- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.207 OF 2008 Anil s/o Shivaji Mundhe, Age 36 years, Occ. Agri., R/o Chincholiraowadi, Taluka and District Latur ... APPELLANT (Original Accused) VERSUS The State of Maharashtra Through Police Station Officer, M.I.D.C. Latur Police Station, M.I.D.C., Taluka and District Latur. ... RESPONDENT (Original Complainant) ----- Shri Joydeep Chatterji, Advocate holding for S/Shri G.S. Patil & A.A. Mukhedkar, Advocates for the appellant Shri K.J. Ghute Patil, A.P.P. for the respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 5th February, 2010. ORAL JUDGMENT (PER DAVARE, J.) 1. The challenge in this appeal is to the judgment and order dated 10.3.2008, rendered by Adhoc Additional Sessions Judge-3, at Latur in Sessions Case No.16/2007, convicting the - 2 - appellant (original accused) for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1000/- with default condition of non payment of fine to suffer further rigorous imprisonment for the period of two months, and also convicting him for the offence punishable under Section 201 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for the period of seven years and to pay fine of Rs.1000/-, with default condition of non payment of fine to suffer further rigorous imprisonment for the period of two months. 2. The factual matrix of the prosecution case which can be unfolded as under : The victim Ranjana, wife of Sanjay Mundhe was sister of P.W.9 namely Ramesh Dagadu Londhe and Ranjana’s marriage was performed with Sanjay, resident of Chincholiraowadi about eight years back and the said couple was blessed with one son and one daughter respectively and her husband Sanjay used to do agricultural work. The appellant (original accused herein) namely Anil Shivaji Mundhe is the brother of Sanjay Mundhe, husband of Ranjana. Accordingly, the accused herein is Ranjana’s husband’s brother and he is also agriculturist and used to render service to - 3 - temple of Lord Ganpati near Manjara Sugar Factory. Both the said brothers i.e. accused Anil and Sanjay used to reside separately and they had separate agricultural lands. Sanjay used to reside with his family in the field only and accused used to reside near temple of Lord Ganpati in a quarter of Sugar Factory. However, the relations between the accused Anil and his brother Sanjay were not cordial on account of partition of ancestral property i.e. 10 to 12 acres of land and accused used to quarrel with his brother Sanjay, claiming that Sanjay got fertile share of land whereas accused got unfertile one and accordingly, the accused was inimical with the brother Sanjay and his wife Ranjana. 3. It is alleged that, on 24.10.2006 Ranjana had been to village Manjari on account of Diwali festival and she stayed with complainant for about 4-5 days and at that time, she disclosed to complainant and her parents that accused Anil had threatened her that he would see how she would harvest Soyabin crops and further disclosed that accused Anil threatened to kill her and there was danger to her life. Thereafter she went to her husband’s house along with gunny bags to thrash Soyabin crop. It is further alleged that, on 31.10.2006 at about 5.00 p.m. when P.W.9 Ramesh was working in his field, he learnt that his siter was killed in front of her house in the field and thereupon he, his parents and - 4 - uncles and brothers rushed towards her field and found the body of Ranjana on the road in front of her house and noticed that her neck was cut as well as there were deep injuries on her chest and palm of both the hands and her minor daughter Durga was weeping and she also sustained injury on her left hand. Accordingly, P.W.9 Ramesh went to M.I.D.C. Police Station and reported the incident in writing and same was treated as F.I.R. It is marked as Exhibit 46 and crime was registered under C.R. No.201/2006 under Section 302 of the Indian Penal Code at 20.15 Hrs. on 31.10.2006. 4. Thereafter, P.W.11 Dy. S.P. Tushar Doshi received the charge of the further investigation of the C.R. from P.S.I. Pawar on 31.10.2006 at 8.40 p.m. and accordingly P.W.11 Dy. S.P. Tushar Doshi visited the spot of the incident which was situated on the road of Manjari Sugar Factory to Chincholiraowadi Road, which was a Kaccha road and on visiting the spot, he noticed that there was no light available to prepare inquest panchanama and hence, the dead body of deceased was referred to Civil Hospital, Latur for post mortem and for inquest panchanama. Accordingly, P.W.4 A.P.I. Chavan of M.I.D.C. Police Station, Latur has conducted the inquest panchanama (Exhibit 33) of the said dead body of Ranjana in the Civil Hospital Latur at about 9.00 p.m. Moreover, P.W.11 Dy. S.P. Tushar Doshi deputed two police constables on the spot for - 5 - supervision since it was night hours and thereafter visited the house of the accused namely Anil Mundhe, but he was not found there and, therefore, search for the accused was made within the vicinity of Manjara Factory. P.W.11 Dy. S.P. Tushar Doshi seized the clothes of the victim in presence of panchas including P.W.3 Gurunath under the panchanma (Exhibit 31). On the next day morning, P.W.11 Dy. S.P. Tushar Doshi prepared the spot panchanama (Exhibit 25) between 7.00 a.m. to 8.00 a.m. in presence of panchanas including P.W.1 Vishwanath. During the said panchanama, P.W.11 Dy. S.P. Tushar Doshi found blood stains on the spot up to the house of the deceased and he collected the blood stained soil as well as plain soil from the spot and seized the same under the spot panchanama after sealing it. P.W.11 Dy. S.P. Tushar Doshi also recorded the statements of witnesses, who were working on the brick-klin. He also made search for the accused and deputed the police constable therefor as well as directed P.W.7 A.P.I. Chavan to take the search of the accused and accordingly, P.W.7 A.P.I. Chavan arrested the accused on 2.11.2006. 5. It is also the case of prosecution that on 4.11.2006, the accused made disclosure statement in presence of panchas including P.W.2 Bhaskar to show the place where clothes were - 6 - destroyed and the said statement was recorded under the memorandum panchanama (Exhibit 27). Thereafter, the accused led the police personnel and panchas to the place behind the compound of fencing of Manjara Factory and showed the place where ash of ablaze material was found, but nothing was seized from the spot and the memorandum panchanama was recorded thereof which is marked as Exhibit 28. Further, the accused led the police personnel and panchas towards the well owned by Manohar Jadhav in Chincholiraowadi and pointed out the place where he threw the sickle in that well and accordingly, police personnel removed othe water from the said well by electric pump and then the sickle therein was seized under memorandum panchanama Exhibit 29. 6. P.W.10 Dr. Tushar Pawar carried out the post mortem on the dead body of deceased Ranjana on 31.10.2006 and P.W.11 Dy. S.P. Tushar Doshi received the said post mortem notes (Exhibit 49). Accordingly, after completion of investigation, P.W.11 Dy. S.P. Tushar Doshi filed a charge sheet against the accused before learned Chief Judicial Magistrate, Latur on 4.1.2007. Since the offence was exclusively triable by Court of Sessions, the learned Chief Judicial Magistrate committed the said case to the Court of Sessions, Latur. - 7 - 7. Accordingly, the learned Adhoc Additional Sessions Judge-3, Latur framed the charge against the accused at Exhibit 22 on 22.6.2007 for the offence punishable under Section 302 of the Indian Penal Code. To substantiate the charges levelled against the accused, the prosecution has examined inasmuch as 11 witnesses as mentioned below : PW 1 Vishwanath Bhanudas Pandhare, panch to the spot panchanama (Exhibit 25). PW 2 Bhaskar Parbhu Pandhare, panch to memorandum panchanma (Exhibits 27, 28 and 29) PW 3 Gurunath Nivarti Gavli, panch to the seizure of clothes of victim (Exhibit 31) PW 4 Khanderao Kishanrao Chavan, panch to the inquest panchanama (Exhibit 33) PW 5 Balaji Manohar Yadhav, who saw accused’s wife throwing sickle (Hattya) into the well on 31.10.2006. PW 6 Dagdu Maruti Londhe, father of the deceased on the point of motive. PW 7 A.P.I. Chavan, who recorded the inquest panchanama of the dead body of deceased Ranjana (Exhibit 33) PW 8 Kakasaheb Nivarti Mundhe, independent eye witness. PW 9 Ramesh Dagdu Londhe, brother of victim Ranjana and complainant (F.I.R. Exhibit 46) PW 10 Dr. Tushar Pawar, Post Mortem Doctor, who conducted the post mortem on the dead body of victim Ranjana (post mortem notes – Exhibit 49). P.W.11 Dy. S.P. Tushar Doshi, investigating officer. - 8 - 8. The defence of the accused was of total denial and also the accused raised the plea of alibi and filed his written statement at Exhibit 56 and also examined defences witnesses i.e. D.W.1 Bhaskar Mundhe, brother of accused, and D.W.2 Anita Anil Mundhe, i.e. wife of the accused. 9. After scrutinising and assessing the evidence adduced and produced by the prosecution as well as the accused, the learned trial Judge arrived at the conclusion and thereby convicted and sentenced the appellant/ accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code as aforesaid. Being aggrieved and dissatisfied by the said judgment and order dated 10.3.2008, the appellant (original accused) has challenged the same in the present appeal and prayed for quashment thereof. 10. Before adverting to the submissions advanced by learned counsel for the parties, it will be useful to scrutinise the material evidence adduced and produced by the prosecution as well as the defence and in the said context, coming to the testimony of P.W.8 Kakasaheb, who claims to be the independent eye witness to the occurrence of incident, who has deposed in his - 9 - deposition that he knows Sanjay Mundhe i.e. husband of the victim Ranjana as well as Anil, i.e. accused herein and both were residents of his village. The field of Sanjay Mundhe was situated besides Kakasaheb’s brick-klin at the village and Sanjay Mundhe was residing with his family in his field where his house was situated, whereas the accused was residing in the quarter of Sugar Factory, Manjara. He also stated that, he used to reside at his brick-klin. P.W.8 Kakasaheb further stated that, he was knowing that there was quarrel between the accused and Sanjay since his resident was situated at the neighbourhood besides Sanjay and dispute between them was on account of partition and sharing crop of Soyabin. P.W.8 Kakasaheb also deposed that on 31.10.2006 he was working in his klin of which he is the owner, and his wife Sindhubai and labourer Kesharbai and Anusayabai were present at the klin. At this juncture, accused Anil came at the house of Sanjay on a bicycle with a bag tied to the bicycle. It is further stated that, they heard the voice of a woman shouting “Vachva Vachva” at about 4.00 p.m. and thereupon, Kesharbai, his wife and the labourer women went at the top of heap of soil at klin and saw that Ranjana was running ahead and accused Anil followed her holding Koyta and Ranjana’s daughter Durga, aged about 3 years was following them. Hence, Kakasaheb and others left the site of klin to rescue Ranjana. He further stated that, accused Anil gave - 10 - blows by means of Koyta to Ranjana on her hand, neck and chest and till they reached the spot, accused Anil left the place and went towards Chincholiraowadi on bicycle. Ranjana fell on the ground and injuries sustained by her were large and blood was oozing therefrom and she was lying without any movement and her minor daughter Durga was weeping. Kesharbai lifted Durga. Thereafter, P.W.8 Kakasaheb gave phone call to Khayum Patil, Deputy Sarpanch of village Chincholiraowadi and reported about the occurrence of the incident to him and thereupon said Deputy Sarpanch reached on the spot within 20 minutes, as well as parents and brother P.W.9 Ramesh of Ranjana, residents of Manjari also arrived there and they enquired with Durga about the assailants and thereupon Durga stated that Anil Tatya gave blow to her mother and they also found injury of Koyta on her left hand. Victim Ranjana died on the spot. He also stated that, injury on her neck was such that little bit was attached to the body. 11. During cross-examination, P.W.8 Kakasaheb stated that, he disclosed before police that accused Anil was with a bag and he also disclosed before police that they left the klin to rescue Ranjana and accused Anil gave blows by means of Koyta on the parts of body of Ranjana such as hand, neck and chest and he also disclosed before the police that blood was oozing out of the - 11 - said wounds. Besides that, the omission was elicited in respect of the description of injury sustained by Ranjana on her neck and blood was oozing from the injuries on the chest, neck and hand and also attachment of neck to body. He further stated in the cross-examination that he did not make any attempt to take Ranjana in the hospital till arrival of the police and her relatives. He also stated that he did not lodge report in police station till arrival of her parents. He further deposed that he went on heap of soil of klin on hearing her voice of cry. Hence, suggestion was given to him that distance between klin and house of Sanjay Mundhe was 1000 ft. and distance between klin and house of accused Anil Mundhe was about 750 to 800 ft., but same was denied by him. 12. That takes us to the deposition of P.W.6 Dagdu Maruti Londhe, who is the father of the deceased Ranjana, who stated in his deposition that deceased Ranjana was his daughter and her marriage was performed with Sanjay, resident of Chincholiraowadi and the said couple was blessed with one son and one daughter. He further stated that, his son-in-law namely Sanjay has got a brother namely Anil i.e. the accused herein, who was elder to Sanjay and they were residing separately and Sanjay used to reside in the field whereas accused Anil was residing in the - 12 - quarters of Manjara Sugar Factory. He further stated that the relations between his son-in-law namely Sanjay and accused Anil were strained and the dispute between them was on account of division of agricultural land and accused Anil used to complain that Sanjay received good quality of land. He also stated that his daughter Ranjana had been to Manjara for Diwali festival and stayed for about 5-6 days before her death and at that time she disclosed to him that her brother-in-law i.e. accused herein quarreled with her on account of land. He further stated that, after the occurrence of the incident, he visited Ranjana’s house and found her dead body on the road sustained with injuries on her neck, breast and hands and her daughter Durga was there. Hence, he asked Durga who injured her mother and thereupon she informed that Anil injured her. He also saw injuries on the left hand of Durga which were bleeding. 13. In the cross-examination, he stated that while leaving Manjari, he has not informed to Police about the incident nor he informed to police immediately on reaching Chincholiraowadi and he does not know who lodged the report about the incident in question. An omission was elicited in the cross-examination regarding the raising of quarrel by accused Anil about the field. Suggestion was also given that Durga being minor, she was unable - 13 - to explain, but same was denied by him. It was also suggested to him that, he gave false evidence that Durga informed him about Anil injuring her mother, but same was denied by him. 14. Coming to the deposition of P.W. Ramesh Londhe, i.e. brother of deceased Ranjana, who stated that deceased Ranjana was his siter, who married with Sanjay about 8 years back and the said couple was blessed with one son and one daughter and he knew accused Anil Mundhe who was brother of Sanjay and they were residing separately. He further stated that his brother-in-law Sanjay used to do agricultural work and was residing in his own field along with his family whereas accused Anil was residing near temple of Lord Ganpati in quarter of Sugar Factory. He further stated that relations between accused Anil and his brother-in-law Sanjay were not cordial and there used to be quarrel between them on account of ancestral property i.e. land of about 10 to 12 acres and division thereof and accused used to make grievance that Sanjay got fertile share whereas the accused got unfertile one and he further stated that accused was inimical with his sister i.e. deceased Ranjana also. He further stated that on 24.10.2006 his sister Ranjana had been to his parental house and stayed for about 5 days and at that time she disclosed before P.W.9 Ramesh and her parents that accused Anil threatened her that he would see - 14 - how she would harvest Soyabin crop and he also threatened her to kill her and, therefore, she disclosed that there was fear and danger to her life. 15. P.W.9 Ramesh further stated on 13.10.2006 at about 5.00 p.m. when he was working in the field, he learnt that his sister was killed and accordingly, he, his parents and his uncles and brothers rushed towards Ranjana’s field and saw that her dead body was lying on the road in front of her house and her neck was cut and she had sustained deep injuries on her chest and palm of both hands and they further saw that her minor daughter Durga, aged about 3 years was weeping and she had also sustained injury on the left hand. He further stated that, he took Durga close to him and enquired who killed her mother and thereupon she told that Anil Tatya killed her mother. Accordingly, he stated that, on 31.10.2006 he went to M.I.D.C. Police Station, Latur and lodged a report about the incident, which was treated as F.I.R. (Exhibit 46) and crime was registered as C.R. No.201/2006 for the offence punishable under Section 302 of the Indian Penal Code at 20.15 Hrs. on 31.10.2006. 16. During cross-examination, he stated that he had no occasion to visit house of accused Anil prior to incident. He also - 15 - stated that he had no idea about division of property and documents thereof. He also stated that, he did not know as yet whose land survey or Gat number or in the name of whom. He also stated that, he does not know whether there was any dispute about partition or share amongst Sanjay and Anil in any Court or not. As regards threats to Ranjana, he stated that he does not know whether Ranjana filed any report to M.I.D.C. Police Station, Latur about the threats given by accused Anil. He further stated that, he also did not lodge any report about the same on knowing it from his sister deceased Ranjana . As regards quarrel between accused and his brother Sanjay, suggestion was given to him that he gave false evidence of quarrel on account of property dispute between Sanjay and Anil, but same was denied by him. It was also suggested to him that he deposed falsely that accused used to quarrel with Sanjay and his wife about receipt of inferior quality of share by him, but same was denied by him. As regards the injuries sustained by Ranjana, it was suggested to him that he gave false evidence that he saw injuries on dead body like neck is cut, deep injuries on chest, palms and found Durga weeping there, but same was denied by him. As regards the disclosure made by Durga before him, suggestion was given to him that he deposed falsely that Durga disclosed about injuries caused by accused Anil Tatya to her mother, but same was denied by him. - 16 - 17. Turning to the evidence of P.W.2 panch witness Bhaskar Pandhare, who deposed that on 4.11.2006, the accused in custody made disclosure statement to show the place where Hattya was thrown by him and the said statement was recorded under memorandum panchanama (Exhibit 27) and thereafter the accused led the police and panchas towards the village Chincholiraowadi and further led to a well and showed the place i.e. well where Hattya was thrown by him and accordingly Police personnel took out the instrument Hattya therefrom and same was seized under memorandum panchanama (Exhibit 29). In the cross-examination, suggestions were given to him that he gave false evidence that accused made disclosure statement and he gave false evidence about showing the well by the accused where Hattya was thrown and he gave false evidence that the Hattya was recovered from the said well and seized under memorandum panchanama (Exhibit 29), but all the said suggestions were denied by him. 18. The learned counsel for the appellant urged that, the testimony of sole eye witness P.W.8 Kakasaheb is not reliable since he and Sanjay used to reside nearby to each other and his testimony is interested testimony, which cannot be relied upon. It - 17 - was also submitted that, the testimony of P.W.8 Kakasaheb cannot be construed as testimony of eye witness considering its conduct and it was canvassed that if P.W.8 Kakasaheb had witnessed the occurrence of incident, he would have lodged the report to police immediately, but so did not happen and P.W.8 Kakasaheb waited till the arrival of P.W.9 Ramesh Londhe, brother of victim, who in fact lodged the report about the occurrence of incident after arrival on the spot and after noticing the occurrence of incident and hence, it was submitted that, the conduct of P.W.8 Kakasaheb, who claims to be eye witness, is not natural and same is suspicious. According to learned counsel for the appellant, the alleged incident occurred on 31.10.2006 and the accused was arrested on 2.11.2006 and thereafter on 4.11.2006 discovery of Hattya at the instance of accused herein was shown by the prosecution i.e. after a period of about 5 days from the date of occurrence of incident and, therefore, it is submitted that the said recovery of sickle (Hatya) at the behest of the accused is suspicious and the said discovery cannot be connected to the accused and consequently, accused cannot be connected with the alleged crime. As regards the motive to the alleged crime, the learned counsel for the appellant submitted that the prosecution examined P.W.9 Ramesh i.e. brother of victim and P.W.6 Dagdu i.e. father of victim, who are the interested witnesses since relatives of the deceased Ranjana - 18 - and, therefore, their testimonies cannot be believed in respect of the motive to the alleged crime. 19. The learned A.P.P. countered the said arguments and submitted that the testimony of P.W.8 Kakasaheb is the independent testimony and he is not related to the victim and he was the neighbourer, who witnessed the occurrence of incident and narrated the same in detail and his testimony is required to be construed as truthful and reliable and the learned trial Judge has rightly based the conviction and sentence against the accused relying upon the said testimony, and learned A.P.P. submitted that no interference therein is warranted in appellate jurisdiction. As regards the discovery of weapon at the instance of the accused, the learned A.P.P. submitted that P.W.2, panch witness Bhaskar Pandhare has supported to the case of prosecution and proved the discovery of weapon (Hattya) at the instance of the appellant herein and there are no infirmities in the said discovery