1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 356 OF 2004
1. Bhurya @ Gulab s/o Fajitya Kale,
Aged about 27 years,
Occupation - Labour work,
Resident of Risod, Tahsil - Risod,
District - Washim
2. Sau. Suman w/o Bhurya @ Gulab Kale,
Aged about 31 years,
Occupation - Labour work,
Resident of Risod,
District - Washim.
(IN JAIL). .. APPELLANTS
.. Versus ..
The State of Maharashtra,
Through Police Station Officer, Risod,
District - Washim. .. RESPONDENT
..........
Mr. R.M. Daga, Advocate for the appellants,
Mr. J.B. Jaiswal, APP for the respondent.
..........
CORAM : A.P. LAVANDE & P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : JANUARY 22, 2010
DATE OF PRONOUNCING THE JUDGMENT: FEBRUARY 09, 2010
JUDGMENT ( per P.D. Kode, J.)
1. By present appeal, the appellants have challenged the
judgment and order dated 28.1.2004 convicting them for
commission of offence of murder of one Dashrath Charmya Kale and
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sentencing them to suffer rigorous imprisonment for life and to pay
a fine of Rs.5,000/- (Rs. Five Hundred only) each and in default to
undergo further rigorous imprisonment for one year, passed by
learned Ad-hoc Additional Sessions Judge, Washim in Sessions Trial
No.6/2003 of the said Court. The said case has arisen out of
chargesheet submitted by Risod Police Station in the Court JMFC,
Risod against the appellants for commission of offence under
Section 302 r/w 34 of IPC after investigation of crime registered vide
FIR 173/02 Exh.18 ig registered upon report of incident Exh.16
lodged by mother-in-law PW 1 Laxmibai of said deceased Dashrath
on 30.10.2002. PW 8 PSI Vikramsingh Thakur of said Police Station
had recorded said report, registered and investigated said crime.
2. The prosecution case as disclosed from said report Exh.16
lodged by PW 1 with Risod Police Station of the appellants having
killed the deceased by means of knife is as follows:
PW 1 Laxmibai was residing in neighbourhood of her
brothers deceased Dashrath and Rama at Risod. About 14 years
back from day of incident Savita, elder daughter of PW 1 Laxmibai,
had married Dashrath and thus PW 1 was also his mother-in-law.
On 29.10.2002 at about 4 p.m. while PW1 was at house, her cousin
i.e. the appellant no.1 along with with his wife- appellant no.2 had
been to house of Dashrath and had questioned him as to why
Dashrath had beaten their son Kishor and, thereafter, they had
started quarreling with Dashrath. PW6 Badami, mother of PW 1 and
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Dashrath, had separated quarrel. Appellants then had threatened
Dashrath that they would see him lateron. Again at about 7.30 PM
while Dashrath was having his meals in the house, appellants had
been in front of house of Dashrath and taken him along with them
towards house of maternal cousin of PW 1 i.e. PW 7 Dagdabai wife of
Datta Pawar.
At about midnight, appellant no.1 had been in front of the
house of PW 6. PW 1 had then got up. Appellant no.1 had asked PW
6 whether Dashrya ig had returned to the house. Thereafter,
appellant no.1 along with appellant no.2 had been away from the
said place. Since 7.00 a.m. PW 1, her mother PW 6, her sisters and
other relatives were in search of Dashrath. PW 7 had appraised
them that at about 8 o’clock in the night when she had been in front
of her house, Dashrath and appellants were standing in front of her
house. Appellant no.1 had taken money out of pocket of Dashrath
and had ran and brought country made liquor ‘Santra’ from country
liquor shop and, thereafter, all three of them had been towards field
on the rear side of house through lane passing by the house of
Shankarappa. At that time both the appellants were carrying
knives. Thereon PW 1 and her companions had made search for
Dashrath in fields at rear side of the house.
Initially one blood smeared dusky white coffee shawl
(Article A) of appellant no.1 and woolen ear-strip belonging to
appellant no.2 were noticed lying in the field of Raju Mohale. As
they went ahead in search Dashrath at about 9.30 AM they had seen
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dead body of Dashrath with injuries on chest, abdomen with neck
cut by knife, lying in supine condition in thorny fencing of the
northern side embankment in the field of Shri Ingle.
3. At trial appellants had pleaded not guilty to charge Exh.5
framed on 23.7.2003. The prosecution examined in all eight
witnesses i.e. above referred PW 1, PW 6, PW 7, PW 8 and
additionally PW 4 Rajesh on the point of having heard quarrel in
between deceased and the appellants at about 12 midnight in the
relevant night in a field behind his house; PW 5 Dr. Ramesh Maskey,
who had performed post-mortem of the corpse of deceased at Rural
Hospital, Risod, panch PW 2 Pitambar for spot panchanama Exh.18
and seizure of shawl Article A of appellant no.1, muffler Article B of
appellant no.2 and knife Article A and B stained with blood found
lying at the spot and inquest panchanama Exh.20 and seizure of
blood stained clothes of deceased Article C and D and panch PW 3
Sheikh Rafiq for seizure panchanama Exh.23 regarding seizure of
blood stained ash colour saree Article G and lining shirt Article
respectively produced by appellant no.1 and appellant no.2 from
their house.
4. The defence of both appellants at the trial was that of
total denial and of false implication. Each of the appellant to the
questions put to him/her during examination under Section 313 of
Cr.P.C. about circumstances appearing against him/her in the
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prosecution evidence had answered either same being false or
he/she being unaware of the same. None of the appellant had
assigned any specific reason for the witnesses having falsely
deposed against him.
5. The prosecution had mainly relied upon the circumstantial
evidence for establishing guilt of the appellants i.e. the
circumstances established from oral and documentary evidence
adduced by the prosecution at trial of the nature of appellants
having quarreled with the deceased, lateron soon prior to the death
being in company of the deceased, human blood stained Articles of
the appellants knives, shawl, muffler being found in a field nearby
the body of the deceased, their clothes being found stained with
blood etc. The Trial Court after assessment of evidence had come to
the conclusion of the said circumstance being established by the
prosecution. The trial court on the basis of the same had come to
the conclusion of the appellants being guilty for commission of
offence of murder of deceased and convicted and sentenced each
of them as stated earlier.
6. Mr. R.M. Daga, the learned counsel for the appellant
during the course of the arguments has vehemently contended
that trial Court had manifestly erred in taking into consideration
incriminating circumstances not put to the appellants during their
examination effected under Section 313 of Cr.P.C. i.e. shawl Article
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A allegedly of appellant no.1 and muffler Article B allegedly of
appellant no.2 and knives Article B and the clothes and findings of
CA report thereto and had further erred in relying upon the same
while coming to the conclusion of guilt of the appellants being
conclusively established by the circumstantial evidence adduced by
the prosecution inclusive of such circumstances. The learned
counsel has urged of same being not permissible in the law, the
conclusion reached and order of conviction based upon the same is
vitiated and on said ground alone the judgment and order of
conviction passed by the trial Court was liable to be quashed and
aside.
7. In view of such contentions raised, after hearing both the
sides at length upon relevant aspect and considering the decisions
of Apex Court cited by both parties for detailed reasons recorded in
the order dated 15.1.2010 on the basis of the law pronounced by
earlier decision of three Judges’ of the Apex Court in the case of
Shivaji Sahebrao Bobde and another .vs. State of
Maharashtra reported in AIR 1973 SC 2622 than the one pointed
out by learned counsel for the appellants, it was felt proper not to
exclude said circumstances, but to call for explanation regarding
the same through their Advocate. Accordingly the same were put
to the learned counsel for the appellants.
8. The learned counsel for the appellants upon instructions
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from the appellants had informed that the investigating officer had
not collected the blood of the appellants nor sent the same to the
Chemical Analyser and had taken the blood of the deceased from
the spot and sprinkled the same on weapon and clothes.
9. The learned counsel for the appellants further urged that
even the circumstance relied by the prosecution are not clinchingly
established by the evidence relied for the said purpose by the
prosecution. The prosecution evidence failed to establish of there
being sufficient motive for commission of such serious offence by
the appellants. The quarrel over beating of son of appellants is
hopelessly inadequate for affording reason for commission of such
crime. Though it is true that in cases of direct evidence establishing
of motive may not be a significant factor still in cases resting upon
circumstantial evidence said aspect is of immense importance and
from the said angle the said failure on part of prosecution is fatal to
the prosecution case. With regard the articles found at the spot i.e.
shawl, muffler and dagger/knife and the clothes seized from the
house of the appellants, the prosecution evidence has failed to
establish that appellants were wearing such articles in the relevant
night and as such finding of such articles at the spot loses all
significance or at least the same fails to connect the appellants with
the crime. Additionally investigating officer having failed to
collect/send blood of the appellants to the Chemical Analyser and,
therefore, merely because the said articles were containing human
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blood stains and or some of them of B Group i.e. similar to that of
deceased, the same would not be a circumstance of any
consequence.
10. The prosecution evidence is not cogent to establish
clinchingly the precise time at which appellants were in the
company of the deceased prior to his death. The evidence of PW4
Rajesh failed to establish that he had seen the same at 12 midnight
as his evidence failed to reveal that he had seen them quarreling in
the said field and recognized them on the basis of identification of
voice and that too while sleeping in the house. Thus even accepting
the evidence of other witnesses i.e. PW1, PW6 and PW7 as it is,
the same does not reveal the appellants being in company of the
deceased after 8 pm in the said night. Hence even taking into
consideration all the circumstances allegedly established by the
prosecution, the same by themselves fails to point towards the guilt
of the accused. Such a conclusion is inevitable as there exists no
small gap in between last seen theory and finding of dead body in
the morning at about 9.30 am. The said evidence does not rule out
the possibility of the deceased being killed by his other enemy. As a
result aforesaid circumstances being incapable of leading to sole
inference about the guilt of the appellants, both of them deserve to
be acquitted.
11. The learned counsel also placed reliance upon the
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following decisions:-
i) Ramreddy Rajeshkhanna Reddy & another .vs. State
of A.P. reported in 2006 ALL MR (Cri) 1533 (SC),
ii) Inspector of Customs, Akhnoor .vs. Yashpal and
another reported in 2009 (4) Mh.L.J. (Cri) 69,
12. The learned APP supported the impugned judgment and
order and submitted that the evidence on record clearly established
circumstances making out a case of leading to the both appellants
having committed the offence of murder of the deceased. He urged
that motive for crime is established by the evidence of PW1 and
PW6. Deceased being taken away at 7.30 pm by the appellants is
also established by evidence of PW1 & PW7. The deceased being
taken away by the appellants at about 8 pm being established by
the evidence of PW7, while appellants quarreling in the field with
the deceased is established by the evidence of PW4. The evidence
of PW6 also established that the appellants had asked her in the
midnight whether deceased had returned. The fact of deceased
lying dead with injuries on person in fencing of field is established by
evidence of PW1, PW6 , PW7 and their said evidence is corroborated
by the matters stated in spot panchanama Exh.18. The fact of shawl
of appellant no.1 and muffler of appellant no.2 (bearing human
blood stains as established by CA report) and blood stained
dagger/knife of appellants being found at the spot is established by
spot panchanama Exh.18 considered along with the evidence of
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PW2, PW1, PW7 and PW8. The evidence of PW1 is found duly
corroborated by matters stated in report Exh.16 lodged by her
immediately at about 10 a.m. with the Police. The prosecution has
also established abscondence of the appellants by the evidence of
PW6 and investigating officer PW8. The appellants have failed to
give the explanation to the said circumstance and the circumstance
of their house being found locked and having left the children with
father-in-law as established by evidence of PW6. The alleged
omission on part of PW6 being not in the nature of contradiction the
said matters are not liable to be discarded. The learned APP thus
urged that considering the relationship of the parties, the place at
which the offence had taken place hardly there is any appreciable
gap in between the circumstance of appellants being seen last in the
company of the deceased prior to death, the same by itself is
sufficient to come to the conclusion about the appellants being
perpetrators of the crime as they have failed to explain the said
circumstance. The asking of an appellant to PW6 whether deceased
had returned to the house etc. clearly appears to be a farce made
by them and the same is apparent after taking into consideration
other circumstances established by the prosecution. All the said
circumstances apart from having effect of corroborating conclusion
of guilt of the appellants emerging from the circumstance of last
seen, additionally cumulative effect of all the circumstances leads
only to the conclusion of guilt of appellants as rightly arrived by the
trial Court and as such there are no merits in the appeal and the
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same should be dismissed.
13. The learned APP, in support of his submission, also
placed reliance upon the following decisions:
i) Yuvraj Aambar Mohite .vs. State of Maharashtra
reported in (2006) 12 Supreme Court Cases 512 and
ii) Manivel and others .vs. State of Tamil Nadu reported
in (2008) 12 Supreme Court Cases 748
14. We
have given thoughtful consideration to the
submissions advanced by both the parties and carefully perused the
record and the decisions relied. At the out set it can be safely said
that the prosecution case purely rests upon circumstantial evidence.
Out of the circumstances relied by the prosecution, apart from the
appellants having not disputed of deceased having homicidal death,
the said fact is apparently established from the unchallenged part of
the evidence of PW1, PW4, PW6 & PW7 regarding the place at which
his body was found with the injuries on the person and relevant
part of the evidence of PW2 Pitambar pertaining to articles found in
nearby vicinity of dead body. The said evidence is also found well
corroborated spot panchanama Exh.18, inquest panchanama Exh.
20 and so also the evidence of PW5 Doctor who had performed post
mortem and his PM notes at Exh.27.
15. Out of them reference to the evidence of PW5 who had
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performed the post mortem on 30.10.2002 while being attached at
Rural Hospital, Risod, clearly reveals that he has noted 9 external
stab injuries on the person of the deceased with 1 cut injury over
throat of dimensions 6 X 6 X 3 cm and 4 abrasions as recorded by
him in column no. 17 of PM notes. His evidence also reveals of
having noticed internal injuries to the effect of fracture of thyroid
bone over both the sides, fracture of second rib at left side near
stearnal line and fracture of caricoid cartilage with all tracheal
injuries.
16. The evidence PW5 also reveals that all the said injuries
were caused within 24 hours from the time of himself performing
post mortem and the injuries excepting abrasion noticed by him
could be caused by sharp edged weapon, while the other injuries
were possible by hard and blunt object. All the said injuries were
ante mortem with external injuries corresponding to internal injuries
caused. He had opined of the said injuries being of grievous nature
and the death had been caused due to hemorrhagic shock due to
cut throat injury and multiple stab injuries over chest and abdomen
noticed. He had also opined of injuries No. 1 to 10 being possible by
knife article 3 while the remaining injuries were possible by knife
article C. Thus taking into consideration all the said evidence , it can
be safely said that by the same the prosecution having established
the deceased having met with homicidal death due to the injuries
caused to him. It also establishes of the said injuries being possible
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by means of weapons before the trial Court i.e. the dagger and knife
found at the spot and identified by the witnesses being the knife
which were with the appellants.
17. Now reverting to the moot question of the prosecution
having established circumstances establishing guilt of the
appellants. Considering the evidence of PW1 in light of the criticism
advanced the same definitely establishes that on the said day at
about 4 p.m. quarrel had ensued
ig in between deceased and the
appellants on the count of the child and the same was pacified by
her mother PW6 Badami.
18. Her further evidence also reveals her cousin PW7 having
told her that about 7.30 PM both the appellants had been to the
house of the deceased while he was taking meals and appellant no.1
had caught hold of deceased and taken him towards the house of
PW 7 and at the said place appellant no.1 has taken out money from
the pocket of the deceased and taken him to liquor-den. Thereafter,
appellant no.1 had taken deceased to the field of Mulabai and
appellant no.2 was accompanying appellant no.1 all the while. Both
the appellants were then possessing knife with them.
19. Her further evidence discloses that at about 1.00 AM in
the night appellant no.1 again had been to the house of deceased
and asked mother of the deceased PW 6 about arrival of Dashrath at
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home. Her further evidence relates to search made by them in the
morning for Dashrath having noticed blood stained Shawl of
appellant no.1 and blood stained Muffler of appellant no.2 lying in
the said field and also having dead body of Dashrath in the fencing
of the field with bleeding injuries on neck, stomach and chest with
neck being cut with knife. It also discloses of herself having lodged
FIR Exh.16 against the appellants.
20. Close scrutiny of her evidence does not reveal any
tangible material being elicited during the cross examination
rendering her evidence unbelievable. The matters elicited during
the cross examination in the nature of omissions of herself having
not told the police of the appellants (i) while taking away deceased
having held his hand or (ii) having not stated of appellant no.1
taking Dashrath to liquor-den or (iii) her inability to assign the
reason for the same, clearly appears to be trifle nature. Needless to
add that the said matters or further matters put to her which were
denied by her cannot be said to be having any effect of rendering
evidence given by her unbelievable or unacceptable. Needless to
add that the said matters will be required to be held established are
as the same are found corroborated by matters stated by her in FIR
Exh.16 and so also the evidence of PW 6 Badami and PW 7
Dagdabai.
21. Now considering the evidence of PW 6 Badami, who is
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mother of the deceased and so also PW 1, also reveals a
corroborative account given by her regarding the quarrel occurred in
between both the appellants and Dashrath at about 4.30 PM on
account of beating of Kishore, son of the appellant, by the deceased
and threats given by the appellants to the deceased. The same also
reveals further corroborative account given by her regarding at 7.30
PM appellants again having been to their house and appellant no.1
having caught hold of Dashrath and having taken him along with
him and appellant no.2 having followed them.
ig Her evidence also
discloses of both the appellants again having been to her house at
12.00 to 1.00 in the night and having informed her that Dashrath
was sleeping with them in the field at Mohali but they were not
knowing as to where he had been thereafter. It also discloses of
herself having got suspicion about them as she had seen knives
with them when they had been to her house earlier. It also discloses
that thereafter she had made efforts for searching Dashrath but
was unable to trace for whole night. It also discloses that she had
been to the house of the appellants but their door was locked and
they were not found in the house along with the children and having
left their children with the residence of father-in-law of appellant
no.1.
22. Further evidence of PW 6 discloses of herself having
roamed in the village whole night, she could not sleep, early in the
field having been to the field of Mohali and having witnessed blood
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stained knife in the field of Mohali with blood stained shawl of
appellant no.1 and muffler of appellant no.2 lying in the said field
and the corpse of the deceased in fencing with the injuries on chest
and abdomen and so also neck cut.
23. Now scrutiny of the evidence reveals of omission about
her claim of quarrel so also about the threats given being brought
on the record. Similarly the omissions in respect of the claim of
having seen knife in the hand of the accused, having been to the
house of the appellants, having found door locked, accused having
escaped along with children, having left the children at the
residence of father-in-law and hidden in the bushes, having
witnessed blood stained knife on the spot of the incident or so also
shawl and muffler etc. being brought on the record. The scrutiny of
her evidence does not reveal any other circumstances being brought
on the record rendering her other evidence unbelievable and thus
the same would deserve due credence.
24. Now considering the effect of the omissions from her
evidence brought on the record and out of them her claim of having
seen knives with the appellants will be required to be excluded after
considering the same on the preponderance of probability. The
same is obvious as even it is not the case of the witness that any
occasion has arisen for taking out the knives during the quarrel
ensued in between the appellants and deceased about which she
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has deposed. However, with regard to the other aspects since the
said matter apparently being not in the nature of the contradiction
with further claim staked by her and on the contrary being
consistent with natural conduct of mother who had received
information from the appellants of deceased being missing from the
field in which he was sleeping, it is difficult to accept her further
evidence regarding the search made by her. Since deceased had
left in the company of the appellants and the appellants had
informed her about himself being missing her claim of having gone
to their house etc. also cannot be said to be unnatural claim. The
same is the case about her claim of in the morning during search
herself having found things and corpse in the field. Thus, judging on
the preponderance of probability and expected conduct of mother
whose son was missing the said part of her evidence will not be
liable to be discarded due to omissions regarding the same being
brought on the record. Needless to add thus excepting the matters
liable to be discarded as observed earlier, her rest of the claim will
be required to be accepted.
25. Now considering the evidence of PW7 the same in terms
reveals of having seen appellants and deceased coming in front of
her house at about 8.00 PM while she was sitting in the door. The
same also reveals of appellant no.1 started checking pockets of
deceased, having demanded money from deceased, in spite of
reluctance of deceased, appellant no.1 having taken out money from
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the pocket of deceased, having gone to liquor shop and having
returned by purchasing liquor where deceased and appellant no.2
were standing and all of them having gone in the field of Mohali. It
also reveals of PW 7 having witnessed knife in the hands of both the
appellants, her further part of evidence relates to her aunty PW 6
being to her house in the morning and having asked about the
Dashrath. It also discloses of PW 7 having told them of having seen
Dashrath lastly on previous night with the appellants and having
disclosed everything to them witnessed by her. Her further part of
evidence relates to the search made and having found blood stained
knives, blood stained shawl of appellant no.1 and blood stained
muffler of appellant no.2 and corpse of deceased in the Mohali field
with the injuries as deposed by PW 1. She has also identified the
knives before the court being the same knife and so also about
shawl and muffler being the same which was found in the said field.
26. Now scrutiny of her evidence reveals that her statement
was not recorded by the police. It also reveals that she was
frightened and had been to Hingoli to the house of her daughter. It
also reveals that she had seen the appellants and Dashrath from
distance of 15 feet from her house. Beyond the said matters the
cross examination effected does not reveal any circumstance being
brought on record for not accepting the matters spoken by her. It is
true that her statement was not recorded by the police. However,
taking into consideration her evidence that she was frightened and
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had been to Hingoli to the house of her daughter and no other
material being brought on record, it is difficult to reject her
testimony on the count of her statement being not recorded during
course of investigation. Such a conclusion is inevitable as one of the
prime object of recording a statement being to rule out the
possibility of false witness being roped by the prosecution at the
later stage of proceeding and such a possibility apparently being
not spelt out and/or brought on the record during the cross
examination. Since the criminal trials are required to be decided on
the basis of substantive evidence with due opportunity for
adversary to test the same, her evidence inspiring confidence will
not be liable to be rejected on the ground urged by learned counsel
for appellants. However, the caution will require to seek a
corroboration for her evidence and so also the same will be required
to be tested on the touchstone of probability factor.
27. Thus from such an angle considering her evidence and
same being found corroborated by evidence of PW 1 and PW 6 and
nowhere the defence having thrown a challenge that at the relevant
time she was not residing at the relevant place, merely because of
the suggestion put of herself having not seen the matters, her
evidence will not be liable to be rejected for the matters which are
corroborated. However, considering in proper perspective the
events which she had claimed to have occurred in front of her house
and the same by itself not denoting any occasion of herself getting a
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chance to see the dagger/knife with the appellants, if any, it is
difficult to accept the said claim. The same is obvious as her
account of an incident of the said event does not reveal any
occasion having arisen for appellants taking out the dagger/knife
and so also it will be highly improbable to expect appellants then
would have been moving with knives in their hands. In view of the
same, her said claim will be required to be discarded and
consequently the prosecution submission of such a facet being
established by them through her evidence.
28. In the aforesaid context having due regard to the
tendency of the witnesses to intermix the facts pertaining to the
subsequent events merely because of discarding of some facets of
evidence PW 6 and PW7, entire evidence of each of them will not be
liable to be discarded. The same will not be liable to be discarded in
view of the tendency of the witnesses to intermix the facts about
which they had gained knowledge lateron, while giving the
evidence, the doctrine of falsus in uno falsus in omnibus has not
been found applied in our country.
29. Now reverting to the evidence of PW 4 the same reveals a
claim being staked by him that in the relevant night while sleeping
in the house he had heard a quarrel between deceased and
appellants in his field on the rear side of his house. However,
considering the nature of said claim staked by him it will be difficult
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to place much reliance upon the same. However, his further claim of
having seen appellant no.1 and deceased being seen roaming in
their locality one day prior to himself receiving information about the
death of deceased on the next day morning from the mother of the
deceased and, thereafter, himself having seen body of the deceased
in the field and having noticed injuries as noticed by the other
witnesses on the said body will not be liable to be discarded only on
the count of his claim of seeing them in company being in the nature
of omission brought on the record.
ig Needless to add the same will
not be liable to be rejected due to same being somewhat
corroborated by the other evidence on record.
30. In addition to the aforesaid considering the evidence of
the panch witnesses PW 2 Pitambar in light of the matters from
inquest panchanama Exh.20, seizure of clothes of the deceased,
panch witness PW 3 Shaikh Rafiq regarding seizure of the clothes of
the accused under panchanama Exh.24 and particularly the
evidence of investigation officer (PW 8) and considering the same in
proper perceptive, the same duly corroborates the aforesaid
evidence regarding the relevant facets and also establishes the
articles seized from the field i.e. knives, shawl and muffler were
found stained with blood.
31. Thus reappreciating the evidence of the aforesaid
witnesses and discarding the circumstances not established by the
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the same, the submission of the learned APP of the prosecution
having the circumstances is found to be justified to the tune of
having established : (a) the deceased having met with homicidal
death, (b) prior to the day of his death deceased at about 4.00 pm
he had quarrel with the appellants on the count of beating of their
son by deceased at his house, (c) on the same day at about 7.30 pm
appellants had been to the house of deceased and taken him away
from the house, (d) at about 8.00 pm in front of the house of PW 7
appellant no.1 had taken money from the deceased purchased
liquor and both the appellants along with the deceased had been in
the field , (e) the appellants had been to the house of PW 6 at about
1.00 midnight and having informed her that deceased was sleeping
with them in the field of Mohali but they did not know as to where he
had been thereafter, (f) appellants were not found in their house in
the said night, (g) the body of the deceased being found with injuries
on his person at 9.30 AM at the field of Mohali, (h) human blood
stained shawl and human blood stained muffler being found in the
said field, (i) blood stained dagger and knife being found in the said
field, (j) clothes of the accused being also found stained with blood.
32. Now taking into consideration the said circumstances duly
established by the prosecution evidence and failure of the accused
to give any cogent explanation for any of the same has definitely
effect to reach to the conclusion as arrived by the trial court.
Though it is true that the motive assumes an important in cases of
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circumstantial evidence still it is difficult to accept the submission of
the learned counsel for the appellants that the motive established
by the prosecution in the instant case i.e. quarrel on the count of
beating of son could never have been sufficient motive to the
appellants to commit such a heinous act. We are unable to accept
said submission as the prosecution is required to establish only the
probable motive even in such a cases and the possibility of the said
quarrel being sufficient being not ruled out by any of the
circumstances adduced on the record and on the contrary there is
positive evidence on the record of the appellants having given
threat to the deceased after the said quarrel that they would be
seeing him lateron.
33. With regard to the submission canvassed by the learned
counsel for the appellants of the evidence having not surfaced on
the record that on the said day appellant no.1 was having said
shawl or appellant no.2 said muffler which was found nearby dead
body found in the field the same appears to be correct. In view of
the same, his further submission that it is difficult to accept
prosecution having established with cogent evidence of such articles
found at the spot being that of the respective appellants will also
deserve due credence and as such the said aspect will be required
to be left out of consideration. Needless to add it clearly appears to
be hazardous to accept such a claim of identification of articles
staked by relevant prosecution witnesses.
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34. In the same context even accepting the
submission/explanation of the appellants regarding the factual
aspect of their blood being not collected by investigating officer still
themselves having not claimed of the said clothes/articles were
containing their own blood, it will be difficult to accept that the said
circumstance will not have any value. The same appears accordingly
as hardly any foundation has been led during the cross examination
of PW 8 for accepting that he had sprinkled the blood of deceased
upon the said articles as claimed by the appellants.
ig In the same
context it can be added that presumption of honesty being equally
applicable to the evidence of police personnel without any
foundation and/or any circumstance supporting conclusion of PW 8
being interested person, the said theory cannot be accepted.
35. Now with regard to the decisions cited by both the
parties and without unnecessarily making threadbare dilation
about each of them it can be safely said that the potential of
circumstance last seen in the company of deceased has been
explained by the Hon’ble Apex Court is bound to very from case to
case dependent upon the relevant factors and facets involved in the
same. Thus considering such a circumstance established against
the appellants, the narrow gap in between deceased being seen
alive in company of appellant and probable time of death of the
deceased prior to finding of his corpse, coupled with the other
circumstances affording corroboration to inference arising out of the
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same it clearly leads to no other conclusion of there existing a very
short gap in between the appellants being seen in company of
deceased and the time at which the he was found dead and the
probable time by which he would have been killed. The narrow time
gap considered along with the other incriminating circumstances
established by the prosecution, rules out any reasonable probability
of culprits being anybody else other than the appellants. Such a
conclusion is inevitable as the law pertaining to the circumstantial
evidence though requires exclusion of other possibilities the same
means the reasonable possibility and not altogether far fetch
possibility as observed repeatedly by the Hon’ble Apex Court.
36. As a net result of the aforesaid discussions after
reappraisal of the evidence, we do not find any error having been
committed by the trial court warranting an interference on our part
with the judgment impugned in the appeal. Thus there being no
merits in the appeal, the same deserves to be and accordingly
stands dismissed.
JUDGE JUDGE
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