{1} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.646 OF 2009 Ajit Ashokrao Garje APPELLANT Age-24 years, Occ-Education R/o Pathri, Tq-Pathri Dist-Parbhani VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Pathri Police Station, Tq-Pathri Dist-Parbhani ....... Mr.S.S.Bora, Advocate for the Appellant Mrs.R.K.Ladda, APP for respondent State ....... WITH CRIMINAL APPEAL NO.52 OF 2010 Shail Alias Shailesh Bhagwanrao Waman APPELLANT Age-22 years, Occ-Business R/o Pathri, Tq-Pathri Dist-Parbhani VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Pathri Police Station, Tq-Pathri Dist-Parbhani {2} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 ....... Mr.V.D.Salunke, Advocate for the Appellant Mrs.R.K.Ladda, APP for respondent State ....... CORAM : NARESH H. PATIL AND A.V.POTDAR, J.J. RESERVED ON : 16 th March 2011 PRONOUNCED ON : 24 th March 2011 JUDGMENT (PER A.V.POTDAR, J.): 1. By the present criminal appeals, the appellants have questioned the correctness of their conviction u/s 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.5000/- each with default stipulation of undergoing sentence of Simple Imprisonment for 3 months, awarded by Additional Sessions Judge, Parbhani, vide judgment and order dated 18.11.2009, rendered in Sessions Case No.118/2008. As both these appeals arise out of Sessions Case No.118/2008, they are being disposed of by this common judgment. 2. Case of the prosecution, as unfolded during the trial, is as follows : {3} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 a) Police Inspector, Namdeo Manohar Thombre (PW-13), attached to Parbhani police station, had received an information during the night of 25.01.2008, on phone, that one Shantabai Potdar was murdered in her residential service quarter. On receipt of the information PW-13, PI Thombre immediately rushed to the spot and saw that Shantabai was lying in a pool of blood. The dead body was forwarded to Rural Hospital, Pathri for postmortem after conducting the Inquest Panchanama (Exhibit-24). b) PW-1 Dr.Dhananjay Mudgalkar, conducted the postmortem examination on the dead body of Shantabai. During the postmortem, following external injuries were noticed- 1. Contusion on left side of forehead 5 X 4 cm. 2. Incised wound in front of neck 10 X 1 ½ cm (transverse) 3. Stab wound on right side of chest 4 x 1 x 7 cm (Oblique) 4. Stab wound on right side of abdomen, renal angle 5 x1x 6cm 5. Stab wound on right side of abdomen iliac fossa region 6 x 2 x 7 cm with protrusion of mesentry, transverse in direction. 6. Stab wound, on right sight of abdomen, iliac region 4 x 3 x 5 {4} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 with protrusion of mesentery, transverse in direction. 7. Stab wound on right side of abdomen 4 x 1 x 5 cm transverse in direction. 8. Penetrating incised wound over back lumber region 5 x ½ x 3 cm transverse in direction. 9. Penetrating incised wound, on back sacral region 32 x ½ x 3 cm oblique in direction. 10.Incised wound over left buttock 3 x 1 x 2 cm oblique in direction. 11.Incised wound on left buttock 3 x ½ x 1 cm oblique direction 12.Stab wound over right buttock 5 x 2 x 6 cm vertical in direction, According to the medical officer, all the injuries, fond on the person of the deceased, were antemortem and the same can be caused by hard and sharp weapons. In the opinion of the medical officer, the cause of death is cardio respiratory failure due to hemorrhagic shock due to multiple stab wounds. Accordingly, postmortem report (Exhibit-16) was prepared. According to the medical officer, the incised wounds are possible due to sharp edged knife. {5} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 c) While conducting the spot Panchanama, traces of blood foot prints were noticed from the scene of offence till the gate and further on the road till the house of appellant Shailesh, which is at a distance of about 750 meters to 1 km from the spot. Accordingly, Spot Panchanama (Exhibit-34) so also running Panchanama (Exhibit-34A and 35) were drawn. From the scene of offence, two broken pieces of spectacle, one pen, four tea cups, one jerkin were recovered. So also one white shirt and one cotton bandage were seized from the house of appellant Shailesh. Thereafter, on the basis of information received, some police officers were deputed to trace the appellants. Information about murder of Shantabai was given to her husband and hence he had reached at the spot and had lodged the report (Exhibit-26). On the basis of the said report, an offence at Crime No.7/2008 was registered against the present appellants. d) Investigation of the said crime was taken over by PW-13 PI Thombre. During the investigation, statements of certain witnesses were recorded. Clothes on the person of the deceased {6} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 were seized under Seizure Panchanama (Exhibit-37). On 26.01.2008 the police party, sent to nab the appellants, produced the appellants in the police station. During physical examination, injury was noticed on the left ankle of appellant Shailesh. Both the appellants were referred to Rural Hospital, Pathri. After medical examination, the appellants were put under arrest vide arrest Panchanama (Exhibit-67 and 86). During the interrogation, appellants disclosed name of accused Bhausaheb @ Guddu who was also put under arrest. One motor cycle, allegedly used for commission of offence, was seized under seizure Panchanama (Exhibit-59). e) Accused Bhausaheb @ Guddu, while in custody, made voluntary disclosure statement (Exhibit-48) on 27.01.2008, which lead to recovery of clothes from his house, which were seized under Panchanama (Exhibit-49). On the same day, appellant Ajit made voluntary disclosure statement (Exhibit-46), which lead to recovery of blood stained clothes from his house, which were seized under Panchanma (Exhibit-47). On the same day, complainant {7} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 Shashikant had produced one pair of sleepers used by the deceased, which was seized under Panchanama (Exhibit-56). f) On 28.01.2008, accused Bhausaheb @ Guddu had again made a voluntary disclosure statement (Exhibit-50), which lead to recovery of one blood stained knife, concealed in a hut, which was recovered under Panchanama (Exhibit-51). Accused Bhausaheb @ Guddu had over again made a voluntary disclosure statement (Exhibit-52) which lead to the discovery of some bills and registers from his house, which were seized under Panchanama (Exhibit-53). Thereafter, appellant Shailesh had also made a voluntary disclosure statement (Exhibit-70), which lead to the recovery of one knife from his house, which was seized under Panchanama (Exhibit-71). On 29.01.2008, appellant Ajit again made a voluntary disclosure statement (Exhibit-57), which lead to the recovery of one knife from his house, which was seized under Panchanama (Exhibit-58). g) During the investigation, correspondence was made {8} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 with Panchayat Samiti in respect of the documents of budget so also with the concerned medical officer seeking medical opinion as regards injuries found on the person of the deceased. The property, seized during the investigation, was sent to the Chemical Analyzer along with requisition letter (Exhibit-62 and 73). Foot prints of the appellants were sent to finger print export for examination. In due course CA report (Exhibit-74) was received. After completion of the investigation, charge sheet was filed on 21.04.2008 against the appellants and other accused, before the JMFC, Pathri. h) On committal of the trial to the Court of Sessions, Additional Sessions Judge, Parbhani framed charge against all the accused persons for an offence punishable u/s 302 and 398 r/w 34 of the Indian Penal Code. The accused pleaded innocence and claimed to be tried. The prosecution, in support of its case, has examined as many as 13 witnesses. On appreciation of the evidence on record, the trial court has acquitted accused Bhausaheb @ Guddu of all the charges. The trial court has also acquitted the appellants for the offence punishable u/s 398 r/w 34 {9} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 of the Indian Penal Code, however convicted them for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The State has not preferred any appeal against the order of acquittal and hence the order of acquittal has attained finality. 3. Before we embark upon the submissions advanced before us by the rival parties, it may be useful, for better appreciation of the evidence, to advert to the material prosecution witnesses examined before the trial court. 4. The appellants have not seriously disputed that the death of Shantabai Potdar is a homicidal one. However, it is their contention that they are not the authors of the injuries found on the person of deceased, which ultimately resulted in her instantaneous death. In view of this aspect, we need not dilate on the evidence of PW-1, Dhananjay Mudgalkar. 5. Shashikant Potdar, (PW-3) husband of the deceased, complainant, has stated that his wife, deceased Shantabai, was {10} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 serving as Project Officer in the Child Development Scheme and was residing alone in the service quarter provided by Panchayat Samiti, Pathri. In the night, small girls used to accompany her. In the night of 25.01.2008, he had received a message from police informing him about murder of his wife. Thereafter, he had lodged the report (Exhibit-26), on the basis of which crime was registered in Pathri police station. He was not acquainted with either of the appellant. Without dilating about his marathon cross examination, only inference can be drawn that on the basis of information received by him, he had lodged the report (Exhibit-26) and he has no personal knowledge about the incident in question. 6. Dipali (PW-4), has stated that the deceased used to call her, Meera Kedar and Deepali Shinde to accompany her during night time, in her residential quarter. While deposing about the incident, she has stated that the deceased had been to her house along with Deepali Shinde and Meera at about 8.30 p.m. and on their way back to the residential quarter of the deceased, some boys had talked with the deceased near one grocery shop. All of {11} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 them took food at the house of the deceased and she along with Meera and Deepali Shinde went to sleep in the inside room and were slept. The deceased had asked them not to lock the door of the outer room as some Waman was to come for collecting bill. Sometime after they slept, Meera got up to urinate so also she and Deepali Shinde got up and noticed that the deceased was lying in a pool of blood and the light of the room was put on. They got frightened and hence all of them went to the house of Deepali Shinde, which was adjacent to the house of the deceased and informed the incident to the father of Deepali Shinde, who in turn informed Pathri police station. It was 12.00 to 12.30 midnight. She has stated that she was not acquainted with the person by name Waman. In her cross examination, she has stated that usually they used to go to bed about 11.00 p.m. as till then they used to study. They used to sleep in the same room in which the deceased used to sleep. There was a wall clock and they saw the time when all of them got up to urinate and it was 12.30 midnight. Omission is proved that she had not stated in the statement before police that the girls woke up to go to bathroom. {12} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 7. Miss Meera Kedar, PW-5, a child witness, has stated on the similar lines with that of PW-4 Dipali. Additionally, she has stated that when they had stopped at the grocery shop, Waman had come. She has further stated that deceased had told Waman to come and collect his bill. All of them had reached at the house of the deceased around 9.00 p.m. In her examination in chief itself, she has stated that she cannot identify the boy named Waman. In her cross examination, she has stated that in the said night, they studied up to 10 p.m. and thereafter went to bed at that time the deceased was doing some work. She had not seen that peon of the office of the deceased was present in the quarter. Usually, they used to close the door of outer room about 9.30 pm. Though she has stated that she had seen foot print of blood, yet she was unable to answer as to how many foot prints were there. 8. At this juncture, we may take note of the fact that PW-4 and PW-5 have not identified any of the appellant as the boys who had met the deceased on their way back to the house of {13} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 deceased on the night of the incident. 9. It is in the evidence of PW-6 Sainath Kedar, father of PW-5 Meera that his daughter and two girls used to sleep with the deceased during the night time. In the night of the incident, all the girls had came running to his house around 12.30 midnight and had informed him that the deceased was lying on the floor in a pool of blood. Thereafter, he had called other neighbours and they all had rushed to the service quarter of the deceased where they saw that the deceased was lying in a pool of blood on the floor. Thereafter, he had informed the incident to the police on phone. Evidence of this witness is material only on the point that he saw the dead body in a pool of blood and accordingly intimated the police. 10. PW-7 Ashok Dhage has stated that around 1.30 a.m. on the night of the incident, mother of appellant Shailesh had came to his house and requested to give his motorcycle to take Shailesh, who had received injury, to the hospital. Accordingly, he {14} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 had handed over key of his motorcycle to the friend of Shailesh, who had carried Shailesh to the hospital. He has stated that he was standing in the door of his house when friend of Shailesh had taken Shailesh on his motorcycle. Surprisingly, though he has stated that he had seen the friend of Shailesh, who took Shailesh on the motorcycle, yet he has not identified appellant Ajit or other accused as friend of Shailesh. 11. PW-8 Jijabhau Salve is the Panch witness to all the memorandums of the disclosure statements made by all the accused. He has stated that appellant Ajit and accused Bhausaheb @ Guddu had made disclosure statements in his presence, which lead to recovery of articles 13 to 16. He has also stated that accused Guddu had made disclosure statement in his presence, which had resulted into recovery of knife (Article-12). He has, however, not supported the prosecution case in respect of disclosure statement made by appellant Shailesh. He has stated that appellant Ajit had made disclosure statement in his presence, which had lead to recovery of knife (Article-26). He has admitted in {15} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 his cross examination that on number of occasions, he has acted as Panch witness for Pathri police station. He has, unambiguously, admitted that – it is correct to say that when the accused were removed from lock up they were frightened. It is correct to say that some police constable said to the accused that they should produce the muddemal articles concealed by them. Interrogation was made to each accused separately. He has admitted that in the recovery Panchanama, house number of accused Ajit was not mentioned. He was unable to depose as to who were present in the house of appellant Ajit at the time of their visit. He denied that he had put signature on the pre-prepared Panchanamas without witnessing anything. 12. At this juncture, we may take note of the fact that the entire evidence given by this witness nowhere speaks that after the alleged recovery of the articles, they were properly sealed at the spot. Even the contemporaneous record i.e. seizure Panchanama at Exhibit-47 and 48 are also conspicuously silent on the point that after the alleged recovery of the articles at the instance of the {16} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 accused, the same were sealed at the spot. 12. It is in the evidence PW-11 Dr. Satyawan Chavare, Medical Officer, Rural Hospital, Manwat that in the night of 25.01.2008 at about 2.00 a.m. injured Shailesh was brought to his hospital by his friend Ajit and he had provided treatment to him. At that time, injured Shailesh had given the history of sustaining injuries, due to accidental fall of axe. According to him, two injuries were noticed on the person of Appellant Shailesh, which were simple in nature and could have been caused with hard and blunt object. Age of the said injuries was within 24 hours. Accordingly, he had issued medical certificate (Exhibit-39). He has further stated that he had advised injured to get admitted in the hospital however, he had denied. Friend of appellant Shailesh, i.e. appellant Ajit had put in his hand writing that they do not want to make a police case and had also put his signature below the writing (Exhibit-40). It is surprising to note that PW-11 Dr.Chavare was also unable to identify the injured so also his friend in the Court. In his cross examination, he has admitted that though the {17} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 entry in the MLC register was in his hand writing, yet he has not obtained signature of the injured in the said register. He has further stated that the blood from the injury of the appellant Shailesh was coagulated. He has admitted that though he had examined the injured in the midnight on 24.01.2008, yet the entry was taken in the MLC register in the morning of 25.01.2008. He has admitted that in the case papers as well as in the injury certificate, he has not mentioned any identification mark of the injured. What is the effect of non identification of the injured and his friend by this witness, we would consider in the later part of the judgment. 13. It is in the evidence of Dr.Naidu (PW-2) that on 25.01.2008, he had examined one Suhas Jadhav in his private hospital and had noticed sutured wound and fresh bleeding. The said patient had stated that the wound was sutured in civil hospital Parbhani, one day prior to the examination by Dr.Naidu. The said patient had came to his hospital for dressing and he had taken X-ray and had found that the injury was normal and there {18} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 was no fracture. After the wound was dressed, the patient had left. On 27.01.2008, police had came to his hospital, to enquire about the patient to whom he had provided treatment and the police had shown him the prescription (Exhibit-18) issued by him wherein name of the patient was Suhas Jadhav. On the request of police, he had certified (Exhibit-20) about the injury sustained by the said patient. He has categorically stated that he was not in a position to identify the patient to whom he had treated. In his cross examination he has stated that neither in (Exhibit-18) prescription nor in certificate (Exhibit-20) he has mentioned that the injuries on the person of said patient were fresh bleeding injuries. In Exhibit-18 prescription, he has not mentioned the history allegedly given to him by the said patient. In the OPD register, maintained in his hospital, address of the said patient is mentioned as resident of Parbhani. He has also stated that the police has not recorded his statement. 14. It transpired from the evidence of PI Thombre (PW-13), the investigating officer, particularly, in his cross examination, that {19} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 husband of deceased had lodged a complaint on the basis of the information provided by him. During the investigation, he has not recorded statements of mother of appellant Shailesh, the medical officer, Rural Hospital, Pathri or the constables who had brought appellant Shailesh and appellant Ajit from Nanded. He has admitted that it was not mentioned in Panchanama (Exhibit-34-A) that they had asked mother of appellant Shailesh as to whether she wanted to take their search. Copy of the spot Panchanama (Exhibit-34A) was not provided to the mother of appellant Shailesh, as she was present at the time of drawing of the same. In unambiguous terms he has admitted that in the seizure Panchanamas, in respect of recovery and seizure of articles, it is not mentioned that the articles were sealed at the spot. According to him, articles found at the spot, were sent for opinion of finger print expert and the report of the expert is at Exhibit-85. He has also admitted that during the investigation, it was revealed that the motive behind the crime was to loot the amount of budget received by the deceased. He has also admitted that the investigation revealed that no robbery has taken place at the residence of the {20} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 deceased. He has also admitted that though he has seized documents and bills in connection with the budget, yet he has not recorded statement of any officer from Panchayat Samiti. 15. We have heard learned counsel for respective appellants followed by the submissions of learned APP. From the evidence, which we have discussed above, it is clear that the case of the prosecution rests on circumstantial evidence. 16. The circumstances against appellant Shailesh are as follows: 1. Appellant Shailesh had met deceased near a grocery shop when the deceased was returning along with PW-4 Deepali, PW-5 Meera and Deepali Shinde and at that time deceased had asked him to come and collect the bills. 2. Deceased had asked the three little girls not to close/lock door as Waman was to come to collect bills. 3. Imprints of blood stained foot steps were found from the dead body till the house of appellant Shailesh. 4. Appellant Shailesh was taken to hospital at 1.30 a.m. for {21} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 treatment. 5. Appellant was treated in Rural Hospital Manvat in the night of 25.01.2008 around 1.30 a.m. 6. Appellant was treated by Dr.Naidu (PW-2) in his private hospital at Nanded. 7. Knife and blood stained clothes were recovered from the house of appellant Shailesh and the blood group of the said blood, found on the weapons and clothes, was of the blood group of the deceased. 17. Circumstances against appellant Ajit are as follows : 1. Appellant Ajit had took Shailesh on motorcycle for medical treatment. 2. Appellant had put an endorsement in the hospital record, which was produced by Medical Officer, Rural Hospital, Manvat. 3. Clothes and weapons were recovered at the instance of appellant Ajit, on which blood of the group of the deceased was found. {22} Cri. Appeal No.646/2009 with Cri. Appeal No. 52/2010 18. During the course of submissions, learned counsel for the appellants draw our attention to the fact that though the prosecution tried to make out a case that on the way back to the service quarter of the deceased, appellant Shailesh, who was referred as Waman, had met them near a grocery shop and deceased had asked him to come and collect bill and that after reaching at the quarter the deceased had told the three girls not to close / lock the door as said Waman was to come, yet in their substantive evidence before the Court, PW-4 and PW-5 have not identified appellant Shailesh as the person who had met them when