1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION CRIMINAL APPEAL NO.: 292 OF 2008 *** Tarsing Ramu Bhil Age: 37 years, Occ.: Labour, R/o Koparli, Tal. & Dist. Nandurbar. ... APPELLANT [ORIG.ACCUSED] VERSUS State of Maharashtra. (Copy served on Govt. Pleaders' Office, High Court, Aurangabad). ... RESPONDENT *** Mr. R. B. Deshpande, Advocate for the Appellant/ accused [appointed]. Mr. V. D. Godbharle, A.P.P. for the Respondent/ State. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- RESERVED ON: 24th MARCH, 2010. PRONOUNCED ON: 7th APRIL, 2010. JUDGMENT [Per Deshmukh, J.]: 1. The appellant is convicted for the offence punishable under section 302 of Indian Penal Code [the Code, for short] and sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- i/d to suffer further R.I. for one year. This conviction is rendered by learned Additional Sessions Judge, Nandurbar in Sessions Case No. 8 of 2007. The appellant, however, has been acquitted of the 2 offence punishable under section 201 of Indian Penal Code. 2. The prosecution case, as unfolded during the trial is that the Appellant is resident of village Koparli, Taluka and district Nandurbar, State of Maharashtra. The Appellant, his wife Vedubai and younger daughter Sunita had been to State of Gujarat along with other villagers for harvesting sugarcane after Dashara of 2006. Ramu, father of the Appellant, died. Death of father of the appellant was conveyed to the Appellant. The Appellant returned to village Koparli with daughter Sunita on 1st December, 2006. Next day, of return of the appellant to village Koparli, his wife Vedubai came to village Koparli. On 8th of December, 2006, Appellant along with his wife Vedubai had gone to bus stand of village Koparli, to go to State of Gujarat, however, they quarreled, returned to the house of father of Vedubai i.e. father-in- law of the Appellant. Thereafter, they left and stayed at the house of Appellant at Koparli. At around 03.00 a.m., on 9th of December, 2006, informant Mr. Chaitram, who had come out of his house for answering natures call, saw that Appellant was dragging his wife Vedubai, out of his house. Perceiving this fact, appellant left his wife in front of his house and disappeared. Informant called his father-in-law, brother- in-law, one Mr. Sanjay Eknath Walvi, neighbour of appellant. All of them caught the Appellant. They found that Vedubai was no 3 more. At about 05.00 a.m. informant and others went to Koparli Outpost, informed the incident to the police official available. Ultimately, on 9th of December, 2006 first information report was registered at the instance of Mr. Chaitram at Nandurbar Police Station. It is C. R. No. 159 of 2006 under section 302, 201 of the Code. 3. Charge sheet was filed against the Appellant before the learned Judicial Magistrate, First Class, Nandurbar. Since the offence under section 302 of the Code, is triable by the Court of Sessions, the case was committed to the Court of Sessions. 4. The learned Additional Sessions Judge framed charge Exhibit-5 against the Appellant for the offence punishable under section 302 of the Code on 3rd October, 2007. The appellant denied the charges and claimed to be tried. There is no direct evidence for the commission of offence punishable under section 302 of the Code against the Appellant. The case, alleged against the Appellant, for the offence punishable under section 302 of the Code, is based on circumstantial evidence. On behalf of the prosecution, documentary evidence by way of first information report Exhibit-14, inquest Panchanama Exhibit-24, Seizure Panchanama of the apparel of deceased Vedubai Exhibit-23, arrest Panchanama of the accused dated 9th December, 2006 at 16.30 hrs., Exhibit-29, postportem report of the dead body of Vedubai Exhibit-22 and Spot Panchanama Exhibit-27 has been produced along 4 with oral evidence of about nine witnesses. 5. On behalf of the Appellant it has been contended before the trial Court that death of Vedubai is accidental one. According to the Appellant, deceased Vedubai was addicted to liquor. In the night of 8th December, 2006 she woke up, fell on the iron cot and had sustained injuries. She was under the influence of liquor when she went to bed. 6. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy some tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances taken together should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 7. Circumstances alleged against the appellant and held to have been established by the trial Court, are as follows; (i) Strained relation amongst Appellant and deceased Vedubai. (ii) On 8th December, 2006 quarrel amongst the appellant and deceased Vedubai on the bus stop of village Koparli. (iii) Appellant and deceased Vedubai dined at the house of Babu, father-in-law of the Appellant. (iv) The Appellant and deceased Vedubai stayed 5 in a small house of Appellant during the night intervening 8th December, 2006 and 9th December, 2006. (v) Deceased was last seen alive in the company of the appellant. (vi) Appellant/ accused was seen dragging deceased Vedubai at about 03.00 a.m. in the night intervening 8th December, 2006 and 9th December, 2006. 8. Prosecution claims homicidal death of deceased Vedubai. Per contra, on behalf of the Appellant/ accused, accidental death is suggested. P.W.6 Dr. Smt. Anita Pawar, Medical Officer is examined. Her oral evidence is at Exhibit-21. Postmortem report is at Exhibit-22. P.W.6 Dr. Smt. Pawar testified that on 9th December, 2006 she was attached to Civil Hospital, Nandurbar as Medical Officer. She did the atopsy on the dead body of Vedubai during 2-3 p.m. She found injuries on the dead body of deceased, which are described herein below: 1) Abrasion over left side of neck which are 3 in number and scattered. 2) Abrasion over right side of neck in number also acattered. 3) Abrasion over right cheek at ankle of mandible 4X5 cm. 5) Left eye swollen backish, bluish discolouration. 6) Abrasion over medial aspect of left elbow 5X3 cm. and hand 2x2 cm. She opined that death can be caused on 6 account of external injuries, as narrated above. According to her, injury Nos.1 to 3 can be caused by nails of hand. Injury No.5 can be caused by hitting the head of a person forcibly against the wall. She has established the postmortem report Exhibit-22. In cross examination, she fairly concedes that cause of death is not mentioned in the postmortem report. She, however, volunteered that report of viscera is received and no poison was detected. She also admits that no alcohol or any material found in the dead body. It is strange that this has been brought on record in the cross examination on behalf of the Appellant/ accused. In fact, it is the suggestion on behalf of the appellant/ accused that death of deceased Vedubai is accidental. The accident suggested, on behalf of the appellant/ accused, is fall of deceased Vedubai, after consuming liquor, on the iron cot in the house of the Appellant. In para 9 of her cross examination, she has admitted that external injuries mentioned in the postmortem report were simple in nature. Counsel for the Appellant has also pointed out admission given by the medical officer in para 10 of her evidence. P.W.6 Medical Officer has admitted that injury Nos.3 to 6 are possible because of fall of a person who woke up and got up from the bed. Further, it has been admitted by the medical officer that Injury Nos.1 and 2 are possible because of hitting on the edge of wooden bed in a single fall. Injuries testified by the medical officer are 7 also mentioned in the postmortem report Exhibit-22, which is on record. As admitted by the medical officer, cause of death is not mentioned in the postmortem report. The oral evidence of P.W.6 Medical Officer Smt. Pawar, postmortem report Exhibit-22 will have to be considered along with the Spot Panchanama Exhibit-27. There are Panch witnesses, one Mr. Dilip Gaikwad and another Mr. Ravindra Thakare, to the Spot Panchanama Exhibit-27. It was drawn by Police Inspector Mr. B. R. Gaikwad. Mr. Dilip Gaikwad is examined on behalf of the prsecution at Exhibit-34. He has proved the Spot Panchama Exhibit-27. Nothing is elicited in the cross examination of this witness Mr. Dilip Gaikwad so as to disbelieve his status as a Pancha witness for Spot Panchanama Exbhibit-27. We have also considered the evidence of the investigating officer pertaining to Spot Panchanama Exhibit-27. Spot Panchanama Exhibit-27 shows the location of the house of the Appellant/ accused. Four boundaries of the house of the Appellant/ accused have been mentioned in this Panchanama. We have considered this Spot Panchanama and details with the assistance of the learned counsel for the parties. In this Panchanama, there is no reference of existence of the iron cot in the house of the accused. In other words, learned A.P.P. is justified in pointing out that the iron cot was not found or noticed by the Panch witnesses when the Spot Panchanama Exhibit-27 was drawn by them. 8 This fact is significant and important from the view point of the suggestion on behalf of the Appellant/ accused that death of deceased Vedubai is accidental i.e. fall of deceased allegedly after consuming liquor, on the iron cot. As against this, evidence of P.W.6 Medical Officer Dr. Smt. Pawar, postmortem report Exhibit-22, clearly establishes homicidal death of deceased Vedubai. We are of the firm opinion that death of Vedubai is not accidental and is homicidal. 9. Incriminating circumstances, we have listed in the foregoing paragraphs. To prove the first circumstance, prosecution has adduced evidence of P.W.1. P.W.1 is Mr. Chaitram Shama Bhil. It is not disputed that wife of Chaitram viz. Mirabai is sister of deceased Vedubai. From the evidence of Chaitram Exhibit-13, para 6, it appears that Mr. Chaitram testified the fact of quarrel amongst the Appellant/ accused and deceased Vedubai. According to him, often there used to be quarrels amongst them. He fairly conceded that he was not aware of the reason of the quarrel. He has established first information report/ complaint Exhibit-14, in his evidence. In the cross examination, he denied the suggestion that there was quarrel amongst his wife Mirabai and deceased Vedubai, six months prior to the date of the incident. P.W.2 Mr. Bhimrao Bhil (Exhibit-16) is brother of deceased Vedubai. He testified in his evidence, quarrels amongst the appellant/ accused and deceased Vedubai. According to 9 him, reason for such quarrel amongst them was suspicious nature of both of them pertaining to character. In the cross examination of this witness, nothing is elicited to disbelieve him on the point of quarrelsome relationship amongst Appellant/ accused and deceased Vedubai. Prosecution has also examined P.W.4 Mr. Babu, father of deceased Vedubai. Thus, oral evidence of P.W.1 Chaitram, P. W. 2 Bhimrao - brother of the deceased Vedubai Exhibit-16 and P.W.4 Babu Bhil (Exhibit-18) is adduced on behalf of the prosecution to prove the circumstance No.(i). From the evidence of these witnesses, it can be safely said that the relations amongst the appellant accused and deceased were strained before the date of the incident. 10. To establish the circumstance No.(ii) that alleged quarrel amongst the Appellant and deceased Vedubai on the bus stop of village Koprali, on 8th December, 2006, prosecution seeks support of the evidence of P.W.1 Mr. Chaitram, P.W.2 Mr. Bhimrao and P.W.4 Mr. Babu Yada Bhil. Amongst these witnesses, P.W.2 Bhimrao is brother of deceased Vedubai, P.W.4 Mr. Babu is father of deceased Vedubai. P.W.1 Mr. Chaitram is brother in law of deceased Vedubai. We have considered the evidence of these three witnesses. All these witnesses are in tune on the point that earlier evening i.e. on 8th of December, 2006, appellant/ accused and deceased Vedubai had been to the bus stop of village Koprali with an intention to go to 10 State of Gujrath for harvesting sugarcane. On the bus stop there was quarrel amongst appellant/ accused and deceased Vedubai which resulted in cancellation of the proposed visit to State of Gujarath for harvesting sugarcane and return of both of them to the house of P.W.4 Babu. All these three witnesses are firm on the circumstance of this quarrel on the evening of 8th December, 2006, return of the couple to the house of P.W.4 Babu Yadav and their dinner there at the house of P.W.4 Babu. Thus, evidence of these witnesses is natural and acceptable to us for proving circumstance No.(ii). We, therefore, are in agreement with the submission of learned A.P.P. that the circumstance No.(ii) is established by the prosecution. 11. Circumstance No.(iii) is dinner of couple at the house of father in law of the appellant and circumstance No.(iv) is stay of the deceased Vedubai along with Appellant/ accused at the house of the Appellant on 8th December, 2006 i.e. intervening night of 8th December, 2006 and 9th December, 2009. These two circumstance Nos.(iii) and (iv) are sought to be proved by the prosecution with the assistance of evidence of P.W.1 Chaitram, P.W. 2 Bhimrao and evidence of P.w.4 Babu Yadav. We have considered the evidence of all these three witnesses, more specifically we have noticed that nothing could be elicited on behalf of the Appellant/ accused in the cross examination of these witnesses, to disbelieve their evidence pertaining to these two 11 circumstances. 12. Evidence brought on record on behalf of the prosecution for circumstance No. (v) and (vi) can be discussued simultaneously. It is the case of the prosecution that deceased Vedubai was seen alive in the company of the appellant/ accused. For the circumstances Nos.(v) and (vi) prosecution relies on evidence of P.W.1 Chaitram, P.W.2 Bhimrao and P.W.4 Babu Yadav. Evidence of these witnesses, if appreciated in proper perspective, it can be said that circumstance No.(v) that deceased was last seen alive in the company of the appellant/ accused, is fairly and clearly established. All these witnesses are unanimously claiming that on 8th December, 2006 appellant/ accused and deceased Vedubai took dinner at the house of P.W.4 Babu Yadav and left for the house of appellant/ accused. They stayed at the house of appellant/ accused in the intervening night dated 8th December, 2006 and 9th December, 2006. For this purpose, there is no reason, in our mind, to disbelieve the evidence of these three witnesses. For this aspect, learned counsel A.P.P. also points out answer tendered by the Appellant/ accused in the further statement under section 313 and more specifically to question No.12. It was a question put to the appellant/ accused that "it has further come in the evidence of P.W.1 Chaitram that after taking dinner there, you and your wife went to your house. What you have to say about it.?" Answer given by the 12 appellant/ accused to this question is in the affirmative "it is true". Thus, this answer given by the appellant/ accused to question No.12 supports the evidence of P.W.1 Chaitram, P.W.2 Bhimrao and P.W.4 Babu, examined on behalf of the prosecution. P.W.1 Chaitram claims, in his evidence, that on 9th of December, 2006 at about 03.00 a.m. when he woke up to answer natures call, he saw that Appellant/ accused was dragging his wife out of his house. It is manifest from the evidence of this witness that his house is opposite to the house of the Appellant. He further claims that he has seen wife of the accused (deceased Wedubai) in the light of torch. Counsle appearing for the Appellant/ accused points out paragraph No.21 of the evidence of P.W.1 Chaitram. It is the part of cross examination. According to him, in the cross examination, P.W.1 Chaitram claims that he did disclose before the police that he has seen Wedubai in the focus of torch. He, however, was not able to explain why said fact is not mentioned in his complaint. Counsel for the appellant/ accused also points out evidence of the investigating officer P.W.8, to establish this omission. It is para No.20 of the evidence of said witness. There, the investigating officer admits that "complainant did not state before me that he saw the face of accused in the focus of torch." The learned counsel for the Appellant/ accused, therefore, submits that evidence of P.W.1 Chaitram that he has seen deceased Vedubai or 13 Appellant/ accused dragging deceased Vedubai at 03.00 a.m. on 9th December, 2006, cannot be said to be credible. On the contrary, according to him, omission is established and in view of this omission, evidence of P.W.1 Chaitram cannot be believed to hold that the Appellant/ accused was dragging Vedubai at 03.00 a.m. on 9th December, 2006. Submission on behalf of the Appellant/ accused seems to be attractive, however, in our view, this cannot be said to be ground to downstage the evidence of this witness. We have also considered the evidence of P.W.2 Bhimrao Bhil, brother of deceased Vedubai, on this circumstance. In his evidence, this witness Bhimrao states that at around 03.00 a.m. on 9th December, 2006, he woke up, saw Vedubai at some distance from her house. He tried to wake her up, she was dead. He further states, in his evidence, that P.W.1 Chaitram told that he saw accused Tarasing while dragging Vedubai. When accused saw P.W.1 Chaitram, Appellant/ accused ran away, leaving Vedubai there. The contention of P.W.1 Chaitram that on 9th December, 2006 at around 03.00 a.m. he woke up to answer natures call, saw that Vedubai was being dragged by the appellant/ accused out of the house, had been disclosed by P.W.1 Chaitram spontaneously, within no time, to P.W.2 Bhimrao, who had been there after hearing cry or shouts of P.W.1 Chaitram. The evidence of P.W.2 thus lends support to the claim of P.W.1 Chaitram that he had seen dragging of Vedubai by the appellant/ accused 14 at 03.00 a.m. on 9th of December, 2006. There is nothing in the cross examination of P.W.2 Bhimrao to disbelieve him on this point. We have also considered the evidence of P.W.3 Mr. Sanjay Eknath Valve. This witness claims that on the intervening night around 12.00 or 01.00 O'clock people of that area were gathered at the backside of house of Chaitram. Vedubai was lying there. He fairly says that he was not aware as to whether she was alive or dead. The evidence of this witness only is relevant on the point that after hearing the shouts or noise he had woke up during the night and noticed the gathering of people at the backside of house of P.W.1 Chaitram and Vedubai was lying there. P.W.4 Babu in his evidence supports P.W.1 Chaitram and P.W.2 Bhimrao. He states that at 03.00 hours he woke up hearing the voice of Chaitram. Sanjay Eknath Valve, Deepak were also there on hearing shouts of Chaitram. Vedubai was lying. She was having injury to her eye. She was lying in dead condition. Thus, if the evidence of these witnesses P.W.1 Chaitram, P.W.2 Bhimrao, P.W.4 Babu, considered together, it can be said that circumstance No. (vi) stands proved by the prosecution. 13. We have seen the further statement of the Appellant accused under section 313 of the Criminal Procedure Code. Incriminating circumstance proved against the appellant/ accused, were put to him while recording his statement under section 313. The Appellant/ accused has merely denied the circumstances 15 except question No.12. Therefore, such denial on the part of the Appellant/ accused and failure to explain the circumstances, proved against him, will have to be treated, in our opinion, as an additional link in the chain of circumstances to bring home the charge against the Appellant/ accused. In our opinion, the Appellant/ accused, along with deceased Vedubai, after dinner, left the house of his father in law P.W.4 Babu, stayed at his house and at around 03.00 a.m. he was seen while dragging Vedubai out of his house and Vedubai found dead, ought to have been explained by the appellant accused. It is appropriate, at this stage, to refer to a judgment of the Honourable Supreme Court in the matter of "Aftab Ahmad Anasari V/s State of Uttarancha" reported 2010 AIR SCW 1008. We have carefully considered the facts in the reported judgment of Aftab Ahmad (supra). In our opinion, facts in the case on hand are nearer. The prosecution case, in the matter of Aftab Ahmad (supra) was also claimed to have been based on circumstantial evidence. In our view, the judgment of the Honourable Supreme Court, in the matter of Aftab Ahmad (supra) squarely applies to the facts obtaining in the case on hand. 14. On behalf of the Appellant, learned counsel relied on a judgment of the Honourable Supreme Court in the matter of "Basavaraja and others V/s State of Karnataka" reported in 2008 (12) SCALE 735. We have seen the 16 judgment of Honourable Supreme Court. It appears that there was contradiction in between medical evidence and occular evidence. Appellant was acquitted by the trial Court for the same reason, who was tried for the offence under section 302 read with 34 of Indian Penal Code. In appeal, filed by the State, High Court held that there were no serious contradictions in the evidence. Acquittal was set aside by the High Court. The Honourable Supreme Court held that the view taken by the High Court was erroneous. We have seen the facts obtaining in that case, which are different. Ratio of the said judgment, in the case on hand, does not have application. The second judgment pointed out by Advocate for the Appellant is in the matter of "Pannayar V/s State of Tamil Nadu by Inspector of Police" reported in (2009) 9 SCC 152. There, the Honourable Supreme Court, on the background facts and material brought on record, held that absence of motive in case which depended on circumstantial evidence, is more favourable to defence. We have seen the facts mentioned in the judgment by the Honourable Supreme Court in the matter of Pannayar (supra). With the assistance of learned counsel for the Appellant we have seen para 28 of the said Judgment. There, the Honourable Supreme Court, based on the material on record, held that robbery does not seem to be the motive, in that case. In the case on hand, we have thoroughly assessed the 17 evidence brought on record. In our view, this judgment also does not help the Appellant/ accused. 15. On behalf of the Appellant/ accused, reliance was also placed on a judgment of the Honourable Supreme Court in the matter of "Arun Bhakta @ Thulu Vs State of West Bengal" reported in 2009 ALL MR (Cri.) 2447 (S.C.). Facts have been stated by the Honourable Supreme Court in para 3 of the judgment. There, the accused had raised a plea of alibi. In our considered view, this judgment also does not help to the Appellant/ accused for the differential facts obtaining in the case on hand. 16. In our view, the judgment of the learned trial Court is based on admissible evidence brought on record on behalf of the parties. We see no ground to upset the conviction recorded to the present appellant. 17. In the result, criminal appeal stands dismissed upholding the judgment of the learned trial Court. 18. Registrar (Judicial) shall transmit copy of this judgment to the Appellant/ accused immediately free of costs. 19. We quantify fees of learned counsel for the Appellant/ accused - Mr. R. B. Deshpande, appointed by this Court at Rs.3,000/- [Rupees three thousand only]. [S. S. SHINDE, J.] [S.B.DESHMUKH,J.] Dated:07/04/2010. ans/250310/427 18 CRIMINAL APPEAL NO.: 292 OF 2008 Date of decision: RESERVED ON: 24th MARCH, 2010. PRONOUNCED ON: 7th APRIL, 2010. For