drp {1} Cri. Appeal No.29/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.29 OF 2010 1. Pandurang Premnath Fukate APPELLANTS Age-44 years, Occ-Agri 2. Bhimabai Pandurang Fukate Age-42 years, Occ-Household Both R/o Madaj, Tq-Omerga, Dist-Osmanabad VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for appellants Mrs.S.D.Shelke, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 7 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. The appellants, who are husband and wife and who are convicted for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and u/s 307 r/w 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of drp {2} Cri. Appeal No.29/2010 Rs.2000/- each in default to undergo further RI for 6 months on first count and to suffer RI for 5 years and to pay fine of Rs.1000/- each, in default to suffer further RI for 3 years, on second count, vide judgment and order dated 12.12.2009 passed by Additional Sessions Judge Omerga, in Sessions Case No.30/2005, have questioned the correctness of their conviction and sentence. 2. Prosecution case, as unfolded during the trial, may briefly be summarized thus - a) On 14.09.2005, Police Inspector Kutate, (PW-12) attached to Omerga police station, received a message at about 11.45 p.m. that one Premnath was murdered and his son Vishwanath was injured by the appellants. It was also informed that injured Vishwanath was shifted to sub district hospital at Omerga. Thereafter, PI Kutate rushed to the sub district Hospital, Omerga. PW-2 Vaijnath had lodged complaint (Exhibit-58) of the incident, which came to be registered at Crime No.171/2005 for an offence punishable u/s 302, 307 r/w 34 of the Indian Penal Code, against the appellants. b) Dr.Shivshankar (PW-10) examined injured Vishwanath at 00.30 hours on 15.09.2005 and noticed following injuries on the person of injured Vishwanath. drp {3} Cri. Appeal No.29/2010 1. Cut injury on neck from thyroid cartilage on right side 3” x ½ cm leading present, muscle open. 2. Cut injury to right index finger, second phalurix 1 x 1 cm bleeding present. 3. Cut injury to left wrist joint 1 x ¼ cm bleeding present. 4. Cut injury to left angle of mandible to border line of mandible 4” X ½ cm 5. Cut injury to left ear lob ½ X ¼ cm 6. Cut injury on frontal region right side extending to parietal region 4” X ¼ bleeding present 7. Multiple abrasion on both legs. Accordingly, medical certificate (Exhibit-86) was issued. Thereafter, on medical advice, injured Vishwanath was shifted to Civil Hospital, Solapur. Dr.Suresh Deokar (PW-11) examined injured Vishwanath in the Civil Hospital at Solapur. He also noticed the injuries, which were noticed by the medical officer of Sub District Hospital, Omerga. Accordingly, medical certificate (Exhibit-89) was issued. c) Investigation of the said offence was conducted by PW-12 PI Kutate. During the investigation, though PW-12 visited village Madaj during the night between 14 th and 15 th September 2005, yet Inquest Panchanama (Exhibit-72) on the dead body of Premnath and spot Panchanama drp {4} Cri. Appeal No.29/2010 (Exhibit-73) were conducted in the morning of 15th September 2005, as it was darkness in the night and light facility was not available there. Complainant Vaijnath was present at the time of conducting Inquest and Spot Panchanamas. Two blankets stained with blood, one piece of Solapur Chhader stained with blood, one piece of white dhoti and blood mixed soil and plain soil were collected from the spot. Blood found on the wood was collected with cotton swabs (Articles 1 to 8). Thereafter, the dead body was sent for Postmortem. PW-1 Dr.Dinesh Joshi conducted autopsy on the dead body and prepared Postmortem report (Exhibit-54). During the examination the medical officer noticed the following external injuries on the dead body 1. Deep incised wound over interior aspect of neck extending from below the right ear to left angle of mandible cut ends are shallow and wound is deep in the middle and more so on right side of size 19 cm X 14 cm X up to bone deep (Spinal colomn) Level or cut is above the hyoid bone. All the structures in the neck i.e. trachea, cesophagues, all vessels, sternamastoid, muscles are cut edges of wound are clean. 2. Incised wound over hand dorsum oblique 7 cm X 0.5 cm X 1 cm deep The medical officer, on internal examination of the dead drp {5} Cri. Appeal No.29/2010 body, noticed that thoracic walls were intact, trachea was cut into two parts above the hyoid bone and both lungs were collapsed. As per the medical officer, the probable cause of death is due to cut throat injury. Accordingly, Postmortem report (Exhibit-55) was prepared. d) In the meanwhile, clothes of the deceased (Articles 9 to 11) were seized under Panchanama (Exhibit-92). The appellants came to be arrested on 15.09.2005 itself and clothes on the person of the appellant No.1, which were stained with blood (Articles 14 and 15) were also seized under Panchanama (Exhibit-93). On the same day, clothes on the person of the injured Vishwanath (Article 12 and 13) were also seized under Panchanama (Exhibit-94). e) During the investigation, statements of witnesses came to be recorded on 16.09.2005. Appellant No.1, while in custody, made voluntary disclosure statement (Exhibit-95), in presence of witnesses, which resulted into discovery of one axe (Article-16), which was found stained with blood from the house of the appellants and one knife (Article-17) stained with blood from grass below neem tree in the field which was seized under Panchanama (Exhibit-96). f) Statement of injured Vishwanath (Exhibit-60) came to be recorded by 5th Judicial Magistrate, First Class, Solapur drp {6} Cri. Appeal No.29/2010 on 15.09.2005. Injured Vishwanath came to be discharged on 22.09.2005. Thereafter, his further statement came to be recorded by the police. On 22.09.2005 itself, statement of eye witness Mahadeo came to be recorded. g) The seized property came to be forwarded to the CA on 29.09.2005 and after completion of the investigation, charge sheet came to be filed in the Court of JMFC, Omerga. h) On committal of the trial to the Court of Sessions, Omerga, the trial court framed charge (Exhibit-9) against the appellants for an offence punishable u/s 302 r/w 34 and 307 r/w 34 of the Indian Penal Code. The appellants abjured their guilt and claimed to be tried. Prosecution, to substantiate the charges levelled against the appellants, examined in all 12 witnesses including 3 doctors, 5 Panch witnesses, Complainant, injured Vishwanath, eye witness Mahadeo and the Investigating Officer. Defence of the appellants was of total denial and their false implication. After appreciation of the evidence, the trial court convicted the appellants and sentenced them as stated above. 3. For better appreciation of the submissions advanced by learned counsel for the appellants and learned APP, it may be useful to advert to the material witnesses examined by the prosecution before the trial court. drp {7} Cri. Appeal No.29/2010 4. The evidence can be divided in two parts viz, firstly incident in respect of charge u/s 302 r/w 34 of the Indian Penal Code for which the prosecution has relied on the evidence of PW-5 Mahadeo, Medical evidence i.e. PM report and recovery of incriminating articles at the instance of appellant No.1 and secondly in respect of charge punishable u/s 307 r/w 34 of the Indian Penal Code for which prosecution has mainly relied on the evidence of injured witness Vishwanath. Even the appellants have not disputed the fact that death of deceased Premnath is homicidal one. What they have disputed is that they are the authors of the homicidal death of Premnath. 5. It transpired from the evidence of PW-5 Mahadeo that deceased Premnath was his maternal uncle, who had two sons, injured Vishwanath and appellant No.1 Pandurang. Premnath had divided his agricultural land in three equal shares of 4 Acre each between himself and his two sons. Premnath had retained four acres of land for his maintenance. There was one well in the agricultural land, which came to the share of Vishwanath. Premnath (deceased) and his wife were residing with Vishwanath. Vishwanath was cultivating the land of his father Premnath. Appellant No.1, at the instigation of appellant No.2, was claiming share in the well as well as in the land retained by Premanath (deceased) for which Premnath was not ready. The said dispute was also referred to Village Panchayat and appellant No.1 had drp {8} Cri. Appeal No.29/2010 threatened to kill Premnath and Vishwanath. He has further deposed that due to the old age of Premnath, he was suffering from the problem of eyesight. Premnath was advised an eye surgery. During the night on 14.09.2005 he had been to village Madaj to meet deceased Premnath and to discuss about the eye surgery to be performed on Premnath. At about 9.30 p.m. he met Premnath and had a talk with him and thereafter he was returning to his village. After he walked about 100 feet, he heard shouts of deceased Premnath - “Melo... Melo” (Killed Killed). Therefore, he rushed back and saw that appellant No.1 was cutting throat of the deceased with a knife while appellant No.2 had caught hold of legs of Premnath (deceased). He has stated that when he questioned appellant No.1 as to why he was assaulting Premnath, appellant No.1 rushed to him and threatened him also and hence, he, in order to save himself, ran away from the spot. After some time, when both the appellants went towards their house, he came near Premnath and noticed that Premnath was dead. Thereafter he shouted for help and on hearing his shouts some villagers gathered at the spot. There he came to know that the appellants had also assaulted Vishwanath (PW-3). Thereafter he shifted Vishwanath to a hospital at Omerga with the help of some villagers. He has stated in his cross examination that on the next morning he met police but did not inform them about the incident of murder of Premnath by the appellants, witnessed by him. He has further stated in the cross examination that on that day, though he had been to the house of Vishwanath and had a talk with him and others, but did drp {9} Cri. Appeal No.29/2010 not disclose the incident of murder of Premnath, witnessed by him. Certain omissions are brought on record in his cross examination that he heard shouts of the deceased from a distance of 100 feet, the appellants had threatened deceased and Vishwanath on account of share in the land, he had consulted with his wife in respect of surgery to be performed on the eye of the deceased and he has to go to Madaj on 14.09.2005. He has further admitted in his cross examination that he has not stated in the statement before police that he saw that the appellants went towards their house, after the incident witnessed by him was over and then he went to the place where deceased was lying and he came to know from the villagers that Vishwanath was also assaulted by the appellants and he took Vishwanath to the hospital at Omerga. On the contrary, in clear terms, he has admitted that he had not accompanied injured Vishwanath to the hospital at Omerga from Madaj. He has further stated that on hearing his shouts some villagers came from the house of Vishwanath, however, he was unable to give names of the said persons. In his further cross examination he has, in no uncertain terms, admitted that he had not informed the incident witnessed by him to complainant Vaijnath. He has also admitted that he had also not informed the incident witnessed by him to Vishwanath. According to him, he met Vishwanath and Vaijnath after 7/8 days of the incident, however, he further admitted that he had attended the funeral of Premnath on 15.09.2005. In his further cross examination he has tried to explain that as he was admitted in the hospital at Solapur, drp {10} Cri. Appeal No.29/2010 he could not inform the incident to police. However, he has admitted that for the first time he was deposing that he was hospitalized at Solapur, before the Court. 6. PW-2 Complainant Vaijnath is grand son of deceased Premnath and son of injured Vishwanath. He has stated about the dispute between appellant-injured and deceased over the piece of agricultural land retained by Premnath for his maintenance. About the incident, he has stated that in the said evening he had gone to see a movie and while he was returning at about 11.00 p.m. he was informed on his way to the house about the assault on Premnath and Vishwanath. He has further stated that when he reached at the spot, he saw that his mother and one Shivaji Mane were taking his father to a vehicle. Thereafter, he noticed injuries on the person of Vishwanath and when enquired Vishwanath had told him that the appellants have killed Premnath with knife and axe. He has further stated that when he enquired with his wife about the incident, she also informed that the appellants had just killed Premnath and also assaulted Vishwanath. He accompanied his father to the sub district Hospital, Omerga. When police came to the hospital, he narrated the incident to the police, on the basis of which the offence came to be registered against the appellants. In his cross examination he has stated that death of his grand father occurred in a shed of one Tanaji Kale, which is at some distance from his house. He has further stated in his cross examination that he had disclosed the police as to how the incident has drp {11} Cri. Appeal No.29/2010 occurred. He has admitted in the cross that while he was returning to his house after seeing the movie, he came to know that there was only quarrel and he was unaware about demise of Premnath. In his further cross examination certain omissions are brought on record viz – his wife, mother and Shivaji Mane were taking his father to a vehicle, his father disclosed him that the appellants have killed Premnath with knife and axe, his wife disclosed that the appellants had just killed Premnath and had assaulted Vishwanath. According to learned counsel for the appellants, the last two omissions would go to the root of the matter in respect of extra judicial confession, if any, as projected by the prosecution, given by the appellants to injured Vishwanath and hence the same create doubt. 7. The star witness of the prosecution is Vishwanath (PW-3). He is son of deceased Premnath and brother of appellant No.1. He has stated in his evidence initially about the dispute between him and appellant No.1 over the piece of agricultural land and in the second part about the incident dated 14.09.2005. While deposing about the incident in question, he has stated that after having dinner, his father (deceased) had gone to sleep in a shed and his son Vaijnath had gone to see a movie. He woke up from the sleep as appellant No.2 had caught hold of his legs and appellant No.1 was stood near his head. Appellant No.1 gave blow of knife on his neck and blow of axe on his head. At that time appellant No.1 had told him that he had already killed Premnath (deceased) and drp {12} Cri. Appeal No.29/2010 told Vishwanath to allot the share in the land and in the well otherwise he would also be killed. Thereafter his daughter in law woke up and started shouting then his wife and mother also woke up and they also started shouting and on hearing their shouts both the appellants fled from the spot. His wife had asked him to catch the appellants, however, the appellants ran away in a standing crop behind his house. He has further stated that he tried to chase the appellants, but he was unable to catch them. He has further stated that he had sustained bleeding injuries over his neck and head. His wife and daughter in law had tied a piece of cloth on the injuries. Thereafter he went towards the place where his father had gone to sleep and noticed that his father was dead and had sustained injuries over his neck. Some villagers took him to sub district hospital at Omerga and after primary treatment he was shifted to Civil Hospital, Solapur. In the civil Hospital at Solapur, his statement was recorded by JMFC, Solapur. Thereafter he returned to his village on 22.09.2005. He has stated in the cross examination that Premnath was killed in a shed, which is surrounded by some houses. He has further stated that he was assaulted in the night on 14.09.2005, in his house, when he was in a fast sleep. He denied that he has stated in the statement recorded by JMFC that appellant No.1 gave axe blow on his neck, he did not become unconscious while chasing the appellants, appellant No.1 was saying that he would kill him and his father within 6 months, his wife was sleeping inside the house and both of his sons had gone to see movie. He has admitted that he has not drp {13} Cri. Appeal No.29/2010 stated in the statement recorded by JMFC that he woke up from sleep as his legs were caught by appellant No.2 and he saw that appellant No.1 was standing near his head. Omission in the statement recorded by JMFC are brought on record that he has not stated that appellant No.1 had given knife blow on his neck. He has admitted that he has not stated in the statement recorded by JMFC that appellant No.1 told him that he has already killed his father and he would also kill him if the land is not given to him, that his wife had tied piece of cloth on the injuries sustained by him, that appellant No.1 was demanding share in the land and well and was picking quarrel with his father, threatening him and his father to kill over the dispute of share in the land and well and that a meeting was arranged in the village where understanding was given to appellant No.1, however he did not listen. In his further cross examination omissions are proved from his police statement that he has not stated to police that his son had gone to see a movie and that appellant No.1 was threatening to kill him. According to him, after hearing shouts of his daughter in law, some neighbours had came there and on seeing them the appellants had ran away from the spot, but the neighbours did not chase them. He has further admitted that PW-5 Mahadeo is his real brother in law i.e. brother of his wife. 8. We have heard learned counsel for the appellants and learned APP in the backdrop of this evidence. Learned counsel for appellants vehemently urged that the trial court has committed an drp {14} Cri. Appeal No.29/2010 error in accepting evidence of PW-5 as an evidence of eye witness. It is further urged that PW-5 is brother in law of PW-3 Vishwanath and he is resident of another village which is situated at a distance of about 6 km from the place of incident. It is urged that PW-5 had no occasion to meet the deceased without meeting PW-3 or PW-2 who are closely related to him than the deceased. It is also urged that on perusing evidence of PW-2, PW-3 and PW-5, it is clear that evidence of PW-2 and PW-3 nowhere refers the presence of PW-5 at the material time at the said place. Our attention is also drawn towards the admission given by the investigating officer (PW-12) in his cross examination that presence of PW-5 Mahadeo at the spot of incident at the material time did not reveal from the statements of witnesses recorded during the investigation. It is also urged that according to PW-5, he has witnessed the incident of murder of Premnath (deceased) on 14.09.2005 and he has also attended the funeral on 15.09.2005, however admitted in his cross examination that he had not disclosed the incident either to Vaijnath (Complainant) or Vishwanath (PW-3) or to the police till his statement is recorded by the police on 22.09.2005. According to learned counsel for the appellants, absolutely no explanation is offered by PW-5 Mahadeo for keeping silence till 22.09.2005. The explanation offered by him that he was hospitalized after 14.09.2005 is in fact a lame excuse and hence need to be discarded. He has clearly admitted in his evidence that he was for the first time disclosing that he was hospitalized during the said period. drp {15} Cri. Appeal No.29/2010 9. We are in agreement with the submissions advanced by learned counsel for the appellants that evidence of PW-5 Mahadeo to be disbelieved on the point that he has witnessed the incident of murder of Premnath for the simple reason that his presence at the place of offence at the relevant time appears to be improbable. Admittedly, PW-5 is not the resident of the village where the incident has occurred and the reason given by him why he came to Madaj appears to be most unnatural. Because, instead of informing or meeting PW-2 and PW-3, why he met the deceased in isolation to inform the scheduled date of his surgery, is an unsolved question. Apart from it, evidence of PW-2 and PW-3 is conspicuously silent on the point that any eye surgery of deceased was proposed. In such circumstances, conduct of PW-5 appears to be improbable. Moreover, when PW-5 claims that he had witnessed the incident of murder of Premnath and though house of Vishwanath, his brother in law, was at a distance of hardly 15 to 20 feet yet why he did not think it proper to rush to the house of Vishwanath and inform about the incident and instead preferred to go to Solapur. The reason given by PW-5 that due to fear of appellants he did not disclose the incident to anybody, is a lame excuse, which cannot be accepted. Admittedly, PW-5 had attended funeral of Premnath and the appellants were arrested on 15.09.2005 and when the appellants were in police custody, what prevented PW-5 Mahadeo from disclosing the incident of murder of Premnath, however he preferred to keep mum for more than 8 days drp {16} Cri. Appeal No.29/2010 and absolutely no explanation is offered for such delay by PW-5. 10. At this juncture, it may be useful to refer to the observations of the Apex Court in the matter of “State of Orissa V/s Brahmanand Nanda” (1976) 4 SCC 288, wherein the Apex Court has observed that evidence of sole eye witness in the criminal trial not disclosing names of murderers for a day and half after the occurrence, seriously affects the creditability of the witness. In the instant case also PW-5, though knew, did not disclose or kept silence for a considerable period of 8 days, creates doubt about his veracity. Therefore, evidence of PW-5 needs to be discarded being not confidence inspiring. 11. Other than the evidence of PW-5, conviction of the appellants for the offence punishable u/s 302 r/w 34 of the Indian Penal Code is based on the evidence of extra judicial confession given by the appellant No.1 before PW-3. From the evidence, which we have discussed above, it is clear that the first statement (Exhibit-60) of PW-3 Vishwanath was recorded by the 5th JMFC, Solapur on 15.09.2005 while he was under treatment. As observed by the Apex Court, in the matter of “Gujala Surya Prakasarao V.s State of Andhra Pradesh” 2010 AIR SCW 140, that if maker of the statement is alive and is examined, then his / her statement recorded earlier is not admissible u/s 32, but would be admissible u/s 157 of the Indian Evidence Act. In the case in hand, statement of