1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 227 OF 1996 1 The State of Maharashtra ...Appellant VERSUS 1 Chhabilal Hilal Patil, adult, 2 Indubai w/o Nimba Patil, adult, Both residing at village Vishwanath, Taluka and District Dhule ...Respondents ..... Shri B.J.Sonwane, A.P.P. for the appellant/State Shri R.M.Deshmukh, advocate for the respondents accused nos. 1 and 2. ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED OF RESERVING THE JUDGMENT : 21.07.2009 DATE OF PRONOUNCING THE JUDGMENT : .07.2009 2 J U D G M E N T : (Per Shrihari P.Davare, J.) 1 Perused. Heard learned respective counsel for the parties. 2 The challenge in this appeal is to the judgment and order passed by the learned Sessions Judge, Dhule in Sessions Case No. 165 of 1990 on 30.1.1991, thereby acquitting accused nos. 1 and 2 from the offences punishable under Sections 302 and 201 r/w Section 34 of the Indian Penal Code. 3 The factual matrix, briefly stated, are as follows :- On 29.3.1990 one Hiraman Shivram i.e. the police patil of village Vishwanath came to Songir police station at about 10.30 a.m. and made report regarding accidental death in the well in the field of Dangal Ananda Patil. Accordingly, P.S.O. Wankhede registered A.D.No. 19 of 1990 under Section 174 of the Code of Criminal Procedure. As per directions of P.S.O. Wankhede, PW1- A.S.I. Akbarbeg Mirza went to the field of Dangal Anand Patil of Vishwanath village at about 4.00 p.m. On 29.3.1990 to investigate the matter and found a gunny bag in the well and legs were 3 protruding out of the said bag. The said gunny bag was taken out from the well in presence of two panchas which was found to be tied with the iron wire. Hence, on opening the gunny bag, it found to contain a dead body of a male aged about 35 years having marks of throttling at the neck and the neck was found tied with nylon rope. Accordingly, PW1-A.I.S. Mirza drew the inquest panchanama Exh.8 of the said dead body which was highly decomposed. Police patil Hiraman Shivram could not identify the same. Thereafter the said dead body was sent to the Civil Hospital, Dhule for autopsy through constable Shaikh and received advance death certificate Exh.24 dated 30.3.1990. PW1- A.S.I. Mirza also drew panchanama of the scene of offence Exh.10 and attached the said gunny bag and iron wire thereunder. Accordingly, PW5 Dr. Anil Raghuwanshi conducted postmortem on the dead body on 29.3.1990 and gave the approximate time of death from the time of postmortem that about 2 to 3 days back therefrom and also gave the cause of death as strangulation with asphyxia. 4 On perusal of advance certificate, PW1-A.S.I. Mirza lodged a complaint dated 30.3.1990 Exh.17 on behalf of the State, since he realised that it was a case of homicidal death and the said complaint was registered at C.R.No.19 of 1990 under Section 4 302 of the Indian Penal Code. Thereafter, PW1-A.S.I. Mirza handed over the further investigation of the said C.R. To PW8- P.S.I. Prakash Pardeshi. On 31.3.1990, PW8-P.S.I. Pardeshi recorded statements of some witnesses. Thereafter during the course of investigation, suspicion against accused nos. 1 and 2 was raised and, therefore, they were arrested on 11.4.1990 under the said C.R. No. 19 of 1990. PW4 Dagdu Patil i.e. son of sister of deceased identified the dead body as that of Nimba and also identified the clothes of the deceased Nimba on 11.4.1990. 5 On 12.4.1990 memorandum panchanama Exh.28 was drawn and the bullocks and bullock cart were seized thereunder at the instance of accused no.1 in presence of panchas. Moreover, memorandum panchanamas Exhs. 30 and 31 were drawn on 13.4.1990 and iron wire was seized thereunder at the instance of accused no.1 in presence of panchas and the said wire was compared with Article No.2 i.e. wire found around the neck of the deceased and both were found matching. Thereafter the Circle Officer drew the sketch of scene of offence and the said sketch and its report are marked at Exhs. 15 and 15-A. Moreover, the viscera of the deceased was sent to the Chemical Analyser for examination purpose and the chemical analysis report dated 12.4.1990 thereof was received which is marked as Exh.14. 5 6 After completion of investigation, PW8-P.S.I. Pardeshi filed the charge sheet before the learned Judicial Magistrate, First Class, Dhule against accused nos. 1 and 2 on 30.7.1990. Thereafter the learned Judicial Magistrate, First Class, Dhule committed the said case to the court of Sessions, Dhule for the trial. 7 Accordingly charge came to be framed against accused nos. 1 and 2 by the court of Sessions, Dhule on 18.12.1990 at Exh. 2 under Section 302 r/w Section 34 of the Indian Penal Code and also Section 201 r/w Section 34 of the Indian Penal Code. Accused nos. 1 and 2 pleaded not guilty to the respective charges levelled against them and claimed to be tried. The prosecution conducted the trial against accused nos. 1 and 2 and examined as much as 8 witnesses to substantiate the charges levelled against accused nos. 1 and 2 as mentioned below. 1 PW1 :- A.S.I. - PW1 Akbarbeg Ahmedbeg Mirza, r/o Navapur (Exh.16) - Complainant 2 PW2 :- Nana Tapiram Patil, r/o Vishwanath (Exh.18) - servant of accused no.1 3 PW3 :- Babulal Saysing Bhil, r/o Vishwanath (Exh.19) - Watchman 4 PW4 :- Dagadu Shamrao Patil, 6 r/o Vishwanath (Exh.22) - son of sister of accused. 5 PW5 :- Dr. Anil Raghuwanshi, M.O. (Exh.23) - P.M. Doctor. 6 PW6 :- Yashwant Tanaji Patil, r/o Songir (Exh.29) (Panch to memorandum panchanamas Exhs. 27 & 28 regarding seizure of bullocks and bullock cart) 7 PW7 :- Nimba Vyankat Patil, r/o Vishwanath (Exh.26) (Panch to memorandum panchanamas Exhs. 30 & 31regarding seizure of iron wire) 8 PW8 :- Prakash Dhondusing Pardeshi (Exh.32) (Panch to memorandum panchanamas Exhs. 30 & 31 regarding seizure of iron wire) 8 During the course of trial, after adducing/producing the evidence by the prosecution the statements of accused nos. 1 and 2 were recorded under Section 313 of the Code of Criminal Procedure and they denied the alleged incriminating circumstances against them respectively and they filed their respective written statements dated 21.1.1991 Exh.38 therein. Accused no.1 categorically denied the charges and also denied the alleged illicit relations between him and accused no.2 and also stated that PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil have deposed against him under the influence of Sarpanch Sahebrao Nathu Patil and also the police personnel and 7 he further denied the recovery/discovery of bullocks and bullock cart and iron wire at his instance. Accordingly, he claimed to be innocent. Moreover, accused no.2 also filed written statement on the same day i.e. 21.1.1991 at Exh.39 and thereby denied the charges levelled against her specifically and also denied her alleged illicit relations with accused no.1. She also stated that PW2 Nana Tapiram has deposed against her under the influence of Sarpanch and police personnel. She further denied that she requested for help from PW2 Nana Tapiram to kill her husband. She also stated that her husband came on 22.3.1990 from Surat and left the house for Surat in the evening of 24.3.1990. She further stated that she was not called by the police personnel to identify her husband’s dead body on 29.3.1990. She also stated that on 24.3.1990 PW3 Babulal brought her husband in drunken condition to her home and accused no.1 was present in her house at that time is false. She further categorically stated that her husband i.e. deceased Nimba never suspected about her alleged illicit relations with accused no.1 and accordingly she claimed to be innocent. 9 Considering the evidence adduced/produced on record and also considering rival submissions made before him, the learned Sessions Judge, Dhule acquitted accused nos. 1 and 2 8 from the charges levelled against them in Sessions Case No. 165 of 1990 vide judgment and order dated 30.1.1991. Being aggrieved and dissatisfied by the said judgment and order, the State has preferred the present Criminal Appeal against the acquittal under Section 378 (1) of the Code of Criminal Procedure. 10 At the out set, admittedly the entire case of the prosecution is based upon the circumstantial evidence, since there is no eye witness in the instant case. The learned Sessions Judge has framed the points for determination (1) in respect of homicidal death of deceased Nimba; (2) in respect of alleged murder of deceased Nimba by accused nos. 1 and 2; and (3) in respect of destruction of evidence by accused nos. 1 and 2. 11 As regards point no.1 for determination considering the ocular evidence and also considering the postmortem notes, inquest panchanama, medical evidence, the learned Trial Judge arrived to the conclusion that death of deceased Nimba occurred by strangulation with asphyxia and concluded that death of deceased Nimba was homicidal one and the reasoning adopted for the said conclusion is proper and logical and no interference therein is warranted. 9 12 As regards the motive to the alleged committal of murder of deceased Nimba by accused nos. 1 and 2, it was canvassed that there was illicit relations between accused nos. 1 and 2 and deceased Nimba came to know about the same, as well as deceased Nimba used to assault and illtreat his wife i.e. accused no.2 and hence it is alleged that accused nos. 1 and 2 eliminated deceased Nimba at about 11.30 p.m. on 24.3.1990 by committing his murder. 13 In the said context, prosecution has adduced the material evidence of PW2 Nana Tapiram – i.e. servant of accused no.1, PW3 Babulal and PW4 Dagdu Patil son of sister of deceased. 14 Firstly coming to evidence of PW2 Nana Tapiram i.e. servant of accused no.1 who stated in his deposition that Savkar is son of accused no.1 and accused no. 2 is the mother of Savkar. However, during cross-examination he stated in para 4 that as the people from the village call Sahukar as the son of accused no.1, he stated that he is son of accused no.1 from accused no.2 and he further categorically stated that he has no personal knowledge about the illicit relations between accused nos. 1 and 2. The suggestion was also given to him that he was deposing falsely at the instance of Sarpanch Sahebrao Nathu Patil, but same was 10 denied by him. Hence, evidence of PW2 Nana Tapiram in respect of alleged illicit relations between accused nos. 1 and 2 has been shattered in the cross-examination. 15 Keeping in mind the said aspect and coming to the evidence of PW3 Babulal, he stated that accused nos. 1 and 2 are having illicit relations with each other. However, there is no cross- examination in respect of the said statement and suggestion was given that he was deposing falsely at the instance of Sarpanch and police, but same was denied by him. Thus, the statement of PW3 Babulal regarding alleged illicit relations between accused nos. 1 and 2 has gone unchallenged. 16 That takes us to the deposition of PW4 Dagdu Patil, wherein he has stated that there was love affair between accused nos. 1 and 2 and Nimba was telling him regarding the illicit relations between accused nos. 1 and 2 on one hand and accused no.2 on the other, while he was under the influence of liquor. In fact, the said very contents have amounted to omission in the police statement of PW4 Dagdu Patil and improvement in his examination-in-chief which can be construed as vital omission causing deformity in the testimony of PW4 Dagdu Patil in respect of his very contention regarding alleged illicit relations between 11 accused nos. 1 and 2. Moreover, PW4 Dagdu Patil has stated that deceased Nimba himself informed him about the alleged illicit relations between accused nos. 1 and 2 under the influence of liquor, but said statement itself is inadmissible, and apart from that there is no personal knowledge of the alleged illicit relations between accused nos. 1 and2 to PW4 Dagdu Patil and, therefore, also the veracity of the said statement comes under the cloud of suspicion. 17 Accordingly, considering the evidence of PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil in respect of alleged illicit relations between accused nos. 1 and 2 as the motive for eliminating deceased Nimba by committing his murder, it is amply clear that the testimony of PW2 Nana Tapiram cannot be of any help to the case of the prosecution and the testimony of PW4 Dagdu Patil is hit by the vital omission in respect of said very contention and the sole testimony of PW3 Babulal in respect of the said proposition without having any corroboration thereto cannot be accepted and accordingly there is variance in the testimonies of PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil. 18 Moreover, the respective testimonies of PW2 Nana 12 Tapiram, PW3 Babulal and PW4 Dagdu Patil nowhere disclosed any particular incident of alleged illicit relations between accused nos. 1 and 2 and, therefore, in the absence of any details, particulars and specific instances narrated by the afore said witnesses, that too without the proof of any cogent evidence therefor, the said allegations bear no substance. Hence, the learned Trial Judge has rightly arrived to the conclusion that the motive as suggested by the prosecution cannot be the clinching incriminating circumstance against accused nos. 1 and 2 which would establish that accused nos. 1 and 2 alone had committed the alleged crime, and hence, no interference is required therein. 19 That takes us to the next circumstance as regards last seen together, it is alleged that the deceased Nimba was last seen together in the company of accused nos. 1 and 2. In the said context, the testimonies of PW3 Babulal and PW4 Dagdu Patil are material and same are required to be scrutinized. 20 PW3 Babulal stated in his deposition that on 24.3.1990 at about 4.00 p.m. to 5.00 p.m. when he was going to the field, he met deceased Nimba on the way and on the request of PW3 Babulal, deceased Nimba agreed to provide him liquor and accordingly both of them went at the house of Sham Naik at 13 Sukvad and started consuming liquor. During the said session, PW2 Nana Tapiram arrived there and gave half bottle of liquor at the instance of accused no.1. Thereupon, PW3 Babulal conveyed deceased Nimba that it was provided by accused no.1, but deceased Nimba declined to accept the same since it was provided by accused no.1. Thereafter deceased Nimba asked PW3 Babulal to take him to his house. Accordingly both of them left the hut of Sham Naik and proceeded towards the house of deceased Nimba. In between both of them fell down near Mahadeo temple and with the help of Sona Tikaram Patil, PW3 Babulal carried deceased Nimba to his house. PW3 Babulal stated that at that time accused nos. 1 and 2 were in the house of deceased Nimba. Sona Tikaram Patil left the house of Nimba, but PW3 Babulal waited out side the house of Nimba. Thereafter accused no.1 also asked to go to his house. However, PW3 Babulal stated that he was unable to walk properly due to heavy drinking. Thereupon, accused no.1 called PW2 Nana Tapiram his servant and Nana Tapiram took PW3 Babulal to his hut in the field at about 11.00 to 11.30 p.m. On 24.3.1990. Thereafter on 29.3.1990 the dead body was taken out from the well of Dagdu Ananda Patil. 21 According to the prosecution, deceased Nimba was seen in the company of accused nos. 1 and 2 on the night of 14 24.3.1990 and dead body was found on 29.3.1990 and hence it was canvassed that the circumstance of seeing deceased Nimba last in the company of accused nos. 1 and 2 is the connecting link between the alleged crime and accused nos. 1 and 2 herein. 22 However, in the cross-examination the version of PW3 Babulal is different and he stated that as soon as deceased Nimba was taken to his house, he told him to go away and he went along with PW2 Nana Tapiram. However, there was no talk between deceased Nimba and accused no.1 in his presence. There was also no talk between accused no.2 and deceased Nimba in his presence and accordingly the version of PW3 Babulal in his examination-in-chief and his version in the cross-examination differ from each other. 23 Keeping in mind the said aspect and coming to the deposition of PW2 Nana Tapiram, wherein he stated that at about 11.00 to 11.30 p.m. accused no.1 came to his house and woke him up and he asked him to take PW3 Babulal to the field of Pardhi, and accordingly, he took PW3 Babulal to the field of Pardhi and straight way he went to his house. However, he has not supported the version of PW3 Babulal that deceased Nimba was in the company of accused nos. 1 and 2 at about 11.00 to 11.30 15 p.m. On 24.3. 1990, and even the testimony of PW2 Nana Tapiram is silent regarding the said date given i.e. 24.3.1990. Hence, in the absence of corroboration from the testimony of PW2 Nana Tapiram to the proposition put forth by PW3 Babulal that deceased Nimba was last seen in the company of accused nos. 1 and 2 on 24.3.1990 at about 11.30 p.m. same cannot be accepted and consequently cannot be believed. Moreover, even assuming for the sake of assumption without admitting that deceased Nimba was last seen in the company of accused nos. 1 and 2 in the night of 24.3.1990, the dead body was found on 29.3.1990, and about five days were lapsed in between and, therefore, it cannot be said with certainty that deceased Nimba was not found moving in the village during the said period. 24 Besides, there is another angle to the said aspect that PW5 Dr. Anil Raghuwanthi has stated in his deposition that on 29.3.1990 dead body of unknown person was brought to Civil Hospital, Dhule for postmortem and accordingly he carried postmortem thereon between 11.45 p.m. to 1.00 a.m. On 29.3.1990 and issued advance certificate to police bearing Exh.24 and cause of death was given as strangulation with asphyxia. He also stated that the approximate time of death from the date of postmortem is 2 to 3 days. Thus, even considering that the 16 alleged death of deceased Nimba occurred after 11.00 to 11.30 p.m. on 24.3.1990 when allegedly deceased Nimba was seen in the company of accused nos. 1 and 2 as stated by PW3 Babulal, as per the theory advanced by the prosecution, as per the opinion given by Dr. Anil Raghuwanshi, the death of deceased Nimba occurred 2 to 3 days prior to the time of postmortem i.e. 11.45 p.m. to 1.00 a.m. on 29.3.1990, the occurrence of alleged death of deceased Nimba can be construed as on 26th or 27th March, 1990 and, therefore, there is gap of 2 to 3 days i.e. from 24.3.1990 to 26/27.3.1990 as per the theory advanced by the prosecution and opinion given by PW5 Dr. Anil Raghuwanshi in that respect and there is no plausible explanation by prosecution in that respect, and hence, the alleged circumstance of deceased Nimba found in the company of accused nos. 1 and 2 lastly at about 11.00 to 11.30 p.m. on 24.3.1990 cannot be construed as incriminating circumstance against them. 25 The learned Additional Public Prosecutor relied upon the following observations made in para no.30 by the Division Bench of this court in the case reported at 2001 ALL MR (Cri) 149, Atmaram s/o Istari Shende vs The State of Maharashtra [R.K.Batta & P.S.Brahme, JJ.]. 17 “ As stated earlier, the whereabouts of deceased Indubai were not known since after 8-1-1985, as she could be traced with the accused while proceeding by the road on 8-1-1985. The accused himself did not bring back deceased Indubai to her mother’s house. It was on 11-1-1985 that the dead body of Indubai was found. It is also brought on record through the evidence of witness Abaji Meshram (P.W.14) that the accused was seen by him going by bicycle on 8-1-1985 at noon. He was alone. This has significance in the background of the fact that earlier on the same day, the accused was found with Indubai on the road by the witnesses. The accused has not given any explanation as to how and where deceased Indubai was missing. The accused being the husband of Indubai, was required to give explanation as to the whereabouts of Indubai when he had taken her with him on 7-1-1985 and was seen with her on 8-1-1985. What we find is that the accused simply denied the incriminating circumstance including the death of Indubai in his examination under Section 313 Cr.P.C. A false answer offered by the accused when his attention was drawn to the aforesaid circumstances, renders that circumstances capable of inculpating him. “ However, considering the facts and circumstances in 18 the present case in hand and also considering the facts and circumstances in the case before the Division Bench of this Court, in view of the foregoing discussion, it is amply clear that they differ from each other and hence, the afore said observations made in the said case cannot be of any aid and assistance to the case of prosecution herein. 26 Moreover, the conduct of accused nos. 1 and 2 is also required to be considered and in the natural course of events, had accused nos. 1 and 2 really caused death of Nimba by strangulation after 11.00 to 11.30 p.m. On 24.3.1990 i.e. during the intervening night of 24th and 25th March, 1990, they would have immediately absconded, but so did not happen and accused nos. 1 and 2 remained in the village only and the said conduct of accused nos. 1 and 2 goes in their favour. 27 As regards the alleged extra judicial confessions made by accused nos. 1 and 2 before PW2 Nana Tapiram, it is significant to note that even though PW3 Babulal was along with PW2 Nana Tapiram at the time of making the said alleged extra judicial confession by accused nos. 1 and 2 before him, the testimony of PW3 Babulal is totally silent in that respect. Thus, considering the variance in the testimony of PW2 Nana Tapiram, 19 more particularly in his examination-in-chief and cross- examination in respect of sequence and also considering the silence in the testimony of PW3 Babulal regarding the said alleged extra judicial confessions by accused nos. 1 and 2, the said alleged extra judicial confession cannot be construed as worth believing and further cannot be termed as incriminating circumstance against accused nos. 1 and 2. 28 As regards the discovery/recovery of bullocks and bullock cart at the instance of accused no.1 under memorandum panchanamas dated 12.4.1990 at Exhs. 27 and 28, the prosecution has examined PW6 Nimba Patil panch in that respect. According to him, on 12.4.1990, accused no.1 made voluntary statement and expressed desire to show the bullocks and bullock cart and, therefore, memorandum panchanma Exh. 27 was prepared and accused no.1 led the panchas and police to Nimb tree where bullock cart was lying and bullocks were found tied there. Accordingly seizure panchanama Exh.28 was prepared and they were seized thereunder. However, it is important to note that the place where bullocks and bullock cart was fond is accessible to public at large, and more pertinently, the bullocks and bullock cart were lying in front of house of accused no.1 only since they belong to him. PW6 Nimba Patil further admitted that before 20 going to Songir police station they passed by the side of house of accused no.1, but they did not see bullocks and bullock cart in front of house of accused no.1. 29 Hence,