1 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.237 OF 2010 1. Babasaheb S/o.Pandhari Hatangale, Age-35 years, Occu-Labourer, R/o.Chikhali, Tq.Osmanabad, Dist.Osmanabad 2. Keshav S/o.Shriram Kendre, Age-31 years, Occu-Labourer, R/o.Chikhali, Tq.Osmanabad, Dist.Osmanabad APPELLANTS VERSUS The State of Maharashtra RESPONDENT Mr.B.S.Kudale, learned counsel for the appellants. (Appointed) Mr.S.D.Kaldate, learned A.P.P. for respondent State WITH CRIMINAL APPEAL NO.301 OF 2010 1. Babasaheb S/o.Pandhari Hatangale, Age-35 years, Occu-Agriculturist, 2. Vinod S/o.Rajendra Hatangale, Age-22 years, Occu-Agriculturist, All R/o.Chikhali, Tq.Osmanabad, Dist.Osmanabad. APPELLANTS VERSUS 2 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 The State of Maharashtra RESPONDENT Mrs.S.S.Jadhav, learned counsel for the appellants. Mr.S.D.Kaldate, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants who stand convicted for an offence punishable u/s. 302 of The IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- each with default stipulation to undergo further rigorous imprisonment for 6 months, and also convicted for an offence punishable u/s. 436 r/w. 34 of the IPC and sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 3,000/- each in default to suffer rigorous imprisonment for further 3 months, by judgment and order dated 19/05/2010 in Sessions Case No.67/2009 by The Additional Sessions Judge, Osmanabad, by this appeal have questioned the correctness of their conviction and sentence. As both these appeals are arises out of the judgment and order in Sessions Case No.67/2009, both these appeals to be disposed of by one common judgment. 2. Appellants in Criminal Appeal No.237/2010 are original accused no.1 and 3 while Criminal Appeal No.301/2010 is filed by 3 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 original accused no.2. For the convenience, in the body of the judgment, these appellants will be referred by their original nomenclature as referred before and by the Trial Court. 3. Such of the facts as are necessary for the decision of these appeals can be summarized as follows : (a) On 19/06/2008, P.W.No.10 P.S.I. Digambar Sahebrao Maindad had registered an offence vide CR No.41/2008 on the complaint (Exh.52) lodged by Babasaheb Hatangale (Original accused no.1) for an offence punishable u/s. 302, 436 r/w. 34 of The IPC and u/s. 3(i)(x) r/w. 2(5) of The Schedule Caste and Schedule Tribe, Prevention of Atrocities Act on the count that his wife was killed by the appellants and the Dhaba run by her, situated at village Chikhali was set on fire by them in the afternoon of 19/06/2008. Following to the registration of an crime, he visited scene of offence at about 6.30 p.m. At the spot, he found dead body of one female, which was identified by original accused no.1 (appellant no.1 in Appeal No. 237/2010) as the dead body of his wife. He drew inquest panchnama Exh.36. Then the dead body was referred to P.H.C.Bembli for post mortem. (b) P.W.No.2 Dr.Pandurang Keshavrao Dodke, Medical Officer, P.H.C. Bembli conducted autopsy on the dead body on 20/06/2008. He found following injuries on the dead body : 4 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 1. Injury over skull fronto parietal area 10cm x 3 cm x 5 cm (It was 5 cm deep). 2. Ligature mark over neck. 5 x 0.5 x 0.3 cm. 3. Minor superficial abrasions over lower limbs. During the internal examination, he noticed that there was intra- cerebral hemorrhage, there was fracture to the skull admeasuring about 3 cm x 2 cm. Injuries noticed by him at Sr.No.1 in para no.17 about fracture of skull was opined as it was sufficient in ordinary course of nature to cause the death. Accordingly, he prepared post mortem notes Exh.24. He also issued provisional death certificate at Exh.25. Viscera was sent to Chemical Analyser and final cause of death was not ascertained. After receipt of the report of Chemical Analyser, fresh post mortem report was prepared on the basis of earlier record which are at Exh.27. (c) On 20/06/2008, P.W.No.10 drew spot panchnama Exh.37. From the spot, he had collected sample of blood mixed soil, plain soil, broken pieces of bangles. Investigation revealed that Suresh Gawali is not involved in the offence, but the complainant is the real culprit and was involved in the offence. Further investigation was carried out by Dy.S.P. Lokhande (P.W.No.12). During further investigation, clothes of the deceased were seized under seizure panchnama Exh. 47. Dy.S.P. Rahul Uttam (P.W.No.11) Incharge, S.D.P.O.recorded 5 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 statement of eye witness Bankat Shamrao Ponde (P.W.No.1), Savita Khandagale (P.W.No.3), Kisan Bhutekar (P.W.No.4) and parents of deceased on 20/06/2008. Accused no.2 and 3 were arrested on 20/06/2008, while accused no.1 was arrested on 21/06/2008. At the time of their arrest, clothes on their person were seized under panchnama at Exh.58 to Exh.60. While in custody, accused no.2 Vinod made disclosure statement (Exh.61) leading to the discovery of 2 iron bars (Article 14 collectively) found kept/concealed behind Besharam trees, situated on the road proceeding to village Ambewadi, which were seized under seizure panchnama Exh.63. So also original accused no.1 had made a disclosure statement Exh.62 leading to the discovery of one iron hook (Article 15) usually used for lifting loaded gunny bags, kept in the vegetable storage iron net. It was seized under panchnama Exh.64. During investigation, one red coloured Suzuki Motor Cycle was also seized under panchnama Exh. 65. During further investigation, statements of certain witnesses were recorded. Seized property was forwarded to the Chemical Analyser. After completion of investigation, charge sheet was filed in the Court of C.J.M. Osmanabad. 4. On being committal of the trial to the Court of Sessions, learned Trial Court framed the charge at Exh.11 against the appellant accused for an offence punishable u/s. 302, 436 r/w. 34 of IPC and for an offence punishable u/s. 135 of The Bombay Police Act to which 6 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 appellants pleaded not guilty and claimed to be tried. In order to prove the guilt of the appellants, prosecution have examined 12 witnesses. Defence of the appellants is of total denial. On appreciation of the prosecution evidence, learned Trial Court pleased to convict and sentence the appellants as stated above. 5. For better appreciation of the submissions of learned counsel for appellants and that of learned A.P.P. for State, it is necessary to refer to the evidence of material witnesses, on which reliance was placed by the Trial Court. 6. Conviction of the appellants is based on the evidence of eye witness P.W.No.1 and P.W.No.3, the medical evidence given by P.W.No. 2 Pandurang Dodke, evidence of recovery of weapons and recovery of clothes coupled with the report of Chemical Analyser in respect of these recovered articles. 7. It is in the evidence of Bankat Shamrao Ponde (P.W.No.1) that he is residing in the hotel alongwith his keep Savita Sopan Khandagale (P.W.No.3), which is constructed in his agricultural land, where he is running a hotel as well as one pan shop. He has stated in his evidence that one Suresh Gawali and Sangita Babasaheb Bhatagale (deceased) were residing together in the land situated at the eastern side of his land at the distance of 50-60 feet from his 7 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 land. They were running a Dhaba in the said land since last 4-5 months. While giving evidence about the events occurred on the day of incident, he has stated that accused no.3 Keshav Kendre had been to Dhaba of Suresh and Sangita around 11.00 a.m. He took quarrel with them as Suresh and Sangita were alleging that he had caught hen of Sangita and ate it. He has stated that the accused no.3 was threatening and abusing to Sangita, by saying to wait for some time and he will show that how he had finished her hen. Thereafter he went away on his motor-bike to village Chikhali. He has further stated that around 3 p.m. to 4.00 p.m., Keshav was returned alongwith accused no.1 Babasaheb and accused no.2 Vinod on his motor-cycle. Accused no.2 is brother of accused no.1 and accused no.1 is husband of Sangita. Accused no.1 started shouting towards Sangita by saying that now he is armed with weapons and he will teach a lesson to her. On hearing shouts of accused no.1, Sangita ran towards backside of Dhaba. She was chessed by all the 3 accused. He has further stated that accused no.1 was holding weapon in his hand which looks like hook. Accused no.2 and 3 were armed with iron rods in their hands. Initially accused no.2 gave blow of iron rod on the left side of head of Sangita, due to which Sangita fell down. Then Keshav assaulted Sangita with the iron rod in his hand. Then accused no.1 also assaulted Sangita with a weapon in his hand. He has further stated that Sangita died at the spot. Thereafter, all the accused ran away towards Ambewadi. He 8 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 has further stated that while running away, accused no.2 and 3 set the Dhaba/hotel of Sangita on fire. He has stated that he had witnessed the incident from his land, which is situated at the distance of 50-60 feet from the spot of incident. He has further stated that while running from the spot, accused no.1 threatened and abused him in very filthy language and threatened him not to tell the incident witnessed by him to anybody. According to him, Savita was with him at the material time. Kisan Bhutekar (P.W.No.4), Gundiba Shinde were present in their lands. He has further stated that Suresh Gawali and Govind Sutar came there. When Suresh saw the dead body of Sangita, he and Govind went to village Chikhali. One person by name Vilas was present in the Dhaba at the material time. He has further stated that one year before the said incident, some quarrel took place between Suresh Gawali and accused no.1 Babasaheb and Sangita as she was alleging that accused no.1 abused her in filthy language and at that time ran away with Suresh. One Tanaji Chandrakant Godse and Gundiba Shinde were present at that time. He has identified iron bars. (Article No.14 and 15). He has further stated that 2 days after the incident, police had recorded his statement and senior police officer had recorded his statement 10 days thereafter. He has stated in his cross examination that land of accused no.1 is situated near his land. His brother Vasant sold his land to accused no.1 from village Mahalangi. He has admitted that Sangita was working in the said land after her marriage with accused 9 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 no.1. To go to their land, they have to cross the road in front of his Dhaba. He has stated in his further cross examination that Sangita and Suresh have started Dhaba in the land of Suresh about 4 months prior to the incident in question and he has further stated that because Sangita and Suresh have started the Dhaba, there was competition between his hotel and the Dhaba run by Suresh. He has admitted in his further cross examination that 2 criminal cases were filed against him in Bembli Police Station, out of which one was filed by husband of Savita Khandagale. He has further admitted that his motor cycle was missing, which was recovered from the well of one Gundiba Shinde. In clear terms, he has admitted that he did not meet accused no.1 on the date of incident but met him 5 days prior to the incident, when he was proceeding to his land. He has admitted that he had not attempted to rescue Sangita from the clutches of accused persons. He has further admitted that he is having cellphone, but he had not informed the incident to police or anybody else in the village immediately. He has further admitted that witness Gundiba and Kisan have also not tried to intervene during the incident. He has further admitted that he saw police came at the spot at about 9.00 p.m. to 10.00 p.m. of the same day but he had not narrated about the incident to the police. He has stated that he was avoiding the police in order to avoid himself from indulging in the said incident. He has further admitted that on that day, he had not met Suresh Gawali. He has further admitted that he had lodged the 10 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 complaint against Suresh as he was suspecting that Suresh had played mischief with him by throwing his motor-cycle in the well. He has admitted in his further cross examination that there is heavy traffic on the road abutting to the Dhaba of Sangita as that that time the work in the sugar factory was in progress. He has further admitted that the incident was going on for about 20-25 minutes. At that time, neither he nor Savita gave shouts to save the life of Sangita neither Gundiba nor Kisan gave shouts to help them. According to him, customer Vilas also ran away from his Dhaba. He has further stated in his cross examination that his statement and statement of Savita were recorded by the police 3 days after the incident. Omissions were proved in his further cross examination that he had stated in his police statement that on the day of incident, accused no. 3 Keshav came to the Dhaba of Sangita at 11.00 a.m. and quarreled with Suresh and Sangita on account of cutting of hen. Further omission is proved from his evidence that he had stated in his police statement that accused no.3 Keshav first went to village Chikhali and when returned, he and accused no.2 were having iron bars in their hands. He has admitted in his further cross examination that he had not stated in his statement before police that accused no.1 was holding weapon like hook in his hand. He has also not stated in his statement before Police that accused no.2 assaulted on the left side of the head of Sangita with the iron bar in his hand. Omissions are proved in his further cross examination that he had stated in his 11 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 statement before police that Sangita fell down due to blow given by accused no.2. Accused no.3 also assaulted Sangita with the iron bar in his hand and then all of them ran away, and while running away from the spot, accused no.2 and 3 set the dhaba/Hotel of Sangita on fire. All these facts did not find place in his police statement. 8. Our attention is drawn by the learned counsel for appellants in both these appeals towards the contradictions, omissions and admissions in the cross examination of this witness particularly the admissions given in paragraph no.7 and 8 of the cross examination and the omissions brought on record in para no.9 of the cross examination. It is urged that from the contradictions and omissions brought on record which were later on proved from the evidence of the Investigation Officer, the evidence given about the actual incident as witnessed by this witness is nothing but an improvement. It is further urged that the admissions given by this witness in his cross examination, first not to save the deceased Sangita from the clutches of the culprits, not to give shouts to save Sangita and to keep mum for sufficient period even though police arrived at the spot in the evening of incident itself and lastly even though this witness is having mobile with him, not to intimate the incident either to police or to villagers and further to keep mum for further 3 days. The silence of this witness creates a doubt about the credibility of the 12 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 evidence given by this witness who claims that he is an eye witness to the incident which he has narrated on oath before the Court, and hence it is urged to discard the evidence of this witness. 9. It transpired from the evidence of Savita Sopan Khandagale (P.W.No.3) that she used to stay with Bankat Shamrao (P.W.No.1) as his keep since last 10-15 years and they reside in the house constructed in the agricultural land of Bankat. She has further stated that she is running a pan and tea stall alongwith Bankat. and acquainted with Suresh and deceased Sangita. She has further stated that Sangita and Suresh were residing together. They have started one hotel/Dhaba in the land of Shivaji Godse. Since last 1 year, there are illicit relations between Suresh and Sangita. 4 months prior to the incident, they have started the said Dhaba. She has further stated that one road is there in between their hotel and the Dhaba run by Suresh. Evidence of P.W.No.3 is identical with the evidence given by P.W.No.1. While deposing about the incident occurred in the afternoon, she has stated that at around 4.00 p.m. all the appellants/accused came on motor cycle from Ambewadi. At that time, one person by name Vilas was present in the dhaba of deceased alongwith her. Accused parked their motor-cycle by the side of the road. Then accused no.1 gave one iron bar to accused no.3 and one iron bar to accused no.2. On seeing this, deceased Sangita started running from the Dhaba. She was chessed by all of 13 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 them. Accused no.2 gave blow on the head of the deceased, because of which Sangita fell down. Then all the 3 accused assaulted her. She died on the spot. Thereafter accused no.3 Keshav poured kerosene on the dhaba of the deceased and set it on fire. Thereafter, all of them ran away on their motor cycle towards village Ambewadi. She has further deposed that while leaving the spot, accused no.1 threatened her that If she had disclosed the incident witnessed by her, then they have to face the same consequences. Rest of the evidence given by her is identical like the evidence given by P.W.No.1. She has stated in her cross examination that she knew Sangita even prior she has started the Dhaba. She has stated in her further cross examination that she was at the distance of 50ft. at the time of occurence of the incident and she herself and Bankat were at the distance of 50 ft. but they did not intervene in the said quarrel. The incident of assault was going on for about ½ an hour. At that time, they were in their agricultural land, but did not give any shouts. Gundiba and Kisan were also present in their land. They also did not try to intervene in the incident nor they gave shouts to save the deceased. She has further stated that after the incident was over, they remain by the side of the road till the sunset. She has further stated that she had no knowledge whether during the night hours, police arrived at the spot as she had not seen the police during that night. Her statement was recorded by the police after 3 days. Before that senior police officers have visited the spot, but she had 14 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 not disclosed the incident to them. Omissions were proved in her further cross examination that she had not stated in her statement before police that at 4.00 p.m. or so accused Keshav went towards village Chikhali. Accused Keshav threatened deceased that he will bring accused no.2 Vinod and she has to face the consequences. Vilas was present in the dhaba of Sangita at 4.00 p.m. Accused no.1 gave one iron bar to accused no.2 and another iron bar to accused no.3. Accused no.2 assaulted Sangita with the iron bar in his hand. Due to assault, Sangita fell on the ground. 10. By drawing our attention to the evidence given by this witness, it is urged that evidence given by this witness is not trustworthy. 11. We have heard the learned counsel for appellants in both these appeals followed by the submissions of learned A.P.P. for State. In the submissions, learned A.P.P. has supported the judgment of conviction of the Trial Court. 12. We have already taken a note that the entire case of the prosecution revolves round the oral testimony of these witnesses and the medical evidence given by P.W.No.2 Dr. Dodke, who had conducted autopsy on the dead body of deceased coupled with the evidence of recovery of weapons and the report of the Chemical Analyser. 15 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 13. At the outset, we discard the evidence given by P.W.No.1 Bankat and P.W.No.3 Savita. Disclosure of facts about the incident witnessed by them are to be discarded on the ground of the proved omissions in the cross examination of these 2 witnesses as the facts of which they have given the evidence, did not find place in their police statement recorded during the investigation. Secondly, their conduct is appeared to be improbable and un-natural. Firstly, even though they have stated that they have witnessed the incident, but they have not taken any efforts to intervene. One can understand that due to fear, they have not tried to intervene in the alleged quarrel, but even though witness no.1 was having mobile with him, he has not informed the incident witnessed by him either to police or any of the villagers. Apart from it, even though P.W.No.1 has stated in his evidence that in the evening police arrived at the spot, drew inquest panchnama, at that time also P.W.No.1 and P.W.No.3 have not disclosed the incident witnessed by them to the police. For the first time they have disclosed the incident witnessed by them on the third day. 14. At this juncture, it is useful to give the reference of the observations of the Apex Court in the matter of State of Orissa versus Mr.Brahmananda Nanda, 1976(4) SCC 288 wherein it is observed by the Apex Court that the case of the prosecution is rests on the sole testimony of the eye witness, who had kept mum for 1 ½ 16 Criminal Appeal No.237 of 2010 with Criminal Appeal No.301 of 2010 day after the occurrence of the incident for which he is unable to explain. In the case in hand also, P.W.No.1 and P.W.No.3 kept mum for 3 days after the incident, for which they have not offered any explanation, then what made them to give statement after 3 days of the incident, is also not explained. Secondly, evidence given by them about the assault on deceased Sangita is not corroborated by the medical evidence as the injuries found on the dead body of deceased Sangita do not match with the evidence of assault given by P.W.No.1 and P.W.No.3. On this count also, evidence of P.W.No.1 and P.W.No.3 is to be discarded. Recovery of the weapons at the hands of appellants is not proved so also recovery of the cloths on their person is also not proved as the witnesses to the recovery panchnama as well as panchnama of recovery of the clothes have not supported the case of the prosecution. In the premise, finding of blood on the clothes of the deceased so also on the weapon have no evidential value. If the evidence of P.W.No.1 and P.W.No.3 is discarded, so also the evidence of recovery and finding of blood stains is discarded, then there is no other evidence against the appellants to hold them guilty for the offences punishable u/s. 302, 436