1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.488 OF 2008 Dilip Shankar Watmare Age 46 years, (Convict No.C-15257 Presently lodged at Yerwada Police Station, Pune) .. Appellant Versus The State of Maharashtra ..Respondent Mr.S.U.Choudhari, Advocate (initially appointed) for appellant Smt.S.S.Jadhav, Advocate for the appellant Mr.B.V.Wagh, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 23rd SEPTEMBER 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/-; with a default condition of undergoing further rigorous imprisonment for six months in the event of non payment of fine, by the Ad hoc District Judge-3 and Additional Sessions Judge, Ahmednagar, by judgment dated 31.12.2007, in Sessions Case No.132/2007, by this appeal questions the correctness of his conviction and sentence. 2 2. Initially, this appeal came to be presented by the appellant through jail and we had appointed Advocate Shri S.U.Choudhari to represent the appellant in this appeal before us. Subsequently, it appears that the appellant has engaged a Counsel and accordingly has filed the Vakalatnama of the Counsel. We have accordingly heard the learned Counsel appointed by the appellant to represent him in this appeal and the learned Assistant Public Prosecutor on behalf of the respondent. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.8 P.S.I. Babulal More, who was attached to the Shrigonda Police Station, was entrusted with the investigation of the crime registered at Shrigonda Police Station on 12.3.2007, on the basis of the report at Exh.18 submitted by P.W.1 Baban. The offence was registered vide Crime No.69/2007 under Sections 302 and 201 of the Indian Penal Code. P.W.8 P.S.I. More accordingly visited the scene of the incident, drew the scene of the offence panchnama at Exh.22 in the presence of P.W.3 Shivaji and drew the inquest panchnama of dead body of deceased Anandgiri Maharaj at Exh.20 in the presence of P.W.2 Dattatraya. He referred the dead body for post mortem examination and post mortem examination came to be conducted by P.W.6 Dr.Shaila 3 Dange. P.W.6 Dr.Shaila Dange noticed 29 external injuries which are described in detail in column No.17 of the post mortem report. The external injuries, which are 29 in numbers are described below: 1. Abrasion 1.5 x 0.5 cm. on left frontal region of skull, 7 cm above eyebrow, scab present; 2. Abrasion 1.5 x 0.5 cm 1 cm below inl. no.1 scab present; 3. Abrasion 2 x 0.5 cm on left side of forehead scab present; 4. CLW – 4 x 0.5 cm x bone deep, over skull 6 cm above left ear pinna, clotted blood present; 5. CLW – 6 x 0.5 cm x bone deep, over left parietal region of skull, transverse, clotted blood present; 6. CLW – 3 x 1 cm x bone deep, over middle of occipital region of skull, clotted blood present; 7. CLW – 4 x 2 x bone deep, transverse 1 cm below inl. no.6, clotted blood present; 8. Partial amputation of left ear lobe; 9. Partial amputation of right ear lobe; 4 10. Absence of left eyeball, clotted blood present in cavity; 11. Contusion – 4 x 3 cm on post aspect of right elbow; 12. Contusion – 3 x 2 cm on post aspect of middle L/3rd of right forearm; 13. Contusion – 2 x 1 cm on dorsal aspect of right hand at the base of thumb; 14. Fracture – left radius and ulna on lower L/3rd contusions covering fracture over forearm; 15. CLW – 3 x ½ x ½ cm, transverse above upper lip, clotted blood present; 16. Abrasion – 1 x 0.5 cm on left side of chest 7 cm below nipple scab present; 17. Abrasion - ½ x ½ cm on left illiac region of abd scab present; 18. Multiple abrasions covering 5 x 4 cm area on ant.aspect of upper L/3rd left thigh scab present; 19. Abraison 5 x 4 cm over left hip scab present; 20. Multiple abrasions covering 10 x 9 cm over left buttock scab present; 5 21. Abrasion – 15 x 7 cm on left knee and upper L/3rd of leg, anteriorly, scab present; 22. Abrasion – 1 x ½ cm on lateral aspect of left ankle, scab present; 23. Multiple abrasions covering 5 x 5 cm area over ant.aspect of lower L/3rd of left thigh, scab present; 24. Multiple abrasions covering 15 x 5 cm area over upper L/3rd of ant. aspect of right thigh, scab present; 25. Abrasion – 3 x 1 cm on ant. aspect of middle L/3rd of right leg scab present; 26. Abrasion – 10 x 5 cm over right knee, scab present; 27. Abrasion on left intra-axillary region, white base; 28. Abrasion – 1 x 1 cm on left intra-scapular region, white base; 29. Abrasion 2 x 1 cm on middle of lower back of level of L/3rd, white base. 6 According to P.W.6 Dr.Dange the probable cause of death was shock due to subdural Hematoma due to head injury. She has further opined that the death is a homicidal death in the nature of injuries. The post mortem report is at Exh.28. The clothes of deceased came to be seized vide seizure memo at Exh.26 in the presence of panch witnesses. The appellant-accused came to be arrested and his clothes, which were blood stained were seized vide seizure memo at Exh.25 in the presence of P.W.5 Balasaheb Jadhav. The clothes after their seizure were sealed. The seized articles were referred to the Chemical Analyser for examination vide requisition at Exhs.31 and 32. The report of the Chemical Analyser is at Exh.33, which discloses that the clothes which were worn by deceased Anandgiri Maharaj were stained with blood of AB group and the blood stains on the clothes of the accused were determined as of AB group. The defence of the appellant-accused is of denial. The appellant-accused came to have been falsely implicated in the crime at the behest of the complainant. 4. Further to the completion of investigation, the charge-sheet had been filed against the appellant-accused and on its committal to the Court of Sessions, the prosecution examined eight witnesses. The trial Court upon appreciation of the evidence of the prosecution came to the conclusion that the prosecution had proved the offence against the appellant - accused beyond 7 reasonable doubt and accordingly convicted and sentenced the appellant for the offence punishable under Section 302 of the Indian Penal Code. The trial Court, however, acquitted the appellant-accused of the offence punishable under Section 201 of the Indian Penal Code. 5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the appellant and the learned Assistant Public Prosecutor for State, it would be useful to refer to the evidence of the prosecution witnesses. 6. P.W.1 Baban, who had lodged the first information report at Exh.18 states that on 12.3.2007 he had gone to Visapur cross roads on his motorcycle at about 8.30 a.m. in order to proceed to the temple of Mahadev which was situated on a hill. According to P.W.1 the pooja at the temple was performed by one Anandgiri Maharaj. At that time, while proceeding to the temple he had stopped at the hotel of P.W.7 Subhash, who had received a message on telephone about an unfortunate incident, which had happened to Anandgiri Maharaj. He states that accordingly he had proceeded towards the temple in order to verify what the matter was and had learnt there that Maharaj had been killed and his dead body had been thrown in the valley. From the height he had seen the dead body lying in the valley and had accordingly 8 lodged his report. He learnt that it was the appellant, who had committed the offence. In cross-examination he has admitted that there is thick forest in the valley and has also admitted that the forest was infested by wild animals. He has also admitted that no electricity facility is available in the hilly region. He has also admitted that Maharaj was residing alone in the hills and was cooking his own food. Omission has been duly proved that he had not stated in the report that he had reached at Visapur cross roads at 8.30 a.m. on 12.3.2007. He has also admitted as true that the time, which was stated by him in the report was 9.15 a.m. 7. P.W.2 Dattatraya is a panch witness to the inquest panchnama of deceased Anandgiri Maharaj at Exh.20. In cross- examination he has admitted that the Investigating Officer did not have a measuring tape in his possession. 8. P.W.3 Shivaji is a panch witness to the scene of the offence panchnama at Exh.22. He further states that deceased Maharaj was aged about 70 years and was concerned with the affairs of the temple, which was situated on the top of the hill. He further states that the villagers had presented a mare to the Maharaj. He further states that on 12.3.2007 in the morning in between 8.15 a.m. and 8.30 a.m. he had met the appellant-accused in between 9 Mungusgaon and Visapur cross roads. The appellant-accused had a mare with him and was riding the said mare. He states that clothes of the appellant-accused were blood stained and the mare appeared to be tired. He accordingly asked the accused the reason for being in possession of the mare belonging to the Maharaj and about the reason as to why the clothes of the appellant-accused were blood stained. On such query, the appellant-accused replied that he had killed the Maharaj and was taking away the mare. P.W.3 Shivaji then states that he went by his vehicle to the Visapur cross roads and disclosed what was informed to him to one Balu Vitekar, Baban Pandharkar, Subhash Bhotte etc. P.W.3 further states that he had learnt that the appellant-accused had been accosted. He had accordingly proceeded to the temple for verifying if some unfortunate incident had befallen with the Maharaj. However, Anandgiri Maharaj was not found in the temple and, therefore, he took search and found that at a distance of 80 ft. the dead body of Maharaj was lying in the valley. He states that clothes of Maharaj were stained with blood. He further states that after drawing the scene of the offence panchnama the Police had recorded his statement. He had also stated that the accused used to request the Maharaj for lending the Mare to accused for fetching water to temple from the foot of the hills but the Maharaj had declined to lend him the mare. In cross-examination he has admitted that 10 there are several stones resembling the seized stone lying in the valley. He has admitted that he is serving as a driver and used to get off only on Saturday. He has admitted that he used to attend his duty at 8.00 a.m. and return home after 7.00 p.m. Omission has been duly proved that he had not stated in his statement that he had enquired with the accused as to how the accused was in possession of the mare and the reason as to why the clothes of the accused were blood stained. Omission has been duly proved that he had not stated in his previous statement that the mare appeared to be tired. He has denied the suggestion that on his questioning the accused, accused had confessed to him that he had killed deceased Maharaj. He has further admitted in cross- examination as true that he and the accused were alone when the accused had confessed to him. He has denied the suggestion that there was a quarrel between the accused and sister of P.W.3 and accordingly, P.W.3 was deposing false on that count. 9. Prosecution has examined P.W.4 Ashok, who states that in his presence no one had demanded the mare from the Maharaj. He has also stated that no conflict existed between the Maharaj and someone else in respect of the mare. He states that he had met P.W.3 Shivaji in order to take back his motorcycle. He further states that Sarpanch and the other villagers had stated to him that the appellant-accused, who was seen going around with the 11 mare of Maharaj. He states that he and the other villagers had accosted the accused, who was with the mare and had brought the accused at the village and had handed over the accused to the Police. He had further stated that when they had seen the accused, his clothes were blood stained and when they had enquired with the accused, he had stated that he had killed Maharaj and was taking away the mare. In cross-examination he has admitted that P.W.3 Shivaji is his close relative. He has further admitted that he used to meet Shivaji daily as Shivaji was the driver. He has also admitted that Shivaji used to take his two wheeler in the night and return it on the next morning. He has also admitted that on the day of the incident also Shivaji had borrowed his two wheeler but had not brought his two wheeler and, therefore, he had gone to Mungusgaon in order to get back his vehicle from Shivaji. He has denied the suggestion that there were cross terms between the accused and Shivaji on account of land transaction between Shivaji’s sister and the appellant- accused. He has denied the suggestion that some grudge was harboured by Shivaji against the appellant-accused. He has admitted as true that the Sarpanch had given information to him about the accused. He has also admitted as correct that the Sarpanch had informed him what was uttered by the accused. He has also admitted as true that after such utterances the Sarpanch had gone and had apprehended the accused. He has also 12 admitted as true that thereafter the Sarpanch had telephoned the Police and handed over the custody of the accused to the Police. He has admitted that he was one of the spectators in the group which had gathered there. He has admitted as true that he had no talk with the accused at that time. 10. P.W.5 Balasaheb is a panch witness to the seizure of the clothes of the accused at Exh.25 and the seizure of the clothes of deceased at Exh.26. In cross-examination-in-chief he has stated that he does not remember whether there were any stains on the clothes. He has further admitted that the clothes were seized and sealed by affixing a label of the signature of the panchas. 11. P.W.6 is the Medical Officer, who has deposed about the injuries sustained by the deceased and the cause of death of deceased. In cross-examination she has admitted that injuries 11 to 13 were not possible by beating by stone. She has admitted that injuries 11 to 13 were possible by fall on stones. She has also admitted that injury No.14 was possible on account of fall from a height. The accused had endeavoured to suggest to the Medical Officer that all the injuries were possible on account of fall in the valley. 13 12. P.W.7 Subhash is a witness to whom the villagers had made certain disclosures and nothing therefore much depends upon the evidence of this witness. P.W.8 is the Investigating Officer, who has deposed about the investigation, which was carried out. 13. Learned Counsel for the appellant has urged before us that there is no reliable evidence in respect of the blood stains on the clothes of the accused. According to the learned Counsel for the appellant the panch witness states that he does not remember if the clothes of the appellant-accused were stained with blood. According to us the aforesaid submission is devoid of any merit. P.W.3 Shivaji and P.W.4 Ashok have stated about the presence of blood stains on the clothes of the accused. The panchnama relating to the seizure of the clothes of the accused contains a recital that the clothes of the accused were stained with blood. The report of the Chemical Analyser clearly discloses that the clothes which were worn by deceased Anandgiri Maharaj were stained with blood of AB group and the blood stains on the clothes of the accused were determined as of AB group. 14. Learned Counsel for the appellant has further urged before us that since this case rests on circumstantial evidence, mere finding of blood of similar group as that of the deceased on the clothes of the accused and the accused being found in possession 14 of the mare belonging to the deceased Anandgiri Maharaj would not necessarily lead to an inference that it is the appellant and the appellant, who had committed murder of deceased Maharaj. It is also urged before us that deceased Maharaj could have died on account of fall in the valley. The learned Assistant Public Prosecutor has opposed the aforesaid submission and has urged before us that the evidence unerringly points to the guilt of the accused. 15. In cases resting on circumstantial evidence, it is essential for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of a conclusive nature and the circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unquestionably point to the guilt of the accused. In other words, the circumstances so proved by the prosecution hould be capable of only one inference that the accused and the accused alone has committed the crime. In the present case assuming that deceased Maharaj had died on account of fall in the valley, i.e. the accidental death, the accused does not explain as to how his clothes were found stained with the blood matching with that of the blood group AB of Anandgiri Maharaj. The accused had also not accounted for mare which was belonging to Maharaj. Evidence of prosecution 15 clearly indicates that deceased Maharaj would never part with the mare and would not lend the mare to anyone else. Evidence of prosecution indicates that the appellant-accused had asked the Maharaj to lend him the mare in order to fetch the water to the temple from the foot of the hills. 16. The finding of blood group similar to that of the deceased Maharaj on the clothes of the accused and finding the mare of the Maharaj in possession of the accused clearly completes the chain. The appellant-accused has not offered any explanation whatsoever. The prosecution witness, i.e. P.W.3 Shivaji has clearly deposed about the extra-judicial confession being made by the accused to P.W.3. These circumstances, therefore, according to us complete the chain which excludes every hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. The possibility of accidental death of deceased Anandgiri Maharaj is completely ruled out by the medical evidence, which clearly suggests that it was a homicidal death. The evidence of the prosecution leaves no manner of doubt to even remotely indicate that it was not the appellant, who had committed murder of deceased Anandgiri Maharaj. 17. Upon consideration of the submissions advanced by the learned Counsel for the parties and after examining the evidence 16 of the prosecution in detail, according to us the trial Court has rightly convicted and sentenced the appellant for an offence punishable under Section 302 of the Indian Penal Code. The order of conviction and the sentence, therefore, do not require any interference in this appeal. Consequently, this appeal being sans merit is dismissed confirming the conviction and sentence of the appellant-accused. We quantify the fees payable to Mr.S.U.Choudhari, learned Counsel who had been initially appointed on behalf of the appellant and who had argued the appeal for admission before the Court at Rs.1,500/- (Rs.One thousand five hundred). ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/488.08criapeal)