drp {1} Cri.Appeal.No.337/2008 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.337 OF 2008 1. Gorakh s/o Jagannath Sonwane APPELLANTS Age-40 years, 2. Chhagan s/o Jagannath Sonwane Age-49 years, 3. Satyanarayan s/o Jagannath Sonwane, Age-56 years, All R/o Khedi (kd.) Taluka-Erandol, Dist-Jalgaon VERSUS The State of Maharashtra RESPONDENT Through I.O. Erandol Police Station ....... Mrs.S.S.Jadhav, Advocate for appellants Mr. K.S.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 1 st December 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants stand convicted for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and are drp {2} Cri.Appeal.No.337/2008 sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/- each, in default to suffer further RI for 1 year. In addition to this, appellant No.1 is also convicted for an offence punishable under section 324, 504, 506 of the Indian Penal Code, in Sessions Case No.26/2007, by Additional Sessions Judge, Jalgaon, vide judgment and order dated 22.02.2008. The appellants have assailed the said judgment by preferring the present criminal appeal. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) On 24.08.2006, at about 10.30 p.m. PW-11 Yashwant Battise, PSI attached to Erandol police station, on the complaint (Exhibit-23) of Deepak Sonawane (PW-2), registered an offence at Crime No. 69/2006 for an offence punishable under section 302, 323, 504, 506 r/w 34 of the Indian Penal Code against the present appellants. Prior to the registration of the said crime, telephonic message was received by Hiraman Kankhare (PW-15), Police Inspector attached to Erandol Police Station, from Zilla Peth police station, Jalgaon that one Baliram Sonwane was brought in civil hospital, Jalgaon, however he was declared to be dead before he was admitted in the hospital. Accordingly, PI Kankhare deputed and sent drp {3} Cri.Appeal.No.337/2008 police staff to the civil hospital, Jalgaon. Inquest Panchanama (Exhibit-17) was drawn on the dead body in the hospital itself. At that time appellant No.1, who had been to the Erandol police station to lodge a complaint against the deceased and his sons, was detained, after his complaint was registered. b) Dr.Vinay Sonwane (PW-13) who was attached to Civil Hospital, Jalgaon conducted autopsy on the dead body of Baliram on 25.08.2006. Dr.Sonwane had noticed the following external injuries on the person of deceased Baliram. i) Left parietal bone fracture ii) Amputation of right leg below knee iii) Left side incised wound below knee iv) Incised wound left side of back 2” in size v) Incised wound on right foot 5 cm X 5 cm in size. During the internal examination of the dead body, the medical officer had noticed fracture of left parietal and occipital bone. He also observed that subdural haematoma on left side on internal examination of brain. According to him the internal injury was corresponding to external injury No.2. As per the medical Officer the cause of death was due to hypovolumic shock due to poly trauma. Accordingly, drp {4} Cri.Appeal.No.337/2008 he prepared the Postmortem notes (Exhibit-52). He had collected the blood sample of the deceased, which was forwarded to the C.A. at Nashik. c) Appellant No.1, who was present in the police station, Erandol, was put under arrest in the early hours on 25.08.2006 and at that time clothes on his person were seized in presence of the Panch witnesses under Panchanama (Exhibit-58). While in custody, immediately after arrest, appellant No.1 had made a disclosure statement (Exhibit-25) in presence of Pancha witnesses. One axe was recovered at the instance of appellant No.1, in presence of the Pancha witnesses, which was found lying in grass under neem and Hivra trees near Zaveri Petrol Pump situated at National Highway. The axe was seized under seizure Panchanama (Exhibit-25), in presence of the Pancha witnesses. d) In the morning of 25.08.2006 Police Inspector Hiraman Kankhare visited the spot of offence, which was shown by PW-2 Deepak and drew spot Panchanama (Exhibit-16). From the spot of offence, blood mixed sand and plain sand was collected. The blood of the deceased was transferred on the clothes of Deepak and his brother, which were produced by drp {5} Cri.Appeal.No.337/2008 them, the clothes were also seized in presence of Pancha witnesses under Panchanama (Exhibit-19). Appellant No.2 Chhagan was arrested on 25.08.2006 at about 9.30 am. The clothes on the person of the deceased were sent to Erandol police station, which were seized in presence of Pancha witnesses, under Panchanama (Exhibit-18). e) During the investigation statements of certain witnesses were recorded. Appellant No.3 Satyanarayan was arrested on 12.09.2006. The seized articles were forwarded to CA at Nashik along with covering letter. During the course of investigation statement of witness Ashok Koli was recorded u/s 164 of the Criminal Procedure Code, by JMFC, Erandol. After receipt of the CA report and after completion of the investigation, charge sheet was filed against all the appellants, before JMFC, Erandol, on 15.11.2006. The JMFC, Erandol committed the matter to the Court of Sessions at Jalgaon on 03.02.2007. f) Additional Sessions Judge, Jalgaon framed charge (Exhibit-4) against all the appellants for the offence punishable u/s 302, 504 r/w 34 of the Indian Penal Code. In addition to this, charge was also framed against appellant No.1 for an offence punishable under drp {6} Cri.Appeal.No.337/2008 section 323 and 506 of the Indian Penal Code. The appellants pleaded not guilty to the charge and claimed to be tried. g) It appears that to substantiate the charges leveled against the appellants, prosecution has examined in all 16 witnesses including three sons of the deceased, one witness to the incident of morning, three Pancha witnesses, two medical witnesses, two police officials who carried the articles to office of CA and one Ashok Koli, one Rahul, attached to the office CA at Nashik and three police personnel including one who had recorded the report lodged by appellant No.1. h) The trial court, upon appreciation of the evidence, convicted all the appellants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and additionally convicted appellant No.1 for an offence punishable u/s 323, 504 and 506 of the Indian Penal Code. The said judgment of conviction is under challenge in the present criminal appeal. 3. Before considering the rival submissions advanced on behalf of the learned counsel for respective parties, it would be useful to advert to the evidence of material witnesses, recorded by the trial court. drp {7} Cri.Appeal.No.337/2008 4. It is in the evidence of PW-2 Deepak that he was residing in a joint family at Khedi (Kh) along with his three brothers, two mothers, wife and sister in law. He knew all the appellants. The appellants were residing near his house. There is a drainage adjoining to the wall of his house. The waste water from his bathroom flows in the said drainage. On 24.08.2006, at about 7.30 a.m. appellant No.1 came there and started abusing in filthy language on the count that the waste water of their bathroom was creating nuisance. Appellant No.1 told them to stop the waste water else he would gag the pipe with a piece of cloth. Appellant No.1 thereafter, actually gaged the pipe with a piece of cloth. Thereafter, father of Deepak (deceased) went there and took out the gaged cloth and at that time appellant No.1 had assaulted his father on his back with a handle of a plough. Meantime, appellants No.2 and 3 had reached there and they also started abusing the family of Deepak in filthy language. At that time neighbours Naval (PW-9) Laxman, Ramdas and others came there and they pacified the situation. Thereafter all the appellants left the spot, however, while leaving, appellant No.1 had threatened to his father that he would not keep the father of Deepak alive to see the evening. Then his brother Pradeep (PW-5) went to field. He has further stated that in the evening at about 6.30 p.m. Pradeep returned from the field and while Pradeep was releasing bullocks from the cart, they saw crowd was gathered near the square and hence Pradeep had enquired with him as to whether their father was in the house to drp {8} Cri.Appeal.No.337/2008 which he had replied in negative. They heard shouts from the square and hence Pradeep rushed to the square and Deepak followed him. Deepak saw appellants No.1 and 2 were assaulting his father with axe while appellant No.3 was holding wooden log in his hands. When Pradep tried to intervene, appellant No.1 assaulted him also on his back with axe. He saw that his father had sustained bleeding injuries on legs, back and head. Some villagers were found gathered there. They tried to reach near their father and when they reached near him, on the inquiry of Deepak his father had informed that he was assaulted by the appellants by axe and stick. He and his brother then carried their father on motorcycle to civil hospital, Jalgaon, where he was declared dead. Mean time, his mother, another brother and relatives had reached to the hospital. Police had also reached in the hospital. The police took him to Erandol police station where he lodged the report (Exhibit-23). He has further stated that on the next day the police came to Khedi (Kh) and he pointed out them the spot of the incident. Police drew the spot Panchanama and thereafter he and his brother produced the clothes drenched with blood, which were seized by the police. 5. It transpired from the cross examination of this witness that there was no litigation between the appellants and themselves, prior to the alleged incident. Though appellants No.2 and 3 are the real brothers of appellant No.1, they were residing separately. Houses of appellants No.2 and 3 are not situated near drp {9} Cri.Appeal.No.337/2008 his house. He had admitted that the drainage near his house does not pass through the house of appellant No.1. He denied that in the morning sessions he along with his brother and father had abused appellant No.1, in filthy language and had assaulted him causing injury to appellant No.1. In further cross examination he has admitted that no complaint was lodged with the police Patil in respect of incident of the morning. He has further admitted that in the alleged incident his father had not sustained any injury. In the further cross examination he has admitted that the square is at the distance of about 250 feet from their house. The said square is surrounded by residential and commercial premises. He has further admitted that on hearing the shouts he and his brother Pradeep had been to the spot where he saw his father was lying in injured condition and blood was oozing from the injuries sustained by his father. On his inquiry with his father, in presence of his brother Pradeep, he came to know about the assault on his father. He has further admitted that he did not carefully observe the cloths on the person of the appellants. He did not find injuries on the person of appellant No.1. He has further stated in the cross examination that they reached at Jalgaon within 45 minutes, however on their way to the hospital they did not lodge any report either at Erandol police station or at Paldhi outpost. He had also not disclosed the incident to the police who were present in the civil hospital at Jalgaon. In his further cross examination certain omissions were brought on record and proved that i) Pradeep enquired with him whether his father was present in the house, ii) drp {10} Cri.Appeal.No.337/2008 he saw that all the three appellants were assaulting his father iii) he saw appellants No.1 and 2 assaulting his father with axe and appellant No.3 was assaulting his father with stick and iv) appellants assaulted Pradeep when he tried to intervene. 6. The evidence of Pradeep (PW-5), another son of deceased Baliram, is on the similar lines with that of PW-2 Deepak. In his evidence Pradeep has added that in the evening when he and Deepak reached at the square, the appellants did not allow them to go near their father and the appellants threatened them to kill in case they reached near their father. 7. Pradeep has stated in the cross examination that prior to the alleged incident their family was not on cross terms with the appellants and the pipe line of the bathroom was in existence since last 20/25 years. Neighbours were not present when the appellant No.1 was putting a piece of cloth in the drainage pipe line. The dispute of the morning was settled in the morning itself. They did not feel it necessary to lodge any complaint about the incident of the morning. He has stated in further cross examination that in the evening about more than 100 persons were present in the square where the alleged incident had taken place. He saw blood stains on the cloth of Chhagan, however no blood stains were noticed on the clothes of appellant No.3. He saw his father was lying on the ground and he had sustained injuries. He had not enquired with the people, who were present a the spot, as to how drp {11} Cri.Appeal.No.337/2008 the incident had occurred. Ashok Koli was not found present at the spot. Certain omissions are proved in his cross examination that are i) appellants were not allowing him to reach near his father, when he was lying in injured condition, ii) he saw injuries on the head and on the back of his father, iii) his father disclosed that all the three appellants assaulted him and iv) he sustained injuries on his head due to assault by axe. The remaining cross examination is on similar lines with that of his brother Deepak. 8. The evidence of PW-6 Sandeep, brother of PW-2 Deepak and PW-5 Pradeep, is in verbatim same like his two brothers. Additionally, he has stated that while he and his mother were proceeding to the hospital at Jalgaon, they saw that appellant No.1 was proceeding towards Paldhi on motorcycle of one Ashok Tayade and was having axe with him. He has also stated in the cross examination that there were labours in the tractor in which he and his mother were traveling but he did not request them to apprehend appellant No.1 and disclosed them that appellant No.1 had assaulted his father with axe. According to him at the time of occurrence of the incident, in the morning, his brothers PW-2 Deepak and PW-5 Pradeep were not present at all. He denied the suggestion that in the morning his family members had assaulted appellant No.1. At the same time he noticed injury on the person of his father. In his further cross examination about the incident of the evening, he has stated that he knew Rama Govind Mahajan, who had informed his brother Pradeep about the gathering of a drp {12} Cri.Appeal.No.337/2008 crowd in the square and thereafter Pradeep and Deepak had rushed to the square where near about 100 persons were gathered. He saw his father was lying on the ground and had sustained bleeding injuries on legs, chest and head. The persons gathered at the spot were playing role of mute spectators, without any intervention. Certain omissions are proved in his evidence viz, i) appellant No.1 had came near his house in the morning, ii) His brother Pradeep saw the crowd in the square iii) Appellant assaulted his brother Pradeep while he was passing through the crowd, iv) He saw appellant No.1 was proceeding towards Paldhi along with axe on the motorcycle. 9. It is in the evidence of PW-9 Naval Sonwane that the alleged incident took place in the morning on 24.08.2006 and on hearing abuses he had came out of his house and had witnessed that appellant No.1 was assaulting the deceased with a handle of a plough, on his back. Appellants No.2 and 3 were also abusing deceased Baliram. Appellant No.1 had threatened Baliram that he would not allow Baliram to see the evening of that day. In his cross examination omissions are proved that in the morning there was quarrel between deceased and appellant No.1 on account of waste water and appellant had threatened Baliram that he would not allow him to see the evening. 10. In this backdrop heard learned counsel for the appellant followed by the submissions of learned APP. drp {13} Cri.Appeal.No.337/2008 11. According to learned counsel for the appellants, PW-2, 5 and 6, who claimed themselves to be the eye witnesses, cannot be treated as eye witnesses due to proved omissions. It has come on record that they had not seen the actual assault on their father (deceased) and saw the assailants. It is also urged that it transpired from the evidence of these witnesses that mob of more than 100 persons had gathered in the square where the alleged incident has taken place, however no independent witness has been examined by the prosecution to prove that the deceased had sustained injuries due to assault by the appellants. It is further urged that nothing was recovered at the instance of appellants No. 2 and 3 nor any blood was found on their clothes, which were seized and sent for chemical analysis. It is also urged that though the death of the deceased is a homicidal one and the case of the prosecution rests on circumstances only, yet the chain of circumstance is not complete so as to link the appellants with the alleged injuries sustained by the deceased. In respect of incident in the morning, for which appellant No.1 alone has been convicted, it is urged that on careful perusal of the evidence of PW-2 PW-5 and PW-6, evidence of PW-2 and 5 nowhere states presence of PW-6 whereas evidence of PW-6 in unambiguous terms demonstrates that at the time of the alleged incident of morning, PW-2 and PW-5 were not present at the spot. Though independent witness Naval (PW-9) was examined in respect of incident of morning, yet omissions are proved in his evidence. The motive behind the entire drp {14} Cri.Appeal.No.337/2008 incident was the dispute over the drainage water from the bathroom causing nuisance to the appellant No.1, when admittedly, the said waste water does not flow from the house of appellant No.1. In the premise, it is urged that evidence of independent witness is not reliable and believable. Thus, according to learned counsel for the appellants, there is no evidence against appellant No.1 to link him with the alleged incident of morning. It is further urged that this is the case where the evidence led by the prosecution is not free from doubt and hence the appellants are entitled for the benefit of doubt and, therefore, benefit of doubt be given to them and the appeal be allowed. 12. Per contra, learned APP, supports the impugned judgment of conviction and urged for dismissal of the appeal. 13. Considering the rival submissions, there is no doubt in our mind that in view of the evidence led by the prosecution, the case of the prosecution rests on circumstantial evidence. The trial court has described these circumstances as - ocular evidence of the witnesses, dying declaration of the deceased, previous conduct of the accused, seizure of blood stained clothes from the person of the accused Gorakh, seizure of axe from accused Gorakh, admission given by accused Gorakh in the report filed against the complainant and deceased, and the CA report. 14. Admittedly, the death of the deceased Baliram is a drp {15} Cri.Appeal.No.337/2008 homicidal one. As per the prosecution case, the motive behind the crime is dispute over drainage water and the incident of the morning, however prosecution witnesses No.2 Deepak and PW-5 Pradeep in unambiguous terms, have admitted that the house of the deceased and house of appellant No.1 were constructed 25 years back and the appellants No.2 and 3 are not residing in the said area, near the house of the deceased and the vital admission that the waste water does not flow from the house of appellant No. 1, defuses the motive behind the crime. Apart from it, the evidence of PW-2, PW-5 and PW-6, is contrary to each other and also not supported by independent witness Naval. We have also to take note of the fact that no complaint was lodged in respect of the incident, which had occurred in the morning of 24.08.2006. The said incident had not seen the light had the incident of evening would not have occurred. We do not accept the evidence of the witnesses about the incident of the morning. 15. Now, coming to the incident of the evening, as stated in the above paragraphs, the case of the prosecution rests on circumstances and as per the case of the prosecution near about 100 persons were present at the spot at the relevant time, however the conduct of all the three eye witnesses PW-2, PW-5 and PW-6 of not inquiring with the said persons as to how their father had sustained injuries, appears to be unnatural. Apart from it the alleged oral dying declaration of the deceased to his sons, is a proved omission in the evidence of PW-2 Deepak and PW-5 drp {16} Cri.Appeal.No.337/2008 Pradeep. According to both the brothers, they had not seen any injury on the person of appellant Gorakh and not noticed the blood on the clothes of appellants No.2 and 3. Though the clothes on the person of the appellant No.1 were seized immediately after his arrest in the night between 24th and 25th August, and the blood on the axe and on the clothes of Gorakh matches with the group of deceased, yet the explanation offered by appellant Gorakh in his statement u/s 313 of the Criminal Procedure Code, that on the day of the incident at aout 6.30 a.m. Baliram and Deepak had assaulted him by means of stick and his hand was fractured and his clothes were stained with blood and hence he had been to Erandol police station at 3.00 p.m. and had lodged a report against them and was detained in the police station and later on was arrested, was not taken into consideration. It also transpired from the evidence of PW-16 Laxman Patil, ASI, who had recorded the complaint of appellant No.1 that appellant No.1 was referred for medical examination, after he came to Erandol police station, as he had sustained injuries. Admittedly, blood sample of appellant No.1 was not collected and was never sent for matching the group on the blood found on the clothes of appellant No.1 himself. As appellant No.1 had also sustained injuries it was necessary to test his blood to ascertain as to whether the blood found on his clothes was his own or was the blood of deceased Baliram. No eye witness has been examined to establish the assault on deceased Baliram at the hands of the appellant No.1. Admittedly, no blood was detected either on the clothes or on other articles recovered at the instance drp {17} Cri.Appeal.No.337/2008 of appellants No.2 and 3. Though it is urged that there is admission of guilt by appellant No.1 in the complaint lodged by him against the deceased and the complainant, yet the alleged statement is given before the police officer and hence confession or extra judicial confession recorded by the police officer is not admissible in evidence. Therefore, this circumstance would not go against the appellant to establish that it was the admission of guilt on the part of appellant No.1. Considering these aspects and the evidence discussed above, we are of the considered view that the conviction recorded by the trial court based on the circumstances discussed in the impugned judgment, do not indicate that the circumstantial evidence stand proved against all the appellants beyond reasonable doubt to point out that the circumstances indicate that the appellants and the appellants only are the authors of the