- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.618 OF 2002 (Through jail) Vansha Lakama Gangad ... Appellant (Orig.Accused) vs The State of Maharashtra ... Respondent Ms.Indrayani Koparkar Advocate appointed for Appellant Mrs.P.P.Shinde A.P.P.for Respondent ... CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 5th April , 2010 ORAL JUDGMENT ( Per B.H.Marlapalle, J ) 1. This appeal filed under section 374 of the Code of Criminal Procedure is directed against an order of conviction and sentence passed in Sessions case No.76 of 1999 by the learned Additional Sessions Judge at Palghar District Thane on 27th December, 2001. The appellant-accused came to be convicted for the offences punishable under sections 302 and 201 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life on the first count and rigorous imprisonment for one year on the second - 2 - count. During the pendency of this appeal, the appellant-accused is undergoing the sentence. 2. As per the prosecution case, the appellant is the nephew (Brother’s son) of Malji Gangad (PW 5) and Malji Gangad is the husband of the deceased Bhiklibai and they are residents of village Modgaon- Paraspada in Dahanu tahsil of Thane district. There was some dispute between the accused and his brother Mahadya and he tried to assault Mahadya with an axe which was snatched by the intervention of PW 5 Malji Gangad and his wife. The dispute was then referred to the community panchayat and was settled. However, his axe which was with the deceased was not returned to the appellant despite his demand for the same. On 17th May, 1999 at about 5.30 p.m. the deceased Bhiklibai along with her two grand-children Bharat and Vijay (PW 6) had gone to the neighbouring village Kurze to hand over one of her bullocks for agricultural operations and the accused also had followed them. While they were returning from village Kurze and had returned to their village, the accused asked the children to go home and he would follow them along with the deceased. At about 8 p.m. PW 2 Mahadya Randye noticed that in the - 3 - agricultural land of Natthya a lady had fallen on the road and one man was sitting near her. He therefore went to the house of PW 1 Vishnu Baraf and informed him. Both of them came to the spot and noticed that the lady was still lying on road and the accused was sitting near her. They went back to the house of Valji Gangad PW 5 and inquired whether Bhiklibai had returned. They also informed him that she was seen lying on road in Natthya’s agricultural land. Hence, all the three went back to the spot and did not notice either Bhiklibai or the accused. This was after 9 p.m. and on the next day when they started searching for Bhilkibai her dead body was found in the nearby Kurze lake which is at a distance of about one kilometre from Modgaon- Paraspada. The dead body was recovered by the police and sent for post-mortem on 18th May, 2000 to Dr.Rustom Mody PW 8. It was noticed that Bhiklibai died a homicidal death and PW 1 Vishnu Baraf filed a complaint which came to be registered as the F.I.R at 4 p.m with Kasa police station (Exhibit 7). Immediately thereafter, the accused was taken in custody on registration of C.R.No.40 of 1999. Clothes of the deceased as well as the accused along with some pieces of soil from the spot were sent for - 4 - chemical analysis and the C.A.Reports at Exhibit 21 and 22 came to be received. It appears that the blood group of the deceased was ‘B’. On completion of the investigation by Virbhadra Suryavanshi PW 7, charge sheet was filed and the case being exclusively triable by the Sessions Court, it was committed. The learned Additional Sessions Judge framed the charge on 15th May, 2001. 3. The prosecution case is entirely based on the circumstantial evidence and in support of its charge against the accused, the prosecution examined in all 8 witnesses. PW 3 Radkya Dhude and PW 4 Sony Sahnivar are the panch witnesses. The panchanama at Exhibit 12 which has been proved through the evidence of PW 3 Radkya Dhude went to show that the place of occurrence is the road passing through the agricultural land of Natthya and there were marks of dragging a human body. At a distance of about 50 feet away from the place of the incident, the sari of the deceased was recovered and at a stretch of 50 feet blood marks were also noticed. The police party along with the witnesses proceeded further following the dragging marks with blood stains and ultimately - 5 - they found the dead body of the deceased was floating in the Kurje lake water. The deceased did not have sari on her person. The inquest panchanama at Exhibit 11 was drawn and the dead body was sent for post mortem examination. 4. PW 8 Dr.Rustom Mody while in the witness box before the court stated that on 19th May 1999 he was deputed to Kasa Rural Hospital as Medical Officer and at about 11.30 a.m. on that day he had conducted the post mortem examination on the dead body of Bhiklibai wife of Malji Gangad and resident of Modgaon-Paraspada. The dead body was brought to the said hospital by police constable Yandyande Buckle No.17/98. On examination of the dead body he had noticed the following external injuries : 1) Deep gash on left side extending from left mastoid through left ear upto left temporo mandibular joint meovcuring 4”x 1/2”. 2)Right infraorbital Horizontal C.L.W. 1 x 1/2 x 1”. 3) Gash over left zygomatic bone vertical 2x1/21”. 4) Wounds on right wrist laterally 1/2 x 1” deep (two wounds) 5) Wound on right wrist laterally 1/1/2x1” deep (two wounds) - 6 - 6) Wound on right shin 2x1x1” 7) Abrasions on back 5. On internal examination he noticed fracture of 7th rib. As per the doctor, the injuries were caused by any object with sharp border and the injuries caused on the back indicated that the dead body was dragged. In his opinion, all the injuries were ante-mortem and the cause of death was excessive blood loss leading to haemorrhagic shock and cardio- vascular failure because of the excessive injuries on head and face. He issued the death certificate at Exhibit 30 and signed the post mortem report at Exhibit 20. As per the doctor the injuries noticed on the head and face were more than sufficient to cause death due to excessive blood loss. In his cross-examination, he admitted that all the injuries were bleeding injuries and there was dirt noticed on the injuries. He did not agree with the opinion that if a person falls from a height of about 8 feet, the injuries noticed may be sustained on the body. He also denied that at the time of post mortem examination he was not sure of the cause of death. He also denied the suggestion that he was giving false evidence at the behest of the police. Thus, - 7 - the medical evidence proved that Bhiklibai was assaulted with some hard object like a stone on her head and face and thereafter she was dragged almost for a distance of about 1 kilometre before her dead body was thrown in the lake. Undoubtedly, she died a homicidal death and it was not an accidental death. The DNA report also indicated that the rib fracture was not ante mortem. 6. We have therefore, to examine whether the prosecution on the basis of the circumstantial evidence has proved its case before the trial court that it was the accused alone who assaulted Bhiklibai and caused a homicidal death on the night of 17th May, 1999. As noted earlier, the accused and the witnesses are closely related. The deceased was his aunt and they are all tribals. The circumstance of motive as tried to be relied upon by the prosecution appears to be weak. The prosecution case against the accused is merely based on last seen theory and failure of the accused to explain some material circumstances. In his statement recorded under section 313 of the Code of Criminal Procedure the accused only denied the charge stating that he was falsely implicated. - 8 - 7. PW 6 Vijay, the grand-son of the deceased was at the relevant time studying in 5th standard and in his deposition before the trial court he stated that on the date of the incident he along with his brother Bharat had accompanied the deceased to Kurze village for giving bullocks on hire and the accused had followed them. After the bullocks were handed over to one Malkari they started their return journey and when they came near the village his uncle i.e.the accused asked him to proceed ahead and the grand-mother and he would follow them later on. He went to the house and told his grand-father PW 5 Malji Gangad that the grand-mother would come later as she was in the company of the accused. In his cross-examination, he stated that he was not aware of any dispute between his father and his uncle on account of the agricultural land. He also denied the suggestion that he falsely implicated his uncle as he had sent him and Bharat. The evidence of this witness therefore, went to show that the accused was in the company of the deceased along with two of her grand- sons right from the time they had left the village along with bullocks and returned at about 8 p.m. The accused had asked the complainant to - 9 - proceed home and that deceased and he would follow later. PW 2 Mahadya Randye is also resident of the same village i.e. Modgaon-Paraspada. He stated before the trial court that on the night of 17th May 1999 at about 8 p.m. he had seen the deceased lying in the field of Natthya and one man was present near her whom he could not identify as it was dark. He therefore, went to the house of PW 1 Vishnu Baraf and told him that he had seen the deceased along with the accused in the agricultural land of Natthya. In the company of PW 1 Vishnu Baraf he again visited the spot and from a close distance they saw that the deceased was lying in the agricultural land of Natthya and accused was sitting near her. Both of them went to the house of PW 5 Valji Gangad and first inquired whether his wife was in the house and subsequently they told him that they had seen her in the agricultural land of Natthya along with the accused. All the three went to the agricultural land of Natthya and did not notice the deceased as well as the accused at the given spot. On the next day, Bhiklibai’s dead body was found in the lake. In his cross examination, he admitted that the distance between the spot of the incident and house of Bhiklibai was about 100 feet. - 10 - Bhiklibai was his maternal aunt. Both he and accused had purchased land belonging to one Damji. He was not aware if there was any dispute between the accused and his wife Girijabai. He also admitted that except PW 1 Vishnu Baraf he did not disclose the incident to anyone else when he had seen Bhiklibai in the company of the accused at about 9 p.m. He denied the suggestion that he himself and PW 5 used to quarrel with the accused for harvesting his land. He further denied the suggestion that Bhiklibai sustained injuries in the bullock fight and she died on account of these injuries. He also denied the suggestion that he was deposing against the accused as there was a quarrel between his wife and the accused. 8. PW 5 Valji Gangad stated before the trial court that on the date of the incident Bhiklibai had gone to the villge Kurze for handing over bullocks on hire and she was accompanied by her two grand-sons Bharat and Vijay PW 6. The accused had also followed them and it was evening time. In the night, Vijay and Bharat returned home and told him that the accused and Bhiklibai were coming behind them. After sometime, PW 1 Vishnu Baraf and PW 2 Mhadya Randye - 11 - went to his house and inquired whether his wife had returned. He told them that she had not returned and PW 1 Vishnu Baraf informed him that his wife was lying in the field of Nattyha and the accused had assaulted her. He went to the agricultural and of Natthya but he, could not see Bhiklibai as well as the accused. On the next day morning he started searching for Bhiklibai and found blood marks near the spot. Her sari was lying near the spot and the dead body was found in the lake at Kurze. He noticed injuries on the face and back of his wife. He identified the sari shown to him in the court. In his cross-examination, he denied any suggestion that there was any dispute between him and the accused about agricultural land and admitted that the accused has more land than himself. He denied the suggestion that his wife used to consume liquor. He admitted in his cross-examination that anybody wanted to hire the bullocks would come to the owner’s house and take the bullocks and would also return with the owner. He denied the suggestion that with the intention to grab the land of the accused he had deliberately implicated the accused. 9. Now coming to the testimony of PW 1 Vishnu - 12 - Baraf he admitted that he was not on good terms with the accused and he was not on talking terms with him during last two years. Hence, his evidence to the extent it is corroborated by the evidence of PW 2,Mahadye Randye PW 5 Valji Gangad and PW 6 Vijay Gangad will have to be taken into consideration and will have to be assessed with care and caution. He stated before the court that on the date of the incident, Bhiklibai was going to Kurze village to hand over her bullocks and she was accompanied by her grand-children at about 5.30 p.m. They were followed by the accused. At about 8.30 p.m. PW 2 Mahadya Randye went to his house and told him that somebody is weeping and someone had fallen on the road. He therefore, accompanied PW 2 Mahadya Randye and saw on the road the accused was sitting and the deceased had fallen on road. He further stated that he had seen the accused assaulting Bhiklibai. Both of them went to the house of Malji Gangad PW 5 and did not notice Bhiklibai in the house. They also went to the house of the accused and they did not find him there. Therefore, they visited the spot once again and he did not find either the accused or the deceased. In the morning of next day, they went to the spot and saw some scratches. When they moved - 13 - some distance they found the sari of the deceased. The dead body of the deceased was found floating in the dam. He therefore, went to Kasa police station and lodged the report Exhibit 7. The report was narrated as per his statement made to the police. He had shown the spot to the police. In his cross- examination, he admitted that he was not aware regarding the nature of the quarrel between the accused and his brother and no complaint was lodged in that respect with the police. He had not acted as a panch in the said court. He also state d that his house was adjacent to the house of Bhiklibai and if any person entered the village, villagers would gather. The road leading to the Kurze village is adjoining to his house. He has a joint family of about 20 to 25 persons. When PW 2 Mahadya Randye visited his house on the date of the incident his family members had also heard what Mahadya had told. About three minutes time was required to walk from his house to the spot of the incident. In his cross- examination, he reiterated that he had seen the accused and Bhiklibai from near distance but he did not intimate to anyone. He also admitted that he saw the incident and did not go to rescue Bhiklibai and returned to the village. About 25 villagers had - 14 - gone back to the spot of the incident but, it was dark in the night. He also admitted that Bhiklibai was addicted to toddy and liquor and she was his paternal aunt. He denied the suggestion that there was any quarrel between accused and his brother. On the next day, he found sari of Bhilkibai at a distance of 15 feet from the spot. He also admitted that prior to the incident the accused and his brother had assaulted him and his sister-in-law and since then he was not on talking terms with both the brothers. In his cross-examination he accepted the suggestion that the deceased was grazing bullocks under the influence of liquor and might have been injured by the bullocks and got pushed him into the lake. 10. The inquest panchanama at Exhibit 11 went to show that the dead body was found floating at a distance of about 25 feet inside the lake and the water level was about 4 feet. The medical evidence as noted earlier does not indicate cause of death as drowning and therefore, it is clear that the deceased was first killed and then her dead body was thrown into the dam sometime in the night of 17th May, 1999. - 15 - 11. The evidence of the prosecution is consistent on the “last seen theory”. The incident had taken place in the night after 8 p.m. and at about 9 p.m. When PW 1 and PW 2 had gone close to the post they had seen the deceased lying on the land/road and the accused sitting near her. Both of them went to the house of PW 5 Malji and informed him that his wife was being beaten by the accused in Natthya’s agricultural land and thereafter when they visited the house of the accused he was not found there. All the three i.e PW 1 Vishnu, PW 2 Mahadya and PW 5 Malji went to the spot after 9.30 p.m.and they did not find either the deceased or the accused at the spot. The 7th rib of the deceased was broken and as per the Medical Officer it was an ante-mortem injury. This goes to show that when she was being dragged towards the lake, she was already dead and the distance she was dragged was about 1 Km. This would suggest that she was done to death around 9.30 p.m itself and at 9 O’Clock the accused was seen in her company by PW 1 and PW 2 at the spot where blood stains were noticed and the saree of the deceased was found at a distance of about 15 ft. from the spot. The accused is the nephew of the deceased and - 16 - the possibility of any enmity between the two families has been ruled out. The nature of the injuries sustained by the deceased went to show that she was given multiple blows on her head and face with a stone and she was also given blows on her hand as per the post mortem report at Exhibit 29. This time gap of half an hour is so short that the possibility of someone else assaulting and giving multiple blows to the deceased has to be ruled out. From the principle laid down by the Supreme Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said - 17 - that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likely hood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time,can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused person. (State of Goa vs Sanjay Thakran (2007) 3 SCC 755). The above ratio (Supra) is squarely applicable to the instant case and the evidence as has been discussed by the learned Additional Sessions Judge in support of his findings would certainly support the prosecution case. We agree with the prosecution - 18 - case on re-appreciation of the evidence as adduced before the trial court that the accused at the first instance killed Bhiklibai and dragged her up to the lake and threw her dead body in the lake and thereafter he disappeared, though he was arrested on the next day from the village. 12. We therefore, agree with the findings recorded by the learned Additional Sessions Judge holding that it was the accused who had caused the homicidal death of Bhiklibai in the night of 17th May 1999 and by the multiple assaults with stones or some other hard object on her face and head and subsequently dragged her at a distance of one kilometre while she was profusely bleeding and thereafter her dead body was thrown in the dam so as to cause disappearance of evidence. Thus the offences punishable under sections 302 and 201 of the Indian Penal Code were rightly held to be proved against the accused. The order of conviction recorded by the learned Additional Sessions Judge is therefore required to be confirmed. On the point of sentence, we have heard the learned counsel for the appellant and on the second - 19 - charge for causing disappearance of evidence he has been sentenced to suffer rigorous imprisonment only for one year. There is no appeal by the State of Maharashtra for its enhancement. Hence, we confirm the order of sentence passed by the learned Additional Sessions Judge. 13. In the premises, this appeal fails and the same is hereby dismissed The order of conviction and sentence passed in Sessions Case No.76 of 2002 on 27th December, 1991 by the learned Additional Sessions Judge, Palghar,Thane is hereby confirmed. The accused shall be entitled for the benefit of set off if any, under section 428 of the Code of Criminal Procedure. MRS.MRIDULA BHATKAR, J B.H.MARLAPALLE,J - 20 -