1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.116 OF 2007 1. Dinesh s/o Baburao Gadekar Age 24 years, Occu.Student, R/o Maji Sainik Colony, Padegaon, Taluka and District Aurangabad 2. Janardhan s/o Baburao Gadekar Age 26 years, Occu.Student, R/o Maji Sainik Colony, Padegaon, Taluka and District Aurangabad .. APPELLANTS VERSUS - The State of Maharashtra .. RESPONDENT Shri Joydeep Chatterji, Advocate holding for Shri R.P.Mote, Advocate for appellants Shri S.V.Kurundkar, Additional Public Prosecutor for respondent- State - WITH - CRIMINAL APPEAL NO.20 OF 2007 Raju s/o Digambar Peherkar, Age 24 years, Occu.Labour, R/o Maji Sainik Colony, Padegaon, Taluka and District Aurangabad .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Shri S.S.Shinde, Advocate for appellant 2 Shri S.V.Kurundkar, Additional Public Prosecutor for respondent- State - WITH - CRIMINAL APPEAL NO.254 OF 2007 Jitendra s/o Baburao Gadekar, Age 28 years, Occu.Student, R/o Maji Sainik Colony, Padegaon, Taluka and Distirct Aurangabad .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Shri N.S.Ghanekar, Advocate holding for Shri Krishna Gande, Advocate for appellant Shri S.V.Kurundkar, Additional Public Prosecutor for respondent- State - WITH - CRIMINAL APPEAL NO.678 OF 2006 1. Baburao s/o Devji Gadhekar, Age 54 years, Occu.Agriculturist, R/o Nidhona, Taluka Phulambri, District Aurangabad 2. Pushpabai w/o Baburao Gadekar, Age 49 years, Occu. Agriculturist & Household, R/o Village Nidhona, Taluka Phulambri, District Aurangabad (Presently in Jail custody) .. APPELLANTS (Orig.Accused No.6 & 7) 3 VERSUS - The State of Maharashtra .. RESPONDENT Shri A.H.Kapadia with Shri H.F.Pawar, Advocates for appellants Shri S.V.Kurundkar, Additional Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 10th November 2009 ORAL JUDGMENT [ PER P.V.HARDAS , J ] 1. The appellants/original accused No.1, 2 and 3 stand convicted for an offence punishable under Section 302 read with 34 of the Indian Penal Code and are sentenced to suffer imprisonment for life and to pay fine of Rs.500/- each with a default condition of undergoing further simple imprisonment for one month in the event of non payment of fine. 2. Original accused Nos.1, 2 and 3 are further convicted for an offence punishable under Section 302 without any supported sentence being awarded to them. Original accused Nos.6 and 7 stand convicted for an offence punishable under Section 120-B of the Indian Penal Code and are sentenced imprisonment for life and to pay fine of Rs.500/- each with a default stipulation of undergoing further simple imprisonment for 4 one month in the event of non payment of fine. In addition thereto, original accused Nos.1, 2, 3, 6, 7 and 8 stand convicted for an offence punishable under Section 201 of the Indian Penal Code with each of them being sentenced to imprisonment for five years and to pay fine of Rs.500/- each with a default condition of undergoing further simple imprisonment for one month. Accused Nos.1, 2, 3, 6 and 7 stand convicted for offence punishable under Section 109 read with 34 of the Indian Penal Code but no separate sentence is awarded to original accused Nos.1 to 3 while 6 and 7 with no separate sentence being awarded. Accused Nos. 1, 2 and 3 are further convicted for an offence punishable under Section 394 of the Indian Penal Code with each sentenced to imprisonment for life and to pay fine of Rs.500/- each in default of payment of fine to suffer further simple imprisonment for one month. Accused No.8 Raju stands convicted for an offence punishable under Section 202 and 411 of the Indian Penal Code and is sentenced to rigorous imprisonment for six months and to pay fine of Rs.500/- with a default condition of undergoing further simple imprisonment for one month and rigorous imprisonment for six months and to pay fine of Rs.500/- with a default condition of undergoing further simple imprisonment for one month, respectively. Accused Nos.1, 2 and 3 stand convicted for an offence punishable under Section 450 read with 34 of the Indian Penal Code with sentence of three years each and to pay fine of 5 Rs.500/- each with a default condition of undergoing further simple imprisonment for one month in the event of non payment of fine, by the III Additional Sessions Judge, Aurangabad by judgment dated 26.9.2006 in Sessions Case No.151 of 2003. Since all these appeals arise against the common judgment, these appeals are being decided by this common judgment. 3. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus. P.W.57 Surendra s/o Jagannath Shirsath, A.P.I. attached to the Wadodbazar Police Station, was on duty on 5.4.2003. On that day, he recorded the complaint at Exh.45 of P.W.1 Sominath Vishwanath Gaikwad. On the basis of the said complaint, he registered an offence and took over the investigation. He accordingly visited the scene of the incident which is situated at Nidhona. He visited the house of the deceased and noticed the front doors of the house locked. He peeped through the window and he had seen the six dead bodies. A door of the house which open towards the lane was found to be opened and accordingly, he pushed that door and gained entry in the house from the kitchen. He entered the room where the dead bodies were lying. He noticed in all six dead bodies and removed the dead bodies outside the house and placed them on cots. He 6 drew the inquest panchnama of the dead bodies. The inquest panchnamas of the dead bodies of Malanbai, Sumitra and Rahul are at Exhs. 54, 55 and 58. The inquest panchnamas of the remaining three dead bodies were drawn by P.S.I. Dilpak which are at Exhs. 53, 56 and 57. The dead bodies were thereafter referred to Phulambri for post mortem examination. From the scene of the offence he arrested original accused No.1 Jitendra and original accused No.6 Baburao. Thereafter the scene of the offence panchnama came to be drawn in the presence of panch witnesses and samples of blood stains which were noticed in the room, one black coloured shawl, one green coloured shawl, one white coloured shawl, one white scarf and one lock cmae to be seized in the said panchnama. The aforesaid seized articles are Articles 1 to 5. The scene of the offence panchnama is at Exh. 228. A Photographer from Wadodbazar was also requested to take photographs of the dead bodies as well as the wheel marks of the bullock-cart and accordingly, the Photographs came to be taken which are Articles A to G. P.W.57 A.P.I. Shirsath had allegedly made certain enquiries with the accused though the memorandum being recorded. The trial Court has taken the replies of the accused on record and since the replies are wholly inadmissible in evidence, we do not advert to the said replies. Suffice it to say that P.W.57 A.P.I. Shirsath proceeded to another place which was situated at a distance of about 2.5 kms from the 7 house where the dead bodies were noticed. He had noticed blood stains at that place and had also noticed blood stains about 100 feet away. One black shoe was found at that spot. He had noticed a bullock-cart standing on the boundary in the agricultural land of deceased Narsing and had noticed blood stains on the bullock-cart. He had also noticed that paint had been applied on the aforesaid blood stains in order to obscure the said blood stains. A panchnama accordingly came to be drawn at Exh.229 in the presence of two panchas and from the scene of the offence certain articles came to be seized. The aforesaid articles are Articles 6 to 17 and 19. While Article 18 is the bullock-cart. After completing the panchnama, P.W.57 A.P.I. Shirsath returned back to the village and had noticed that the finger print expert meanwhile had developed the prints found on the glass of the iron cupboard and had lifted the print. A panchnama accordingly came to be drawn at Exh.230. Thereafter, accused Janardan i.e. original accused No.3 came to be arrested. During custodial interrogation accused No.3 Janardan is alleged to have expressed his willingness to point out the place where the tin of paint was hidden by him. After this disclosure, two panchas were called and in the presence of the two panchas, Janardan alleged to have again expressed his willingness to point out the place where the tin of paint was concealed by him. Accordingly, memorandum at Exh.31 came to be drawn in the presence of the panchas. After 8 the memorandum at Exhs.231 was drawn, accused Janardan led the Police and the panchas to the place where the bullock-cart was standing and produced the tin of paint containing the paint came to be seized in presence of two panchas vide seizure memo at Exh.32. The tin of paint is Article 49. Original accused No.4 Kishore came to be arrested on 12.4.2003 and clothes of accused Vijay came to be seized from his house at Padegaon. The clothes comprised of a blue shirt and a black trouser. The aforesaid clothes came to be seized vide panchnama at Exh.233. A letter was addressed to the Circle Inspector of Wadodbazar for drawing the sketch of the scene of the offence and the said letter is at Exh.234. Certain query was made with the Deputy Engineer (Telephones) in respect telephone calls made on telephone No. 285432 which was registered in the name of one Shaikh Mukim Shaikh Hyder, resident of Nidhona. With the permission of the Judicial Magistrate, First Class, Sillod finger prints of the accused came to be taken. The arrest panchnamas of accused Janardan, Baburao, Kishor and Jitendra are at Exh.240, 241, 242 and 243. Further investigation thereafter came to be handed over to P.W. 58 Dy.S.P. Jadhav. On the next day of being entrusted with the investigation, P.W.58 Dy.S.P. Jadhav arrested original accused No. 2 Dinesh. He thereafter recorded the statements of witnesses. During custodial interrogation, i.e. on 6.4.2003 accused Jitendra expressed his willingness to point out the place where the axe 9 was hidden. The memorandum of the accused came to be recorded at Exh.250 in the presence of the panch witnesses. The accused, after recording the memorandum, led the Police and the panchas to the place where the axe was hidden and accordingly the accused produced the blade of the axe from the place where the cattle are generally tithed. The blade of the axe which was noticed to be blood stained came to be seized under panchnama at Exh.251. The said axe is Article 37. Thereafter, accused Jitendra is alleged to have expressed his willingness to point out the place where his clothes were hidden by him. Accordingly, a memorandum came to be drawn in the presence of two panchas at Exh.252. The accused thereafter led the Police and the panchas to the open bathroom which was near his house and on removing the stones, produced a gunny bag which contained the clothes. The clothes of the accused consist of shirt and pant which was found to be blood stained and were accordingly seized vide seizure memo at Exh.253. The clothes of accused Jitendra are Articles 42 and 43. There is a reference in the evidence about certain disclosure being made by accused Jitendra to the Police Officer but since no memorandum is prooved, no reference can be made to whatever the accused had stated to P.W.58 Dy.S.P. Shri Jadhv during the course of investigation, particularly when accused Jitendra had been arrested. The aforesaid information also does not lead to the discovery of any fact, at least i.e. not 10 alleged by the prosecution. Suffice it to say that thereafter P.W. 58 Dy.S.P.Jadhav visited the house of accused No.8 Raju and from a drum seized certain articles vide seizure memo at Exh.254. The aforesaid Articles are jewelery and wrist watch etc. The said articles seized from the house of accused Raju are Articles 38, 39, 40 and 41. At midnight, accused Dinesh expressed his willingness to produce the handle of the axe which had been concealed by him. Accordingly, the memorandum of accused Dinesh came to be recorded in the presence of panchas at Exh. 255. Accused Dinesh accordingly led the Police and the panchas to a Karkhana near Phulambri and produced the handle of the axe from the thorny bush on the road. The said handle of the axe accordingly came to be seized vide seizure memo at Exh.256. Accused Pushpabai had produced the clothes of accused Baburao from her house which comprised of pant and shirt. The aforesaid clothes came to be seized vide seizure memo at Exh.257. The clothes are Articles 47 and 48. On the same day, accused Pushpabai and accused Raju came to be arrested. Statements of other witnesses came to be recorded. On 9.4.2003, accused Jitendra expressed his willingness to point out the place where he had thrown the knife. Accordingly, memorandum of accused Jitendra came to be drawn at Exh.88 in the presence of panch witnesses. Accused Jitendra led the Police and the panchas to the agricultural land of the accused and pointed out the Well. Since 11 there was water in the Well the water was removed by means of a motor pump installed on the Well. Thereafter, a knife was removed from the Well which came to be seized in the presence of panchas vide seizure memo at Exh.89. Accused Dinesh came to be arrested and his clothes also came to be seized vide seizure memo at Exh.258. On 10.4.2003, one Pravin Gadekar produced a motorcycle which came to be seized vide panchnama at Exh.66. Accused Kishor came to be arrested and another motorcycle of Rajdoot make came to be seized from Sunil Gadekar vide seizure memo at Exh.67. One accused Vijay Jadhav came to be arrested and his clothes came to be seized under seizure memo at Exh. 259 and 260. On 14.4.2003, accused Janardan expressed his willingness to produce his clothes and the yoke of the bullock-cart which he had kept at his agricultural field at Nidhona. The clothes of accused Janardan comprised of the jacket of the track pant which came to be seized after recording the memorandum at Exh.261, under the seizure memo at Exh.262. The yoke of the bullock-cart also came to be seized vide seizure memo at Exh. 262. The jacket of the track pant of accused Janardan is Article 56 while the yoke of the bullock-cart is Article 57. Statements of the witnesses came to be recorded under Section 164 of the Code of Criminal Procedure by the Judicial Magistrate, First Class, Sillod. 12 4. Post mortem on the dead body of deceased came to be carried out by P.W.32 Dr.Govind Tele who conducted the post mortem on the dead body of deceased Malanbai and deceased Vijay. The post mortem reports of the deceased are at Exh.110 and 111. Post mortem on the dead body of deceased Narsing came to be carried out by P.W.33 Dr.Kulkarni and the post mortem report is at Exh.116. P.W.46 Dr.Megha Jaraje carried out the post mortem on the dead body of Rahul and the post mortem report thereof is at Exh.150. The accused during the trial have not disputed that the death of deceased were homicidal death and in that light no dispute was raised either in respect of the cause of death or the nature of the injuries sustained by the deceased. We, therefore, do not consider it necessary to advert in detail to the injuries sustained by each of the deceased. 5. Before we deal with the submissions advanced before us by the learned Counsel for the parties, it would be appropriate that we deal with the evidence of the witnesses first. This is a peculiar case where more than half the witnesses were declared hostile and did not support the prosecution. All the panch witnesses were declared hostile and did not support the prosecution. The eye witnesses who had been examined by the prosecution also did not support the prosecution. The prosecution, therefore, rested its case against the accused on 13 circumstantial evidence which was collected during the investigation. Evidence of P.W.1 Sominath Vishwanath Gaikwad, i.e. the first informant, is relevant from the point of view of circumstance of motive. P.W.1 Sominath states that his mother hails from the family of Gadekar and the sister of one Devji Gadekar. Deceased Malanbai was the wife of Devji Gadekar. He is nephew of deceased Malanbai. He states that Devji had three sons namely Baburao, Narsing and Ramdas. Out of them, Ramdas died about 10 years ago while Baburao was residing with his family separate from Devji. Accused Baburao has three sons namely accused Jitendra, accused Janardan and accused Dinesh. Deceased Narsing was residing with his wife Sumitrabai and his two sons deceased Rahul and Vijay. Deceased Narsing was residing with deceased Devji. P.W.1 Sominath further states that his sister Chandrakalabai who was residing at Pimpalgaon had come to his house on 3.4.2003 and as she was to return back to her village, he took her on his motorcycle on 5.4.2003 and came at Nidhona at about 10.00 a.m. From Nidhona his sister proceeded to her village by a bus. He thereafter went to house of his deceased maternal uncle i.e. deceased Devji. He noticed the front door of the house was locked. From the open shutters of the window, he peeped inside and he noticed the dead body of deceased Malanbai and also noticed the dead body of deceased Vijay. He, therefore, opened other shutter of the window and 14 then noticed the dead bodies of deceased Narsing, Sumitra, Rahul and Devji. He gave a call to them but none of the deceased responded and, therefore, he immediately went to the Police Patil and informed him about the situation. Alongwith the Police Patil and other villagers he returned back to the residence of Devji and pointed out them the dead bodies in the house. He alongwith Police Patil thereafter went to the Wadodbazar Police Station on his motorcycle and lodged the report. P.W.1 Sominath further states that there was a long standing dispute between Narsing and accused Baburao on account of the share in the ancestral property. He states that often they would indulged in physically assaulting each other. Several complaints had been filed in the Wadodbazar Police Station and on one occasion, accused Baburao and Dinesh assaulted Narsing. 6. Prosecution has examined P.W.37 Kaushalyabai daughter of deceased Devji and Malanbai. She is the sister of deceased Narsing and accused Baburao. She states that her father Devji had partitioned the property about 5 to 6 years back and in the partition accused Baburao had got a plot and house property at Aurangabad while deceased Narsing had got 7 to 8 acres of land to his share. According to her, accused Baburao was claiming that he ought to get share of the land which is given to deceased Narsing and on account of that disputes were going on between deceased Narsing and accused Baburao. She states 15 that at about two years ago, there was a quarrel and a case had been filed in the Court which was decided in favour of deceased Narsing and on account of that deceased Baburao was harbouring a grudge in his mind. She states that she was in her village at the time of incident and was informed about the incident and, therefore, she rushed to village Nidhona where she had seen the dead bodies. 7. Prosecution has examined P.W.50 Rukhminibai who is also daughter of deceased Devji. She also states about a long standing dispute between accused Baburao and deceased Narsing on account of share in the property. She also states about being informed about the deaths of her parents and her brother etc. She states that she had rushed to village Nidhona and had seen the dead bodies. Prosecution has examined P.W.51 Samindrabai who is another daughter of deceased Devji. She also states about the dispute between accused Baburao and deceased Narsing. 8. The accused has placed on record a deed of compromise at Exh.336. This is a comprehensive deed of compromise for settlement of the various disputes between the two warring brothers i.e. deceased Narsing and accused Baburao. The aforesaid compromise was executed on 11.12.2001. It also 16 speaks about settlement of several cases pending in the Court and the settlement of the share claimed by each of the parties in the ancestral property. The contention of the accused, therefore, was that after the execution of this document, there were no disputes between accused Baburao and deceased Narsing. 9. On the basis of the aforesaid evidence which is of circumstantial nature, one circumstance which is established against accused Baburao and his sons is that the relations between accused Baburao and his sons vis-a-vis deceased Narsing were not cordial. The relations were slightly strained though they were not inimical. The relations were bordering on animosity and after the settlement of the dispute vide document at Exh.336, the prosecution does not allege that either of the parties indulged in any act which would in any manner show either their enmity or their animosity towards each other. However, on account of long standing dispute between the parties, according to us it can be inferred that the relations between accused Baburao and deceased Narsing were strained though they were not inimical. This circumstance, therefore, by the prosecution, according to us has been established. 10. In cases resting on circumstantial evidence, it is essential for the prosecution to prove each and every 17 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 should be capable of only one inference that the accused and the accused alone has committed the crime. We, therefore, propose to examine the circumstances proved against each of the accused to determine if the prosecution has been successful in forging the chain of the circumstantial evidence so complete as to exclude every hypothesis of the innocence of the accused. 11. The circumstances which are alleged against accused No.1 Jitendra are : (i) Motive/relations being strained with deceased Narsing; (ii) Chance prints found on the mirror; (iii) Recovery of blade of axe and seizure of clothes. The axe blade as per the report of the Chemical Analyzer at Exh.264 was found to be stained with human blood though the group could not be determined. The clothes of the accused Jitendra were found to be stained with blood. The pant was found 18 stained with blood with “A” and “O” group while the shirt was found with blood stained with “A” group. (iv) The discovery and consequent recovery of knife from a Well. However, as per the report of Chemical Analyzer at Exh.264, no blood was detected on the knife. 12. As pointed out by us above, insofar as the first circumstance is concerned, i.e. the relations between the accused Baburao and deceased Narsing were strained, according to us has been fully established by the prosecution. We may again reiterate and state that the relations between the two brothers were strained though bordering on animosity but were not certain inimical relations. The deed of compromise at Exh.336 virtually put a seal on the earlier disputes which were pending between the two brothers. The prosecution though has examined the daughters and the nephew of deceased, has not tendered any evidence to show that after the settlement of the dispute the two brothers were at loggerhead and had indulged in any act contrary to the settlement of deed or they were inimical to each other. Therefore, according to us the only inference that is possible on account of the long standing dispute is that the relations between them and their family members were