drp {1} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.4 OF 2003 WITH CRIMINAL APPEAL NO.502 OF 2010 XXXXX CRIMINAL APPEAL NO.4 OF 2003 Gangaram Tukaram Hake APPELLANT Age-41 years, Occ-Agriculture R/o Pangri (Tanda), Tq-Hadgaon, Dist-Nanded VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Mantha Police Station, Tq-Hadgaon, Dist-Nanded ....... Mr. S.S.Chaudhari, Advocate for appellant Mr. K.G.Patil, APP for respondent State ....... WITH CRIMINAL APPEAL NO.502 OF 2010 Kunjilal Bhiku Rathod APPELLANT Age-51 years, Occ-Convict No.4419 Open Jail, Paithan, Dist-Aurangabad VERSUS drp {2} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 The State of Maharashtra RESPONDENT Through Police Station Officer, Mantha Police Station, Tq-Hadgaon, Dist-Nanded ....... Mrs. Bharti Gunjal, Advocate for appellant (Appointed) Mr. K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 31st January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, who stand convicted for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/-, each with default stipulation of undergoing further RI for one year so also u/s 201 r/w 34 of the Indian Penal Code and sentenced to suffer RI for 2 years and to pay a fine of Rs.2000/- each with default stipulation of undergoing further RI for 6 months, by Sessions Judge, Nanded, vide judgment and order dated 07.12.2002 rendered in Sessions Case No.22/1999, have questioned the correctness of their conviction and sentence by preferring the present criminal appeals. As both the present appeals arise out of the same judgment, they are being disposed of by this common judgment. drp {3} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- a) On the basis of complaint (Exhibit-27) lodged by PW-1 Madan Rathod-brother of the deceased, with Mantha police station, an offence at Crime No.68/1998 was registered against the appellants and others u/s 302, 201 r/w 34 of the Indian Penal Code. b) Investigation of the said crime was carried out by Police Inspector Pradipsingh (PW-7). During the investigation, inquest Panchanama (Exhibit-32) was drawn on the dead body, which was recovered from a percolation tank. Thereafter, Spot Panchanama (Exhibit-31) was also prepared. Police recovered sample of blood from a stone with help of wet cotton gouge. The police had also collected sample of blood stained earth and plain earth, from the spot. The dead body was subjected to postmortem examination. As the dead body was in a highly decomposed condition, the medical officer was unable to ascertain the exact cause of death. c) During the investigation statements of certain witnesses were recorded and the seized property was sent to Chemical Analyzer for examination and after receipt of the drp {4} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 CA report and on the strength of the material collected during the investigation, charge sheet was filed against the appellants and two others, before the Chief Judicial Magistrate, Hadgaon, on 28.12.1998. d) On committal of the trial, Learned Sessions Judge framed charge (Exhibit-13) against the appellants and two others, including PW-8 (Who was shown as accused No.2), for an offence punishable u/s 302, 201 r/w 34 of the Indian Penal Code. The appellants pleaded innocence and claimed to be tried. Prosecution, to prove the charges levelled against the accused, initially had examined in all 7 witnesses. However subsequently, after the accused were examined u/s 313 of the Criminal Procedure Code on 29.10.2002 and Original accused No.2, (PW-8) Chandrakala, in answer to question No.22, has narrated the incident in detail, an application was moved on 30.10.2002 by the prosecution requesting to tender pardon to accused No.2 u/s 307 of the Criminal Procedure Code and allow the prosecution to examine original accused No.2 as prosecution witness. The said application (Exhibit-44) was allowed by the trial court on 30.10.2002 and pardon was granted to original accused No.2 and thereafter original accused No.2 was examined as PW-8. Considering the evidence of PW-8 (Original accused No.2), who is examined as an approver, and other material drp {5} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 evidence, the trial court convicted the appellants and sentenced them as stated above and acquitted original accused No.1 of all the charges. 3. For better and effective appreciation of the submissions advanced by learned counsel for respective appellants and that of learned APP for State, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. PW-1 Madan Rathod-complainant, younger brother of the deceased Chandru, has stated that original accused No.2 Chandrakala and deceased Chandru were husband and wife while accused No.1 was the Police Patil of his hamlet and the appellants are the residents of the same hamlet. The incident took place on Thursday i.e. weekly bazar day of village Waranga. Though the deceased and his wife Chandrakala both together had gone to weekly bazar, yet Chandrakala returned alone at about 9.00 p.m. Whereas the appellants had returned at 11.00 p.m. Two to three days thereafter, there was religious function ‘Kakad Arti / Bhandara’ in the village for which a common lunch was arranged by the villagers. Deceased Chandru used to assist in cutting fuel wood and as he has not came, this witness has enquired with Chandrakala about Chandru, whereupon, he was told that Chandru had gone to perform some agricultural operation to village Warud. Thereafter, he and his brother took search of drp {6} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 Chandru (deceased) in various villages, however they could not trace him. The search was continued for 3/4 days thereafter. On the following Wednesday, he proceeded to Mantha police station along with Chandrakala and some other villagers. On their way, they insisted Chandrakala to explain the true and correct facts whereupon she had requested that she would disclose each and everything, but she should not be beaten. On their way, Chandrakala had pointed out the place where some blood stains as well as one broken tooth were noticed. Chandrakala had further disclosed that the appellants had put handkerchief around neck of Chandru (deceased) and had pulled him down and as she requested the appellants not to assault her husband, she was also assaulted by the appellants with kick blows and hence she had became unconscious. Chandrakala had stated that she was not aware as to where the appellants had taken Chandru. He has further stated that then search was taken in the nearby area, they noticed dead body of Chandru tied with beshram shrubs and one stone was kept on the chest of the deceased and the body was in a swollen condition. Thereafter, he lodged the report (Exhibit-27). He has further stated that Chandrakala had otherwise relations with appellant Gangaram and he had warned appellant Gangaram that he should not indulge in affair with Chandrakala. He has stated in his marathon cross examination that many villagers from his hamlet used to go to weekly bazar and one has to walk till Barad Shiwala from where conveyance is available for Waranga. The depth drp {7} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 of the water, in the percolation tank was about 3 to 4 men deep. There is pace way near the percolation tank, which goes to another village and the villagers from Pangari and Barad use that pace way. He has further stated in the cross examination that on that day about 50/60 villagers were conducting search of Chandru. On the previous weekly bazar day, many villagers from his village had been to Waranga. He has admitted that no missing report was lodged about missing of Chandru either in the police station or with the police Patil of the village. Original accused No.1 and Chandrakala- wife of the deceased, had participated in the Kakad Arti function and had also attended the common lunch arranged by the villagers on Monday. At that time, many villagers had enquired with Chandrakala about Chandru (deceased) and she had informed that Chandru had been to village Warud to carry out certain agricultural operations. He denied that there was rumor in the village that one dead body of a male was found lying in the percolation tank, which was noted by some villagers and then Chandrakala was taken to the spot. He has also denied that everybody was suspecting that the appellants are behind missing of Chandru and hence he had implicated the appellants in this case. 5. Dr.Venkat Dhage (PW-2), Medical Officer, Rural Hospital, Hadgaon has stated that he had conducted Postmortem on the dead body, which was in highly decomposed condition, near drp {8} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 the percolation tank, According to him, the opinion as regards cause of death cannot be given as the dead body was in a highly decomposed condition. Accordingly, Postmortem report (Exhibit-29) was prepared. The defence had admitted the Postmortem report before the trial court. 6. Prosecution has proved the inquest Panchanama (Exhibit-32) through PW-3 Pandurang Shiva Rathod. Inquest Panchanama discloses that the dead body was in decomposed condition and many parts of the body were eaten by aquatic insects. 7. PW-4 Krishna Rathod, Deputy Sarpach of village, had stated that he had been to the house of Chandru, along with others, to call him to attend the village community festival, where Chandrakala-wife of Chandru had told them that Chandru had gone to village Warud to conduct certain agricultural operations. His evidence is on the same line like that of PW-1 Madan, about the alleged disclosure by Chandrakala. Additionally, he has stated that two years prior to the incident, the deceased was cultivating the land of appellant Gangaram and since then there were illicit relations between Chandrakala and appellant Gangaram and as some villagers had warned appellant Gangaram to stop the illicit relations with Chandrakala, his relations with the deceased were strained. In his cross examination, he has stated that except drp {9} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 appellant Gangaram, other accused had attended the programme of common lunch arranged by the villagers. He has admitted that the land purchased by the maternal uncle of Chandrakala was at that time in possession of the brother of the deceased. Omissions are proved in his cross examination that he has not stated in his police station that – i) Appellant Gangaram was called and was asked to stop the illicit relations with Chandrakala, ii) In the meeting arranged by the villagers appellant Gangaram was advised to stop relations with Chandrakala, however the appellant Gangaram was in no mood to listen and iii) Chandrakala had informed them that the appellants came from behind and put handkerchief around neck of Chandru and pulled him down. 8. PW-5, Santosh Ade, has stated that at the relevant time he was in the hospital of Dr.Tidke, due to his illness and on his way back he had seen the appellants at about 1.00 p.m. who were hiding themselves behind water tank. After 4/5 days thereafter, dead body of Chandru was located in the percolation tank. Chandrakala had illicit relations with appellant Gangaram and hence some quarrel had taken place and meeting of the respectable persons of the village was called one month prior to the death of Chandru and he was present in the said meeting. Appellant Gangaram was asked to stop his affair with Chandrakala. In his cross examination, he has admitted that there is separate way to go to Barad from his village and one is not drp {10} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 required to go via Kawana. He has denied that one day prior to the dead body was found, there was talk in the town that one dead body was found in the water tank. He has admitted that the distance is longer to his village from Barad as compared to the way, which goes from village Kawana. Omission is proved in his cross examination that he has not stated in the statement before police that one month prior to the death of Chandru meeting was called in the house of Chandru by the villagers and in the said meeting Gangaram was asked to stop his relations with Chandrakala and that he was present in the said meeting. 9. PW-6 Sandip, son of the deceased has stated that at the material time he was prosecuting 7th Standard studies at Yedshi. On the day of weekly bazar, his father (deceased) had been to his school to hand over book and note book to him. He had requested his father to stay during the night, but his father had declined by saying that his mother (Chandrakala) was waiting for him in the market and they had to return to their village. He has fairly stated that he is not aware as to how the incident in question has occurred. 10. Chandrakala Rathod, Original accused No.2, was examined as prosecution witness, after pardon was tendered to her u/s 307 of the Criminal Procedure Code. She has stated that during the life time of her husband Chandru (deceased), she was drp {11} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 residing at village Pangri and her son was prosecuting his studies at Yedshi and was residing in boarding. One Thursday, she had gone to weekly bazar along with her husband (deceased). They had purchased certain books and note books for their son Sandip. She was asked by Chandru (deceased) to complete the shopping and he would go and deliver the books and note book to Sandip. Thereafter, Chandru had gone to Yedshi and was returned at about 6.00 p.m. Thereafter, they left the bazar and traveled in a private bus and thereafter were proceeding to their hamlet on foot. When they reached ahead of stone crusher, both the appellants and accused Pandurang, came there, threw handkerchief around neck of Chandru and pulled him on the ground. She has further stated that at that time, they came from behind and they might have been hiding in the shrubs. On her questioning as to why they were assaulting her husband, she was also assaulted by the trio by kick blows. She felled down, and became unconscious. She regained consciousness after about two hours and then returned to her house during night hours. On the next day the trio came to her house and had threatened her that if she disclose their names, then they would kill her and her children and hence she had kept mum. She has also stated that on the following Monday, common lunch was arranged in the village at that time, some of the villagers had enquired about Chandru, however she could not disclose the true facts to them. On the next day she disclosed about the incident to them as they had taken her in confidence and had drp {12} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 assured her that nothing would happen to her, if she disclose true facts. She has further stated that there was dispute between appellant Gangaram and her husband, as the deceased was cultivating the land of appellant Gangaram, however the deceased had not given account of the crops. 11. She has stated in cross examination that there are about 80 houses in the hamlet. Appellant Gangaram and accused Pandurang are real brothers, however both of them are separate from each other by all means. During the period of one week after the incident, she had not visited house of her parents. Number of villagers from her hamlet had been to the weekly bazar at Waranga and had returned in the evening. During the period of said 8 days the night was dark. Her husband used to visit various villages where his relatives are residing. Sometimes, deceased used to stay at the relatives. She had denied that her brother in law and others had enquired with her because they were suspecting that she was behind missing of her husband. She has further denied that in the morning there was rumor that one dead body was lying in percolation tank. She has admitted, in no uncertain words, that during the period of that week, number of relatives had been to her house to meet her and the visitors had enquired with her about whereabouts of Chandru. She has also admitted that she had told the visitors that her husband had been to Warud to perform some agricultural operations. Thereafter, search to trace her husband drp {13} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 was commenced. She has stated that she had shown the place near the water tank, but she herself had not gone near the said spot. She has denied that as she was suspecting about missing of her husband, she has falsely implicated the appellants in this offence. 12. In the backdrop of this evidence, we have heard learned counsel for respective appellants followed by the submissions of learned APP for respondent State. 13. Learned counsel for the appellants urged that in view of the evidence of PW-2 Dr.Venkat, that opinion as regards cause of death cannot be given as the dead body was in highly decomposed condition, the only inference can be drawn that the death of deceased was unnatural one, but it cannot be inferred that it was a homicidal death. Thus, in absence of expert opinion the inference that Chandru met with homicidal death, cannot be drawn. It is further urged that conviction of the appellants is based on the evidence given by uncorroborated testimony of PW-8, who cannot be termed as an approver. It is also submitted that PW-8 has not disclosed the incident to other relatives of the deceased for days together, which creates doubt about the creditworthiness and truthfulness of the evidence given by her. In this respect, reliance is placed by learned counsel for appellants on the ratio laid down by the Supreme Court, in the matter of "Vemireddy Satyanarayan drp {14} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 Reddy V/s State of Hyderbad" AIR 1956 SC 379, on the point as how to appreciate the evidence of the person who has witnessed the incident of crime, but did not disclose the same to anyone for long time and as to whether corroboration is necessary. Further reliance is placed by the learned counsel for the respondents on the observations of the Supreme Court in the matter of "Ravinder Singh V/s State of Haryana" AIR 1975 SC 856, on the point as to whether corroboration is necessary to the testimony of approver, whose evidence is recorded in the court. Relying on these authorities, it is urged that as the evidence of PW-8 is not corroborated on material particulars, or on any account and hence her evidence is required to be discarded. It is further urged that once the evidence of PW-8 is discarded, then there is no evidence against the present appellants and hence it is requested to allow both the appeals and acquit the appellants of all the charges. 14. Per contra, learned APP urged that PW-8 Chandrakala, who was initially arrayed as an accused No.2, in the said crime and was tried along with the appellants, has narrated the incident witnessed by her and her presence at the relevant time is quite natural. It is further urged that her evidence is not shaken that she had been to the weekly bazar along with her husband and incident occurred while they were returning back. Considering these circumstances, it is urged that her presence at the time of incident is natural and the incident narrated by her need not be drp {15} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 suspected and requires to be accepted. It is further urged that her evidence is corroborated by material particulars. It is not necessary that the corroboration is required on the material particulars about the incident, but as there is corroboration in respect of other circumstances, her evidence be accepted and both the appeals be dismissed. It is further urged that the conviction and sentence of the appellants, recorded by the trial court be confirmed. 15. Considering the rival submissions, it is necessary to ascertain as to what is the status of PW-8 Chandrakala, who was initially arrayed as accused No.2 and was tried and after she was examined u/s 313 of the Criminal Procedure Code and in the light of answer given by her to question No.22 as what she had to say more about the prosecution case and considering the answer given by her, an application was moved by the prosecution requesting for tendering pardon to her u/s 307 of the Criminal Procedure Code and after the said application was allowed, she was examined by the prosecution, as prosecution witness. On careful perusal of her answer to question No.22 as well as evidence given by her before the trial Court, after pardon was granted to her, it is clear that her evidence is exculpatory, as according to this evidence, she was not the participant in the commission of crime of assault and killing of Chandru. drp {16} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 16. As per the Black's Law Dictionary 8th Edition, meaning of "accomplice" is - “1. A person who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory. Although the definition includes an accessory before the fact, not all authorities threat this term as including an accessory after the fact, 2. A person who knowingly voluntarily and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it. As the per the said dictionary, meaning of "approver" is - “1. One who offers proof; esp. a criminal who confesses and testifies against one or more accomplices. 2. An agent or bailiff esp. one who manages a farm or estate for another. 17. Thus, it is clear that the status of PW-8 Chandrakala is as a witness to the incident of crime, as her substantial evidence as well as the answer given by her to question No.22 during her examination u/s 313 of the Criminal Procedure Code, as stated above, clearly indicates that her disclosure is exculpatory. In the premise, Chandrakala, original accused No.2, cannot be termed as approver or accomplice, as she had not participated in the alleged offence. At this juncture, it may be useful to refer the observations of the Supreme Court, in the matter of “Vemireddy Satyanarayan drp {17} Cri. Appeal No. 4/2003 WITH Cri. Appeal No.502/2010 Reddy V/s State of Hyderabad” AIR 1965 SC 379, wherein it is observed thus - “There is no warrant for the extreme proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals. Indeed, there can be no doubt that the evidence of such a man should be scanned with much caution and the Court must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though, he was not an accomplice, the Court would still want corroboration on material particulars as he is the only witness to the crime and as it would be unsafe to hang the accused on his sole testimony unless the Court feels convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence; What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable