drp {1} Cri. Appeal No.288/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.288 OF 2009 Sudam s/o Sakharam Panchal APPELLANT Age-51 years, Occ-Agriculture R/o Sayala, Taluka Palam, Dist-Parbhani VERSUS The State of Maharashtra RESPONDENT ....... Mr.Amol Kakade, Advocate for appellant, (Appointed) Mr.D.V.Tele, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 11th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present criminal appeal, the appellant has questioned the correctness and legality of his conviction u/s 302 and 307 of the Indian Penal Code and sentence of imprisonment for life and RI for 5 years, respectively, on each count, awarded by Additional Sessions Judge, Gangakhed by judgment and order drp {2} Cri. Appeal No.288/2010 dated 30.05.2009, in Sessions Case No.17/2008. 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-15) lodged by PW-1 Madhav Bhojaji Avad, on 16.02.2008, in Palam Police Station, PW-15 Yellapa Ramrao Metkar, PSI, registered an offence at Crime No.15/2008 for an offence punishable u/s 302 and 307 of the Indian Penal Code against the appellant. b) Investigation of the said crime was entrusted to PW-15 PSI Metkar. Thereafter, spot Panchanama (Exhibit-33) of the place of offence i.e. residential house of Rakhamaji Panchal, situated at Sayala village was drawn in presence of Pancha witnesses and blood found on floor, bed sheet stained with blood and one axe stained with blood were seized from the spot. The appellant, who was apprehended by the villagers, was handed over to police and was put under arrest and clothes on his person were seized under Seizure Panchanama (Exhibit-40). Thereafter, statements of certain witnesses were recorded. c) The said incident took place in the night between 15th and 16th February 2008. The injured – Pandurang and drp {3} Cri. Appeal No.288/2010 Vitthal, were taken to Rural Hospital, Palam where initial treatment was provided to them, however considering their critical condition, they were referred to Government Medical College Hospital, Nanded. At Rural Hospital, Palam, Dr.Dinkar Patil (PW-13) had examined injured Vitthal and had noticed following injuries on the person of injured Vitthal. i) CLW (incised wound) left fore arm 4cmX ½ cm x ½ cm ii) CLW (incised wound) left parietal bone 7cm x4cmX1 ½ iii) CLW left ear Pina 2 cm x ½ cm iv) CLW left clavicle region 5 X ½ cm skin deep v) CLW (incised wound) on left palm 4 X 1 cm Accordingly, medical Certificate (Exhibit-44) was issued. According to the medical officer, injury Nos.2 and 3 are grievous in nature and were caused approximately within one to two hours before Vitthal was medically examined. He has opined that the injuries, noted on the person of injured Vitthal, can be caused by axe blow. According to the medical officer, had the medical aid was not provided to Vitthal immediately, he would have expired. Accordingly MLC was issued and the injured persons were referred to Government Medical College Hospital, Nanded. d) On the way to Nanded, injured Pandurang drp {4} Cri. Appeal No.288/2010 succumbed to the injuries and inquest Panchanama (Exhibit-36) was drawn in Government Medical College Hospital, Nanded itself and PW-14 Dr.Pratap Durge conducted autopsy on the dead body of Pandurang. During the postmortem, following external injuries were noticed - 1. Incised wound 3 inch X 1 inch brain deep over left parietal bone just above left ear – horizontal 2. Incised wound 4 inch x 1 inch bone deep over right side of occipital bone – verticle (both the injuries were caused by sharp weapon and age of both the injuries was within 24 hours and they were grievous in nature) 3. Fracture of occipital bone 4. Fracture of left parietal bone Following internal injuries were also noticed on the dead body of Pandurang. 1. Incised wound 3 inch x 1 inch of brain deep over left parietal bone just above left ear. 2. Incised wound 4 inch x 1 inch bone deep over right side of occipital bone 3. Fracture of left parietal bone 3 inch X 1 inch- horizontal 4. Fracture of right side of occipital bone 4 inch x i inch-vertical drp {5} Cri. Appeal No.288/2010 The medical officer has opined that the cause of death was due to brain hemorrhage due to incised wound over skull. Accordingly, Postmortem Report (Exhibit-51) was issued. Dr.Durge has opined that the injuries noticed on the dead body of Pandurang are possible due to axe blow. e) On 17.02.2008, PHC Thakur, handed over clothes of the deceased, Inquest Panchanama, a sealed bottle of blood sample of the deceased and other documents to Police Inspector Palam Police station along with forwarding letter (Exhibit-55), which were collected by PW-15 PSI Metkar. f) During the investigation, statement of injured Vitthal (PW-7) was recorded and clothes on his person were seized under seizure Panchanama (Exhibit-29) and clothes of the deceased were seized under seizure Panchanama (Exhibit-35). Statements of certain witnesses were recorded by the police and the seized property was sent to CA for chemical analysis. After receipt of reports from CA (Exhibit-10 to Exhibit-13) and on completion of the investigation, charge sheet was filed against the appellant, before JMFC, Palam, who in turn committed the trial to the Court of Sessions, Gangakhed. drp {6} Cri. Appeal No.288/2010 g) Additional Sessions Judge, Ganghakhed, framed charge (Exhibit-2) against the appellant for the offence punishable u/s 302 and 307 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried. Defence of the appellant was of alibi and that he is falsely implicated in the offence by the interested witnesses. Record shows that prosecution has examined in all 15 witnesses to prove the charge against the appellant. The prosecution witnesses include – Madhav Avhad-who had lodged complaint (Exhibit-17) on the basis of which CR No.15/2008 was registered; Sakharam Dande-who along with others, had apprehended the appellant and handed over to police and also identified the clothes on the person of the appellant; Ashok Chaure & Munjaji Chowre – who had reached to the house of Rakhamaji immediately after hearing shouts of injured and saw that the appellant was fleeing away; Sambhaji Choure, Vishnudas Chaure and Gorakhnath Chaure, who had seen the appellant coming out from the house of Rakhamaji and was shouting that he has done his job; Vitthal Panchal-injured witness; three pancha witnesses to the Spot Panchanama and seizure Panchanamas; two medical experts and the Investigating Officer. Relying on the evidence of these witnesses the trial court has convicted the appellant for an offence punishable u/s 302 and 307 of the Indian Penal Code and sentenced him drp {7} Cri. Appeal No.288/2010 accordingly. The said judgment is impugned in the present appeal. 3. For better appreciation of the rival submissions, it is necessary to advert to the evidence of material witnesses, examined by the prosecution before the trial court. 4. It is in the evidence of PW-7 Vitthal, who was seriously injured in the said incident that, deceased Pandurang was his real brother and appellant is his real uncle. Though partition of the ancestral property was effected between his father and the appellant, yet the appellant was residing with them and was taking meals with them. Son of the appellant, was, however, residing separately in a separate house. The incident took place in the night between 15th and 16th February 2008 at about 3.00 a.m. At the time of the alleged incident, he, along with his deceased brother and appellant, was sleeping in their house and his parents had gone to Latur to see his sister. He and Pandurang were slept on a cot, whereas appellant was slept on the floor. He has stated that initially appellant assaulted Pandurang with an axe and then assaulted him on his ahead and hand. He had woken up due to the assault and had noticed that he had sustained bleeding injuries. He shouted for help. According to him the appellant was jealous of them, as their earning was handsome comparing to the earning of the appellant though all of them were working as carpenters. He and his brother Pandurang were initially taken to drp {8} Cri. Appeal No.288/2010 Primary Health Center, Palam, from where they were shifted to GMCH, Nanded. Pandurang expired on the way before they reached to Nanded. Clothes on his person were seized by the police in the hospital. He has stated in the cross examination that his father was required to spent money on the appellant and due to that his mother and brother were not happy with the appellant and there used to be disputes between his family members on this count. He has further stated in the cross examination that he was unconscious in the hospital for about 2 days and came to know that Pandurang was assaulted by the appellant. It is not a correct statement of fact, though found recorded in the statement before police. He has further stated in the cross examination that he was taken to PHC Palam by Sambhaji, Munjaji, Gorakhnath and Vishnudas in the auto of Sambhaji and on the way to the hospital, sometime he was conscious and some time unconscious. His clothes were stained with blood. 5. It transpired from the evidence of PW-3 Ashok Chaure that his house is behind the house of Rakhamaji, father of the victims. Appellant is brother of Rakhmaji and victims are the sons of Rakhamaji. All of them were working as carpenters. Appellant used to reside with them and was taking meals in the house of Rakhmaji. On the day of the incident, he heard shouts at about 3.00 a.m. from the house of Rakhamaji as “Vachava re” (Save us). He woke up and rushed to the house of Rakhamaji and saw that Vitthal was lying outside the house and he had sustained bleeding drp {9} Cri. Appeal No.288/2010 injuries on his head. Vitthal had informed him that the appellant had assaulted his brother also and requested to save his brother. Therefore, he entered in the house at that time PW-8 Gorakhnath and PW-4 Munjaji were also with him. The appellant was present inside the house and when the appellant saw them, he threw the axe and ran away. They saw that Pandurang was below the cot in pool of blood and has sustained bleeding injuries. Clothes on the person of the appellant were also stained with blood when he ran away. He has further stated that Vitthal and Pandurang were taken to the hospital in an auto and Pandurang expired on the way to the hospital. He also identified the axe stained with blood, before the Court. He has stated in the cross examination that he, Gorakhnath and Munjaji had simultaneously reached at the house of Rakhamaji and saw that Vitthal was lying outside the room. They did not catch appellant at that time. The appellant ran away towards east side of the village. Omission is proved in his cross examination that he had not stated in the statement before police that when they entered in the house, they saw Pandurang was lying below the cot. According to us, this is not a material omission or contradiction. 6. Evidence of PW-4 Munjaji is on the similar lines, however, in addition to the evidence of PW-3 Ashok he has stated that, after the appellant saw them, he threw the axe on the spot and ran away. They saw that Pandurang was also lying in the pool of blood inside the house and his clothes were stained with blood. drp {10} Cri. Appeal No.288/2010 An auto was arranged and in the said auto they carry injured Vitthal and Pandurang to the Primary Health Center, Palam where some primary treatment was given to the injured and the Medical Officer, Palam advised them to shift the injured to Nanded. On their way to Nanded, Pandurang expired while Vitthal was admitted in Government Medical College Hospital, Nanded, where he was treated. In the cross examination, he has stated that on hearing shouts for help, he had reached at the house of Rakhamaji within 5 minutes and Ashok and Gorakh were already reached there. In the moon light, he saw that the appellant ran away from the spot. He had seen the appellant in the inner room where Pandurang was lying at the distance of 2 to 4 feet and clothes on his person were stained with blood. They did not try to catch the appellant and preferred to help injured Vitthal and Pandurang. Omission has been proved in his cross examination that he has not stated in the statement before police that Gorakh and Ashok had already reached at the spot before he went there. 7. It is in the evidence of PW-5 Sambhaji that on hearing the shouts for help from the house of Rakhamaji, he had rushed there and the time was about 3.00 a.m. When he was proceeding to the house of Rakhamaji, he saw that the appellant was coming out from the house of Rakhamaji and was proceeding on the road at that time he was murmuring “nksu ekjys dke >kys” (I have killed two and my job is over). Clothes on his person were stained with blood. In the house of Rakhamaji, he saw that Vitthal and drp {11} Cri. Appeal No.288/2010 Pandurang were lying in injured condition. Injured Vitthal and Pandurang were taken in his auto, initially to PHC Palam where primary treatment was given to the injured and thereafter, they were taken to Nanded, however on the way Pandurang expired. Vitthal had sustained injury on his head and hence was admitted in the hospital at Nanded. He has further stated that there was grudge in the mind of the appellant towards Vitthal and Pandurang and, therefore, he had assaulted them, when they were in fast sleep, with the axe. He has also stated in the cross examination that within 5 to 10 minutes he reached at the house of Rakhamaji after hearing shouts. He had seen the appellant coming from the house of Rakhamaji and the clothes on his person were stained with blood. He had seen the appellant from the distance of about 5 to 6 feet. When he reached at the spot, Munjaji (PW-4), Ashok (PW-3), Gorakh (PW-8) and Vishnudas (PW-6) were already present there. His evidence is not shaken even in the cross examination. 8. Evidence of PW-6 Vishnudas is on the similar lines of the evidence of other witnesses. He has stated that at about 3.00 a.m., when he was fetching water from the Public Bore well, he saw that the appellant was coming out from the house of Rakhamaji and was murmuring “nksu ekjys dke >kys” (I have killed two and my job is over). When he reached at the spot, he saw that Vitthal was lying in front of his house in the pool of blood while Pandurang was lying inside the house. He accompanied Sambhaji, Gorakh drp {12} Cri. Appeal No.288/2010 and Munjaji in the auto to the Primary Health Center, Palam. His evidence is also not shaken in the cross examination. 9. Evidence of PW-2 Sakharam is material on the point that in the afternoon of 16.02.2008, he saw the appellant near the field of one Manik Dudhate and clothes on his person were stained with blood. He, with the help of Parshram, Sadashiv and Maruti, caught the appellant and had brought him near Maruti temple and after informing police handed over him to the police. He identified articles 1 and 2, as clothes on the person of the appellant when he was caught by them. Some omissions are tried to be brought on record from his statement before police that he has not stated in the statement before police that the appellant was wearing Chaddi and baniyan and he was caught near the field of Manik. According to us, these omissions would not take away the creditability of the evidence given by this witness. 10. Apart from evidence of these witnesses, recovery of clothes on the person of the appellant is proved from the seizure Panchanama (Exhibit-40), in the evidence of PW-12 Parshuram. 11. In the background of this evidence, we have heard learned counsel appointed on behalf of the appellant and leaned APP for the State. Learned APP supported the impugned judgment of conviction and has urged for dismissal of the appeal. Learned counsel appointed on behalf of the appellant has urged that the drp {13} Cri. Appeal No.288/2010 case of the prosecution rests on circumstantial evidence and the chain of circumstances is not established by the prosecution from the evidence brought on record. We are not in agreement with this submission of learned counsel for the appellant. 12. Considering the rival submissions and on re- appreciation of the evidence on record, the fact that death of Pandurang is homicidal one, is not disputed. It is also not disputed that Vitthal (PW-7) had sustained grievous injuries, which are also established from the evidence of PW-13 Dr.Dinkar Patil. The appellant has disputed the authorship of the injuries caused to Pandurang which resulted into his homicidal death as well as the grievous injuries found on the person of injured witness Vitthal. 13. As the case of the prosecution rests on circumstantial evidence, according to us, it is necessary to formulate the circumstances, which are - a) Appellant was residing in the house of Rakhamaji, where the incident has taken place, along with his brother Rakhamaji and nephews deceased Pandurang and injured Vitthal. b) Prosecution witness No.3 Ashok, PW-4 Munjaji and PW-8 Gorakh had seen the appellant at the spot of incident and when they saw him the appellant had ran away by throwing the axe at the spot itself. drp {14} Cri. Appeal No.288/2010 c) Appellant was apprehended by PW-2 and others in the afternoon of 16.02.2008 itself and at that time clothes on his person were stained with human blood. d) CA reports indicate that the blood found on the axe and on the clothes of the deceased is of blood group AB, and the blood group of Pandurang was AB. e) Blood found on the clothes of injured Vitthal was of blood groups “AB” and “B”. 14. The fact that the appellant was residing in the house of Rakhamaji, even after partition, is fully established from the evidence of the prosecution witnesses, particularly witnesses No.2 to 8. It is further established from the evidence of PW-3, 4 and 8 that on hearing shouts from the house of Rakhamaji, when they entered in the house of Rakhamaji, they saw that PW-7 Vitthal was lying in injured condition in the courtyard while Pandurang (deceased) was found in injured condition inside the house and at that time the appellant was present there holding axe, which he threw on seeing them and ran away and that at that time clothes on the person of the appellant were smeared with blood, which fact gets support from the CA report (Exhibit-10). 15. The fact that the appellant was apprehended in the drp {15} Cri. Appeal No.288/2010 afternoon of 16.02.2008 is also established in the evidence of PW-2, who has handed over the appellant to the police. Seizure Panchanama of seizure of blood stained clothes on the person of the appellant is also proved in the evidence of PW-12, Pancha witness and the said fact is also supported from the CA report (Exhibit-12). 16. During the investigation blood samples of deceased Pandurang, injured Vitthal and of the appellant were sent for analysis. CA reports at Exhibit-11, 12 and 13 are in respect of blood groups of Pandurang (deceased), Vitthal (injured) and Sudam (Appellant), which indicate that blood group of injured Vitthal and that of the appellant is “B”. 17. From the evidence of PW-7 injured Vitthal as well as evidence of PW-3 Ashok, PW-4 Munjaji and PW-8 Gorakh, it is clear that they had seen the appellant inside the house of Rakhamaji and at that time he was holding axe, which he threw at the spot when these witnesses saw him. The said axe was seized under spot Panchanama (Exhibit-33), which is proved in the evidence of PW-9. It has to be noted that the blood found on the axe was of the blood group of “AB”, which is the blood group of the deceased Pandurang. The same axe was used for assault on Vitthal, which fact is stand proved from the CA report in respect of blood found on the axe and blood of “B” group which is of the appellant, found on the banian of the appellant. At the time of drp {16} Cri. Appeal No.288/2010 arrest of the appellant, no injuries were found on his person. In the premise, there is no room to infer that the blood found on the clothes of the appellant was his own blood. Further, it has to be inferred that the blood found on the clothes on the person of the appellant was the blood of Vitthal. Taking into consideration the aspect that the blood found on the clothes of the deceased, on the clothes of injured Vitthal and on the clothes of the appellant is the blood of Vitthal (injured) and Pandurang (deceased) it can safely be inferred that the appellant and the appellant is the only author of the injuries found on the person of deceased Pandurang, which resulted into his homicidal death as well as the grievous injures found on the person of the injured Vitthal. In respect of the injuries sustained by Vitthal, PW-13 Medical Officer has opined that had Vitthal been not treated immediately, the injuries could have been proved fatal to his life. 18. In view of this, the circumstances, formulated for our consideration, are fully established by the evidence before the trial court and point out the guilt of the appellant and there is no place to infer the innocence of the appellant and the evidence before the trial court, which is consistent through out, is sufficient to prove the guilt of the appellant. In substance, on overall appreciation of the evidence, we find that the chain of circumstances is complete and is established by the prosecution, which points out the guilt of the appellant beyond reasonable doubt. drp {17} Cri. Appeal No.288/2010 19. Resultantly, we find that the appeal is without any merit and accordingly fails and dismissed. Before parting with the judgment, we appreciate the able assistance provided by the learned counsel appointed on behalf of the appellant. We quantify the fees payable to the learned counsel appointed on behalf of the appellant at Rs.5000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel288-09