1 Cri.Appeal No.488 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 488 OF 2009 Jaising @ Zailsing S/o Sardarsing Tak, Age : 23 years, Occupation : Education, R/o Patoda, Tal. Patoda, District Beed (At present in Jail Custody) ..APPELLANT (Orig.Acc.No.1) VERSUS The State of Maharashtra ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mr S.D. Kaldate, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 6th June, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 and 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.25,000/-, in default of which to undergo S.I. for six months and R.I. for three years and to pay fine of Rs. 2 Cri.Appeal No.488 of 2009 5,000/-, in default of which to undergo S.I. for two months, by the Additional Sessions Judge, Beed, by judgment dated 29.6.2009, in Sessions Case No.119 of 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 :- P.W.20 Bajrang Malvade, a P.S.I. who was attached to the Ashti police station, received a message on telephone on 27.6.2008, at about 2.30 p.m. from Police Head Constable Bagul that a dead body was found in the forest area at Beed Sangvi. P.W.20 P.S.I. Malvade was directed by the Police Inspector to proceed to the scene of the offence and to verify the information. Accordingly, P.W.20 P.S.I. Malvade along with police staff went to the scene of the offence which was on Beed - Chikhali road and near the turn of the road noticed a dead body of a male person. He noticed injuries on the dead body and also noticed a packet of tobacco and two small packets of lime. A crowbar was noticed at a distance of 2 ft. from the leg of the deceased. An inquest panchnama, therefore, came to be drawn at Exh.32 in the presence of witnesses. The dead body was referred for post mortem examination to the Rural Hospital at Ashti. The scene of the offence panchnama thereafter came to be drawn, in the presence of witnesses at Exh.20. From the scene of the offence the tobacco packet and lime packets, blood mixed mud and 3 Cri.Appeal No.488 of 2009 control mud and small stones which were stained with blood came to be seized. On the dead body a receipt in the name of Annasaheb Thombre was found. The dead body was identified in the Rural Hospital by a relative of the deceased and thereafter P.W.20 P.S.I. Malvade filed his complaint at Exh.78. On the basis of the said complaint, an offence vide Crime No.79 of 2008 came to be registered and investigation was entrusted to P.W.21 P.I. Vasant Kamble. 3. P.W.21 P.I. Vasant Kamble, who was attached to the police station, Ashti and who was entrusted with the investigation, seized the clothes of deceased on 27.6.2008 vide seizure memo at Exh.24 in the presence of panch witnesses. Thereafter statements of witnesses came to be recorded. Two mobile hand-sets were found with the deceased and accordingly correspondence was made with the concerned mobile companies. Viscera of deceased was referred for chemical analysis and the report of the Chemical Analyser is at Exhs.90 and 91. The appellant/accused came to be arrested and his mobile came to be seized at Exh.53 in the presence of panch witnesses. The arrest panchnama of the appellant/accused is at Exh.92. During custodial interrogation accused had disclosed the name of Vijaysing and, therefore, accused Vijaysing came to be arrested under arrest panchnama at Exh.93. Clothes on the person of the appellant came to be seized under seizure memo at Exh.34. During custodial interrogation, appellant Jaising expressed his willingness to point out the place where the incident had 4 Cri.Appeal No.488 of 2009 occurred and that he would point out the place where the weapon tommy was hidden. The appellant also in the memorandum expressed his willingness to point out the stone which was used for smashing the mobile phone of deceased. Accordingly, his memorandum at Exh.47 came to be recorded in the presence of panchas. Thereafter the appellant led the police and the panch to the Beed - Sangvi road in the jungle at Chikhalwadi. Accordingly, a panchnama at Exh.49 came to be drawn. At the aforesaid scene of the offence certain blood stains were noticed and certain holes in the ground were made on account of use of tommy. The appellant then took the police and the panch at Vetalwadi in front of the house of his aunt and from beneath the heap of fuel wood produced an iron tommy, which came to be seized under panchnama at Exh.49/2. The appellant then led the police and the panch to Pandharwadi road and pointed out the place where the mobile phone of the deceased was smashed. The appellant also pointed out the stone which had been used. The same came to be recorded in the panchnama at Exh.49/3. The appellant then led the police and the panch to Beed in Balepir locality, to the house of one Nayyar Khan where a motorcycle was kept. The motorcycle came to be seized under seizure memo at Exh. 49/4. The appellant/accused pointed out a drain where the remnants of the smashed mobile phone of the deceased was thrown. However, no particles could be recoverred. A panchnama accordingly came to be drawn at Exh.49/5. It appears that a confessional statement came to be videographed and a panchnama of the confessional statement is at Exh. 5 Cri.Appeal No.488 of 2009 50 as well as the two video cassettes. The aforesaid document, according to us, would be wholly inadmissible in evidence. Supplementary statements of the witnesses came to be recorded on 8.7.2008 and the particulars of the use of the mobile phones is at Exh.65. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 4. Post mortem on the dead body of deceased Annasaheb came to be performed by P.W.14 Dr.Balaji Gutte. P.W.14 Dr. Balaji Gutte noticed a contused lacerated wound at the parietal area of the scalp and the central part transversely placed, 7 x 1/2 x 2 cms. bone deep. He also noticed a contusion on the left leg lower 1/3rd part medially placed, size 1 cm x 1/2 cm x 1/4 cm. He opined that the injuries may be caused by hard and blunt object like iron rod and stick, respectively. He opined that cause of death was due to shock due to head injury, i.e. head injury no.1 in column no.17 of the post mortem report. On internal examination he had noticed that the brain tissues were liquefying due to decomposition and the covering over the brain was congested because of the head injury. The post mortem report is at Exh.13. 5. On committal of the case to Court of Sessions, Trial Court vide Exh.7 framed charge against the appellant and accused Vijay for an offence punishable under sections 302 read with sec. 34, 394 read with sec. 34 and and under section 201 read with sec. 34 of the Indian Penal 6 Cri.Appeal No.488 of 2009 Code. The appellant/accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 21 witnesses. The Trial Court upon appreciation of the evidence of the prosecution witnesses convicted and sentenced the appellant for an offence punishable under sections 302 and 201 of the Indian Penal Code while acquitting the appellant for offence punishable under section 394 of the Indian Penal Code. Original accused no.2 Vijay came to be acquitted of the offences with which he was charged. 6. In order to effectively deal with the submissions advanced before us by Shri Joydeep Chatterji, learned Counsel for the appellant and the learned Asstt. Public Prosecutor for State, it would be useful to refer to the evidence of the prosecution witnesses. 7. P.W.14 Dr. Balaji Gutte had performed the post mortem and had noticed the injuries which are referred to in the post mortem report, to which we have adverted to above. In cross-examination he has admitted that he had not mentioned the span of time of death of the victim but has expressed his opinion on the basis of decomposition changes. He has admitted that he has not referred to the age of the injuries as he had found that the body was decomposed. He has, however, denied the suggestion that he could not ascertain the age of injury because of decomposition. He has denied the suggestion that he has incorrectly stated that deceased may have died 48 to 72 hours prior to the post 7 Cri.Appeal No.488 of 2009 mortem. He has denied the suggestion that injury no.1 referred to in column no.17 was possible if a person falls from a height. In further cross-examination he has denied the suggestion that the injuries were possible in an accident. 8. P.W.10 Vikas states that he had purchased a motorcycle with financial assistance from finance company and it was purchased from Jamkhed Sanket Automobiles. The said vehicle was a Hero Honda manufactured vehicle. He states that as he could not pay the instalments as per the schedule, the custody of the vehicle was taken away from him. The appellant was seen taking away the vehicle. He further states that the appellant had given him the phone number but he could not recollect the same. He states that after two days of taking away of the vehicle, he had received a telephone and he was called at Beed. He had gone to Beed accompanied by Balasaheb Shinde and the deceased Annasaheb Thombre. He states that they had come to Beed on 17.7.2007 to secure the release of the vehicle through the intervention of deceased Annasaheb. He states that he had paid Rs.9,000/- to the appellant. He states that they were asked to stay near one Lokseva Hotel while the appellant and the person from the finance company went to bring motorcycle and the receipt. He states that within half an hour they returned back with the motorcycle and the receipt and thereafter all of them had lunch in the Lokseva Hotel. He states that the appellant and the deceased were talking for some time but he could not state what they 8 Cri.Appeal No.488 of 2009 were talking about as P.W.10 Vikas and Balasaheb had come out of the hotel. He has admitted that the receipt - Article no.21 came to be seized from him. He was asked a question whether there was any talk in between the appellant and the deceased in respect of procuring a country made Pistol. P.W.10 Vikas replied in the negative. He was asked another question, whether in his presence the appellant had stated to deceased that he would talk with the deceased in respect of the country made Pistol later on. The witness also replied in the negative. This witness was accordingly declared hostile and portion marked "A" to "D" were put up to the witness to which he replied that he had not stated. In cross-examination on behalf of the accused he has admitted that he could not identify the officer from the finance company who was present at the time of removal of the vehicle. He has denied the suggestion that the appellant had not assisted in the removal of the vehicle. Omission has been duly proved that he had not stated in his previous statement that appellant was one of the persons who had removed the vehicle and that two days thereafter he had telephoned P.W.10 Vikas. 9. Prosecution has examined Malan Thombre, wife of deceased, as P.W.13. P.W.13 Malan states that the deceased was her husband and on 26.6.2008 her husband left home on a motorcycle for going to Patoda. She states that a Hero Honda motorcycle was of black colour with blue marks on the petrol tank. She could not state the registration number of that vehicle. She further states that Annasaheb left home at about 9 Cri.Appeal No.488 of 2009 10.00 a.m. and till evening he did not return home. She states that on the next day in the evening one Navle Patil informed her that deceased had met with an accident and was in the Government Hospital at Ashti. She states that her father-in-law went to the hospital and on the next day the dead body of her husband was brought to the village. In cross- examination she has admitted that initially when her statement was recorded she had stated that her husband had no financial dealings with any one. She has denied the suggestion that her supplementary statement was recorded as per the instructions of one Sanjay Navle. She has also denied the suggestion that her husband had, in fact, died in a vehicular accident. 10. Prosecution has also examined P.W.18 Rajendra Thombre, brother of deceased. P.W.18 Rajendra states that deceased Annasaheb was his younger brother and he was a Contractor attached to Angad sugar factory. He states that he had seen Annasaheb alive on 26.6.2008 when he had gone to Patoda at 8.00 a.m. He states that Annasaheb had gone on motorcycle bearing registration No.MH-16-R 7477. Thereafter Annasaheb was not seen alive. He states that on 27.6.2008 he had received a message on telephone that his brother had expired and, therefore, he along with his father had gone to the Government Hospital at Ashti. They had then carried the dead body to the village. He states that the motorcycle was handed over by the Ashti police and he had executed a bond at Exh.56. He further states that 10 Cri.Appeal No.488 of 2009 Annasaheb owned a mobile phone. The number of the mobile phone was 9765761947. The sim card was of Vodafone company. He further states that Annasaheb used the card of B.S.N.L. also, the number of which was 9422234577. He further states that he was aware that Annasaheb had paid Rs.17,000/- for purchasing a country made Pistol and the amount was paid to the appellant. He further states that the amount was paid about one month prior to the incident but Annasaheb had not received the Pistol from the appellant. He states that Annasaheb was frequently demanding the appellant to return the money or to hand over the Pistol. In cross-examination on behalf of the appellant he has admitted that the police had recorded his statement on 28.6.2008. He has admitted that he had stated that Annasaheb had no financial transactions with any one and also he did not have enmity with any one. He has admitted to have stated that he had not suspected any one in respect of the murder of his brother. He has admitted that his supplementary statement came to be recorded by the police on 8.7.2008 and for the first time he had disclosed the transaction with the appellant regarding purchase of the country made Pistol. In further cross- examination he has admitted that deceased Annasaheb had told him about the transaction regarding purchase of the country made Pistol. According to us, if this witness was aware about the transaction relating to the purchase of a country made Pistol from the appellant, it is surprising that initially no reference was made to the said transaction 11 Cri.Appeal No.488 of 2009 and it was only on 8.7.2008, i.e. more than ten days after the incident, that such a disclosure is made for the first time by this witness. 11. The case against the appellant rests on circumstantial evidence and the prosecution, in order to connect the accused with the commission of crime, has examined P.W.15 Raju More, a shephard. P.W.15 Raju states that on 26.6.2008 he was grazing goats in the hilly area of village Beedsangvi. He states that the time was about 2.00 to 2.30 p.m. and he had noticed a motorcycle which was a Hero Honda motorcycle with registration No.MH-16-R-7477. This vehicle was parked on the site of the road and he had witnessed persons sitting in the bushes. He states that those persons might be wearing white greenish clothes but could not observe minutely because they were obscured by the bushes. He states that one person was wearing a shirt with stripes and black trousers and had worn a cap on his head. He states that he had seen three persons who might be middle aged. He states that he was at a distance of 50 to 60 ft. from them and he did not listen to what they were talking. He has admitted that he had not seen their faces minutely and, therefore, was not in a position to identify them. He has admitted that those persons were strangers to him. He has admitted that on the next day he had not gone for grazing to that place and for 4 to 5 days he was in his village. He has admitted that he had not disclosed this information to any one till it was disclosed to the police. In further cross-examination he has admitted that he could not state whether they were taking their 12 Cri.Appeal No.488 of 2009 food. The statement of this witness was recorded on 30.6.2008. 12. Curiously, this witness whose statement was recorded on 30.6.2008 has given the registration number of the vehicle which he had seen 3 to 4 days prior to his recording of the statement. Curiously also, he does not claim that he had noted down the registration number anywhere. In any event, seeing the people sitting in the bushes was not such a suspicious event which would have aroused his suspicion and which would have impelled him to refer the registration number. Therefore, according to us, the submission of the learned Counsel for the appellant deserves to be accepted that no reliance at all can be placed on the evidence of this witness regarding the registration number of the vehicle. In any event, this witness has not identified the persons whom he had seen sitting in the bushes. 13. Prosecution has examined P.W.16 Sudhir Veer. P.W.16 Sudhir states that he was employed as an attendant at the petrol pump. He states that he was knowing deceased Annasaheb because he was his relative. He has admitted that on 11.7.2008 police had come to his petrol pump and he recollected that the appellant and his friend had come to the petrol pump to fill petrol. He states that the appellant used to frequently come to the petrol pump. According to him, on 26.6.2008 the appellant had come to the petrol pump at about 1.00 or 2.00 p.m. for filling petrol in a two wheeler vehicle. He states that on account of rush of people he 13 Cri.Appeal No.488 of 2009 could not recollect exactly. He was declared hostile and was asked in cross-examination by the Asstt. Public Prosecutor as to whether he had seen deceased Annasaheb also along with the appellant. He has answered in the negative and has stated that since it was a bazaar day, there was a rush of people. He has denied to have stated portion marked "A" and "B" in his previous statement. In cross-examination on behalf of the appellant he has admitted that he does not keep a note in the register regarding the identity of the customers. He has admitted that on bazaar days the number of vehicles is large. He has admitted that he could not state who had been to the petrol pump to fill petrol on 27th as daily 500 to 700 persons come to fill the petrol. He has admitted that he could not name all the customers who had come on the bazaar day to fill the petrol in the vehicle. He has admitted that on the basis of memory he had stated that the appellant had come to fill the petrol. According to us, the evidence of this witness tasks human credulity for its acceptance. After 15 days of the appellant filling the petrol in his vehicle, this witness has recalled the date and the time when the appellant had come to fill the petrol. He has admitted that daily about 600 to 700 persons come to fill petrol in their vehicles. He has also admitted that on bazaar day there is a rush of persons. In such circumstances, it is unimaginable that he would recall with certainty the time at which the appellant had come to fill the petrol. Even otherwise, the evidence of this witness does not assist the prosecution case any 14 Cri.Appeal No.488 of 2009 further as he has categorically stated that deceased Annasaheb had not accompanied the appellant. 14. P.W.11 Shaikh Chand states that one Naderkhan was the Municipal Councillor at the Balepir locality at Beed. He states that Naderkhan had asked him to take a motorcycle from "Shikalkari people" and to keep it near his house. He states that there were two "Shikalkaria". He has identified the appellant and the other accused as the persons who had accompanied Naderkhan. He has admitted that he does not recollect the registration number of the motorcycle. He has admitted that his statement was recorded by the police. Undisputedly, the appellant was unknown to P.W.11 Shaikh Chand. He does not claim any acquaintance with the appellant prior to the incident. Identification of the appellant as the person who had accompanied Naderkhan is extremely doubtful in the absence of any test identification parade to test his capacity to recall the features of the person who had accompanied Naderkhan. Curiously prosecution, for reasons best known to it, has not examined Naderkhan. In such circumstances, therefore, according to us, no reliance at all can be placed on the testimony of this witness in respect of the fact that the appellant accompanied by Naderkhan had kept the motorcycle belonging to the deceased near the house of this witness. 15 Cri.Appeal No.488 of 2009 15. The evidence of P.W.9 Baban Aute, a panch witness to the memorandum at Exh.49 discloses that on 5.7.2008 the appellant/accused had expressed his willingness to point out the place where he had kept the motorcycle which was used in the commission of the crime as well as to point out the place where he had concealed the weapon i.e. tommy and to point out the spot where the offence was committed and point out the place where the mobile of deceased was smashed and where the remnants were thrown. He states that the memorandum at Exh.49 came to be recorded. At that stage this witness was declared hostile and was cross-examined. In cross-examination on behalf of the prosecution he has admitted that he along with other panch, the appellant and the police officers proceeded by a jeep and the appellant took them first to the Beedsangvi village and pointed out the spot which was to the side of Kusalamb - Patoda road. He states that they all alighted from the vehicle and the appellant after crossing a distance of 50 to 60 ft. showed a spot. Two holes were noticed at the spot and some blood stains were also noticed. He states that a panchnama was drawn at Exh.49/1. He then states that thereafter the appellant took them to village Vetalwadi and thereafter reached to Vetalwadi at about 3.30 to 4.00 in the evening. He states that he led them to the house of his aunt and the appellant pointed out a tommy from a heap of fuel wood which was in front of the house of his own. He states that the tommy was seized and a panchnama at Exh.49/2 was drawn. He states that thereafter the accused led them to Pandharewadi cross-roads and pointed out a stone. 16 Cri.Appeal No.488 of 2009 The said stone was collected and seized by the police under a panchnama at Exh.49/3. The appellant thereafter took them to Beed in