1 Cri.Appeal No.287 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.287 OF 2010 Gangaram s/o Bhavaka Kedar, Age 45 years, R/o Rajbet, Chikalthana, Taluka Rahuri, District Ahmednagar ..APPELLANT (Orig.Accused) VERSUS The State of Maharashtra through Police Station Officer, Police Station, Rahuri, Taluka Rahuri, District Ahmednagar ..RESPONDENT (Orig.Complainant) Mr S.G.Bobade, Advocate (appointed) for appellant Mr S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 5th July 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for six months, by the District Judge-2 and Additional Sessions Judge, Ahmednagar, by judgment dated 31.3.2010, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No.287 of 2010 2. Such of the facts, in brief as are necessary for the decision of this appeal may be stated thus. P.W.11 Mukhtar Bhagwan, a P.I. who was then attached to the Rahuri Police Station as Police Inspector was informed about murder of deceased Gajrabai. On receiving the said information, P.W.11 Bhagwan proceeded to the scene of the offence which was a small hut of the appellant/accused. He noticed the dead body of deceased Gajrabai and had also noticed several injuries sustained by her. A complaint of P.W.4 Bhawka came to be recorded on the basis of which an offence came to be registered. The complaint of P.W.4 Bhawka is at Exh.28. Thereafter the inquest panchnama of deceased Gajrabai came to be drawn at Exh.11 in the presence of P.W.1 Khandu. The dead body was referred to the Rahuri Hospital for post mortem examination. The scene of the offence panchnama came to be drawn at Exh.24 in the presence of witnesses. The clothes of deceased came to be seized in the presence of panchas vide seizure memo at Exh.9. Statements of witnesses came to be recorded and on 14.3.2009 the accused, who had been absconding since the date of the incident, was arrested. The accused at the time of his arrest was carrying a nylon bag which when searched in the presence of panchas, yielded blood stained clothes. The seizure memo of the said clothes is at Exh.16 which had been drawn in the presence of witnesses. The accused came to be arrested and the arrest panchnama of the accused is at Exh.29. During custodial interrogation the accused expressed his 3 Cri.Appeal No.287 of 2010 willingness to point out the place of the incident and accordingly his memorandum came to be drawn in the presence of panchas at Exh.13. The accused led the Police and the panch in the vicinity of Mhaisgaon. Thereafter the accused requested that the jeep be stopped and pointed out the place of the incident. Certain incriminating articles like toe-rings and 3-4 bangle pieces and a necklace of black beads and a hairpin came to be seized under the seizure memo at Exh.14. The seized articles had been referred to the Chemical Analyzer along with Police Constable and the requisition at Exh.30. The reports of the Chemical Analyzer are at Exh.32. Further to the completion of investigation a charge-sheet against the appellant/accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.4 framed charge against the appellant/accused for offence punishable under Section 302 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. The defence of the appellant/accused is of denial. The trial Court accepted the evidence of P.W.5 Shivaji, P.W.6 Raju and P.W.9 Anil as well as the fact that the dead body of deceased Gajrabai was found in the house of the accused and the accused had offered no explanation. The accused, however, had taken a defence of alibi which had not been proved by him. On a cumulative examination of the aforesaid circumstances, the trial Court came to the conclusion that the prosecution had proved the offence against the appellant/accused 4 Cri.Appeal No.287 of 2010 beyond reasonable doubt. The trial Court, therefore, accordingly convicted and sentenced the appellant as afore-stated. 4. Before we advert to the submissions of the learned Counsel appointed on behalf of the appellant and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. P.W.2 Vinay is a panch in respect of the memorandum of the appellant/accused, at Exh.13 in respect of scene of the offence. Though from the scene of the offence silver toe-rings and other articles came to be found, the aforesaid articles have not been identified as those belonging to the deceased. Therefore, the statement of the appellant/accused relating to the discovery of the scene of the offence would be of no consequence. Prosecution has examined P.W.3 Rohidas, in whose presence the appellant/accused came to be arrested and his clothes came to be seized vide seizure memo at Exh.16. The clothes of the appellant/accused were found stained with human blood. Though the group of the blood stains could not be determined, the aforesaid circumstance, according to us is a significant circumstance in the light of the fact that the appellant/accused has not offered any explanation. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Khujji alias Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SUPREME COURT 1853. In the aforesaid case, human blood was detected on the clothes of the 5 Cri.Appeal No.287 of 2010 appellant/accused. However, the blood group could not be determined. The Supreme Court held that it was for the appellant/accused to offer an explanation in respect of the finding of human blood on his clothes. In the present case apart from a bald denial of the appellant/accused the appellant/accused has not offered any explanation. The appellant/accused has also not claimed that the clothes do not belong to him. The clothes were found on the person of the appellant/accused as the appellant/accused was carrying those clothes in a bag. It was, therefore, necessary for the appellant/accused to have offered explanation in respect of the said blood stained clothes. His failure to offer reasonable explanation in respect of presence of human blood on his clothes, according to us is an incriminating circumstance. 5. Prosecution had examined P.W.4 Bhawka, father of appellant/accused. Though P.W.4 Bhawka had lodged the first information report at Exh.28, he did not support the prosecution and was declared hostile. Nothing of importance has been elicited in the evidence of P.W.4 Bhawka. The prosecution heavily relies upon the evidence of P.W.5 Shivaji P.W.5 Shivaji is an iron-smith, who states that on the evening prior to the discovery of dead body, the appellant/accused had given three sickles for sharpening. The appellant/accused thereafter came to collect the sickles but said that he would collect the sickles on the next day as he did not have adequate money. The appellant/accused was accompanied by his wife 6 Cri.Appeal No.287 of 2010 Gajrabai when they had gone to the shop of P.W.5 Shivaji. In cross- examination omission has been duly proved that he had not stated in his previous statement about three sickles being given to P.W.5 Shivaji. Similarly, omission has been duly proved that he had not stated in his previous statement that the appellant/accused said that he would pay the amount on the next day. Apart from this nothing more has been elicited in the cross-examination which would affect the credibility of this witness that he had seen the appellant/accused accompanied by his wife Gajrabai, on the evening prior to the incident. Similarly, prosecution has examined P.W.6 Raju, who at the relevant time was employed in the construction of the road. He states that he was standing near the J.C.B. machine and was supervising the construction and had noticed the appellant and his wife Gajrabai walking on the road. He states that he had warned them to walk cautiously else they may fall on the road. He has admitted that his statement came to be recorded on the next day. Though he has been cross-examined, nothing of importance has been elicited in his cross- examination. Prosecution has also examined P.W.9 Anil, who was a driver of the jeep and in whose jeep the appellant and Gajrabai had travelled on the evening prior to the incident. Omission has been duly proved that he had not stated in his previous statement that the appellant/accused and his wife Gajrabai were frequent travelers in his jeep and, therefore, he knew them. He has denied the suggestion that at the instance of Police he was deposing falsely. 7 Cri.Appeal No.287 of 2010 6. Prosecution has examined P.W.10 Dr.Sudhir Kshirsagar, who had performed the post mortem on the dead body of deceased Gajrabai. He noticed the following external injuries. 1. Contusion with heamatoma over forehead 15 x 4 cms long along horizontal direction; 2. Contusion with haematoma over right cheek 7 x 3 cms; 3. Contusion with heamatoma over left cheek 8 x 3 cms; 4. Contusion over whole nose 5 x 3 cms; 5. Contusion with edema of upper lip 6 x 2 cms; 6. Contusion over chin 3 x 2 cms; 7. Contusion over both the sides of neck laterally each measuring 7 x 3 cms; 8. Multiple contusions with haematoma all over chest; 9. Multiple contusion with haematoma all over abdomen; 10. Contusion with haematoma over right buttocks 10 x 5 cms; 11. Contusion with haematoma over left buttocks 10 x 5 cms; 12. Multiple contusions all over back; 8 Cri.Appeal No.287 of 2010 13. Full length contusion with haematoma over right leg from hip to knee joint on lateral aspect 15 x 4 inches; 14. Full length contusion with haematoma over left leg from hip to knee joint on lateral aspect 16 x 4 cms; 15. Contusion abrasion over left knee 6 x 3 cms; 16. Contusion abrasion over right knee 7 x 3 cms; 17. Contusion with heamatoma over right arm lateral and anterior aspect 8 x 3 cms; 18. Contusion with haematoma over left arm lateral and anterior aspect 9 x 3 cms; 19. Contusion abrasion over right elbow 4 x 2 cms; 20. Contusion abrasion over left elbow 5 x 2 cms; 21. Contusion over forearm right side lateral and post aspect 5 x 3 cms; 22. Multiple contusions over right shoulder; 23. Multiple contusions over left shoulder; 24. Multiple contusion with abrasions over right lower leg, post and lateral aspect; 25. Multiple contusion with abrasions over left lower leg post and lateral aspect. 9 Cri.Appeal No.287 of 2010 On internal examination he had noticed : (i) Fracture on the right side ribs No.6, 7 and 8; (ii) Fracture on left side ribs No.8, 9 and 10 He had also noticed fracture near the sternum ends of ribs. He had opined that all the injuries were ante mortem injuries. According to him the injuries may have been caused due to hitting the body against stones and rough hard surface, assault by hard and blunt objects, throwing the body on stony and rough surface with force and forceful assault by fists and kicks. He has further opined that the age of the injuries was within 24 hours. He has further opined that the injuries were sufficient in ordinary course of nature to cause death. In cross-examination he has denied the suggestion that his opinion is at the behest of the Police. The prosecution has also produced the photographs of the deceased at Exh.21 (1 to 6). The aforesaid photographs which have been duly proved by the examination of P.W. 7 Pravin, disclose that the dead body of deceased Gajrabai was black and blue on account of assault. 6. The dead body of deceased Gajrabai was found in the hut of the appellant/accused. The appellant/accused and Gajrabai were seen in the market on the previous evening. They were seen returning back to their village by P.W.6 Raju. P.W.9 Anil had brought them in his jeep from the market to their village. Since the dead body of deceased 10 Cri.Appeal No.287 of 2010 Gajrabai was found in the hut of the appellant/accused, it was for the appellant/accused to have offered some explanation in respect of the death of deceased Gajrabai, which was a homicidal death. Deceased Gajrabai had sustained 25 external injuries with numerous internal injuries of fracture. The fracture on the ribs as well as the injuries, which have been enlisted in the post mortem report reveal a brutal attack on her. No weapon appears to have been used for causing the injuries as all the injuries have been caused by hard, blunt and rough object. The appellant/accused has taken a defence of alibi. The appellant/accused has failed to prove his alibi. His clothes were found stained with human blood. The appellant/accused had absconded and was not seen in the village. All these circumstances, therefore, cumulatively establish that it was the appellant/accused alone, who had committed the said offence. In cases resting on circumstantial evidence, it is incumbent for the prosecution to establish each and every circumstance on which it chooses to rely upon. The circumstance so established should be of a conclusive nature i.e. there should a definite tendency of incriminating the accused. The circumstances so established and proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be capable of only one inference and that it is the accused and accused alone, who had committed the offence. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Sharad Birdhichand 11 Cri.Appeal No.287 of 2010 Sarda Vs. State of Maharashtra, AIR 1984 SUPREME COURT 1622. 7. The circumstances adverted to above by us, according to us clinchingly establish the offence against the appellant/accused and unerringly point to the appellant/accused as perpetrator of the crime. In such circumstances, therefore, according to us the appeal filed by the appellant is sans merit. 8. Learned Counsel appointed on behalf of the appellant has urged before us that the prosecution has failed to prove motive for the appellant to have committed offence. It is true that in cases resting on circumstantial evidence motive is an importance circumstance in the chain of circumstances, which is to be established by the prosecution. However, failure of the prosecution to prove motive is not fatal in each and every case. If the other circumstances are strong, in other words if there is overwhelming evidence, the failure of the prosecution to prove motive may pale into insignificance. Learned Counsel for the appellant has placed reliance on the judgment of the Supreme Court in Niranjan Panja v. State of West Bengal, 2010 AIR SCW 3289. The ratio of the aforesaid judgment, in our opinion is not applicable to the facts of the present case. 9. For the reasons stated by us above, we see no merit in the present appeal and the present appeal deserves to be dismissed. The 12 Cri.Appeal No.287 of 2010 appeal is accordingly dismissed confirming the conviction and sentence. Fees payable to the learned Counsel appointed on behalf of the appellant quantified at Rs.3,000/- (Rs.Three thousand). ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/287.10criapeal)