1 Criminal Appeal No.355 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.355 OF 2010 Babasaheb Navnath Andhale, Age-37 years, Occu-Agriculture, R/o.Pimpala Rui, Tq.Wadwani, Dist. Beed APPELLANT VERSUS The State of Maharashtra, Through Police Station Officer, Police Station, Majalgaon, Tq.Majalgaon, Dist. Beed RESPONDENT Smt.S.S.Jadhav h/f. Mr.V.D.Salunkhe, learned counsel for the appellant. Smt.S.D.Shelke, learned A.P.P. for respondent State Mr.R.V.Deshmukh, learned counsel for original complainant. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 04/08/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By this appeal, the appellant has questioned the correctness of his conviction and sentence for an offence punishable u/s. 302 of the IPC, for which he was sentenced to suffer imprisonment for life in Sessions Case No.7/2009 by the Ad-hoc Additional Sessions, Judge, Majalgaon by her judgment and order dated 07/08/2010. 2 Criminal Appeal No.355 of 2010 2. Prosecution case, as unfolded before the Trial Court, is as under : (a) On 04/08/2008, on the basis of complaint (Exh.38) lodged by Bibhishan Navnath Andhale (P.W.No.1) received in Wadwani Police Chowki, by P.S.I. Shivdas Ramlal (P.W.No.13) P.S.I. attached to Dendrud Police Station, an offence was registered at Cr.No.101/2008, for an offence punishable u/s. 302 of the IPC against the appellant by P.S.O. Police Head Constable Anurath Badhade (P.W.No.11). Following to the registration of an offence, investigation in the said crime was entrusted to P.W.No.13 P.S.I. Shivdas Chavan. (b) During the investigation, P.W.No.13 Shivdas Chavan immediately visited the spot and drew spot panchnama (Exh.46) in presence of witnesses on the same day i.e. on 04/08/2008 in between 9.30 a.m. to 10.00 a.m. From the spot, i.e. the shop-cum- office run by the complainant under the name and style as ‘Aditya Earth Movers’ at Wadwani, situated at Beed-Parali road, he seized Article 1 collectively pick-axe, Article 2 mattress, Article 3 pillow cover and one mobile handset. One dead body of male was found lying on the spot. The dead body was identified by Bibhishan as the dead body of his brother Atmaram. He then drew inquest panchnama (Exh.85) in presence of witnesses. Then the dead body was referred for autopsy. (c) Dr.Madhav Pandurang Kendre (P.W.No.15), Medical 3 Criminal Appeal No.355 of 2010 Officer, Rural Hospital, Chinchwan conducted autopsy on the dead body. He had mentioned all the external and internal injuries, which were found on the dead body of Atmaram in the post mortem report. He has opined that the death was occurred within 6 hours after the last meal taken by the deceased. He further opined that cause of death is due to hypovolmic shock due to multiple stab injuries all over the body. Accordingly, he prepared post mortem report (Exh.102) and issued provisional certificate about cause of death Exh.103. According to him, death of the deceased was instant. Viscera was also preserved and sent for chemical analysis. (d) During the post mortem, clothes on the person of deceased and the pick-axe found piercing in his cheek were seized in presence of panch witnesses under panchnama Exh.65. The clothes and the weapon i.e. pick-axe were produced by Police Constable Shri.Bhusari in Wadwani Police Chowki. Clothes on the person of the accused were seized under panchnama Exh.48 in presence of panch witnesses drawn on 04/08/2009 at about 3.00 p.m. to 3.30 p.m. On that day, he had recorded statements of 6 witnesses including Dipak Gaival (P.W.No.4), Subhash Andhale (P.W.No.6), and Jaydeo Andhale (P.W.No.7). (e) On the same day, an intimation was given on phone to the dog-scod around 11.15 a.m. Around 2.15 p.m., dog-scod reached at the spot alongwith dog handler and head of the scod Laxman 4 Criminal Appeal No.355 of 2010 Umbare (P.W.No.14). Dog handler gave smell of pick-axe to the sniffer dog namely ‘Rocky’. From the apprehended suspects present in the police station, sniffer dog pointed out to the appellant. Panchnama to that effect (Exh.90) was prepared in the police station at about 2.45 p.m. Thereafter, appellant came to be arrested at about 10.00 p.m. under the arrest panchnama at Exh.91. During further investigation, statements of some more witnesses were recorded. Articles seized during the investigation were sent to Chemical Analyser alongwith covering letter at Exh.92 and 93. In due course, report of Chemical Analyser at Exh.94 to 96 was received. Further to the completion of investigation, charge sheet was filed against the appellant before J.M.F.C. Wadwani. (f) On committal of trial to the Court of sessions, learned Trial Court framed charge at Exh.20, for an offence punishable u/s. 302 of the IPC against the appellant. Appellant pleaded not guilty to the charge and claimed to be tried. Defence of the appellant is of total denial. During the trial, to prove the guilt of the appellant/accused, prosecution has examined total 15 witnesses. By relying on the evidence led by the prosecution, learned Trial Court has passed the judgment of conviction against the appellant. 3. During the course of arguments, learned counsel for appellant has fairly submitted that appellant is not disputing that the death of deceased Atmaram is a homicidal death. In the light of this 5 Criminal Appeal No.355 of 2010 statement, we need not feel it necessary to discuss the medical evidence led before the Trial Court. 4. On perusal of the record, it is clear that there is no eye witness to the incident in question, but the case of prosecution rests on circumstantial evidence. These circumstances are as follows : 1. Death of victim/deceased Atmaram is a homicidal death. 2. There was dispute between deceased Atmaram and appellant Babasaheb over the distribution of amount of compensation received for acquisition of land which is the motive behind the crime. 3. Deceased was last seen in the company of appellant. 4. Identification of the appellant by the sniffer dog. 5. Seizure of blood stained clothes from the person of the accused. 6. Blood found on the clothes of the appellant matched with the blood group of the deceased. 5. For better appreciation of the submissions of learned counsel for appellant, and that of learned A.P.P., it is necessary to advert to the evidence of material witnesses. 6. Bibhishan Navnath Andhale (P.W.No.1), the complainant has stated in his evidence that appellant Babasaheb and deceased Atmaram are his real brothers. His father was in possession of 12 6 Criminal Appeal No.355 of 2010 acres of land in village Pimpala Rui. Out of the said 12 acres of land, 7 acres of land was acquired for Sonna khota dam for which compensation of Rs.5,66,000/- was awarded and received by them. Remaining 5 acres of land was partitioned amongst the 3 brothers and the father. In the partition, 1½ acre of land was given to the share of each of the brother and remaining ½ acre of land was kept for the maintenance of their father Navnath. P.W.No.1 Bibhishan, his father and deceased Atmaram were residing together while appellant Babasaheb was residing separately with his family members. Other than agricultural operations, P.W.No.1 Bibhishan Navnath is also doing the business of operating J.C.B. Machine, under the name and style “Aditya Earth Movers’. He was doing this business alongwith his brother Atmaram. He had further stated that on 01/08/2008, appellant had been to his house and asked him to partition the land kept for maintenance of their father and demanded his share from the amount of compensation of land acquisition received immediately. Deceased had refused to give his no objection, but assured that he will give his no objection when really, the appellant is in need of money. Thereafter, appellant threatened the deceased to kill if he will not give his no objection for withdrawal of the amount of compensation. He has further stated that in the evening of 03/08/2008, he was in his office alongwith deceased and his cousin Bhaskar. Around 7.00 p.m., he had left his office keeping behind deceased and Bhaskar. On the following day, i.e. on 04/08/2008, he received telephone call from Dinkar that his 7 Criminal Appeal No.355 of 2010 brother Atmaram had sustained injuries. He had further stated that on receipt of said telephone call, immediately he alongwith Jaideo (P.W.No.7), Subhash (P.W.No.6) and his father came to their office where he noticed dead body of Atmaram with pick-axe (tikav) pierced in his cheek. He also noticed that Atmaram had also sustained bleeding injuries on his neck and on his chest. Then he lodged the complaint. 7. The witness was cross examined at length. He has admitted in his cross examination that his office i.e. office of ‘Aditya Earth Movers’ is surrounded by number of shop and situated on the road having heavy traffic. He has further admitted in his cross examination that, “at the time of acquisition of land, the land was in the name of all the 3 brothers and an award was passed in the name of all the 3 brothers”. He has further admitted that joint account was opened in the bank in the name of all the 3 brothers, in which an amount of compensation was deposited. He has further admitted that no litigation was pending or filed in any court by either of them over the dispute of partitioning the land or for distribution of compensation amount. He has further admitted that he had withdrawn the amount of his share and the of the share of deceased by posing their father as the legal representative of deceased, and without obtaining consent of appellant from the joint bank account. Amount of compensation was deposited in the bank about 1½ months prior to the incident in question. He has further admitted that on receipt of 8 Criminal Appeal No.355 of 2010 telephone message, he reached in his office around 7.00 a.m. and remained their till 9.00 a.m.. Certain omissions are proved in his further cross examination that, “Atmaram was not ready to give his no objection for withdrawal of amount and will give his no objection when really appellant is in need of money. Then the Atmaram had sustained injury on his cheek. Pick-axe was found pierced in the cheek, which passes from one side and came out from other side from the cheeks of Atmaram. These facts are not found recorded in the police report/complaint at Exh.38. He has stated in his further cross examination that in his statement recorded before the Magistrate, he had stated that on 01/08/2008, when Babasaheb approached to him, he told Babasaheb that he was ready to give amount of his share and also ready to partition the land. He has also admitted that on 04/08/2008, personally he had not handled the pick-axe. He has denied that there was dispute between he himself and deceased Atmaram over the account of J.C.B. Business so also about the accounts maintained by him of the property of deceased and he had falsely implicated appellant in this case with an intention that nobody will suspect him about his illegal deeds with the deceased. 8. Prosecution has examined Dipak Pralhad (P.W.No.4), who is running a grocery shop adjacent to the office of the complainant Bibhishan on the point that he is the first person who had seen the dead body of Atmaram lying in the pool of blood, in the bed, in the 9 Criminal Appeal No.355 of 2010 shop of Bibhishan at about 8.00 a.m. on 04/08/2008, and intimated accordingly, but he has not supported the prosecution during the trial before the Lower Court. 9. Prosecution has examined Navnath Laxman Mundhe (P.W.No. 5), who was serving as a driver on the J.C.B. Machine of Keshavrao Andhale on the point that in the night between 03/08/2008 and 04/08/2008, he had parked his J.C.B. Machine in front of the office of ‘Aditya Earth Movers’ and slept in the cabin of the J.C.B. Machine. He was examined on the point that in the early morning at about 5.00 a.m., he had seen appellant Babasaheb coming from market side and entering in the office/shop of ‘Aditya Earth Movers’. He has further stated that after about ½ an hour, he came outside. After some time, he went to answer call of nature. When he returned back at about 7 a.m. he came to know from the bye-passers that Atmaram was murdered in the shop. He has stated in his cross examination that house of Keshavrao is a two storied building. Keshavrao is a social worker. An arrangement of sleeping is made on the ground floor for the drivers J.C.B. Machine in the said building. He has further stated in his cross examination that his statement was recorded by the police on 18/08/2008. In an un-ambiguous terms, he has admitted in his further cross examination that on the day of incident, he was present at the spot, as well as police, but he had not stated anything to the police or to the complainant Bibhishan that he had seen Babasaheb entering in the office of Atmaram and 10 Criminal Appeal No.355 of 2010 Bibhishan, remained inside for ½ an hour and then went outside. His statement was recorded by the police on 18/08/2008, till then he had not stated anything to the police. He has admitted that the he had attended the funeral of Atmaram. An omission is proved in his further cross examination that the fact was not found recorded in the police statement that he was working with Keshav from last 3 years. He had done work of crusher up to 12 p.m. and then parked the J.C.B. in front of shop of ‘Aditya Earth Movers’. He has further admitted in his cross examination that even though his statement was recorded by the Magistrate, he had not stated anything before the Magistrate about the fact that he was serving with Keshavrao for last 3 years. He has not stated in his statement before Magistrate that he was sleeping in the cabin of J.C.B. Machine and had seen Babasaheb entering in the office and after ½ an hour he came outside. After Babasaheb went away, he went to attend call of nature. These are the contradictions proved in the evidence against him on oath in the Court. Omissions are proved in his further cross examination that he parked J.C.B. Machine in front of office of Shri.Darade, and had seen that the pick-axe was pierced in the cheek of Atmaram, but this statement is not found place in his statement recorded by the Magistrate. By drawing our attention towards the evidence of P.W.No.5, it is urged that it is risky to rely on the testimony of this witness when he claimed that he had seen the appellant entering in the office of P.W.No.1 and deceased, coming out after ½ an hour and in the same office early in the morning, dead 11 Criminal Appeal No.355 of 2010 body of Atmaram was found, then he was present even after arrival of the police, but not disclosed the incident seen by him to the police or to the Bibhishan, the real brother of the deceased and appellant. This conduct of the witness is improbable and un-natural. This witness has disclosed all these facts to the police after 15 days. It is also urged that why this witness had kept mum for 15 days, is not explained by the prosecution in its evidence. 10. Prosecution has examined Arjun Waghmare (P.W.No.8) on the point that deceased was last seen in the company of appellant. Arjun has stated in his evidence that he is working as a ‘coolie’ in the adat shop of one Bhikan Sundarrao Andhale. He has further stated in his evidence that during night hours, he used to sleep in the said Adat shop. He has further stated that in the night of 03/08/2008, appellant also came there to sleep as there was raining. He has further stated that in the morning, appellant wake up and went from there. At about 8.00 a.m. he came to know about the murder of brother of Babasaheb. A statement was given by this witness in his cross examination that Adat Shop is not situated on Beed-Parali road. Drivers working with Keshavrao Andhale used to sleep during night hours in the space provided in the building of Keshavrao Andhale. In his evidence, fatal admission is coming forth that “it did happened that Babasaheb came in his shop about 9.00 p.m. and went from there in the morning 6.00 to 6.15 a.m. and during that time, he was with him.” 12 Criminal Appeal No.355 of 2010 11. Prosecution has relied on the evidence of Laxman Umbare (P.W.No.14) the police constable attached to dog scod of the Bomb Detection and Destruction Cell, Latur on the point of identification of the appellant by the sniffer dog. He has stated in his evidence that on receipt of wireless message, he alongwith the dog handler Mudans LPC B.No.1100, came to Wadwani alongwith the sniffer dog. At Wadwani Police Chowky, they contacted PSI Chavan (P.W.No.13). Then they went to the place of incident, but no incriminating articles were found at the spot. Hence they returned to Wadwani Police Chowky. On instruction of Investigation Officer, smell of one pick- axe was given to the dog. 5 suspects were produced for identification in front of the sniffer dog. Sniffer dog pounced on the suspect standing at Sr.No.3. On inquiry, that person gave his name as Babasaheb. Thereafter, he was given in the custody of Investigation Officer. Accordingly, report was submitted in the prescribed form. He has further stated in his cross examination that only identification parade was conducted as referred in Exh.90. No smell was given to the sniffer dog at the spot of incident. He has further stated that Investigation Officer had not prepared the panchnama as per the events took place since the sniffer dog was brought and he pounced on the suspect standing at Sr.No.3 in the queue. No panchnama was prepared in respect of the fact that smell of pick-axe was given to the sniffer dog. He has specifically admitted that entire procedure of identification by the sniffer dog was not recorded in the memorandum at Exh.90. He has further admitted that it is necessary 13 Criminal Appeal No.355 of 2010 to give vaccination to the dog as in absence of regular vaccination sniffer dog can not work properly. He has admitted that report in respect of vaccination to the sniffer dog were not produced. He has specifically admitted that the pick-axe, of which smell was given to the sniffer dog, was in the police station itself. 12. Prosecution have examined Vinayak Kalyanrao Jadhav (P.W.No. 9), the panch witness to prove seizure of clothes on the person of the accused. He has stated in his evidence that on 04/08/2009, he was called in Wadwani Police Chowky at 3.00 p.m. to prepare the panchnama about the seizure of clothes of the appellant. In his presence, police had seized one shirt, one pant stained with blood (Articles 8 and 9) and one motor-cycle under the panchnama Exh.48. As against this, he has admitted in his cross examination that his relations with police are cordial. Before his arrival in the police station, written panchnama was already prepared. In clear terms, he has stated that he do not know about any clothes as accused was not present in the police chowki. Neither this witness was declared hostile nor any explanation was called from this witness about the answers given by him in the cross examination. 13. In the light of this evidence, we have heard learned counsel for appellant and learned A.P.P. for State.Learned A.P.P. has supported the findings recorded by the Trial Court while convicting the appellant. As against this, it is urged and rightly pointed out by the 14 Criminal Appeal No.355 of 2010 learned counsel for appellant that evidence about last seen together of appellant with the deceased is not established because of the contrary evidence given by P.W.No.5 Navnath Mundhe and P.W.No.8 Arjun Waghmre. It is also urged that if evidence of either of the witness is accepted, then it will falsify the evidence given by other. In the premise, it is urged that evidence given by P.W.No.5 and P.W.No.8 be totally discarded. It is further urged that evidence about seizure of clothes on the person of the accused is not established as in the cross examination, P.W.No.9 even though admitted his signature on the seizure panchnama, still he has admitted that appellant was not present in the police station when the clothes (Article 8 and 9) were seized under the panchnama at Exh.48. It is also urged that the blood stained pick axe removed from the cheeks of the deceased, while conducting the post mortem, was seized under the panchnama at Exh.65 which was drawn in between 4.00 p.m. to 4.30 p.m. As against this, the smell of pick-axe was given to the sniffer dog at about 2.30 p.m. as per evidence of the dog handler P.W.No.14 and his report at Exh.90. In the premise, it is urged that it is doubtful whether the smell of the pick axe in questionh was given to the sniffer dog, on the basis of which the sniffer dog identified the appellant, is a big question and the circumstance which allegedly claimed to be proved are totally doubtful. It is also urged that as per the evidence given by the prosecution witnesses, appellant was arrested under arrest panchnama at Exh.91 at 10.00 p.m., while his clothes were seized at 3.00 p.m. i.e. about 7.00 hours 15 Criminal Appeal No.355 of 2010 prior to his arrest, which seizure panchnama is also doubtful. In the premise, finding of blood of the blood group of the deceased on the clothes of the appellant is also a doubtful circumstance. In the light of this, learned counsel for appellant has urged that the circumstances leading to the guilt of the appellant were not proved, so also the chain of circumstances is also not established. 14. After hearing these submissions of learned counsel for appellant and of learned A.P.P. for State across the bar, and on re- appreciation of the evidence and as stated earlier, the first circumstance, that the death of deceased is a homicidal death is not disputed by the appellants hence require no further discussion of the medical evidence. Evidence of P.W.No.1 complainant on the point of motive behind the crime is also not established from the proved omissions and contradictions in his evidence and particularly his admission that there was no litigation pending or lodged by either of the parties to effect the partition of the land which was in the share of their father for maintenance and about distribution of the amount of compensation received for the acquisition of the land. So also we are of the considered view that this motive is also not established as the amount of compensation was deposited in the account opened in the joint name of the deceased, complainant and the appellant, so also at the time of acquisition of the land, the land was also stood in the name of these 3 persons and the award of compensation was also in the name of these 3 persons. 16 Criminal Appeal No.355 of 2010 15. P.W.No.5, Navnath Mundhe has claimed that he had seen the appellant entering in the office of complainant and deceased after opening the shutter and came out after ½ an hour, is falsified from the evidence of P.W.No.9 Arjun Waghmare, who states that appellant was with him in the intervening night from 9.00 p.m. of 03/08/2008 to 6.30 a.m. of 04/08/2008. Apart from it, silence on the part of P.W.No.5 Navnath Mundhe about non disclosure of the incident, what he had seen to the police, even though he was present at the spot after arrival of police, still his statement was recorded on 18/08/2008, hence according to us, conduct of P.W.No.5 Navnath is abnormal and un-natural. Other than this abnormal and un-natural conduct of P.W.No.5, we have also taken a note that he has nowhere stated in his evidence or police statement that he had seen the