1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.909 OF 2005 WITH CRIMINAL APPEAL NO.962 OF 2005 CRI.APPEAL 909/05: Prashant Dattatraya Belapurkar. Prisoner No.C/-2919, Kolhapur Central Prison, Kalamba, Dist. Kolhapur, R/o. Near/Firangai Mandir, Shivaji Peth, Kolhapur. ...Appellant. Vs. The State of Maharashtra. ...Respondent. .... CRI.APPEAL 962/05: Deepak Anil Mali. Convict No.2918, Kolhapur Central Prison, R/o. Fulewadi, 2nd Bus Stop, Kolhapur. ...Appellant. Vs. The State of Maharashtra. ...Respondent. .... Shri Ashokkumar N. Kotangle for the Appellants. Smt. V.R. Bhonsale, APP for the Respondent. ..... CORAM : SMT.RANJANA DESAI & DR.D.Y.CHANDRACHUD, JJ. 2 August 30, 2008. JUDGMENT : (Per Dr. D.Y. Chandrachud, J.) : The Additional Sessions Judge, Kolhapur, by a judgment dated 16th April 2005, convicted the Appellants of offences punishable under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life, to a fine of Rs.500/- and in default, to suffer rigorous imprisonment for two months. The case of the prosecution is that the deceased, Mahesh, was engaged in the business of repairing two wheelers and resided at Mangalwar Peth in Kolhapur with his mother and two brothers. The accused Nishikant, Deepak and Prashant (the last two being the Appellants in these proceedings) had lent and advanced an amount of Rs.200/- to Mahesh. The accused were allegedly visiting Mahesh for the repayment of the amount. On 17th November 2003, the three accused came to the residence of Mahesh at 5 p.m. and called for him. Mahesh was then on the first floor of the house. Nishikant, 3 accused No.1, went to the first floor and brought Mahesh down to the ground floor. All the three accused and Mahesh thereupon went away. Mahesh was in the habit of returning home late at night and his dinner was kept in a room on the first floor. Mahesh and his brother Ravindra used the room on the first floor. When Ravindra woke up on 18th November 2003 at 7 a.m., he realised that Mahesh had not returned home and the dinner had not been consumed. At 8.45 a.m. the Police from Rajwada Police Station came to the house and informed Gajanan, the other brother of Mahesh that the dead body of Mahesh has been found at Gandhi Maindan. The body was removed to the CPR Hospital, Kolhapur. The deceased had suffered as many as nine injuries including contused lacerated wounds and incised wounds. The FIR was lodged on 18th November 2003 by Gajanan (PW 3) who was the brother of the deceased. Investigation was taken up and the accused were arrested on 18th November 2003. The clothes on the person of the accused were seized under a panchanama. A bottle of alcohol and a glass were found in close proximity to the place where the dead body had been found. The 4 bottle and the glass were forwarded to a finger-print Expert through the Superintendent of Police, Kolhapur, by a letter at Exh.72. Accused Nishikant furnished a statement to the Police which led to the discovery of a barber's razor (Vastara) which was found near a cement pipe in close proximity to a toilet at Gandhi Maidan where the body had been found. The muddemal properties were forwarded to the Chemical Analyser whose report was obtained. Three accused including the Appellants before this Court were tried on the charge of murder. The prosecution examined sixteen witnesses. The Additional Sessions Judge found the accused guilty under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life. 2. On behalf of the Appellants, it has been submitted that the case of the prosecution has rested on circumstantial evidence. The chain of circumstances, it is urged, linking the accused with the commission of offence is not complete. It is submitted that the blood group of the deceased was not established; the role played by 5 each of the accused was not proved and the body was found in a public Maidan. On the other hand, the Learned APP submitted that PW 3, the brother of the deceased and PW 10, the mother of the deceased consistently deposed to the fact that at 5 p.m. on 17th November 2003 the accused had come to their residence and that they had taken the deceased with them. It was urged that the motive was established since the accused had lent and advanced money to the deceased of which they were seeking repayment. The Learned APP urged that the accused were arrested soon after the offence on 18th November 2003; the clothes of the accused were seized under a seizure panchanama and were found to be bloodstained. The report of the Chemical Analyser shows that the clothes which were worn by accused Deepak (the Appellant in Appeal 962 of 2005) had bloodstains of blood group 'B' which corresponded to the blood which was found on the muddemal property, namely, the stone and the barber's razor. In so far as accused Prashant (the Appellant in Appeal 909 of 2005) is concerned, it was urged that the evidence of the finger-print expert establishes the finger prints of the aforesaid 6 accused on the wine bottle and glass which were found at the scene of offence. Neither of the Appellants have in their statements under Section 313 of the Code of Criminal Procedure, 1973 claimed that they had suffered injuries or that there was a scuffle or that they had exercised the right of self defence. In other words, it was not the contention of any of the accused that the blood on the bloodstained clothes was their own blood, due to injuries sustained during the course of a scuffle. Thus, it was urged that the oral evidence of PW 3 and PW 10 who had seen the accused taking away the deceased at 5 p.m. on 17th November 2003 coupled with the corroborative evidence of the finger-print expert, PW 13, Atmaram Angre and the report of the Chemical Analyser would link the accused to the crime and establish the case of the prosecution beyond reasonable doubt. As many as nine injuries were found during the course of post mortem and the evidence of PW 11, Dr.Ruikar, was that these injuries were capable of being caused by a razor, or as the case may be, by a stone. 7 3. In assessing the merits of the rival contentions, it would be in order to advert to the salient aspects of the oral evidence. PW 3 Gajanan was the brother of the deceased. The deceased resided with PW 3 together with his mother and another brother. PW 3 deposed that at 5 p.m. on 17th November 2003, the accused had come to their house and had called for the deceased Mahesh, who was also known as Bajrang. P.W. 3 stated that he stood outside the house and had seen each of the accused who were friends of Mahesh. PW 3 deposed that a loan of Rs.200/- was obtained by Mahesh from the accused and the accused had been visiting the house to take back that amount. On 17th November 2003, Nishikant, one of the three accused, went to the first floor and brought Mahesh down, after which the accused and Mahesh went away together. PW 3 was informed by the Police the next morning of the discovery of the dead body of Mahesh at Gandhi Maidan. PW 10, Vatsala, the mother of the deceased, was also present at home on 17th November 2003 and deposed in terms similar to what was stated by PW 3. The oral depositions of PW 3 and PW 10 have established that the 8 accused were known to the deceased; that on 17th November 2003, the accused had come to the house of the deceased; that some amount had been borrowed by the deceased from the accused which the accused were demanding back and that at or about 5 p.m. the deceased had left home together with the accused, including the two Appellants. 4. The body of the victim was found at or around 7 a.m. on 18th November 2003 by PW 12, Dattaji Tipugade, who had gone to the Gandhi Maindan for exercise. He deposed that he had noticed a dead body lying on the earth behind the toilet at the Maidan and he intimated this fact to the Rajwada Police Station on the telephone; besides bringing it to the notice of the watchman. Following the arrest of the accused on 18th November 2003, a recovery was effected on 19th November 2003 of a razor (Article 15) from near a cement pipe near the toilet. The razor was seized under a seizure panchanama (Exh.27). The clothes worn by the accused came to be seized under a seizure panchanama (Exh.16). The seizure panchanama of the 9 clothes worn by the accused (Exh.16) which was proved in evidence through PW 1 Santosh Pisal shows that bloodstains were found on the clothes worn by both the Appellants. The panchanama was recorded between 1515 hours and 1645 hours on 18th November 2003. One important link in the case of the prosecution is the presence of bloodstains on the clothes which were worn by the accused. The accused, as noted earlier, were arrested on 18th November 2003 soon after the offence. 5. The clothes worn by the accused as well as the muddemal property were submitted for chemical analysis. These articles were forwarded for chemical examination on 29th November 2003 vide Exhibit 74. The report of the Chemical Analyser showed bloodstains of blood group 'B' on the stone and the razor. In so far as the clothes which were worn by accused Deepak are concerned, they too showed the presence of bloodstains of blood group 'B'. In the statement under Section 313 of the Code of Criminal Procedure, 1973, the accused denied that any bloodstains whatsoever were found on the 10 clothes which were seized under the seizure panchanama. Significantly, it was not the case of the accused that he had suffered any injury which had resulted in bleeding or that there was a scuffle or for that matter, that he had exercised the right of self defence. There was a blatant denial by the accused of any bloodstains on the clothes worn at the time of arrest. 6. The next important link in the case of the prosecution is the evidence of the finger-print expert, PW 13, Atmaram Angre. PW 13 is a Government servant at the Finger Print Bureau and he has, during the course of his deposition, testified that the finger prints found on the glass and bottle of alcohol were those of accused - Appellant Prashant. Both the bottle and the glass were recovered from the place where the dead body of Mahesh was found. 7. The medical evidence of PW 11, Dr.Ruikar, who conducted the post mortem, shows that the deceased had suffered as many as nine injuries which were as follows: 11 “1) C.L. W. frontal region-Right side-5.1 x 2.3 x bone deep. 2) C.L. W. Lateral margin of right eye-brow – 2.1 x 0.8 cm. x bone deep. 3) Incised wound-below right eye-5.3 cm. x 1.6 cm. x bone deep. (Marcins gaping). 4) C. L. W. - Lateral margin of base of right nostril 1.9 x 0.6 cm x bone deep. 5) C. L. W. - above lateral end of upper lip right side – 1.2 x 0.4 cm. x bone deep. 6) Incised wound – in front of right ear involving Rt. ear Right tragus lost 8.2 x 2.9 cm x bone deep (Margin gaping) 7) C. L. W. below chin – centrally – 2.1 x 0.6 cm x bone deep. 8)Abrasion right sterno-clavicular joint horizontal – lin ear – 4.1 x 0.2 cm. colour of injuries 1 to 8 – dark red. 9) Dislocation upper 2 – central incisears – on examination vital reaction – colour – dark red.” 12 The deceased was also found to have suffered internal injuries including a fracture on the skull. Some of the external injuries were contused while others were incised. PW 11 deposed that the contused wounds were capable of being caused by a stone and that it was likely that the skull would be smashed as a result of an assault by a stone. The incised injuries were attributed to the razor or Vastara. The injuries sustained by the deceased, PW 11 deposed, were the cause of death. 8. The prosecution has established all the necessary links in terms of circumstantial evidence, beyond reasonable doubt. These circumstances are: (i) The deceased was last seen together with the accused at 5 p.m. on 17th November 2003 at his residence by PW 3 who was his brother and by his mother, PW 10, and had left his place of residence together with the accused; (ii) The accused were arrested on 18th November 2003 soon after the offence and the clothes worn by them were seized under a seizure panchanama; (iii) 13 The clothes which were worn by the accused had bloodstains; (iv) The bloodstains on the clothes worn by accused the Appellant - Deepak, belonged to blood group 'B' and corresponded to the grouping of the bloodstains found on the muddemal property, namely, the stone and the razor; (v) The medical evidence shows that death was caused due to the injuries sustained by the deceased through the razor and the stone; (vi) The evidence of finger-print expert, PW 13, shows that the finger prints on the glass found together with the bottle of alcohol at the place where the dead body was located, belonged to accused Prashant; (vii) In the statement under Section 313, the accused chose to deny that any bloodstains existed at all and it was not the case that the bloodstains on the clothes related to injuries suffered by them during the course of a scuffle or while exercising the right of self defence. The case of the prosecution rested on circumstantial evidence, and all the links in the case of the prosecution have been established beyond reasonable doubt. The circumstantial evidence is consistent with the guilt of the accused alone. It is a settled principle of law that in a case based on 14 circumstantial evidence, the chain of circumstances must be complete and must be consistent with only one possible inference, namely, the guilt of accused. That requirement has been duly fulfilled the present case. The prosecution has established its case beyond reasonable doubt. The judgment of the Learned Additional Sessions Judge does not suffer from any infirmity. 9. There is no merit in the appeals which shall accordingly stand dismissed. ( SMT.RANJANA DESAI, J.) ( DR.D. Y. CHANDRACHUD, J.)