Case: Ambaji @ Nana Hanmant Pati Vs. The State of Maharashtra

2. C.R. No. 106 of 2014 which was registered in Panhala police station was investigated by I.O. Shri Yashwant Namdev Gavari who deposed as P.W.13. FIR is registered at Exhibit 25 lodged by P.W.1 – Kiran Maskar. The date of the incident is 17th September 2014. The place of the incident is alleged to be the house of the appellant. On the date of the incident, in the morning at about 7.00 a.m., deceased Ganpati Dattu Jadhav, maternal uncle of P.W.1 – Kiran Maskar, left home after having a cup of tea. At about 12.30 p.m., P.W.1 - Kiran was proceeding for his work towards Kolhapur . He noticed his uncle Ganpati and accused Ambaji Patil talking in front of Ambajis house. At about 4.30 p.m., P.W.1 - Kiran received a phone call from Shri Bajirao Dagadu Jadhav - P.W.8, the husband of Police Patil Mrs. Shubhangi Jadhav. P.W.8 - Bajirao informed P.W.1 of Ambaji telling him that P.W.1s maternal uncle Ganpati is lying in a pool of blood in Ambajis house. P.W.8 - Bajirao therefore asked P.W.1 - Kiran to come to the spot immediately3. Thereafter P.W.1 - Kiran made a phone call to Dr. Mansing Jadhav - P.W.5 - also a resident of the same village and narrated the information given by Bajirao and requested him to reach the spot. When P.W.1 - Kiran reached the spot at about 5.45 p.m., several villagers had gathered in front of Ambajis house. Ganpati was lying on the foor in Ambajis house in a pool of blood. P.W.1 noticed Ganpati had injuries on his forehead and head. P.W.1 also noticed one wooden batten lying there. P.W.1 then went to Panhala police station and lodged report against the accused Ambaji Patil. P.W.1 informed police that it is with the wooden batten his uncle was assaulted by Ambaji and killed. Even before P.W.1 – Kiran returned from Panhala police station, the police had arrived at the spot of the incident.4. The investigation thereafter proceeded. The Investigating Ofcer – P.W.13- Yashwant Gavari testifed that on 17th September 2014 at 6.30 p.m, he made entry in the station diary and went to the scene of ofence. He prepared the spot panchanama at Exhibit 34. The body of the deceased Ganpati was lying in the house of accused - Ambaji. At the time of drawing panchanama, Investigating Ofcer seized all articles lying there. All articles were sealed separately and labels were afxed.5. Though the appellant – accused was present at the scene of the incident, the Investigating Ofcer did not arrest him immediately as the accused was required to be admitted to the hospital for some medical condition. The accused was arrested on 26th September 2014 after receiving the report about medical condition of his health. The charge-sheet was fled after completing the investigation.6. The appellant – accused pleaded not guilty. The accused raised a plea of alibi. The appellant – accused has submitted written arguments at Exhibit 86 stating that : on the date of the incident, he proceeded towards his feld at 10.00 a.m.. Thereafter he was in the feld till 5.00 p.m. After returning from the feld, he learnt that Ganpati fell on the ground at Kololi phata. The villagers were discussing that there was one rickshaw in front of the house. Ganpati was assaulted by somebody else. The house where the incident occurred is not owned by him but it is owned by relative of one Shri Mengane. The appellant – accused is falsely implicated in the case.7. The prosecution examined as many as 13 witnesses. The trial Court convicted the appellant. With the assistance of learned Counsel for the appellant and learned APP, we have gone through the evidence on record and also the findings recorded by the trial Court. There is no serious challenge to the finding that death of Ganapati is homicidal.

Reasoning:
15. The incident in question took place on 17th September 2014. P.W.1 – Kiran Maskar – nephew of deceased Ganpati deposed that deceased Ganpati is his maternal uncle. When P.W.1 was proceeding for his work towards Kolhapur at about 12.30 p.m., he noticed deceased Ganpati and accused Ambaji – P.W.1 talking in front of the house of accused – Ambaji. P.W.1 received a call at 4.30 p.m. from P.W.8 – Bajirao Jadhav on his mobile. P.W.8 - Bajirao informed P.W.1- Kiran that accused Ambaji told him about Ganpati lying in a pool of blood in his house. Kiran made a phone call to P.W.5 – Dr.Mansing narrating what Bajirao told him and requested him to go to the spot. P.W.5 – Dr.Mansing informed P.W.1 that he had visited house of Ambaji at 2.00 p.m. and at that time, Ambaji and Ganpati were drinking liquor. Kiran returned to village Kololi at 5.45 p.m. when he found several villagers gathered in front of house of appellant – Ambaji. Kiran saw his maternal uncle – Ganapati was lying on the foor. He was lying dead in a pool of blood. Kiran noticed injuries on Ganpatis forehead and head. He also saw one wooden batten lying there. In his cross examination, he admitted that deceased Ganpati was addicted to liquor and he was drinking liquor heavily. A suggestion was put to Kiran that as Ganpati was addicted to liquor and that Kiran was not giving money to him, it is for this reason P.W. 1 - Kiran and deceased Ganpati had dispute and quarrel which suggestion Kiran denied. Nothing is elicited in the cross examination which discredits the testimony of P.W.1 – Kiran. The testimony of P.W.1 – Kiran cannot be discarded merely because he is related to the deceased as the same is otherwise trustworthy and is corroborated by the testimony of other witnesses viz. P.W.5, P.W.7 & P.W.8 on material aspects16. P.W.7 – Sharada is the wife of deceased Ganpati. It is in her deposition that on the date of incident, she was proceeding towards her feld. She had seen accused – Ambaji and her husband - deceased Ganpati talking near Ambajis house. She asked her husband to have lunch from the tifn kept in the shed of the feld. At around 5.00o clock, when P.W.7 returned home from the agricultural feld, she was informed by one Shri Mahesh Patil that her husband Ganpati is lying in a pool of blood in the house of Ambaji. She admitted in her cross examination that her husband was drinking liquor during intervals. Though she admitted in her cross examination that Sonali Patil and Suvarna Patil were with her when she had gone to the feld, non-examination of Sonali Patil or Suvarna Patil by the prosecution would not be sufcient to discard the testimony of P.W.7 if otherwise the evidence of P.W.7 is found to be trustworthy. The prosecution had by pursis dated 19th December 2015 stated that Suvarna Patil and Sonali Patil are not supporting the case of the prosecution and hence they may be discharged. It is the choice of the prosecution, which witnesses are to be examined and which not from the list of witnesses. This by itself is not sufcient to discard the testimony of P.W.7 as we find that the testimony of P.W.7 is consistent with the testimony of P.W.1, P.W.5 that appellant was seen in company of deceased.Upon analyzing the evidence of P.W.5, it is not possible for us to accept the contention of learned Counsel for the appellant that the theory of last seen together by prosecution would fail in view of the deposition of P.W.5 that he had seen the appellant parting company with the deceased Ganapati. The evidence of P.W.1 and P.W.7 finds corroboration from the evidence of P.W.5 as to the factum of the appellant and deceased seen together in each others company. It is not possible for us to believe P.W.5 when he says that he saw the appellant and deceased parting company. P.W.5 says that when he went to the house of accused in the afternoon at around 2.10 p.m., the appellant and accused were drinking liquor. Further P.W5 was in the house of the appellant for 5-10 minutes. P.W.5 was confronted by the prosecution with the statement which was recorded under section 164 of Cr.P.C. We do not find this version of P.W.5 believable as the appellant has not ofered any explanation as to how and when he parted company. On the contrary, the appellant has raised the plea of alibi. The appellant has not ofered any explanation as to when and how he parted the company of deceased Ganapati. The appellant has also failed to ofer any explanation about the dead body of Ganapati which is found in his house. We therefore have no hesitation in holding that the appellant has not discharged the onus cast upon him by section 106 of the Evidence Act.19. We would now consider the evidence of P.W.8 – Bajirao. P.W.8 says that the appellant Ambaji came to his shop on 17th September 2014 at 4.30 p.m.. Ambaji was wearing white banian and pant. Ambaji told him that Ganapati had fallen down in his house and requested P.W.8 to come with him. The banian of Ambaji was stained. P.W.8 then went to the house of Ambaji. He further says that from the gap of the door, he came to know that Ganapati was lying in the pool of blood. He then made a phone call to P.W.1 - Kiran Maskar and to the police station. P.W.8 admitted that he made a phone call to Kiran at 4.30 p.m.. He deposed that he made the frst call to Kiran at 4.30 p.m. He further stated that when Ambaji came to his shop that time his clothes were blood-stained. He further stated that he noticed that the wooden batten was lying on the foor. We find that nothing is elicited by the defence in the cross examination of P.W.8 to discredit his testimony. Thus, the version of P.W.1 that he received a phone call from P.W8 that deceased Ganapati was lying in the injured condition in the house of appellant – accused stands corroborated. Further it is seen from the deposition of P.W.8 that the appellant had visited the shop of P.W.8 having blood stained clothes.In this context, we may refer to the document placed on record at Exhibit 70 which is the House Assessment extract of the house where dead body was lying. This extract shows that Sheetal Ambaji Patil- the wife of the appellant is the owner of the property and in occupation. Even the evidence of P.W.5 clearly reveals that when Ambaji spoke to him on phone, Ambaji asked him to come to his house for some work, P.W.5 then went to the place of incident which is this very house. There is thus sufcient material on record to indicate that the house belongs to Ambaji and that he was in possession and in occupation of the said house.21. Having regard to the consistent testimony of P.W.5, P.W.1 and P.W.7 the circumstance of deceased last seen in the company of appellant is established by the prosecution. The evidence on record indicates that till 2.20 p.m., the deceased was in the company of accused. The blood samples of accused were sent for chemical analysis and at Exhibit 82 is the Alcohol Examination Certifcate indicating result of the analysis. The result indicates that blood contained 0.060 (sixty mgs) per cent W/V of Ethyl Alcohol. The evidence of P.W.5 that accused was drinking liquor in company of deceased finds corroboration from this report.23. P.W.11 – Dr.Pravin Ganpatrao Naik, who performed the post- mortem of the dead body deposed that the injuries on the person of deceased are in the ordinary course of nature sufcient to cause death. He further deposed that such injuries are possible by muddemal article 4 i.e. wooden batten. The post-mortem report is at Exhibit 52 and the probable cause of death is mentioned as head injury. Even the wooden batten seized from the scene of the ofence is found to be stained with human blood.24. The forensic report indicated that human blood is found on the clothes of the accused. The result of the analysis of the forensic laboratory is at Exhibit 79. The medical evidence is consistent with the prosecution case. P.W.11 – Dr. Pravin Ganpatrao Naik deposed that the injuries on the person deceased in the ordinary course of nature are sufcient to cause death. He further deposed that such type of injuries are possible by the said muddemal article No.4 wooden batten which is shown to him. The evidence of P.W.11 inspires confdence and there is nothing material elicited in his cross examination to discredit the testimony of the witness P.W.11.25. From the evidence on record, the prosecution has succeeded in establishing that dead body was found in the house of the appellant. The death occurred around 4.30 p.m. P.W.8 does not bear any animosity towards the appellant. P.W.5 deposed that he had seen Ambaji and deceased drinking liquor at 2.20 p.m. It has come in the evidence of P.W8 that the appellant Ambaji had come to his shop at around 4.30 p.m. asking him to accompany Ambaji as Ganapati has fallen down in his house. Thus, the time gap between point of time when the accused and deceased were last seen alive and deceased is found dead is so small that possibility of any person other than accused being the author of the crime is completely ruled out. A stray admission of P.W.5 that a rickshaw parked with two persons standing beside it near the porch of house of Ambaji cannot enure to the appellants advantage, in the light of the attendant circumstances indicated hereinbefore which only point to the guilt of the Appellant.26. The Apex Court has held in the case ofAIR 2006 SC 1656  Ram Reddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh & in the case of(2007)12 SCC 471  Hatti Singh Vs. State of Haryana that last seen theory comes into play when the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It is held that even in such cases the Court should look for some corroboration.27. In the present case, there is clinching evidence on record that the appellant was last seen in the company of deceased at 2.20 p.m. P.W.8 - Bajirao deposed that at 4.30 p.m. the appellant informed him that the deceased was lying with injuries in his house. P.W.8 noticed blood stained clothes of the person of appellant. The forensic report reveals that blood found on the clothes of the appellant is human. That the dead body of Ganpati found in a pool of blood in the house of the appellant is an incriminating circumstance. The evidence of P.W.1 – Kiran is consistent with the version of P.W.8 – Barjirao. P.W.5 Dr. Mansing Jadhav deposed that the appellant and the deceased were drinking liquor at around 2.10 p.m. on the date of the incident. Ganapati died around 4.30 p.m. The time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. The dead body of the deceased Ganpati was found in the house of appellant – Ambaji. The appellant has failed to ofer an explanation as to how and when the appellant parted company with Ganpati. The prosecution has convincingly proved that the deceased was last seen in the company of the accused before his death and thereafter nobody saw him. Further the prosecution proved that the dead body of the accused was found in the house of accused. Therefore, the appellant – accused was legally obliged to discharge the onus shifted upon him to explain how the dead body was found in his house and under what circumstances deceased died homicital death. It was open for the accused to discharge the said onus by preponderance of probabilities, however instead of doing it, the accused took a false plea of alibi, which he failed to prove.28. In this view of the matter, though the case rests on the circumstantial evidence, we have no hesitation in holding that the circumstances on which the prosecution relies is consistent with the sole hypothesis of the guilt of the accused. Even medical evidence on record is consistent with the prosecution case. The evidence of P.W.1 and P.W.7 stands corroborated with the evidence of P.W.5 and P.W. 8 on material aspects. P.W.5 and P.W.8 are independent witnesses. Merely because P.W.1 and P.W.7 are closely related to the deceased Ganapati is no ground to discard their testimony as we find that their evidence is otherwise trustworthy and credible and findcorroboration from the testimony of P.W.5 and P.W.8.We are not persuaded by this submission of learned counsel. The Apex Court in the case ofAIR 1992 SC 1175  Mulakh Raj Etc Vs.Satish Kumar and others in paragraph 17 has held that undoubtedly in cases of circumstantial evidence motive bears important signifcance. Motive always locks up in the mind of the accused and some time it is difcult to unlock. People do not act wholly without motive. The failure to discover the motive of an ofence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. This proposition of law is reiterated by the Apex Court in the case of2013 AIR SCW 3208Rohtash vs State Of Haryana & Another. A proftable reference can also be made to the decision of theAIR 1955 SC 807   Atley vs State Of Uttar Pradesh in which case Their Lordships held that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this efect, only that the other evidence bearing on the guilt of the accused has to be very closely examined.30. Let us now advert to the plea of alibi raised by the appellant. The burden of proving alibi undoubtedly lies on the accused for setting up the defence. Nonetheless, the law is well settled by the dictum of the Apex Court inAIR 1956 SC 460  Gurucharan Singh V/s. State of Punjab that even if the accused sets up the plea of alibi in his defence, the burden of proving the case against the accused is on the prosecution irrespective whether or not the accused has made out a plausible defence. It is equally well settled that the standard of proof which is required with regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. This position is illuminatingly stated by Their Lordships in the case of 7Mohinder Singh Vs. The State. We are equally conscious that the weakness or falsity of an alibi is not sufcient ground for holding that the case of the prosecution is thereby improved. We find that no evidence whatsoever has been adduced in support of the plea of alibi taken up by the appellant. We therefore have no hesitation in coming to the conclusion that the appellant – accused has failed to establish the plea of alibi.31. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime in view of the following circumstances which we summarise in brief :(i) From the evidence of P.W.5 – Dr.Jadhav, it is established that the appellant was last seen in the company of the accused till 2.20 p.m. on 17th September 2014.(ii) The evidence that P.W.5 was in the company of deceased is corroborated by the evidence of P.W.1 – Kiran and P.W.7 – Sharada.(iii) P.W.8 deposed about the appellant coming to his shop at 4.30 p.m. informing him that Ganapati was lying injured in his house.(iv) P.W8 noticed the clothes of the appellant having blood stains. The forensic evidence reveals that the blood on the clothes of the appellant is human blood.(v) The appellant has not ofered any explanation much less probable and satisfactory explanation as to when he parted company with the deceased. He had raised a defence of alibi which appellant could not establish.(vi) The dead body of Ganapati is found in a pool of blood in the appellants house. The appellant has failed to ofer any explanation much less probable and satisfactory explanation as regards the presence of dead body of Ganapati in his house.(vii) The time gap between the point of time when the accused and deceased last seen alive and deceased is found dead is so small that possibility of any person other than the accused being the author of the crime is impossible.(viii) The Medical Ofcer has deposed that injuries on the person of the deceased are possible by the wooden batten which was seized from the house of the appellant. The wooden batten was stained with blood. The forensic report established that the blood on the wooden batten is human.(ix) No explanation has been ofered by the appellant when he was examined under section 313 of Cr.P.C. with respect to the incriminating circumstances appearing against him.