence of PW-18, Premji Parmar, father of the deceased, that he was residing at village Bhatiya in Gujarat State along with his family members, including the deceased. At the material time deceased was working as a cleaner on the truck owned and driven by the appellant, since 3 months prior to the incident. According to this witness, deceased Govind had left the house on 14.07.2008 for Jamnager to meet his wife, PW-11 Hansabai, from where he was to join his duty on the truck owned and driven by the appellant. Ashok, brother of PW-11 Hansabai had informed him that deceased had contacted PW-11 Hansabai on phone and had informed that he will return to Bhatiya within two days. He tried to contact the deceased on his mobile but it was switched off. He also made inquiry with his relatives as to whether the deceased had been to their house. He had also contacted the appellant on 25.07.2008, who had informed that the deceased had taken Rs.500/- and had left, however he did not inform the whereabouts of the deceased. Therefore, on 28.07.2008 he lodged a missing report in Kalyanpur police station. On 29.07.2008, around 2 to 3.00 pm PW-10 Dileep informed him about noticing poster along with the photograph of the deceased. On 30.07.2008, he along with PW-10 Dileep had been to Visarwadi police station where he identified the photograph as well as clothes of the deceased. In cross examination, he states that being residents of {13} Cri. Appeal No.292/2010 the same village, he knew the appellant and other accused. He admits in the cross examination that he has no personal knowledge as to exactly at what time on 14.07.2008 the deceased had boarded on the truck of the appellant. He further admits that he has not stated in the statement recorded by police that during his conversation with the appellant the appellant had informed him that 4 unknown persons fled with his truck and the appellant somehow managed to escape. Evidence of PW-18 regarding appellant owning and driving the said truck and deceased working on the said truck as a cleaner, is nowhere challenged by the appellant. 9. It transpired from the evidence of PW-19 Chetan Suryawanshi that on 19.07.2008, at about 8.30 am he had been to his field, which is situated on Dhule-Surat Highway, where he noticed that one truck had met with and accident and was parked near his field. He also noticed that 6 persons were sitting in his field in injured condition and they were connected with the said truck. The said persons had requested him to provide water, which he had provided to them. Thereafter, the said persons had left the field, but the truck was lying idle there for about 15 days. He also identified the appellant and accused Dahyabhai in the Test Identification Parade, as the injured persons whom he had given water on 19.07.2008 in his field and they were connected with the said truck. Evidence of this witness is not shaken even in his cross examination. {14} Cri. Appeal No.292/2010 10. Though the Pancha witnesses to the memorandum at Exhibit-36 and Recovery Panchanama at Exhibit-37 did not support the prosecution, yet the prosecution got the same proved through PW-20 the Investigating Officer. 11. We have heard learned counsel for the appellant, learned APP for respondent State and learned counsel appointed on behalf of respondent No.2. As pointed out by us above, since the case of the prosecution rests on circumstantial evidence, the same are enumerated hereunder- 1. The deceased was working on the truck owned by the appellant. 2. On 18.07.2008, when the deceased contacted his wife PW-11 Hansaben, the deceased was with the appellant at 4.00 p.m. 3. Dead body of the deceased was found in the early hours of 19.07.2008 and multiple injuries were found on the dead body. 4. Truck owned and driven by the appellant was found met with an accident in the early hours of 19.07.2008. 5. Recovery of blood stains weapons from tool box of the truck at the instance of the appellant. 6. Dead body of the deceased was found dragged where tyre marks of truck were noticed. 7. Death of deceased Govind is a homicidal death. {15} Cri. Appeal No.292/2010 8. Death of the deceased is caused within 6 hours of last meal and within 12 to 24 hours before the post mortem was conducted on 19.07.2008. 9. Recovery of currency note at the place where the dead body was found. 12. Learned counsel for the appellant has urged before us that the distance between the place where the dead body was found and where the truck was lying, is about 10 to 12 km and hence it cannot be inferred that the evidence on record is sufficient to link the appellant with the death of Govind. It is further urged that in view of evidence of PW-19 Suryawanshi and hotel owner PW-14 Sonu, it is clear that 6/7 persons were found in the field and hence it cannot be inferred that the appellant is the author of the injuries found on the person of the deceased. It is also urged that the Panch witnesses to disclosure memorandum (Exhibit-36) and seizure Panchanama (Exhibit-37) did not support the prosecution case and hence the same cannot be linked with the appellant. It is further urged that the CA report is inconclusive with regard to the blood found on the weapon which was allegedly recovered at the instance of the appellant and hence the CA report would be of no avail to the prosecution to prove the guilt of the appellant. In the premise, it is urged that as the chain of circumstances is not established positively to point out the guilt of the appellant and hence the appellant is entitled to be acquitted by allowing the present appeal. {16} Cri. Appeal No.292/2010 13. While opposing these submissions, learned APP so also learned counsel appointed on behalf of respondent No.2, urged that there is no challenge to the evidence of PW-18, father of the deceased that the appellant is the owner and driver of the said truck and the deceased was working on the same as a cleaner. It is further urged that considering the answer given by the appellant to question No.29 in his examination u/s 313 of the Criminal Procedure Code, it has to be held that the deceased was in the company of the appellant on the truck owned and driven by him, on 18.07.2008 and as the dead body was found in the early hours of 19.07.2008, it was for the appellant to explain as to how the death has occurred, which he has not explained. It is further urged that the deceased had no enmity but anonymity with the people where the dead body was found. Even the suspicion of robbery cannot sustain in view of the fact that one currency note was found lying near the dead body. It is further urged that though a plea of alibi is taken by the appellant, yet he has not explained the same. It is also urged that though the disclosure memorandum (Exhibit-36) and recovery Panchanama (Exhibit-37) are not proved by the Panch witnesses, yet the same have been proved by the Investigating Officer in his evidence and hence implicit reliance can be placed on the same. 14. Considering the fact that the prosecution case rests on circumstantial evidence, it may be useful to advert to the {17} Cri. Appeal No.292/2010 observations of the Apex Court in “Krishna Ghosh V/s State of West Bengal” 2009 ALL MR (Cri) 2104 (SC). The Apex Court, in the said judgment has observed thus- “11.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. 12. In Hanumant Govind Nargundkar and Anr. V/s State of Madhya Pradesh (AIR 1952 SC 343), it was observed thus- “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 13. A reference may be made to a later decision in Sharad Birdhichand Sarda V/s State