{1} Cri. Appeal No.146/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.146 OF 2010 Sudam s/o Kachru Sarkate APPELLANT Age-28 years, Occ-Labour R/o Shirad Shahapur, Tq-Aundha Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT Through police station Kurunda Tq-Basmatnagar, Dist-Hingoli ....... Mr.B.V.Dhage, Advocate for the appellant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 29 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, by this appeal, challenges his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.1000/- with default stipulation of undergoing RI for further three months, awarded by Ad Hoc Additional Sessions Judge, Basmatnagar, vide judgment and order dated 02.03.2010 rendered in Sessions Trial No.15/2009. {2} Cri. Appeal No.146/2010 2. Prosecution case, as unfolded during the trial, may briefly be summarized thus- a) PW-8 Uttam Aade, PSI attached to Kurunda police station, on 20.05.2008, on the basis of complaint (Exhibit-11) lodged by PW-1 Shankar, had registered an offence at Crime No.44/2008 against the appellant on the allegations of committing murder of his wife-Nanhabai (deceased). Investigation of the said crime was taken over by PW-8 PSI Aade. Pursuant to the registration of the crime, PW-8 PSI Aade immediately rushed to the spot and drew Inquest Panchanama (Exhibit-8) on the dead body, which was identified by PW-1 as the dead body of his niece Nanhabai. Thereafter, spot Panchanama (Exhibit-16) was drawn in presence of Pancha witnesses. Controlled soil and blood mixed soil was collected from the spot. The dead body was thereafter sent for postmortem examination. b) Dr.Abasaheb Jadhav, (PW-7) conducted the postmortem on the dead body and noticed the following injuries. 1. Incised wound over left lateral side of neck of 3 x 2 x 5 cms 2. Incised perforating wound over abdominal region on {3} Cri. Appeal No.146/2010 left side of size 3 x 2 x 2 cms 3. Incised wound over left side of gluteal region of 2 x 2 x 2 cm. During the internal examination he noticed that Larynx and purela was injured and hyoid bone was fractured. Carotid astery was ruptured and spinal cord was injured and other stutants were injured. It was opined that the external injuries were antimortem. It was further opined that cause of death was due to hemorrhagic shock due to incised perforating wound over left lateral side of neck and splanic region over abdomen. Accordingly, PM report (Exhibit-24) was prepared. According to the medical officer the said injuries are possible due to axe (Article-A). c) Thereafter statements of certain witnesses were recorded and clothes of the deceased were seized under seizure Panchanama (Exhibit-9). The appellant came to be arrested on 21.05.2008 and clothes on his person also came to be sized vide seizure Panchanama (Exhibit-27). d) While in custody, on 25.05.2008, the appellant made disclosure statement (Exhibit-20) which lead to the recovery of an axe (Article-A) from one field, which came to be seized under seizure memorandum at Exhibit-21. {4} Cri. Appeal No.146/2010 e) Thereafter, on 31.05.2008, the seized property was sent to CA along with covering letter (Exhibit-25). After completion of the investigation, charge sheet came to be filed against the appellant before JMFC, Basmatnagar. f) On committal of the trial to the court of Sessions, trial court framed charge (Exhibit-4) against the appellant for an offence punishable u/s 302 of the Indian Penal Code to which the appellant pleaded not guilty. Prosecution, in support of its case, has examined in all 8 witnesses. Defence of the appellant was of total denial. In the defence of the appellant, he examined his daughter DW-1 Anita. After appreciation of the evidence on record, trial court convicted and sentenced the appellant as aforestated. 3. For the effective appreciation of the submissions advanced before us, it would be appropriate to advert to the evidence on record. 4. It is in the evidence of PW-2 Maya Khandare that at the relevant time deceased Nanhabai was working in an agricultural field along with her two daughters. Thereafter the appellant approached the deceased and informed her that a snake had passed over the body of their daughter and insisted the deceased to accompany him. Initially, the deceased had refused to accompany the accused, however, subsequently, after repeated {5} Cri. Appeal No.146/2010 requests of appellant, the deceased agreed to go with him. The deceased was proceeding ahead and the appellant was following her. Both of them reached near a field where there was sugarcane crop. At that moment, this witness heard shouts and hence she, along with others, rushed to the spot and noticed that the deceased had sustained bleeding injuries. The appellant was standing there and was holding an axe and when the appellant saw them, he fled from the spot. The deceased expired on the spot. In cross examination, she states that she was busy in working while the deceased accompanied the appellant. She rushed to the spot on hearing shouts. Though she states in cross examination that that the appellant was not present at the spot when she reached there, yet she immediately volunteers that the appellant had fled from the spot. 5. It is stated by PW-3 Diksha, daughter of appellant in her evidence, that the appellant is a habitual drunkard and used to take quarrel with the deceased and hence the deceased had started residing at Pimprala with her 3 daughters, since one month prior to the incident. The appellant had also started residing in the same village where the deceased was staying with her brother. The appellant had came to her grand father’s house and had taken quarrel with the deceased and had taken her younger sister, Shital with him one day prior to the incident. In respect of the incident, she states that she had been in a field along with her mother at that time appellant came there and informed that a snake had {6} Cri. Appeal No.146/2010 passed over the body of Shital and requested the deceased to accompany him. Initially, the deceased was reluctant, however, subsequently accompanied the appellant. The deceased was ahead and the appellant followed her. When they reached near a sugarcane crop, appellant took out an axe, which was lying in the said filed and threw towards the deceased, which hit on the leg of the deceased and she felled down on the ground. Thereafter, the appellant gave 3/4 blows of axe to the deceased and the deceased had sustained bleeding injuries on the neck, back and armpit. Thereafter, the appellant fled from the spot with the axe. The deceased expired due to the said injuries on the spot. She identified the Axe (Article-A) as the weapon of assault. She also identified clothes of the deceased as well as clothes of the appellant. In cross examination, she states that after the deceased came to her parents’ house, the appellant had also came there within 2 /3 days thereafter. Before the deceased and the appellant left the field, the appellant had talked for about 10 to 15 minutes with the deceased. Certain omissions are proved in her cross examination that as certain statements viz she was following her parents, appellant threw axe towards the deceased and the deceased fall on the ground and that the appellant lifted the axe and assaulted the deceased, do not find place in her statement recorded by the police. In further cross examination, she states that the spot of incident is approximately 1 km away from the field where they were working. Though she admits that she had not seen the actual assault by the appellant on the deceased, yet states {7} Cri. Appeal No.146/2010 that she had seen the appellant fleeing from the spot immediately after the assault. 6. Though the prosecution has examined PW-5 Raosaheb Kadam on the point that immediately after the assault he had reached at the spot along with others and noticed one woman lying in a pool of blood and the assailant fleeing from the spot, yet in view of certain admission given by him in his cross examination, his evidence does not inspires confidence and hence needs to be discarded. 7, Prosecution has further relied on the evidence of PW-6 Fakira Khandare, a Pancha witness to the disclosure statement (Exhibit-20) made by the appellant on 25.05.2008. He states that the appellant had made a disclosure statement in his presence and had led the police to a field from where the axe was recovered at the behest of the appellant. In cross examination, he states that the axe, which was recovered at the instance of the appellant, was found kept in a grass. He denied that he had signed the Panchanama in police station and that no disclosure was made by the appellant. He also denied that the axe was not recovered in his presence at the instance of the appellant. 8. DW-1 Anita states in her evidence that she along with the deceased and her other sisters had been to a field for labour work and after working for 1 to 2 hours, she heard shouts and {8} Cri. Appeal No.146/2010 rushed to the spot and saw that the deceased was lying there and she was dead. Thereafter, the police visited the spot. Her maternal uncle had told her to state before the police that the deceased was killed by the appellant. Accordingly, she had stated before the police. She also states that relations between the appellant and her maternal uncle were strained and hence she was asked to state against the appellant. In the cross examination, she states that the deceased was residing with her brother since 3 / 4 months prior to the incident as the appellant is a habitual drunkard and used to assault the deceased. She denied that after her mother started residing at Pimprala, the appellant also started residing there. She further denies that on the day of the incident, they were working in an agricultural field from where the appellant called the deceased. She further denies that the appellant assaulted her mother with an axe and on seeing the incident she had raised shouts for help. She admits that police had not forced her to give statement. She has further admitted that she has not lodged any complaint against her maternal uncle that he forced her to give a false statement against the appellant. 9. In the light of the evidence discussed above, we have heard learned counsel for the appellant followed by learned APP for respondent State. 10. Learned counsel for the appellant has urged that evidence of PW-2 Maya, PW-3 Diksha and PW-5 Raosaheb to be {9} Cri. Appeal No.146/2010 discarded, as they being the interested witnesses. It is further urged that evidence of these witnesses not to be termed as the evidence of eye witnesses, as their evidence nowhere discloses that they had seen the appellant actually assaulting the deceased. It is further urged that the alleged recovery of axe is made from an open space and hence the same shall not be relied on. It is also urged that evidence of PW-2 Maya and PW-3 Diksha, to be considered in the light of evidence of DW-1 Anita. It is urged by learned counsel for the appellant that as the case of prosecution rests on circumstantial evidence, the chain of circumstances is neither established nor the same is complete and hence benefit of doubt be given to the appellant and he be acquitted by allowing the appeal. 11. Per contra, learned APP supported the findings arrived at by the trial court while convicting the appellant for the charge of murder. 12. Considering the evidence on record, it is clear that the case of prosecution rests on circumstantial evidence and not on direct evidence. The said circumstances can be formulated thus - 1. Death of the deceased is a homicidal death. 2. Before the incident the deceased was residing separately from the appellant. 3. On the day of the incident, the deceased had accompanied the appellant on his request from the field. {10} Cri. Appeal No.146/2010 4. After hearing shouts of the deceased witnesses had immediately rushed there and found the deceased lying in injured condition, and she had sustained bleeding injuries, which resulted in her instantaneous death. 5. Recovery of Axe at the hands of the appellant pursuant to the disclosure statement made by him. 6. Blood found on the weapon and clothes of the appellant matches with the blood group of the deceased. 13. It is established from the evidence of Dr.Abasaheb Jadhav and Post mortem report (Exhibit-20) that death of deceased is a homicidal death and the medical officer has categorically opined that patient cannot survive beyond 45 minutes after sustaining the injuries noticed on the person of the deceased. Thus, the prosecution has fully established from the medical evidence that death of the deceased is a homicidal death. 14. Though it is vehemently urged by learned counsel for the appellant that PW-2 and PW-3 are interested witnesses and hence their evidence need not be considered in view of evidence of DW-1 Anita, yet evidence of PW-2 and PW-3 gets corroboration from the recitals of Spot Panchanama so also from the medical evidence. On the contrary, it has to be inferred that it is risky to believe the evidence of DW-1 Anita, as, even as per her own version, she had given a false statement before the police as her maternal uncle had suggested her to do so. If she can state falsely {11} Cri. Appeal No.146/2010 before the police, then what is the guarantee that she has deposed the truth before the court and has not suppressed certain facts to save her father. Thus, the trial court has rightly turned down the evidence of DW-1 Anita. PW-2 Maya cannot be termed as interested witness for the reason that she is no way related with the deceased or the appellant nor she is interested with the outcome of the trial. She has deposed before the Court that she had witnessed the incident as she was working in the field where the incident has taken place. Her evidence appears to be reliable for the reason that she has not exaggerated the incident by stating that she had actually seen the appellant assaulting the deceased. Even the evidence given by PW-3 Diksha gets support and corroboration from the evidence of PW-2 Maya and hence their evidence appears to be trustworthy. Thus, it is fully established from the evidence of PW-2 Maya and PW-3 Diksha that they had seen the appellant running away from the spot after deceased had sustained bleeding injuries, which resulted in instantaneous death of the deceased. 15. Though the learned counsel for the appellant has urged that as the recovery of the axe is effected from an open space, the same need not be relied on, yet careful perusal of the evidence of PW-6 Fakira, which is not shaken even in his cross examination, discloses that the axe was recovered at the instance of the appellant from a field which in fact was concealed below grass and hence it can safely be inferred that the place where the weapon was concealed was within the exclusive knowledge of the {12} Cri. Appeal No.146/2010 appellant. Once recovery of weapon is established then the CA report play a very vital role. In the present case CA report (Exhibit-31) indicates that blood found on the axe, clothes of the appellant and clothes of the deceased matches with each other as blood of “B” group. It has nowhere came on record that the appellant had received any injury while he was arrested. 16. In substance, the circumstance that death of the deceased is a homicidal one has been fully established from the evidence of medical expert as well as PM report. Secondly, the circumstance that soon before the homicidal death, the deceased was taken by the appellant from the field is also fully established from the evidence of PW-2 Maya and PW-3 Diksha and immediately thereafter the deceased was noticed in pool of blood and died instantaneously. At that time the appellant ran away from the spot with axe, is also established from the evidence of PW-2 Maya and PW-3 Diksha. 17. Thus, considering the evidence of PW-2 Maya and PW-3 Diksha regarding appellant taking the deceased from the field, thereafter hearing shouts of the deceased and noticing deceased in injured condition and appellant running away with axe, so also evidence of medical expert regarding homicidal death of the deceased and evidence of chemical analyzer that the blood found on the weapon, clothes of the appellant and clothes of the deceased is of “B” group and matches with each other, completes {13} Cri. Appeal No.146/2010 the chain of circumstances and the circumstances cumulatively form a chain so complete that there is no escape from the conclusion that with all human probabilities the appellant is the perpetrator of the crime and thus clearly point out towards the guilt of the appellant. 18. We may usefully refer to the observations of the Supreme Court in “Balu V/s State of Kerala” 2010 AIR SCW 5105. In the said judgment the Supreme Court has observed thus- 18. In Krishnan V State represented by Inspector of Police (2008_ 15 SCC 430. this Court after considering large number of its earlier judgments observed as follows: “This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. Those circumstances should be of definite tendency unerringly pointing towards guilt of the accused. 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and non else; and 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of {14} Cri. Appeal No.146/2010 the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 19. In Sharad Birdhichand Sarda V/s State of Maharashtra, AIR 1984 SC 1622, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are- 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Circumstances concerned ‘must’ and not ‘may be’ established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused” 19. After re-appreciating the evidence on record, we do not find any fault with the conclusion arrived at by the trial court {15} Cri. Appeal No.146/2010 while convicting and sentencing the appellant. In the premise, the appeal deserves to be dismissed. 20. Consequently, the appeal, being devoid of merits, stands dismissed, confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel146-10