1 Criminal Appeal No.358 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.358 OF 2009 1. Hanuman S/o. Tulshiram Jadhav, Age-31 years, Occu-Agriculturist, R/o.Pohandul, Tq.Sonpeth, Dist. Parbhani, 2. Bhagwan S/o.Tulshiram Jadhav, Age-26 years, Occu-Agriculturist, R/o.Pohandul, Tq.Sonpeth, Dist. Parbhani. (At present in jail custody) APPELLANTS VERSUS State of Maharashtra Through Police Station Officer, Police station Sonpeth Tq.Sonpeth Dist. Parbhani. RESPONDENT Mr.Swapnil S.Rathi, learned counsel for the appellants. Mr.K.G.Patil, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) RESERVED ON : 18/01/2011 PRONOUNCED ON : 24/01/2011 JUDGEMTN : (Per A.V.Potdar, J.) 1. The appellants have questioned the correctness and legality of their conviction u/s. 302 r/w. 34 of The IPC, for which they were 2 Criminal Appeal No.358 of 2009 sentenced to suffer life imprisonment and for the offence punishable u/s. 201 r/w. 34 of The IPC, they were sentenced to suffer rigorous imprisonment for 3 years in Sessions Case No.10/2008 vide judgment and order dated 05/06/2009 by The Additional Sessions Judge, Gangakhed. 2. Such of the facts as are necessary for the decision in this appeal can be summarized as follows : a) On 09/01/2008, on receipt of telephone message from one Vishwanath Manikrao Jadhav (P.W.No.15) of village Pohandul that one Tulshiram and his two sons, the appellants before the Court, have assaulted one Haribhau Jadhav and Haribhau is missing in Sonpeth Police Station, A.P.I. Dipak Dnyanoba Shinde (P.W.No.17) proceeded to village Pohandul at 12.30 noon after effecting necessary entries in the station diary. At Pohandul, he visited field of one Ankush Jadhav. Then he drew spot panchnama Exh.25 and collected blood mixed mud and plain mud from the spot. Thereafter for inquiry, he brought complainant Shripati Dattarao Jadhav, appellants, Tulshiram and his wife. During the inquiry, appellant Hanuman made disclosure statement and shown the spot where dead body of Haribhau was concealed. As it was the night hours, P.W.No.17 returned back to police station. He deputed 2 police constables on the spot for vigilance. Thereafter, Shripati lodged the report (Exh.41) in Sonpeth Police Station. On the basis of this report, an offence was registered vide CR No.4/2008 u/s. 302, 201 3 Criminal Appeal No.358 of 2009 r/w. 34 of IPC against the appellant Tulshiram and his wife Mahanandabai. Thereafter, the appellants and their parents were arrested under panchnama (Exh.72 to Exh.75) at about 11.35 p.m. or so. b) On 10/01/2008, Tahsildar, Medical Officer Dr.Siddheshwar Shivrajan Halge were called at the spot. From the spot, one dead body of male was excavated in the presence of witnesses. At that time, photographs were also taken. The dead body was recovered under the recovery panchnama (Exh.22). On the spot, in the presence of panch witnesses, inquest panchnama (Exh. 23) was drawn. At the same time, clothes on the person of the deceased (Article 3 to 6) were removed and seized under the panchnama (Exh.32). c) Dr.Siddheshwar Shivrajan Halge conducted autopsy on the body of deceased and prepared post mortem report (Exh.63). During the post mortem, Dr.Siddheshwar Shivrajan noted following external injuries on the dead body. 1. Abrasion with swelling over frontal bone near hair border of size 2 ½” x 2 x ½” x 1”, irregular size. 2. Fracture (Lt) humerus at lower 1/3 end on palpation. 3. Fracture below left knee on palpation (both bones). 4. Incised wound over shin of left leg 2” x ½” x 1” deep at lower 1/3. Muscle protruding outside. 5. Incised wound above no.4 injury 1” x ½” x ½” muscles 4 Criminal Appeal No.358 of 2009 protruding. 6. Incised wound curved just below (lt) knee ½” x ½” x 1” deep; on left shin. 7. Contusion and lacerated wound behind left ear over occipital bone 1” x 1” x 1” deep. On internal examination, he noticed that the brain was congested and internal hemorrhage is present on frontal lobe. He opined that probable cause of death was due to “hemorrhagic shock due to head injury associated with multiple injuries including fracture below (left knee and left humerus.” He has further opined that all these injuries can be caused by beating with sticks. He has also opined that the dead body might have buried 48 hours prior to the post mortem. He has also opined that injury no.4,5 and 6 mentioned in coloumn no.17 are incised wounds. The time of probable death was within 24 to 48 hours before the post mortem was conducted. The death was homicidal death. d) Thereafter, P.W.No.17 recorded statement of certain witnesses and further investigation was handed over to S.D.P.O. Shri.Patil. During the further investigation, he assisted to S.D.P.O. Shri.Patil from time to time. e) Laxmikant Tukaram Patil (P.W.No.19) S.D.P.O.Purna, in whose jurisdiction, Sonpeth Police Station comes, conducted the further investigation in this CR. On 10/01/2008, he had recorded 5 Criminal Appeal No.358 of 2009 statements of Limbabai (P.W.No.12) and Ankush Jadhav (P.W.No.13). On that day, on the disclosure of appellant Hanuman, he prepared memorandum panchnama at Exh.27 which resulted in the recovery of 2 sticks, 1 spade and 1 pickaxe. These articles were recovered under the recovery panchnama Exh.28. On the same day, he had recorded statement of certain witnesses. In the further investigation, he had recorded disclosure statement of certain witnesses. In the further investigation, he had recoded disclosure statement of appellant Bhagwan (Exh.54), which resulted in the recovery of pair of chappal concealed in his house, below the sack used for storage of grain. This pair of chappal was seized under recovery panchnama Exh.55. During the house search of the appellants, certain clothes were produced as the clothes on the person of the appellants under the recovery panchnama Exh.35. During the investigation, statement of witness Rambhau, withess Bhagwan, witness Ankush and witness Limbabai were recovered u/s. 164 of The Cr.P.C. by J.M.F.C. Gangakhed. During further investigation, seized property during investigation was sent for chemical analysis to the C.A. Aurangabad alongwith covering letter Exh.79. After receipt of CA reports Exh.66 and 67 and after completion of investigation, charge sheet was filed against the appellants and others in the Court of J.M.F.C. Gangakhed, who in turn, after passing necessary committal order, committed the trial to the Court of Additional Sessions Judge, Gangakhed. 6 Criminal Appeal No.358 of 2009 f) Learned Additional Sessions Judge, Gangakhed framed the charge against the appellants and their parents vide Exh.10 for an offence punishable u/s. 302, 201 r/w. 34 of The IPC, to which appellants and others pleaded not guilty and claimed to be tried. g) To substantiate the charge lavelled against the appellants and others, prosecution has examined total 19 witnesses including 7 panch witnesses, 3 eye witnesses, complainant and 2 other witnesses, medical officer who conducted autopsy on the dead body and 3 police witnesses including the carrier and two investigation officers who have participated and completed the investigation in the said CR. On appreciation of the evidence of 3 eye witnesses, the evidence of recovery and the C.A. Reports, learned Trial Court pleased to convict these appellants for the offence punishable u/s. 302, 201 r/w. 34 of The IPC, while pleased to acquit their parents from all the charges lavelled against them. The conviction and sentence of these appellants is impugned in this appeal. Admittedly, State has not challenged the judgment of acquittal of Tulshiram and Mahanandabai. 3. For the proper appreciation of the submissions of learned counsel for the appellants and of learned A.P.P. it is necessary to advert to the evidence of material witnesses examined by the prosecution before the Trial Court. 7 Criminal Appeal No.358 of 2009 4. It is in the evidence of Shripati Dattatraya Jadhav (P.W.No.8) who is the complainant and also one of the brother of deceased Haribhau that Haribhau (deceased) was unmarried and residing separately. Their ancestral properties were partitioned 12 years back. On 08/01/2008, i.e. on the date of incident, he was in his field till 5.00 p.m. Thereafter, he proceeded to his another field. On his way, Bhagwan Rambhau Jadhav (P.W.No.11) and Ankush Prabhakar Jadhav (P.W.No.13) met him and informed that appellants and their father assaulted Haribhau in the field of Ankush. Thereafter, he went to his house. On the next day, he questioned Tulshiram, acquitted accused and his sons, the appellants, as to why they have assaulted Haribhau, to which they informed him that Haribhau is still lying in the field below the neem tree. He went to the field in search of Haribhau, where he saw that Ankush and Bhagwan were present. On his asking, Ankush shown the place where the incident of the previous date was occurred. He also noticed some blood at that spot. He tried to search Haribhau but was unable to trace him. Thereafter, he went to the police Station and narrated the incident to police. Thereafter, appellants and their parents were also called in the police station. He has stated that in his presence in the police station appellant Hanuman informed police that they have assaulted Haribhau and concealed the body in the bank of river Godawari. Thereafter, Hanuman took them to the spot where the dead body was concealed. Thereafter, he lodged the report (Exh.41) in the police station. Thereafter appellants and acquitted accused were put 8 Criminal Appeal No.358 of 2009 under arrest. He has stated in his cross examination that after partition of the ancestral properties 12 years back, amongst the brothers, one of their brother Narayan expired. After demise of Narayan, his wife Sunanda sold the land came to the share of her husband Narayan to appellant Hanuman by executing registered sale deed. Deceased was insisting that after demise of Narayan, his property to be partitioned amongst the surviving brothers. On that count, there was dispute between the deceased and the family of Tulshiram as well as other brothers. He has further stated in his cross examination that the field came to his share is not adjacent to the field came to the share of Tulshiram. He has admitted that after he came to know about the assault on Haribhau (the deceased) from Ankush, he did not went to the field of Ankush to see Haribhau as there was dark. He has further admitted that in the same night, he has not informed about the information received to him to the Village Police Patil as well as he has not made any inquiry about the whereabouts of Haribhau in that night. He has further stated that on the next day, in the afternoon, police came in the village and took him as well as appellants and parents of appellants to the Police Station. They remained in the Police Station till 10.00 p.m. At that time, no villagers were present in the police station other than himself, appellant and the acquitted accused. According to him, alongwith Hanuman, they came to the village around 9.00 p.m. and after the spot was shown by Hanuman, they returned back to the 9 Criminal Appeal No.358 of 2009 police station. He has further stated that till this time, he has not lodged any report in the police station against anybody. His complaint was recorded around 11.00 p.m. or so. He has admitted that he met Bhagwan and Ankush in the field, which has came to his share. 5. It is in the evidence of Bhagwan Rambhau Jadhav (P.W.No.11) that on 08/01/2008, at about 4.00 p.m. to 4.30 p.m., he was proceeding to Godawari river to start electric motor. On his way, he saw that appellants were assaulting Haribhau, the deceased with the sticks in the field of Ankush Jadhav. Parents of appellants were also present there. He requested appellants not to beat deceased otherwise he will die. He tried to separate them. Appellant told him that it was none of his business and he may proceed on his way. Appellants were mercilessly assaulting deceased on his head and legs. Deceased was crying and shouting for help. Ankush (P.W.No. 13 and Limbabai (P.W.No.12) also came there. Ankush tried to separate them, but he was not listened. Deceased was asking for water. Then he left the spot. He had not then seen the deceased. During the trial, he had identified the clothes of the deceased as well as the sticks, the weapon of assault produced in the Court. He has stated in his cross examination that he had not stated in his statement before police that he had seen the incident of assault in the field of appellants. He has further stated that ploughing work was in progress in the field of Ankush. Limbabai came at the spot 10 Criminal Appeal No.358 of 2009 after 4-5 minutes after he reached at the spot of incident. He had further stated that on that day, he returned to village around 7.00 p.m. After about ½ hour, he met Shripati. He do not remember, whether he informed about the incident to Shripati or not. On the next day morning, he informed Shripati about the incident witnessed by him on the previous day, but not to anybody else, even to the Police Patil. He has further stated that he, Ankush and Laxman tried to bring the deceased to village, but they were not allowed by the appellants. His field is situated at the distance of 1 km. from the village. He has further stated that when he had informed about the incident to Shripati on the next day morning, Ankush was not with him. 6. Evidence of Limbabai (P.W.No.12) is on the similar line and identical with the evidence that of Bhagwan. She has further stated that deceased was asking for water and she gave water to the deceased. She noticed bleeding injuries on head and legs of victim Haribhau. Haribhau was unable to stand and move from the place where he was lying. She has further stated that after assaulting deceased, appellants ran away from the spot. Thereafter, she returned to her work in the field of Balu Jadhav and from there, she returned to her house. She has further stated that on the 3rd day, body of the deceased was excavated from the river bed, at that time, appellant Hanuman was present at the spot. She has also identified clothes of the deceased and the sticks used by the assailants during 11 Criminal Appeal No.358 of 2009 the trial. She has stated in her cross examination that on 08/01/2008, she was working in the field of Balu Jadhav alongwith 10 other ladies, which field is situated at the distance of about 200 ft. from the place of incident. She has further stated that on hearing the shouts, she alone went to the spot. She remained at the spot for about 1 ½ hour. She has specifically stated in her cross examination that during the assault, other than sticks, no other weapons were used by the assailants. She has further stated that after the incident, she returned back to the field of Balu Jadhav, and not narrated the incidence witnessed by her to the co-workers. She has further stated that after she returned to her home, she has not disclosed the incident even to her husband or to the villagers. She has further stated that on the next day, police came in the village, but she had not disclosed the incident to them also or to the brother of the deceased. She has stated that she had not disclosed the incident to the police even after the arrest of the appellants and others. According to her, she was threatened by the appellants, hence she preferred to keep mum. According to her, after the incident was over, Ankush and Bhagwan went to their respective fields. In her further cross examination, omissions were proved that she had not stated in her statement before police that when she went to the field of Tulshiram, Ankush and Bhagwan were already present there. She has also not stated in her statement before police that Hanuman was present at the time of excavation of dead body of Haribhau from river bed. She has also not stated before Police that 12 Criminal Appeal No.358 of 2009 during the incident, appellants twisted her hands and beat her on her shoulders. 7. It is in the evidence of Ankush (P.W.No.13) that on 08/01/2008, he was ploughing his field, which is adjacent to the field of appellants. Around 4 to 4.30 p.m., Haribhau came running in his field. Haribhau was shouting for help. Appellants followed him in his field and assaulted him with sticks in their hand on his head and legs. He tried to separate them, but they did not listen. Haribhau (deceased) sustained bleeding injuries on his head and legs. After some time, Bhagwan (P.W.No.11) and Limbabai (P.W.No.12) came there. He has further stated that at that time, parents of appellants were also present. Due to the injuries sustained by Haribhau, Haribhau was unable to stand and move. Haribhau was asking for water. Limbabai gave water to him. He told appellants not to beat Haribhau in his field. Thereafter, appellants lifted Haribhau and taken to the field of Tulshiram. He had further stated that Shripti, another brother of Haribhau came to his field to inquire about Haribhau to whom he narrated about the incident. During the trial, he also identified the sticks before the Court as the weapons used by the assailants to assault Haribhau. He has stated in his cross examination that the assault was continued for about 20-25 minutes. During the said assault, no other weapons were used by the assailants other than the sticks. He had further stated that after Haribhau was taken to the field of Tulshiram, he had not 13 Criminal Appeal No.358 of 2009 followed them. He had further stated that Shripati came in his field some time before there was dark. He had not accompanied Shripati to the field of Tulshiram. He had further stated that he had not informed about the incident to the Village Police Patil or to village Kotwal. He had further stated that on the next day, police came near his field around 10 to 11.00 a.m. and drew panchnama. In his further cross examination, omissions were proved that he had not stated in his statement before police that Bhagwan and Limbabai took Haribhau to the field of Tulshiram as well as on asking by Haribhau, Limbabai gave water to Haribhau. 8. In the light of evidence of these witnesses and the other evidence on record, heard learned counsel for appellants followed by the submissions of learned A.P.P. for State. 9. During the course of submissions, it is urged on behalf of appellants that the evidence of P.W.No.11, 12 and 13 is not reliable as they have witnessed the incident of the previous day, allegedly took place on 08/01/2008. According to him, the evidence of the eye witnesses is not shakened on the point that the assailants assaulted deceased Haribhau with the sticks and no other weapons were used by them. He has drawn our attention towards the evidence of P.W.No. 16 Dr.Siddheshwar Shivrajan Halge and the post mortem notes at Exh.63. He has drawn our attention towards the injuries mentioned against coloumn no.17 and specifically towards the injuries no.4,5 14 Criminal Appeal No.358 of 2009 and 6 which are in the nature of incised wounds. It is urged that if the assailants have used sticks to assault deceased, then injury no. 4,5 and 6 are not possible and for this purpose, our attention is drawn towards the cross examination of P.W.No.16 Dr.Siddheshwar. Apart from it, it is also urged that in absence of use of sharp object, injuries in the nature of incised wounds are not possible. It is further urged that apart from the evidence of these 3 witnesses from which it can not be inferred that the assailants have killed Haribhau on the spot, as evidence of P.W.No.11, 12 and 13 speaks to the effect that during the incident in the evening of 08/01/2008, Haribhau was seriously injured, but he was alive. There is also variance as to the exact place of incident, as the spot panchnama Exh.25 was prepared in the field of Ankush, but at that time, the offence was not registered and as per the story of prosecution, that was not the place from where the body of Haribhau was dragged or removed. It is further urged that conduct of these 3 eye witnesses as well as the complainant is very material. According to the complainant Shripati, he came to know about the incident allegedly occurred in the evening of 08/01/2008, from P.W.No.11 Bhagwan and P.W.No.13 Ankush. As against this, evidence of Bhagwan and Ankush do not corroborate this evidence given by Shripati. It is also urged before us that the conduct of all these 4 witnesses appeared to be un-natural. Initially, learned counsel for appellant attacked on the conduct of Shripati, the complainant, as according to him, even though he came to know about the incident of assault on Haribhau at the hands of appellants 15 Criminal Appeal No.358 of 2009 from Ankush and Bhagwan, whether it is supported by the evidence of Ankush or Bhagwan or not, the fact remains that he had not gone to the field to verify the fact whether in fact Haribhau was assaulted and got seriously injured and lying on the spot or not. On the contrary, he has admitted in his cross examination that during that night, he had not made any inquiry about the whereabouts of Haribhau which appears to be un-natural and improbable. It is also urged across the bar that in the morning, according to Shripati, he inquired with Tulshiram and appellants about the incident for which he learnt in the previous evening. But, even thtereafter, he has not lodged the report with the police nor reported the incident to Village Police Patil or Village Kotwal, so also it is also brought to our notice by the counsel for appellant that the 3 eye witnesses to the incident on the previous night, have not disclosed this incident to the Police Patil, to the Village Kotwal or to any other villager, which also appeared to be an un-natural conduct on their part. It is also urged across the bar that apart from the evidence of these 3 witnesses, case of the prosecution rests on circumstances. It transpired from the evidence of P.W.No.8 Shripati and P.W.No.17 D.T.Shinde, who had carried out the initial investigation in CR No.4/2008, had stated that after complaint, appellants and the acquitted accused were brought in the police station, and during the inquiry, appellant Hanuman made disclosure statement. This fact is not supported by any contemporary record. It is further urged that at the time of this alleged disclosure statement, none of the appellants were taken in 16 Criminal Appeal No.358 of 2009 the custody of the police as an accused arrested in connection with CR No.4/2008. In the premise, it is urged that the so called disclosure statement of appellant Hanuman will not cover under the ambit of section 27 of The Indian Evidence Act. To support the submissions, learned counsel for appellants has placed reliance in the matter of Anter Singh Versus State of Rajasthan, AIR 2004 Supreme Court 2865. It is also urged that apart from this recovery, there are 2 more recoveries at the instance of these appellants. Those recoveries were tried to be proved from the evidence of P.W.No. 3 Balasaheb Bhalerao, in whose statement, Exh.27 memorandum/statement of appellant Hanuman was proved, which resulted in the recovery of two sticks, one pickaxe and one spade under the recovery panchnama Exh.28. These panchnamas to the memorandum statement and recovery memorandum were not proved, as the witnesses have not identified these articles in their evidence before the Trial Court. Further prosecution relied on the evidence of Ashok Kale (P.W.No.14) through whom prosecution tried to prove memorandum statement of appellant Bhagwan at Exh.54 leading to the recovery of pair of chappal Article 11 from the residence of appellant. This pair of chappal is not identified by Shripati, complainant, the