1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.494 OF 2007 1. Bapurao s/o Maroti Khode, Age : 69 years, Occu.Agril, 2. Indubai w/o Bapurao Khode, Age : 66 years, Occu.Household Both R/o Devli, Tq. & Dist. Wardha ..APPELLANTS (Orig.Accused No.1 & 2) VERSUS * The State of Maharashtra ..RESPONDENT Mr U.B. Bilolikar, Advocate for the appellants; Mr S.V. Kurundkar, A.P.P. for the respondent. WITH CRIMINAL APPEAL NO.498 OF 2007 1. Datta s/o Bapurao Khode, Age : 25 yearsw, Occu.Agril., 2. Deepak s/o Bapurao Khode, Age : 19 years, Occu.Agri., Both R/o Devli, Tq. & Dist. Wardha ..APPELLANTS (Orig.Accused No.3 & 4) VERSUS * The State of Maharashtra, Through Police Station, Mandvi, Tq. Kinwat, District Nanded ..RESPONDENT 2 Mr U.B. Bilolikar, Advocate for the appellants; Mr S.V. Kurundkar, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 5th November, 2009 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants being aggrieved by the judgment of Ad hoc Additional Sessions Judge-2, Nanded, dated 12.10.2007, in Sessions Case No.92 of 2007, convicting the appellants for offences punishable under section 302 read with sec.34, 323, and 366 read with section 34 of the Indian Penal Code, by this appeal challenge their conviction and sentence. Criminal Appeal No.494 of 2007 has been filed by original accused no.1 & 2, while Criminal Appeal No.498 of 2007 has been filed by original accused no. 3 & 4. Since the appellants have been convicted in the same Sessions Case, both these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.12 P.S.I., Kachwe was attached to Mandvi police station. On 3 11.1.2007 at about 9.15 a.m. P.W.1 Mirabai lodged her complaint at Exh. 14. On the basis of the said complaint offence vide Crime No.4/2007 came to be registered and the investigation thereof was handed over to P.W.13 P.S.I. Chavan. Scene of the offence panchnama at Exh.16 came to be drawn in the presence of P.W.2 Bharat. From the scene of the offence a blood stained Sweter as well as other articles including ordinary mud and blood stained mud came to be seized. P.W.13 P.S.I. Chavan returned back to the police station and from there proceeded to Devli and reached Devli at about 9.00 p.m. He proceeded to the house of the accused and arrested the accused. The arrest panchnamas of the accused are at Exhs.31 to 34. Further investigation in the crime was handed over to P.W.14 A.P.I. Gawande. During custodial interrogation accused Bapurao expressed his willingness to point out the place where the dead body of Dashrath was cremated and where a stick was hidden. Accordingly the memorandum panchnama at Exh.18 was recorded in the presence of P.W.3 Bharat. Accused then led the police and the panch to a place about 1 Km. from village Devli and took the police and the panch to a graveyard of village Devli and pointed out the place where dead body of Dashrath was cremated. From the scene of the offence ash and bones of Dashrath came to be seized. The accused then took the police and the panch to his house and produced two sticks which also came to be seized vide seizure memo at Exh.19. Blood stains were noticed on the bed in the house of the accused and the pieces of bed stained with blood came to be seized. Blood samples of the accused came to be drawn by 4 the Medical Officer. The seized articles came to be referred to the Chemical Analyser for analysis vide requisition at Exhs.38, 39 and 40. The reports of the Chemical Analyser are at Exhs.41 to 44. P.W.1 Mirabai who had been injured, had been examined by the Medical Officer. However, the medical certificate of Mirabai was not received. Further to the completion of investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed a charge against the accused for offence punishable under section 323 read with sec.34, 363 read with sec.34, 366 read with sec.34, 365 read with sec.34, 302 read with sec.34 and 201 read with sec.34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. The entire prosecution case hinged upon the testimony of the eye- witnesses as well as the circumstantial evidence. The Trial Court accepted the prosecution case and found that the prosecution had established the offence against the accused beyond reasonable doubt and accordingly convicted and sentenced them. 4. Before we deal with the submissions advanced before us by Shri Bilolikar, learned Counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Mirabai states that at the time of the incident she was present in the house along with her husband and children. She has one daughter by name Jyoti and one 5 son. She further states that accused Indubai is the sister of her husband and about six months prior to the incident Indubai had requested that Jyoti be given in marriage to her son. However, P.W.1 Mirabai and her husband were not willing for the match because at that time Jyoti was a minor. Mirabai further states that the accused were demanding 4 Acres of land as dowry. On the day of the incident at about 10.00 p.m. accused had come to the house of P.W.1 Mirabai in a jeep and had assaulted husband of Mirabai by a stick. The accused had inflicted injuries on the head of Dashrath, husband of Mirabai. Dashrath died on the spot. On account of the assault, P.W.1 Mirabai cried for help and accused Datta and accused Deepak also assaulted Mirabai by a stikc. Mirabai sustained bleeding injuries on her forehead and left hand and thereafter was rendered unconscious. On the next day she regained consciousness and noticed that she was in the hospital of Mandvi. Thereafter she had lodged report at the Mandvi police station regarding the incident. She further states that she had learnt that the accused had carried Dashrath and Jyoti along with them to Devli and had cremated the dead body of Dashrath. She states that her daughter Jyoti had returned to the house and had disclosed that the accused had cremated her husband. In cross-examination she has admitted that she was married to one Ramrao and had resided with Ramrao for about twelve months but had no issue from him. One Veena was the wife of Dashrath and Jyoti and Deepak were the children born to Veena from Dashrath. She has also admitted that Dashrath and Veena had another daughter by name 6 Bali who was no more. She has admitted that she had divorced her husband Ramrao but had no documents to show that she was divorced. She has admitted that she was working in the field of Dashrath and was also doing the household work. She has admitted that Dashrath was addicted to liquor. She has admitted that she has been residing with Dashrath as his keep and and because of that there was dispute between Dashrath and his wife Veena. She has admitted that Lilabai and accused Indubai are the sisters of her husband Dashrath. She has feigned ignorance if Indubai had demanded 1/3rd share in the ancestral property to Dashrath. She has denied the suggestion that she and Dashrath had refused to give share to Indubai. She has admitted that accused Bapurao and Indubai were residing at Patoda. She has denied the suggestion that she and her husband Dashrath had threatened the accused and driven them out of village Patoda nine months prior to the incident. She has admitted that there are houses on one side of the house of Dashrath. She has admitted that it was dark at the time when the accused had entered her house. She has stated that she does not know the number of persons who were present in the vehicle. She has admitted that the accused halted at her house for about 10 to 15 minutes. She has admitted the presence of Jyoti in the house at the time of the incident. She has also admitted that Dashrath had consumed liquor but had not cried for help when he was assaulted. She has admitted that none of the outsiders were present at the time of the incident. She has admitted that the accused did not assault either Deepak or Jyoti. She 7 has stated that at the time of the incident she was sleeping and both the doors of the house were open. She has denied the suggestion that some thieves had assaulted her and Dashrath. 5. Prosecution has examined P.W.5 Vishwanath , who is a neighbour of deceased Dashrath. He states that on the day of the incident he was sleeping in the verandah of the house and had awakened on hearing cries of help from the house of Dashrath. He accordingly came on the road and noticed the accused and his wife and his two sons dragging Dashrath. He states that accused Bapurao pressed the neck of Dashrath with his leg while Indubai abused Dashrath. He states that Mirabai was crying and son of accused no.1 Bapurao dealt a blow of stick on the left hand of Mirabai and thereafter the accused took Dashrath towards their jeep. In the cross-examination he has denied the suggestion that the accused were originally residents of village Patoda. He has admitted that there is open space between his house and the house of Dashrath. He has admitted that one cannot see the house of Dashrath by sitting in his house. He has admitted that his family members were sleeping inside the house while he was sleeping in the verandah. He has admitted that he had not seen the other villagers when he was proceeding towards the house of Dashrath. He has admitted not to have entered the house of Dashrath. He has admitted that he was at a distance of 50 ft. when Dashrath was dragged. Omission has been duly proved that he had not stated in his previous 8 statement that accused Bapurao had pressed the neck of Dashrath by his legs and that accused Indubai had abused Dashrath. Similarly omission has been proved that he had not stated in his previous statement that the accused had dragged Dashrath from his house. He has admitted that it was night when the incident occurred and the adjoining house owners had not come out of their houses. 6. Similarly the prosecution has also examined P.W.6 Bhagwan, another neighbour of deceased Dashrath whose house is situated at a distance of 100 ft. from the house of Dashrath. He also states about coming out of his house on hearing the cries for help and seeing accused Bapurao, Deepak and accused Datta assaulting Dashrath by a stick. He states about accused Indubai being present there. He further states that the accused then dragged Dashrath towards the jeep and put the dead body of Dashrath in the jeep and also took Jyoti along with them in the jeep. In cross-examination he has admitted that his house is towards the southern side of the house of deceased Dashrath. He has admitted that house of Dashrath is visible from his house. He further states that when he had gone to the house of deceased Dashrath, the accused were dragging Dashrath. He has admitted not to have intervened to save Dashrath. He has stated that the jeep was parked at a distance of 1/2 Km. from the house of Dashrath. He has admitted that many persons had gathered when Dashrath was dragged. In cross-examination he has admitted that Mirabai was assaulted on her right hand which was 9 fractured. 7. Prosecution has also examined P.W. 9 Deepak and P.W.11 Jyoti as eye-witnesses. P.W. 9 Deepak, who is a child witness states about the accused coming to his house at about 10.00 to 10.30 p.m. in a jeep. He states about the accused assaulting his father Dashrath when Dashrath was sleeping on the cot. He states that after assaulting his father by a stick, the accused dragged his father from the house by catching his legs and thereafter assaulted his mother P.W.1 Mirabai. He states that the hand of his mother Mirabai was fractured and Mirabai became unconscious. He states that the accused placed his father and took Jyoti along with them in the jeep. He also states about the accused requesting for hand of Jyoti in marriage to accused Datta and about Dashrath refusing the match. In cross-examination he has stated that he does not know if Mirabai was mistress of his father. He has admitted that the accused halted for about five minutes. He has also admitted that all the family members were asleep and the door of the house was closed but not latched. He has admitted that the jeep was parked in front of one shop. He has admitted that he was awakened on account of the shouts which he had heard. He has denied the suggestion that on account of darkness he could not notice as to who had assaulted Dashrath. He has admitted that after he was assaulted, he and his mother Mirabai hid themselves. He has reiterated that Mirabai was rendered unconscious. He has admitted that the neighbours had gathered in the courtyard and 10 the neighbours had tried to separate his father. Omission has been duly proved that he had not stated in his previous statement that his father was sleeping on the cot. Similarly, omission has been duly proved that he had not stated in his previous statement that the accused had dragged his father by catching his feet. 8. Prosecution has examined P.W.11 Jyoti. P.W.11 Jyoti who was 17 years at the time of her deposition also deposes on similar lines as that of her mother and her brother. She then states that the accused dragged her father and put him in the jeep and thereafter accused no.1 Bapurao and accused Indubai also dragged her and made her sit in the jeep. They had threatened her that they would also do the same thing which they had done to her father if she did not come with them. She states that the accused then took her to Devli at their house and placed the dead body of her father in one room and also asked Jyoti to sit near her father. On the next day in the evening at about 5.00 p.m. the accused cremated her father. She states that she was not allowed to attend the funeral of her father. At about 6.00 p.m. the policeman had arrived at Devli and had released her. This witness was also cross-examined and admitted that she was illiterate. She has admitted that one Veena was her real mother and had abandoned her when she was small. She has denied the suggestion that P.W.1 Mirabai is the mistress of her father. She has admitted that accused Indubai was demanding her share in the ancestral land which was ad measuring 8 acres. She has admitted that it 11 was dark at the time of the incident and there are houses adjoining to her house. She has admitted that the door of the house was not latched and the accused started assaulting her father as soon as they entered the house. She states that she had attempted to rescue her father but the accused had dealt two blows of sticks to her. She also states about Mirabai being assaulted by a stick. Omission has been duly proved that she had not stated in her previous statement that the accused had assaulted her father, mother and herself by sticks. The omission was only in respect of "stick". Omission has been duly proved that she had not stated in her previous statement about accused Bapurao and Indubai dragging her. Omission has been duly proved that she had not stated in her previous statement that the accused had dragged her father towards the jeep. Similarly, omission has been duly proved that she had not stated in her previous statement that the accused had threatened to do the same thing to her which they had done to her father if she did not accompany the accused. Omission has been duly proved that she had not stated in her previous statement that she was made to sit in the same room where the dead body of her father was kept and that the accused had cremated her father at 5.00 p.m. 9. Shri Bilolikar, learned Counsel for the appellants has urged before us that there is consistent omission in the evidence of the eye-witnesses in respect of the accused dragging Dashrath from his house to the jeep. It is further stated that since it was dark at the time of the incident, it was 12 not possible for the witnesses to have identified the accused and consequently the accused have been falsely implicated by the witnesses. It is further stated that there is no iota of evidence in respect of any motive to commit murder of deceased Dashrath. The learned A.P.P. has supported the judgment of the Trial Court and has prayed for dismissal of the appeal. 10. P.W.1 Mirabai and her two children have deposed about accused Indubai demanding her share in the ancestral land. P.W.1 Mirabai also deposed about the accused asking for hand of Jyoti in marriage to accused Datta and about Dashrath refusing. In any event, where the evidence of the eye-witnesses is cogent and reliable, failure of the prosecution to prove motive pales into insignificance. In the present case, P.W.1 Mirabai, P.W.9 Deepak and P.W.11 Jyoti have deposed in no uncertain terms about the accused entering their house and assaulting Dashrath and then taking P.W.11 Jyoti along with them. Jyoti deposes to the subsequent events when she was taken from her house to the house of the accused and being released by the police. The accused are relatives of these witnesses and even if it was dark, we do not find that it was difficult for the witnesses to have identified the accused as the assailants. P.W.11 Jyoti was in their company in the jeep and in such circumstances, there is no merit in the contention of the learned Counsel for the appellants that the accused have been falsely implicated. P.W.1 Mirabai, P.W.9 Deepak and P.W.11 Jyoti have been cross-examined at 13 length and at the close of their cross-examination all these three witnesses have emerged unscathed and we find them to be wholly reliable. There is no material on record to doubt the credibility of these eye-witnesses. The Trial Court, according to us has correctly appreciated the evidence and has accordingly convicted original accused no.3 Datta and original accused no.4 Deepak for offence punishable under section 302 read with sec. 34 of the Indian Penal Code as the evidence on record clearly indicated that they had assaulted deceased Dashrath and had committed his murder. The Trial Court has also correctly appreciated the evidence and convicted original accused no.3 Datta and original accused no.4 Deepak for offence punishable under section 323 read with sec. 34 of the Indian Penal Code for having caused injuries to Mirabai. Since original accused no.1 Bapurao and original accused no.2 Indubai had not participated in the assault on deceased Dashrath and Mirabai and there was nothing to indicate that they had shared the common intention of Datta and Deepak in causing injuries to Mirabai and death of Dashrath, accused Bapurao and accused Indubai have been acquitted. However, accused no.1 Bapurao and accused no.2 Indubai have been convicted for an offence punishable under section 366 read with sec.34 of the Indian Penal Code as they had dragged P.W.11 Jyoti and had made her sit in the jeep. All the accused have been rightly convicted for an offence punishable under section 201 read with sec. 34 of the Indian Penal Code as they had cremated the dead body of deceased Dashrath and had caused the evidence to disappear. In such circumstances, 14 therefore, according to us even if the evidence of P.W.5 Vishwanath and P.W.6 Bhagwan and the other circumstantial evidence is left out of consideration, the evidence of these witnesses establishes the offence against the accused beyond reasonable doubt. The accused, therefore, are guilty for the offences with which they were charged and convicted. We thus see merit in the prosecution case. The appeals , therefore, which are without any merit are dismissed confirming the conviction and sentence. ( A.V. NIRGUDE, J.) ( P.V.HARDAS, J.) amj/cria494.07