- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.677/2008 Asaram s/o Vithalrao Gadade, age 51 yrs., occu.agril., r/o Mohadi Tq.Jintur Dist.Parbhani. ...Appellant.. (org.accused) Versus The State of Maharashtra, through Police Station Officer, Police Station, Bamni. Dist.Parbhani. ...Respondent... ..... Shri Swapnil S. Rathi, Advocate for appellant. Shri K.B. Choudhary, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR , JJ. DATE: 07.09.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for an offence punishable u/s 302 of - 2 - the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default of which to undergo rigorous imprisonment for one year, by the Sessions Judge, Parbhani, by judgment dated 18.9.2008 in Sessions Trial No. 47/2008, by this appeal questions the correctness of his conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. PW 13 PSI Samsher Ahmad Abdul Rashid Faruqui, who was attached to the Police Station, Bamni, recorded the complaint of PW 2 Sudhakar Gadade, Police Patil at Exhibit 12. On the basis of said complaint, he registered an offence vide Crime No.83/2007 for offence punishable u/s 302 of the Indian Penal Code. Prior to registration of the offence, PW 13 PSI Faruqui had received information about the occurrence from PW 2 Sudhakar and had, therefore, visited village Mohadi. On the next day, inquest panchanama of the dead body of deceased Jagannath came to be drawn in presence of witnesses at Exhibit 20. Scene of the offence – panchanama at Exh.30 came to be drawn in the presence of PW 10 Ramkrishna. The dead body of deceased Jagannath was referred for post mortem examination and post mortem came to be conducted by PW 12 Dr.Rajabhau Wairale. PW 12 Dr.Wairale noticed the following external injuries : 1] Incised wound alongwith fracture at occipital having size 8 x 4 x 6 cm. 2] Incised wound alongwith fracture at occipital just below the above injury having size 8 x 3 x 6 cm. 3] Incised wound alongwith fracture mastoid size 8 x 6 x 2 cm. - 3 - 4] Incised wound just below the occipital bone size 6 x 4 x 6 cm. 5] Incised superficial wound 4 cm. Below the above mentioned wound 4 x 1 x ½ cm. 6] Incised wound at right pinna having size 1 x ¼ x ¼ cm. Injuries 1 to 6 were ante mortem. On internal examination, he found three incised wounds along with profuse haemorrhage in the cranium. He, therefore, opined that cause of death was due to profuse intra-cranial haemorrhage. The post mortem report is at Exhibit 37. During custodial interrogation, the appellant – accused had expressed his willingness to point out the place where an axe was hidden. Accordingly, the memorandum statement of the accused came to be drawn at Exhibit 18. The accused led the Police and the panch to village Mohadi and produced an axe from a ditch of a dilapidated house in the presence of panch. The axe came to be seized vide Exhibit 19. The said axe is Article 17. The blood stained clothes of mother of deceased Jagannath i.e. PW 7 Sarubai came to be seized vide seizure memo at Exhibit 37. Statements of witnesses came to be recorded and the seized articles were referred to the Chemical Analyser along with requisition at Exhibit 14. The seized articles were carried to the Chemical Analyser by PW 3 – Constable Ramesh Sonawane. On 12.11.2007, the clothes of the accused came to be seized in the presence of panchas vide seizure memo at Exhibit 28. Similarly, clothes of deceased Jagannath came to be seized in the presence of panchas vide seizure memo at Exhibit 21. The accused was arrested vide arrest panchanama - 4 - at Exhibit 40. Further to the completion of investigation, a charge-sheet against the appellant came to be filed. 3] On committal of the case to the Court of Sessions, the trial Court vide Exhibit 5 framed charge against the appellant for offence punishable u/s 302 of the Indian Penal Code on the allegations that on 11.11.2007 at about 7-45 p.m., the appellant had killed his son by inflicting injuries by an axe. The accused denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 13 witnesses. 4] The entire prosecution case revolves around the testimony of PW 2 Sudhakar, who is the Police Patil to whom the appellant-accused is alleged to have made the extra judicial confession. The trial Court accepted the extra judicial confession and the finding of human blood on the clothes of the accused and the total non-explanation given by the appellant-accused, and convicted and sentenced the appellant as afore-stated. 5] In order to deal effectively with the submissions advanced before us by the learned counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. PW 1 Kishan Rambhau, Kotwal of village Mohadi states that the appellant-accused was owning about 5 to 7 Acres of agricultural land, which he had given for cultivation on contract basis. He further states that the relations between the accused and the deceased were normal, but there was - 5 - some bickering on account of some domestic reason. He states that deceased Jagannath had come to the village at the time of Diwali festival from Nasik. At about 6-00 to 7-15 p.m. while PW 1 Kishan was at his house, he heard cries for help from the house of the accused and he along with Police Patil went to the house of the accused and noticed deceased Jagannath lying in a pool of blood. He states that several persons residing in the nearby houses were present. The accused was standing at some distance. Jagannath had injuries on his back and on the upper portion of his neck. He states that he did not see the axe. He states that the ladies present at the place informed him that while Jagannath was sleeping, the appellant had inflicted axe blows on him. He has admitted that he had no talk with the appellant – accused and had not asked the accused about the occurrence of the incident. This witnesses was declared hostile by the prosecution and was cross-examined. In cross-examination on behalf of the prosecutor, he admitted that he had seen an axe beside the container containing grains and had also seen blood stains on the axe. He has then admitted as true that at that time the accused was saying that he had taken revenge of the assault on him earlier. He has stated that the accused had said that he had killed Jagannath. In cross examination on behalf of the accused, he states that when he reached the house of the accused, there were no lights. He has admitted that the Police Patil had brought a flash light with him. He has further admitted that when they had reached the house of the accused, about 50 to 100 villagers were present there. He has admitted that the accused was standing beside the dead body. In cross examination, he further states that he had no talk with the accused and he was - 6 - informed by Saraswatibai that the accused had said that he had taken revenge for the beating received by the accused last year. 6] PW 2 Sudhakar, Police Patil of village Mohadi, states that at about 7-30 to 8-00 p.m., he was at his residence and had heard the cries of the ladies as “dying – dying”. The cries came from the house of the appellant. He along with PW 1 Kishan Kotwal and one Pradip went to the house of the accused. They had gone on the first floor and in the light of the torch, he had seen deceased Jagannath lying in a pool of blood. Jagannath was dead. Parents of Jagannath were present there as well as several other residents of the locality. The accused was present in the room and was holding an axe. PW 2 Sudhakar states that he questioned the accused as to why he had done so and the accused told him that he had been intermittently assaulted by the deceased and, therefore, the accused had done so. The appellant – accused told Sudhakar that he had killed deceased by an axe. PW 2 Sudhakar further states that he had come to the Police Station and narrated the incident to the Police, who had reduced his report to writing (Exh.12). In cross examination, he has admitted that distance between Bamni and Mohadi is about 30 to 35 Kms. and on the day of the incident, there was load shedding in the village. He has admitted that a crowd of about 50 to 100 persons had assembled at the house of the accused. He has admitted that he himself, PW 1 Kishan and one Pradip were together. He has further admitted that when he had gone to the house of the accused, only he was possessing torch. He states that he had examined as to whether Jagannath was lying and at that time the accused was - 7 - standing at a distance of 5 to 10 ft. He has admitted that the accused had tears in his eyes. He has admitted that there are two groups in the village, one group is led by Sarpanch Manikrao Deokate while the other group is led by Kishan Roopner. He has admitted to be belonging to the group led by the Sarpanch, while the accused belongs to the group of Kishan Roopner. He has admitted that he had reached the Police Station around 10-00 to 11-00 p.m. and had gone to the Police Station on a motorcycle. He has admitted that PSI Faruqui had reached village Mohadi around midnight. He has denied the suggestion that he had lodged a report when he had gone to the Police Station on the second occasion. He has admitted as true that PSI Faruqui had come to the village after PW 2 Sudhakar had lodged his report. He has denied to have given information about the incident to Police Station on telephone. Certain omissions have been pointed out that he had not stated in his report that mother of Jagannath was present and that the appellant had informed him that Jagannath had intermittently assaulted him. He has admitted that delay in lodging the report was on account of the fact that the vehicles were not available. He has further stated that till he was at the house of the accused, the accused had not been apprehended. 7] The prosecution has examined PW 11 Ashamati w/o deceased Jagannath. She states that she was married to Jagannath 2 to 3 years prior to the incident. She states that her husband had quarreled with the accused as the accused had sold his land to one Ashok Harnool. According to her, deceased Jagannath was stating that the land should be cultivated by the family instead of giving it for - 8 - cultivation on contract. She states that her husband had slapped the accused during the quarrel and on that, the accused had said that one day, he would kill Jagannath. She states that on account of fear, she and her husband were residing at Nasik, but used to come to village Mohadi for attending the festivals like Dasara and Diwali. In cross examination, she has admitted that her husband was working at Nasik prior to her marriage. She has admitted that they were coming to village Mohadi for attending the festivals and thereafter returning back to Nasik. She has admitted that the incident of assaulting the appellant by decased Jagannath had occurred in her presence. She states that the incident occurred within 10 to 15 days of her marriage with Jagannath. 8] Learned counsel for the appellant has urged before us that not much reliance can be placed on the testimony of PW 1 Ashamati as Ashamati has been proved to be telling a falsehood that they were residing at Nasik on account of fear of the appellant-accused. It is urged before us that deceased Jagannath was residing at Nasik prior to his marriage. According to us, the aforesaid fact is not enough to discredit the version of PW 11 Ashamati, particularly the version that there was quarrel between the appellant and deceased and in the said quarrel, deceased had slapped the appellant and the appellant had stated that one day, he would kill the deceased. According to us, reliance can be placed on the testimony of PW 11 Ashamati in respect of strained or inimical relations between the deceased and the appellant. The appellant, therefore, had a motive for committing the aforesaid crime. - 9 - 9] It was then urged before us by the learned counsel for the appellant that as per the evidence of PW 1 Kishan, the incident occurred between 6-00 to 7-12 p.m. while according to PW 2 Sudhakar, the incident had occurred between 7-30 to 8-00 p.m. and in the light of the variance, no reliance could be placed on the testimony of either of the witnesses. According to us, the aforesaid discrepancy is hardly enough to discredit the otherwise reliable evidence of PW 2 Sudhakar. PW 1 Kishan has been declared hostile and was cross-examined. He had admitted in the cross examination on behalf of the prosecutor that the appellant had stated that he had killed Jagannath. He summer-saulted from the aforesaid statement in the cross examination on behalf of the appellant-accused and had stated that he had no talk with the accused. Therefore, according to us, no reliance whatsoever can be placed on the testimony of PW 1 Kishan. 10] Learned counsel for the appellant has urged before us that evidence of PW 2 Sudhakar deserves to be rejected on the ground that Sudhakar had stated that he had gone to the Police Station and had lodged his report and thereafter Police had come to village Mohadi, while PW 13 PSI Faruqui in his evidence has stated that he had received information from PW 2 Sudhakar and had gone to the Police Station and PW 2 Sudhakar had come to the Police Station along with PW 13 PSI Faruqui and thereafter the First Information Report came to be lodged. Though PW 13 Faruqui has stated that he had received information on telephone from PW 2 Sudhakar - Police Patil, yet no contemporaneous evidence is produced in - 10 - respect of either the receipt of message on telephone or about PW 13 PSI Faruqui going to village Mohadi pursuant to the receipt of information. According to us, on the aforesaid solitary statement, which creates slight discrepancy in between the evidence of PW 2 Sudhakar and PW 13 PSI Faruqui, is not enough to jettison the testimony of PW 2 Sudhakar in its entirety. 11] Learned counsel for the appellant has further urged that the relations between the appellant and PW 2 Sudhakar are strained and inimical. Merely because PW 2 Sudhakar belongs to a different party in the village than the appellant, an inference can not be drawn that the relations between the two are strained to an extent, which would impel PW 2 Sudhakar to lodge a false report against the appellant. 12] The report of the Chemical Analyser at Exhibit 42 indicates that the clothes of deceased and the clothes of mother of the deceased as well as the appellant were found stained with blood of “O” group. The clothes of the accused came to be seized immediately on his arrest. The axe produced by the accused was also found stained with blood of “O” group. It is urged before us by the learned counsel for the appellant that the seizure of the axe at the behest of the appellant is a circumstance, which has been created by the prosecution. The appellant – accused was found at the scene of the offence and the appellant – accused had no opportunity of concealing the axe. The trial Court has rejected the evidence in respect of discovery of the axe on the ground that the evidence of the panch - 11 - witness indicated that the accused was handcuffed when the accused had made the disclosure statement. According to us, even if the discovery of the ade is left out of consideration, there is other overwhelming evidence, which connects the accused with the said crime. 13] The accused was found near the dead body of his son – deceased Jagannath. There is a history of previous quarrel between the appellant and the deceased in which the deceased had slapped the appellant, upon which the appellant had stated that he would kill the deceased. The incident occurred in a room on the first floor, which would make it virtually impossible for any stranger to have reached the room for committing the crime unnoticed. The deceased Jagannath is not alleged to have any inimical relations with any other resident of the village, which would prompt the said person to commit murder of the deceased Jagannath. If an outsider had entered the house and had killed Jagannath, the appellant would be the first one to report such incident. The appellant has maintained a total silence and has not offered any explanation for his presence near the dead body holding an axe. No explanation is offered by the appellant in respect of blood stains matching the blood group of the deceased on his clothes. There is virtually no cross-examination in respect of the extra judicial confession. In such circumstances, therefore, according to us, the prosecution has proved the afore-stated circumstances and has, thus, established a complete chain, which excludes every hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. - 12 - 14] Learned counsel for the appellant has placed reliance on the judgment of the Division Bench of this Court in Sitaram Vishnu Chalke V/s State of Maharashtra (1993 CRI.L.J. 3364) to urge before us that since the extra judicial confession had been obtained by asking a question, it could not be considered to be a voluntary confession. The facts in the aforesaid case being different, the ratio laid down therein does not apply to the facts of the present case. In the present case, the extra judicial confession appears to us to be voluntary, at least there is no evidence to indicate that any threats, coercion or any allurement had been offered to the appellant by PW 2 in order to elicit the aforesaid extra judicial confession. 15] After having considered the rival submissions advanced before us, according to us, there is no merit in the appeal and the same deserves to be dismissed and is accordingly dismissed confirming the conviction and sentence against the appellant. (A.V. Potdar , J.) (P.V. Hardas, J.) ndk/cr7910