1 Criminal Appeal 426 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.426 OF 2009 Balasaheb S/o.Bajaba Pawar, Age-34 years, Occu-Nil, R/o.Mangalapur Phata, Mangalapur, Tq.Sangamner, Dist. Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.Satej S.Jadhav h/f.Mrs.S.S.Jadhav, learned counsel for the appellant. Mr.N.H.Borade, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 28/01/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant has questioned the correctness of his conviction u/s. 302 of The IPC for which he was sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer S.I. for 3 months. So also, his conviction u/s. 201 of The IPC, for which he was sentenced to suffer rigorous imprisonment for 2 years by The Additional Sessions Judge, Sangamner in Sessions Case No.6/2005 by his judgment and order dated 21/08/2009. 2 Criminal Appeal 426 of 2009 2. At the outset, prosecution unfolded the case before the Trial Court as follows : a) On 15/11/2004, Ganpat Bhau Deshmukh (P.W.No.1), Police Patil of village Kelungan, Tal.Akole lodged the report Exh.36 in Rajur Police Station. On the basis of the said report, an offence came to be registered vide CR No.43/2004 u/s. 302, 201 of The IPC, against an unknown person. This report was in respect of unidentified dead body of a male which was found lying in the agricultural field of one Namdeo Sawlaram Sukhdeo. Investigation in the said crime was entrusted to Vasant Waman Kunwar (P.W.No.20), who was then attached to Rajur Police Station as A.P.I. b) During the investigation, P.W.No.20 A.P.I. Kunwar visited the spot of incident in Kelungan Shiwar where in presence of panch witnesses he drew inquest panchnama Exh.39 on the dead body. At that time, photographs of the dead body were taken by one Anand Bidwe (P.W.No.18). Dead body was referred to Rural Hospital, Rajur, Tal.Akole, Dist. Ahmednagar to conduct autopsy. c) Dr.Thakaji Chaudhari, then attached to Rural Hospital, Rajur, conducted autopsy on the un-identified body on 16/11/2004. During the autopsy, he noticed following external injuries. 1. Reddish abrasion over left shoulder 5 cm x 2 cm. 2. CLW over chin 3 cm x 2 cm by ½ cm reddish. 3. Reddish contusion over neck on left side 6 cm x 5 cm. 3 Criminal Appeal 426 of 2009 4. Reddish abrasion over right lower limb on shine of Tibia 3 cm x 2 cm. 5. Laceration over right shine of tibia, just below injury no.4 6 xm x 1 cm x ½ cm. 6. Left eye black with bleeding. 7. Left side of face crushed. He had noticed following internal injuries during the autopsy. There was fracture of left mandible as well as fracture of left chick bones. I accordingly mentioned the same in coloumn no.18 of the post mortem report. There was subgeital contusion over left frontal temporal region. There was subgeital contusion over left frontal and temporal bones. There was sub-dural and sub-orogonoid hemorrhage seen on left cerebral hemisphere. Left frontal lobe and temporal lobe were crushed. According to him, all these injuries were anti-mortem. He opined that death of the victim was caused due to head injury and accordingly he prepared post mortem notes at Exh.43. d) After the dead body was referred for post mortem, P.W.No.20 drew spot panchnama (Exh.38) in presence of witnesses. On that day, he recorded statements of certain witnesses. On 16/11/2004, letter was issued to Tahsildar requesting to prepare sketch of the spot. With the help of Sarpanch of village Akole, the dead body was buried, of which report was submitted by Police Constable Lande (P.W.No.19). Before the dead body was buried, under-wear and waist 4 Criminal Appeal 426 of 2009 string found on the dead body were removed and seized under panchnama Exh.40. On 20/11/2004, he recorded statements of some more witnesses. e) On 21/11/2004, appellant came to be arrested at Sangamner. Panchnama of arrest is at Exh.44. In presence of panch witnesses, house of appellant/accused was searched, from where one motor-cycle was seized. Panchnama of house search is at Exh.42. On that day, appellant was referred for medical examination and for collection of his blood for blood grouping. On 22/11/2004, while in police custody, appellant made disclosure statement Exh.57 leading to the recovery of 2 empty bottles of liquor from the spot shown by him and were seized under panchnama Exh.58. On that day, appellant made one more disclosure statement Exh.59 leading to the recovery of clothes of the deceased, seized under panchnama Exh.60 drawn in presence of witness Ganpat Kashinath Pawar (P.W.No.11) During the further investigation, some more statements of witnesses were recorded. On 09/12/2004, A.S.I. Gawali submitted missing report Exh.54 lodged in Sangamner Police Station, which was placed before him in respect of deceased. On 14/12/2004, seized property during the investigation was forwarded to Chemical Analyser alongwith covering letter Exh.85. In due course C.A. Reports (Exh.86 to 88) were received. On completion of investigation, charge sheet was filed in the Court of J.M.F.C. Akole. 5 Criminal Appeal 426 of 2009 f) On committal of the trial to the Court of Session, charge was framed against the appellant at Exh.31 for an offence punishable u/s. 302, 201 of The IPC, to which appellant pleaded his innocence. During the trial, prosecution had examined in all 21 witnesses to prove the charge against the accused. Defence of the appellant was of total denial. During the trial, on admission by the appellant u/s. 294 of The Cr.P.C., inquest panchnama Exh.39, spot panchnam Exh. 16, post mortem notes Exh.43, panchnama of seizure of clothes of deceased Exh.40, panchnama of house search of the house of appellant Exh.42, arrest panchnama Exh.44 were exhibited before the Trial Court. 3. For better appreciation of the submissions of learned counsel for appellant and that of learned A.P.P. for the State respondent, it is necessary to advert to the evidence of material witnesses examined by the prosecution before the Trial Court. 4. Evidence of P.W.No.4 Nivrutti Mahadeo r/o.Mazalgaon shows that in the evening of 14/11/2004, his son Shridhar saw one unidentified dead body of male in their field, which in turn Shridhar informed to him. On the next day morning, he reported the same to P.W.No.1 Police Patil Ganpat Deshmukh of Kelungaon, who in turn reported the same to the Police Station of Rajur. Evidence given by P.W.No.4 is supported by P.W.No.5 Shridhar, his son. 6 Criminal Appeal 426 of 2009 5. It is in the evidence of Yogita Sanjay Ambre (P.W.No.6) wife of deceased that appellant is her brother in law (Husband of her sister). She has further stated that on 13/11/2004, deceased left the house around 5.00 p.m. by informing to her mother in law that he is going to take dinner with appellant, but her husband did not return during the night hours. On the next day, her mother in law inquired with the appellant, but appellant informed that deceased had not met him in the previous evening. After 2 days, her father in law lodged missing report in Sangamner Police Station. She has further stated that on 20/11/2004, police from Rajur Police Station called them for identification of some articles of unidentified dead body. In Police station, she identified pair of footwear (Article 7), under pant (Article 13, shirt (Article 10), and pant (Article 11), as these articles were belonging to her late husband. She has further stated that due to frequent visits of appellant to their house, one month prior to the incident, quarrel took place between her late husband and the appellant as deceased suspect about the visits of the appellant to their house. She has stated in her cross examination that appellant is r/o.Mangalpur, adjacent to Kasar-Dumala. Diwali festival was on 12/11/2004. On the next day of Diwali festival, around 10.00 a.m. or so, she had been to her parents house at Jakuri, which is about 7-8 kms from Sangamner. She has stated in her further cross examination that she is unable to re-collect as to after how many days of Diwali, she returned back to matrimonial house. In her further cross examination, initially she had denied that she had 7 Criminal Appeal 426 of 2009 lodged the missing report about her husband on 13/11/2004, but after she was confronted with the report, she has admitted that in the report she had stated that her husband left the house without telling anything to anybody. Family members of the deceased were then searching for the deceased for 4-5 days. Certain omissions are proved from her further cross examination that she had not stated in the missing report before the police that on 13/11/2004, on being invited by the appellant, deceased had gone out for dinner. She had also not mentioned in the said report that quarrel took place between the appellant and her husband one month prior to 13/11/2004. 6. Shankar Baburao Ambre, (P.W.No.9) is the father of deceased Sanjay. He has stated in his evidence that he is r/o.Kasar-Dumala where he is residing with his wife and elder son. On 13/11/2004, about 4.30 p.m. or so, deceased left the house as appellant had invited him for dinner. During the night, deceased Sanjay did not return, hence his wife Hirabai (P.W.No.10) had been to the house of appellant to inquire about the deceased and she was told that deceased had not been to his house. For some days, he and his relatives took search for deceased. Thereafter, he lodged missing report Exh.52 in Sangamner Police Station on 18/11/2004. He has further stated that thereafter they were called in Rajur Police Station to identify the articles of one unidentified dead body. He went to Police Station alongwith Yogita (P.W.No.6), Popat (P.W.No.7), Hirabai (P.W.No.10) with others to Rajur Police Station, where he identified 8 Criminal Appeal 426 of 2009 slipper (Article 6), under-wear (Article 13). He has further stated that the deceased suspect that appellant has illicit relations with his wife Yogita. For some days, there relations were strained which became cordial later on. He has stated in his cross examination that his nephew had visited Rajur Police Station on reading the news published in the news-paper and had an occasion to see the pair of sleeper, the under- wear in the police station, which articles were commonly used in that area. In his further cross examination, omissions were proved that he had not stated in his missing report as well as in his statement recorded by the police that deceased left the house by saying that he is invited for dinner by the appellant. He had also not stated in his report and in the police statement that deceased suspect that appellant had illicit relations with his wife Yogita. He had also not stated in his missing report as well as in the statement before police that during Ganpati festival, wife of deceased had gone with appellant for 2 days and during that period, one night they stayed at Wani and during further night, they stayed at the residence of appellant. He has admitted in his further cross examination that he had not stated in his statement before police that after some time, relations between deceased and appellant became cordial. He has admitted in his cross examination that wife of deceased had gone to her parents house for Dipawali festival and returned on the day of Bhaubij. 9 Criminal Appeal 426 of 2009 7. Evidence of Hirabai (P.W.No.10), the wife of P.W.No.9, mother in law of P.W.No.6 and mother of deceased is on the similar line as the evidence given by P.W.No.9 her husband. In addition to that, she has stated in her evidence that there was rift between appellant and deceased and deceased suspect appellant for his illicit relations with his wife Yogita and on that count prohibited appellant to visit his house. Hence appellant threatened deceased to eliminate him. While giving evidence about the incident dated 13/11/2004, she has added that in the morning of 13/11/2004, appellant had been to their house and invited deceased for dinner. She has stated in her cross examination that she did not lodge any complaint with the police after missing of Sanjay, her son. Omission is proved in her cross-examination that she had not stated in her statement before police that during Ganpati festival, appellant and Yogita had been to Wani for 2 days and during one night, they stayed at Nashik and during other night, they stayed at the house of appellant. 8. It is in the evidence or Bhausaheb Ganpat Sawant (P.W.No.15) that he is co-brother of P.W.No.9 and r/o. of village Rumbodi, as his agricultural field is situated at Akole-Rajur Road. On 13/11/2004, around 6.00 p.m., or so, he was in his field and so appellant and deceased were proceeding to Rajur on motor-bike which was driven by the appellant. In his cross-examination, he denied that he came to know about the death of deceased from the news published in the news paper which fact he had disclosed in his statement before 10 Criminal Appeal 426 of 2009 police. 9. It transpired from the evidence of Eknath Kisan Gunjal (P.W.No. 16), another co-brother of P.W.No.9, who is r/o.Gunjalwadi, has stated in his evidence that on 13/11/2004, around 5.00 p.m., he was proceeding to Gunjalwadi from Sangamner. When he was taking tea in the hotel at the cross road, at that time, he saw that appellant and deceased were proceeding on motor-cycle driven by the appellant towards Rajur. In his cross examination, he has stated that the road proceeding towards Gunjalwadi from the corner, is at the distance of 2kms. from Sangamner and Gunjalwadi is at the distance of 1 ½ km. He can not say whether one has to pass through Mangalapur while going to Kolhar-Ghoti road from Gunjalwadi. Lastly, he has admitted that he came to know about the death of deceased on reading the news published in the news-paper, but he has further stated that he can not read. 10. Prosecution had examined Praveen Popat Ambre, P.W.No.17 on the point that he is nephew of deceased and residing in his neighbourhood at Kasar-Dumala. He also knew appellant as appellant is co-brother of deceased. He has stated in his evidence that on 18/11/2004, at about 11.00 a.m. to 11.30 a.m., one telephone call was received at his residence and the caller had confirmed whether the number dialled is of Sanjay Ambre. The caller was talking in Hindi language. He had identified the voice of the caller as of appellant. He had further stated in his evidence that 11 Criminal Appeal 426 of 2009 when he asked the name of the caller, the caller cut the phone call. Accordingly, he informed his father Popat P.W.No.7 about the receipt of the phone call. He has stated in his cross examination that in his statement before police, he had not stated that the caller was verifying the phone number of the deceased on telephone. He has admitted in his further cross-examination that even though he was aware that since 4-5 days, prior to 18/11/2004, parents and relatives of deceased were taking search of deceased, he had not informed them about the telephone call received by him. He has also admitted that there is no telephone connection at the residence of deceased. 11. P.W.No.7 Popat Bhaurao Ambre, who is cousin of the deceased has stated in his evidence that on the next day after 13/11/2004, father of deceased namely Shankar had been to his residence and informed about missing of deceased and requested him to make inquiry. Apart from the incident dated 18/11/2004, he corroborated about the evidence given by his son P.W.No.17. In addition to that he has stated that in the evening of 14/11/2004, he had been to the house of his uncle Shankar. He noticed that appellant was present there, who on questioning, told him that in the previous evening, deceased had not approached him at his residence. Appellant further told him not to approach police as deceased may return within 2-3 days. He has further stated that he informed Shankar about the telephone call received by his son Popat. He has further 12 Criminal Appeal 426 of 2009 stated that on 16/11/2004, on reading the news published in the newspaper, he alongwith others have visited Rajur Police Station, where they were told by the police about the slipper and under-wear of un-identified dead body. On 20/11/2004, again he went to Police Station and identified those articles. He has admitted in his cross examination that he met the appellant on the next day evening at the residence of Shankar Ambre (P.W.No.9) and they were searching for deceased, at that time appellant assured them that deceased will come back. Search was going on till 18/11/2004, but they were unable to trace the deceased. Hence he advised Shankar to report the matter with the Police. 12. Prosecution has examined Badrinath Lokhande (P.W.No.12), who run STD booth at Rahata Road, to establish that telephone call was made by the appellant on 18/11/2004 from his STD booth. He has stated in his evidence that on 18/11/2004, appellant made phone call from his STD booth, for which he had issued the bill at Exh.62, wherein the time of call is shown as 7.00 p.m. He has stated in his cross examination that due to heavy rush of customers in Shirdi, he personally unable to know all the customers, who have visited his STD booth. He has further admitted that he knew appellant as appellant was brought by Police. He has also stated in his further cross examination that phone number of the receiver appears in the bill issued to the customer. 13 Criminal Appeal 426 of 2009 13. P.W.No.8 Hiraman Soma Pathave R/o. Vitha Shivar, Tal.Akole was examined by the prosecution on the point of recovery of shirt (Article 10) and recovery of pant (Article 11). He has stated in his evidence that in the morning of 22/11/2004, he had gone to attend the call of nature near the custard apple tree, which is situated by the side of road, where he noticed these clothes, which he had brought and kept in his cattle shed. The appellant was brought there by the police to whom he handed over those clothes. He has stated in his cross examination that for the first time, he saw the appellant in the Court. During the trial, neither he was declared hostile, nor he was re-examined by the prosecution to conceal these contradictory evidence. 14. P.W.No.11 Ganpat Kashinath Pawar was examined by the prosecution to prove disclosure statement allegedly made by the appellant while in police custody and certain recoveries. He has stated in his evidence that on 22/11/2004, in his presence and in presence of one Suresh Punjiram Chokhave, appellant made disclosure statement Exh.57 leading to the spot and recovery of 2 empty bottles of liquor from one spot near randha water fall, which were seized under panchnama Exh.58. Further disclosure statement made by the appellant in the evening of that day in their presence is at Exh.59, leading to the recovery of shirt and pant of the deceased from Hiraman (P.W.No.9), seized under seizure panchnama Exh.60. 14 Criminal Appeal 426 of 2009 He has stated in his cross examination that he is working as Homeguard in Rajur Police Station. He has admitted that he had acted as panch witness on number of occasions in the crimes investigated by the Police Officer A.P.I.Kunwar. He has further stated that the first panchnama was prepared in Kelungaon but denied that police were already knowing that spot. One stone was seized from the said spot. He has stated in his further cross examination that during the rainy season, number of tourists visit the Randha fall. So also those tourists used to consume liquor at the picnic spot. He has nowhere stated about the concealing of the articles seized under the seizure panchnama. 15. In this backdrop, we have heard learned counsel for appellant, and learned A.P.P. for State who supports the judgment of the learned Trial Court. On re-appreciation of the evidence of material witnesses as discussed above, it is clear that the case of prosecution rests on circumstantial evidence. These circumstances are as follows - 1. Deceased Sanjay left his residence in the evening of 13/11/2004 as he was invited for dinner by the appellant. 2. Appellant and deceased seen together proceeding towards Rajur on the motor-cycle driven by the appellant in the evening of 13/11/2004. 3. Deceased did not return to his house in that night. 4. Telephone call was received at the residence of Popat at about 11.00 a.m. or so on 18/11/2004 and the caller was inquiring 15 Criminal Appeal 426 of 2009 for verification of the address of deceased Sanjay as well as verifying the telephone number at the residence of deceased Sanjay. 5. Appellant gave this telephone call from Shirdi from S.T.D. Both. 6. Identification of the slipper, waist thread and under-wear of the deceased by his relatives. 7. Recovery of clothes on the disclosure statement made by the appellant which clothes are identified by his relatives. 8. Death of deceased is homicidal un-natural death. 9. Last, motive behind the crime. 16. During the course of submissions across the bar, our attention is invited by learned counsel for appellant towards the evidence of P.W.No.6 Yogita, wife of the deceased, P.W.N.9 Shankar, father of the deceased and P.W.No.10 Hirabai, mother of the deceased. It is urged that in view of the admissions given by P.W.No.6 in a cross examination that she had gone to the house of her parents for Diwali festival and she returned back in the morning of Bhaubij, her presence is doubtful in the evening of 13/11/2004 at her matrimonial house. She left to her parents house for Diwali festival, is supported by the evidence of P.W.No.9 Shankar Bhaurao and P.W.No.10 Hirabai Shankar. It is further brought to our notice that omissions are proved from the evidence of P.W.No.9 Shankar that he has not stated in his statement before police that in the evening of 13/11/2004, deceased left his residence as he was invited for dinner by the appellant. It is also proved from the evidence of P.W.No.10. It 16 Criminal Appeal 426 of 2009 is also brought to our notice that it is in the evidence of P.W.No.10 Hirabai that in the morning of 13/11/2004, appellant had been to the house of P.W.No.9 Shankar and P.W.No.10 Hirabia. This evidence is not supported by P.W.No.9 Shankar as his evidence is silent on this aspect. It is also brought to our notice these witnesses have stated in their evidence that relations between appellant and deceased became strained as deceased suspect that appellant has illicit relations with his wife P.W.No.6 Yogita. In this situation, deceased accepted the invitation of dinner, is highly doubtful. It is further urged on behalf of the appellant that evidence of P.W.No.15 Bhausaheb and P.W.No.16 Eknath is not reliable on the point that they saw appellant and deceased proceeding to Rajur on the motor bike driven by the appellant on the ground that even though they knew that family and relatives of deceased were taking search of deceased since the morning of 14/11/2004, but they have not informed the parents of the deceased that they have seen appellant and deceased together proceeding on the motor bike driven by the appellant towards Rajur. It is not seriously disputed that deceased did not return to his residence in the night of 13/11/2004. It is further brought to our notice that it is in the evidence of P.W.No.7 Popat that on the next day evening, he saw appellant at the residence of Shankar. On his inquiry, appellant informed that in the previous evening, deceased had not visited his house. But this evidence of P.W.No.7 is not supported by P.W.No.6 wife of deceased, P.W.No.9 Shankar, father of deceased and P.W.No.10 mother of deceased. It is 17 Criminal Appeal 426 of 2009 urged that if in reality, the