1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 186 OF 2008 Raja s/o Yadavrao Sonpasare, age 31 yrs., occ. Nil, r/o Sarfraz Nagar, Parbhani. ...Appellant VERSUS The State of Maharashtra, through the police station, Nanalpeth, Parbhani, Tq. And Dist. Parbhani. ...Respondent ..... Shri J.M.Murkute, advocate for the appellant Shri K.S.Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 04.03.2010. ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The present appeal is directed against the judgment and order dated 25.4.2008, rendered by the learned Adhoc Additional Sessions Judge-1, Parbhani, in Sessions Case No. 116 of 2 2007 convicting the appellant for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 500/- in default of payment of fine to undergo further R.I. for two months for offence punishable under Section 302 of the Indian Penal Code; and also sentencing him to suffer R.I. for one year and to pay fine of Rs. 500/- in default of payment of fine to undergo further R.I. for one months for offence punishable under Section 201 of the Indian Penal Code; and also directing that both the afore said substantive sentences to run concurrently. 2 The factual matrix of the prosecution case can be unfolded as under :- It is the case of the prosecution that PW12 Police Sub- Inspector Shrirang Ambhore was attached to Nanal Peth police station, Parbhani at the relevant time I.e. on 29.4.2007 and at about 1.30 p.m. on the said date, he received a telephone call from on duty Police Head Constable Mr. Shaikh that three persons informed him that they saw a dead body in the safety tank in a house in Sarfraz Nagar, Parbhani, and therefore, PW12 PSI Ambhore immediately rushed to Nanal Peth police station, Parbhani and found three persons sitting at the police station and 3 one of them disclosed his name as Shaikh Nasir Shaikh Gous I.e. PW1. It is alleged that the said person PW1 Shaikh Nasir informed PW12 PSI Ambhore that he had been to the residence of accused Raja for fixing the pavement sheets for covering the safety tank and at that time when he lifted one of the pavement sheets for fixing it properly, he noticed a corpse of Santosh, i.e. the brother of accused Raja in the said tank. 3 Moreover, PW1 Nasir also informed PW12 PSI Ambhore that accused Raja was present at that time and he threatened him not to disclose about the said corpse to anybody, otherwise he would commit his murder. So also, said PW1 Nasir informed PW12 PSI Ambhore that he himself and his two companions were frightened and immediately rushed to the police station. Accordingly PW12 PSI Ambhore recorded the complaint of said PW1 Nasir at Exh.6. An offence was registered under C.R.No. 65 of 2007 at about 15.35 hours on 29.4.2007 under Sections 302 and 201 of the Indian Penal Code, and accordingly, criminal law was set into motion and investigation therein was carried out and during the course of investigation, PW12 PSI Ambhore visited the spot of the incident and prepared the spot panchanama (Exh.14) in presence of panch witness PW6 Abdul Azeem Abdul Raheman and blood stained bunch of hair found lying on the spot and one 4 blade, empty blood stained cover of two tablets, as well as blood stained soil and plain soil were also seized under the said spot panchanama. Photographer PW6 Kishor Bhoomkar was called who took the photographs of the dead body and place of the incident (Exhs. 27 to 34, respectively). Moreover, corpse was brought out of the safety tank, which was identified by the parents of the deceased stating that the said victim was their younger son namely Santosh and accused was their elder son namely Raja. There were injuries on the head and neck of the deceased and the said injuries were sharp. Accordingly PW12 PSI Ambhore prepared the inquest panchanama (Exh.15) of the said dead body in presence of PW5 Abdul Aziz. Thereafter the dead body of Santosh was shifted to the Civil Hospital, Parbhani for autopsy. PW8 Dr. Balasaheb Jadhav conducted postmortem on the dead body of victim Santosh at Civil Hospital, Parbhani and produced the postmortem notes at Exh.41. 4 During the course of investigation, PW12 PSI Ambhore seized the blood stained clothes of accused under the panchanama Exh. 50 in presence of two panchas including PW10 Sunil Pande. Moreover, PW12 PSI Ambhore arrested the accused under the afore said C.R. under arrest panchanama Exh. 56. It is the case of the prosecution that PW12 PSI Ambhore recorded the 5 statements of witnesses during the course of investigation and it was revealed that quarrel had taken place between accused and his younger brother i.e. victim namely Santosh and thereafter accused committed murder of Santosh and thrown the corpse of Santosh in the safety tank. 5 It is further the case of the prosecution that on 2.5.2007 the accused made disclosure statement and expressed willingness to show the place where axe and sattur i.e. iron weapon were concealed and said statement was recorded under memorandum panchanama Exh. 48. Thereafter accused led panchas and police personnel to his house at Sarfraz Nagar, Parbhani and climbed upon the roof of zinc sheet I.e. tin shed and produced blood stained axe and sattur and blood stained clothes of deceased and same were seized under panchanama Exhs. 49 and 50 respectively in presence of panch PW10 Sunil Pande. Moreover, the photographs of the said weapons and clothes were taken at Exh.35. 6 The prosecution case further recites that PW12 PSI Ambhore thereafter recorded statements of some witnesses on 4.5.2007 and 5.5.2007. Moreover, he also requested the learned Chief Judicial Magistrate to accord permission for obtaining 6 sample of blood of accused on 21.5.2005, which was granted and accused was taken to the Civil Hospital, Beed and blood sample was taken accordingly and same was sent to the office of the Chemical Analyser at Aurangabad for examination purpose through Police Constable PW11 Girish Deshpande along with the forwarding letter Exh. 63. Moreover, seized muddemal articles and viscera were sent to the Chemical Analyser's office along with separate covering letters (Exhs. 52 and 53) on 21.5.2007. Accordingly, the chemical analysis reports thereof were received, which are Exhs. 64 and 65 respectively. After completion of investigation, PW12 PSI Ambhore filed charge sheet against the accused before the learned Chief Judicial Magistrate. However, since the alleged offence was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate committed the said case to the Court of Sessions, Parbhani. Accordingly, the Ist Adhoc Additional Sessions Judge, Parbhani framed the charge against the accused at Exh.2 on 27.11.2007 and the accused denied the same and claimed to be tried. 7 To substantiate the charges levelled against the accused herein, the prosecution examined in all 13 witnesses as under : - 7 PW1 Shaikh Nasir Shaikh Gous, complainant. PW2 Shaikh Jameel Shaikh Ismail, whoaccompanied with the complainant to the house of the accused. PW3 Ashok Vishwanathrao Navghare, resident of in front of house of accused turned hostile. PW4 Yadav Gonaji Sonpasare, father of the accused. PW5 Abdul Azeem Abdul Raheman, panch witness to the spot panchanama (Exh.14) and inquest panchanama (Exh.15), in whose presence the corpse of victim was taken out of the safety tank. PW6 Kishor Yogiraj Bhoomkar, photographer, who took the photographs of the dead body and other articles during recording of spot panchanama. PW7 Kishor Shridharrao Naik, who visited the house of the accused after registration of the crime. PW8 Dr. Balasaheb Raosaheb Jadhav, Medical Officer, who conducted autopsy on the dead body and who produced postmortem notes Ewxh.41. PW9 Pappu Manaji Dhadve, panch to the memorandum panchanama turned hostile. PW10 Sunil Dattopant Pande, another panch to memorandum panchanama Exhs. 47 and 48 respectively and panchanama of seizure of photographs and articles and clothes of deceased Exhs. 49 and 50. PW11 Girish Janardhanrao Deshpande, carrier of muddemal articles and viscera to the office of Chemical Analyser. 8 PW12 Shrirang Kishanrao Ambhore, Police Sub-Inspector, Investigating Officer. PW13 Dattatraya Laxman Bhoge, PHC who carried the letter requesting thereafter Jail Authorities for obtaining blood sample of the accused. 8 The defence of the accused is of total denial and he has raised the plea of alibi and stated that he has not committed murder of Santosh and did not try to screen himself from legal punishment by throwing his corpse in the safety tank and accordingly claimed to be innocent. 9 After scrutinizing and appreciating the evidence on record, the learned Trial Judge convicted and sentenced the accused as afore stated. Being aggrieved by the said judgment and order of conviction and sentence dated 25.4.2008, the appellant/accused has preferred the present appeal challenging the same and praying for quashment thereof. 10 Before adverting to the submissions advanced by the learned counsel for the appellant and learned A.P.P. for the respondent, we feel it necessary to scrutinize the material evidence adduced and produced by the prosecution and in the said context, coming to the testimony of PW1 Shaikh Nasir Shaikh 9 Gous, who is the complainant, he stated that he knows the accused as well as the deceased Santosh and further stated that on 29.4.2007 he and PW2 Shaikh Jameel Shaikh Ismail and Shaikh Yaqin were sitting on the plat form of the flag post situated in Sarfraz Nagar, Parbhani at about 1.30 p.m., at that time Shaikh Yaqin asked PW1 Shaikh Nasir and PW2 Shaikh Jameel to accompany with him to the house of accused, as brother of Shaikh Yaqin namely Ajju was engaged for doing mason work at the house of accused. Accordingly PW1 Shaikh Nasir and PW2 Shaikh Jameel accompanied with Shaikh Yaqin to the house of accused and accused was present there. Upon inquiry about Ajju, accused stated that he has already ran away from his house and he asked Shaikh Yaqin and Shaikh Jameel to complete the remaining work of laying down of pavement stone on the safety tank which was left incomplete by Ajju. Thereupon they agreed to do so and brought cement and started the work of levelling of pavement stone on safety tank and accused Raja was standing there. He further stated that when they lifted the pavement stone, he noticed a corpse of Santosh lying in the safety tank. Thereupon accused Raja threatened him that he had committed the murder of his brother Santosh and he would kill him in case he disclosed about the same before anybody. He further stated that because of the said threat and also upon seeing the corpse of Santosh he 10 was frightened and came out of the bath room and left the house of the accused and informed about the same to Shaikh Yaqin and PW2 Shaikh Jameel that he (Shaikh Nasir) noticed corpse of Santosh in safety tank and accused threatened him not to disclose the same to anybody. Thereafter PW1 Shaikh Nasir went to Nanal Peth police station, Parbhani and lodged complaint (Exh.6) and accordingly offence was registered under C.R. No. 65 of 2007 on 29.4.2007 at 10.20 hours under Sections 302 and 201 of the Indian Penal Code. 11 During cross-examination, PW1 Shaikh Nasir stated that Shaikh Yaqin and PW2 Shaikh Jameel accompanied him to Nanal Peth police station, Parbhani when he lodged the complaint and till the lodging of complaint they did not inform anyone about the lying corpse of Santosh in safety tank in the house of the accused. He also stated that he had not made any hue and cry upon seeing the corpse of Santosh lying in the safety tank. He volunteered that since he was apprehended because of threat given by the accused,he did not make any hue and cry and there is no cross-examination in respect of the said voluntary statement. He further stated that he has not called Shaikh Yaqin and PW2 Shaikh Jameel near him to see the corpse. In the said context, he volunteered that he did not do so because the 11 accused had threatened him and again said voluntary statement had gone unchallenged. He also stated that after his departure, PW2 Shaikh Jameel had fixed the pavement stone over the safety tank. Suggestion was given to him that he had deposed falsely that he, Shaikh Yaqin and Shaikh Jameel had been to the house of accused and while fixing the pavement stone over the chamber of the safety tank he noticed the corpse of Santosh in it, but same was denied by him. 12 Considering the testimony of PW1 Shaikh Nasir i.e. the complainant, it is evident that the accused made extra judicial confession before PW1 Shaikh Nasir that he had committed murder of his brother Santosh and threatened him that he should not disclose the same to anybody, otherwise he would kill him. However, it is significant to note that there is no cross- examination in respect of said extra judicial confession made by accused before PW1 Shaikh Nasir and the said vital incriminating circumstance against the accused has gone unchallenged in his testimony. Moreover, there is nothing in the cross-examination damaging to the case of the prosecution and the testimony of PW1 Shaikh Nasir has not been shaken in the cross-examination. 13 That takes us to the deposition of PW2 Shaikh Jameel, 12 who accompanied with complainant PW1 Shaikh Nasir to the house of the accused, who stated that he knows the accused as well as knows deceased Santosh. He further stated that on 29.4.2007 he went to the house of the accused along with PW1 Shaikh Nasir and Shaikh Yaqin to see Ajju, but accused informed that Ajju had left his house, and therefore, accused asked PW1 Shaikh Nasir to fix the pavement over the chamber of safety tank. Accordingly, PW1 Shaikh Nasir accompanied with the accused went to the bath room and PW2 Shaikh Jameel and Shaikh Yaqin remained out side for preparing the cement paste. After about five minutes when PW1 Shaikh Nasir came out of the bathroom he was seen frightened. The complainant asked PW2 Shaikh Jameel to fix the pavement stone and he went away. Accordingly, PW2 Shaikh Jameel stated that he went inside the bathroom and fixed the pavement stone over the chamber of safety tank. Thereafter PW1 Shaikh Nasir and Shaikh Yaqin went out of the house of accused and when they crossed some distance, PW1 complainant Shaikh Nasir informed PW2 Shaikh Jameel and Shaikh Yaqin that he saw corpse of Santosh in the chamber of safety tank. They went to Nanal Peth Police station, Parbhani and PW1 Shaikh Nasir lodged the complaint there. 14 In the cross-examination, PW2 Shaikh Nasir stated that 13 his statement was recorded on 30.4.2007 by the police personnel. He also stated that he, PW1 Shaikh Nasir and Shaikh Yaqin crossed about 500 feet distance from the house of accused, but he did not disclose the said fact before any other resident of Sarfroz Nagar, Parbhani. He admitted that he also even did not inform to policemen on 29.4.2007 about the said fact. Accordingly, the testimony of PW2 Shaikh Jameel reflects that he accompanied PW1 Shaikh Nasir complainant to the house of accused at the relevant time and fixed the pavement stone on the safety tank in the bath room of the house of the accused when PW1 Shaikh Nasir declined therefor and the conduct of PW2 Shaikh Jameel is in consonance with the conduct of PW1 Shaikh Nasir and credibility of the testimony of PW2 has not been diminished in the cross-examination. 15 Coming to the testimony of PW4 Yadav Gonaji Sonpasare i.e. father of the accused and deceased Santosh, who stated that accused is his elder son and victim Santosh was his younger son and he was attached to Jintur Police Station as A.S.I. on 29.4.2007. He further stated that accused, his wife and their children were residing in his house at Sarfraz Nagar, Parbhani; whereas he himself, his wife, her father and his younger son Santosh were residing in police quarters at Jintur. He further 14 stated that PW12 PSI Ambhore informed him on phone about the incident, and therefore, he rushed to Parbhani and went to his house situated in Sarfraz Nagar area wherein accused was residing with his family and noticed that corpse of his son Santosh was taken out of chamber of safety tank and found two injuries on his body i.e. one on his neck on backside and another on the parietal region on his head. He further stated that on 29.4.2007 at 7.30 a.m. his son Santosh had departed from his quarter at Jintur stating that he was going to meet the accused and he would return back in the evening, but did not return back. He also stated that there was quarrel between the accused and some person from Parbhani in the night intervening between 28.4.2007 and 29.4.2007 and victim Santosh had been to Parbhani to give some understanding to accused that he should not quarrel with others. 16 During cross-examination PW4 Yadav Sonpasare stated that there was no quarrel between accused and deceased Santosh, but further stated in the re-examination that since on 29.4.2007 he was at Jintur he cannot tell as to whether there was any quarrel between accused and deceased at Parbhani. Besides that, there is nothing in the cross-examination damaging to the case of the prosecution. It is clear from the testimony of PW4 Yadav Sonpasare that the accused was residing along with his 15 wife and children in the house situated at Sarfraz Nagar, Parbhani; whereas her father and his younger son i.e. victim Santosh were residing in the police quarters at Jintur. and it appears from the evidence that accused alone was in the house of Sarfraz Nagar at the relevant time, wherein the dead body of Santosh was found. 17 That takes us to the testimony of PW8 Dr. Balasaheb Raosaheb Jadhav, who deposed that on 29.4.2007 he was attached to the Civil Hospital at Parbhani as Medical Officer. He received corpse of Santosh Yadavrao Sonpasare, and accordingly, he conducted autopsy thereon between 8.00 p.m. and 9.30 p.m. and noticed following external injuries. “ Occipital Injuries 1 There was an injury of the size 10 cm. skin deep, with the fracture 5 cm. skull over occipital region of the scalp. 2 9 cm. x skin deep coupled with fracture skull 5 cm. occipital scalp. 3 4 cm. x skin deep over occipital region. 4 5 cm by skin deep over occipital region. Four injuries over neck were found 1 6 x 2 cm. 2 7 x 2 cm. 16 3 7 x 2 cm. 4 7 x 2 cm. with the underline fracture cervical vertbra no.4 to 7 All the above injuries including the injuries of head and neck were having sharp edges and the same might have been caused within twelve hours. Following injuries were noticed on face. 1 On the lateral side of right eye 1 cm. by skin deep. 2 Contusion right side of the fact 5 x 1 cm. Forearm injuries. Forearm injuries. 1 Multiple incised wounds over both arm about 10 cm. above wrist joint on the ventral aspect anterior side. All the above injuries were ante-mortem in nature. On internal examination it was found that there were two fractures of occipital bone measuring 5 cm. each running horizontal. The injury no.1 shown in column no.17 is corresponding to occipital fracture shown in column no. 19. “ 17 18 PW8 Dr. Balasaheb Jadhav stated that on internal examination of spinal cord it was found that there was fracture of cervical vertebra nos. 4, 5, 6 and 7 horizontally running measuring 1 cm. to 2 cm. deep. The neck injuries nos. 1 to 4 shown in column no.17 were corresponding to the fracture of cervical vertebra shown in column no.22. He further stated that according to him, the death was caused by head injuries and neck injuries and he issued postmortem notes which are produced at Exh. 41. He further stated that all the injuries mentioned in column nos. 17, 19 and 22 in postmortem notes Exh.41 are sufficient to cause death in ordinary course of nature. He was confronted with muddemal weapon an axe article 8 and Sattur article 9 and after seeing the same he stated that all the injuries mentioned in postmortem notes Exh.41 are possible by means of axe and Sattur since same are having sharp cutting edges. 19 During cross-examination, PW8 Dr. Balasaheb Jadhav stated that he saw the said weapon axe and Sattur for the first time in the court. He further stated that he did not specify in postmortem notes Exh. 41 as to on which side of the neck the injuries were noticed. He also stated that the skull fracture shown in column no.17 is possible if a person falls on a sharp edged zinc 18 sheet. 20 Considering the testimony of PW8 Dr. Balasaheb Jadhav and postmortem notes Exh.41, it is amply clear that the external injuries in column no.17 of the postmortem notes and internal injuries in column no.19 are corresponding to each other and said injuries were ante mortem in nature and the injuries specified in column nos. 17, 19 and 21 at Exh.41 are sufficient to cause death in the ordinary course of nature and the said injuries can be caused by weapons i.e. axe article 8 and Sattur article 9, and therefore, considering the testimony of PW8 Dr. Balasaheb Jadhav, postmortem notes Exh.41, and also considering the inquest panchanama Exh.15, there cannot be any dispute that victim Santosh met with homicidal death and conclusion drawn to that effect by the learned Trial Judge cannot be faulted with. 21 That takes us to the deposition of PW10 Sunil Pande, panch witness who stated that on 2.5.2007 accused made disclosure statement in his presence at the Nanal Peth police station, Parbhani to show the place where weapons i.e. Sattur and axe were concealed and accordingly the said statement was recorded under memorandum panchanama Exh.48. Thereafter the accused led police personnel and panchas to his house and 19 produced weapons Sattur and axe, as well as blood stained clothes of deceased from the roof of zinc sheets and same were seized under memorandum panchanama Exh.49. Moreover, he also stated that the blood stained clothes of the accused were seized on the same day under panchanama Exh.50. 22 During cross-examination, he stated that he has acted as panch in 2-3 other cases. Suggestion was given to him that the accused was handcuffed when he made the disclosure statement under memorandum panchanama, but same was denied by him. It was also suggested to him that memorandum Exh.49 was prepared at Nanal Peth police station, Parbhani by PW12 Ambhore, but same was denied by him. There is nothing in the cross-examination disturbing the testimony of PW10 panch witness Sunil Pande and the said testimony establishes the discovery of weapons i.e. axe and Sattur as well as blood stained clothes of the deceased at the instance of the accused herein, and blood stained clothes of the accused were also seized under panchanama Exh.50 in presence of PW10 Sunil Pande and there is nothing to disbelieve his testimony and acting as panch in 2-3 cases would not brand him as regular and habitual panch and except giving few suggestions which were denied by him there is nothing in the cross-examination of the said witness 20 damaging to the case of the prosecution. 23 On the background of the afore said evidence, learned counsel for the appellant submitted that entire pivot of the prosecution case is rested upon the circumstantial evidence and there is no direct evidence which connects the accused with the alleged crime. According to the learned counsel for the appellant, the prosecution has failed to prove and establish each and