Case: Anant Bhujangrao Kulkarni Vs. State of Maharashtra

wrist watch from there and the said wrist watch was of the following description "100.00 One wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order." * 10. Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two arches - one in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered. More-over, keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to be established. 11. The fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. As regards the first circumstance that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. there is the evidence of Waman (P.W. 10) as well as Laxman (P.W. 5). The appellant in his statement recorded under S. 313, Cr.P.C. has also admitted that after Pothi was over the deceased had come with the appellant to the house of the appellant at about 6 p.m. The case of the appellant is, however, that the deceased had left his house after some time. In view of the evidence of Waman (P.W. 10) and Laxman (P.W. 5) as well as the admission made by the appellant in his statement recorded under S. 313, Cr.P.C., it must be held that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. and the first circumstance isWith regard to the second circumstance about the recovery of the dead body of the deceased, it may be pointed out that the dead body was recovered from a Ladni in Pargaonkars wada. From the Note of Spot Inspection (Ex. 13), it appears that the said wada consist of two parts. In the first or the front part of the wada, Anant Manzarikar and his family was residing at the material time. Beyond the first part is situated the second part or the back side part of the wada. The two parts are connected by a door frame. The appellant was residing in a room in the back part of the wada. There are two Ladnies in the wada. One Ladni is under the Malwadi Baithak which is towards the north of the Angan in front of the room in which the appellant was residing. The other Ladni is situated on the western side under the open space and it adjoins the western side wall of the room of the appellant and the southern wall of the wada. According to the Memorandum of scene of offence (Ex. 26), blood stained earth was found on the floor of the Ladni and one tin of Dalda (vanaspati oil) having blood stains was also found there. Some blood was also found on the step of the Ladni and on the mouth of the Ladni. The dead body was, however, found in the other Ladni adjacent to the room occupied by the appellant. There was heap of earth in the open space on the western side top portion of the said Ladni and nearby there was a pit indicating fresh digging of earth and the earth dug from the said pit was found to have been dropped on the dead body in the Ladni. Since there were no leaves on the door between the front part and the rear part of the wada, it cannot be said that the Ladni in which the dead body was recovered was in exclusive possession of the appellant. It may also be mentioned that in the report (Ex. 30) lodged by Dattatraya with the Police it is stated that the appellant had himself given the information that the dead body was lying in the said Ladni. The fact that blood stained earth as well as blood was found in the other Ladni indicates that the deceased was first brought to that Ladni and from there he was removed to the other Ladni where it was found. The recovery of the dead body from the Ladni in the portion of the wada in which the appellant resides is, therefore, not inconsistent with the innocence of the appellant and it cannot be regarded as an incriminatingComing to the third circumstance relating to the recovery of the wrist watch, it may be pointed out that in the missing report (Ex. 29) lodged by Dattatraya at the Police Station, Beed on the evening of October 14, 1975, there is no mention that the deceased was having a wrist watch with him. A note is appended to the said report wherein Dattatraya had taken care to indicate asage of Digamberrao Trimbakrao is 75 years and white colour, the clothes as usual used white dhoti Banian shirt and on the head red turban and in the leg shoes."is mention about the wrist watch in the report (Ex. 30) lodged with the Police Station, Beed on October 15, 1975 wherein it has been stated that the deceased was having a wrist watch of 17 jewels of Camy company. Dattatraya (PW 12) has stated, duringthat he had purchased the wrist watch about five years back and that he had given it to his father (deceased) about two years ago. He has also admitted that his father had been using another watch of Sando Company before he (PW 12) gave the wrist watch in question and the deceased had been using the said wrist watch for about six months before his death. PW 12 has also admitted that he was having no wrist watch with him atThe recovery of the wrist watch at the instance of the appellant is sought to be proved by Azizuddin (PW 3), the attesting witness of the Panchnama (Ex. 11). In the said Panchnama, it is stated that on the western wall of the Malvad Baithak in the house of the appellant, there is a niche in the arch towards north on the right side corner and the appellant dug some earth from the said niche by his hand and took out the buried wrist watch from there and the said wrist watch was of the followingOne wristwatch of Camy company, 17 jewels English script dial on the reverse No. 6300 and English have Trade Mark in which a belt of white of steel chain. The watch is in order."Azizuddin (PW 3) has stated that the flooring of the Baithak was of stone slabs and that there were two archesone in the western wall and the other in the southern wall of the Baithak and that there is no door in the arches and the flooring of the arches is of stone slabs and that the appellant took out some earth from a part of the arch of the western side wall. PW 3 has also stated that the appellant dug about one inch in that part of the arch and that no earth was sticking to the wrist watch when it was taken out by the appellant. PW 3 has also stated that he did not remember the time that the wrist watch was showing when it was taken out by the appellant. The Investigating Officer, Subhash (PW 13), has, however, deposed that there were no stone slabs on the floor of the Baithak and that there were no stone slabs under the arches of the Baithak and the appellant dug out some earth by his hands, in one arch while taking out the wrist watch from there. PW 13 has further stated that some dust was sticking to the wrist watch but no mud or cow dung was sticking to the wrist watch. There is a contradiction between the statements of Azizuddin (PW 3) and Subhash (PW 13) on the question whether there were stone slabs on the floor of the Baithak from where the wrist watch was recovered. Moreover, the Panchnama (Ex. 11) and the evidence of PW 13 would indicate that when the wrist watch was recovered it was in working order and was running. The offence took place on the evening of October 13, 1975 and the wrist watch was recovered on October 16, 1975 at 1 p.m. If the watch was buried, as claimed, it is difficult to understand how it was found in working order when it was recovered.keeping in view the statement of Dattatraya (PW 12) that he was not having a wrist watch with him and the fact that no mud was found sticking to the wrist watch when it was recovered and the fact that no mention was made about the wrist watch in the missing report (Ex. 29) lodged by Dattatraya with the Police on October 14, 1975, we are unable to place reliance on the evidence adduced by the prosecution with regard to the recovery of the said wrist watch at the instance of the appellant from the Baithak in the wada where the appellant was residing. The third circumstance cannot, therefore, be held to beThe fourth circumstance relates the conduct of the appellant in not informing Waman (PW 10) about the time when he enquired about the where about of the deceased on the morning of October 14, 1975. We are of the opinion that the said circumstance cannot be held to be established on the basis of the evidence adduced by the prosecution. Waman (PW 10) has stated that on October 14, 1975, at about 10 a.m. he had met the appellant in front of Jain Fine Cloth Stores on Tilak Road and he had asked the appellant as to where the deceased had gone because he had not come back to the house after he had accompanied him (appellant) for taking tea at the appellants house and on being so asked, the appellant had questioned him (PW 10) in an angry manner as to what he (PW 10) had to do with the deceased and that the appellant had further stated that he (PW 10) should call Dattatraya, son of the deceased, and the appellant would tell Dattatraya as to where the deceased had gone the said evidence of Waman (PW 10) has been sought to be corroborated by Murlidhar (PW 4) who has stated that Waman (PW 10) had come to him at about 11 a.m. on October 14, 1975 and had informed him of the talk that he had with the appellant. The subsequent conduct of Murlidhar (PW 4) and Dattatraya (PW 12), however, throws a doubt on the veracity of this evidence. In spite of being informed about this talk between him and the appellant by Waman (PW 10) at about 11 a.m. on October 14, 1975, Murlidhar (PW 4) did not make any effort to contact the appellant. Without meeting the appellant Murlidhar went to Palsingan to meet Dattatraya and although both of them had returned to Beed by 8.30 p.m. on October 14, 1975, they did not make any effort to contact the appellant on October 14, 1975. Without contacting the appellant, Dattatraya lodged the missing report (Ex. 29) on October 14, 1975 and in the said report there is no mention of the talk that had taken place between Waman (PW 10) and the appellant on the morning of the October 14, 1975. Even in the report (Ex. 30) that was lodged by Dattatraya with the Police on October 15, 1975, and which forms the basis for the FIR, there is no mention of this fact and it only mentions that the appellant had informed about the murder of the deceased by Anant Manzarikar. The aforesaid conduct of Murlidhar and Dattatraya is thus inconsistent with the evidence of Waman (PW 10) about the appellant having behaved in the manner as stated by Waman on the morning of October 14, 1975 when Waman enquired about the whereabouts of the deceased. We are, therefore, unable to accept the evidence of Waman (PW 10) and Murlidhar (PW 4) in this regard and it must be held that the fourth circumstance is not established