Prisoner No.C/-2919 vs The State Of Maharashtra on 30 August, 2008

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Bombay High Court
Prisoner No.C/-2919 vs The State Of Maharashtra on 30 August, 2008
Bench: Ranjana Desai, Dr. D.Y. Chandrachud
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                   CRIMINAL APPELLATE JURISDICTION 




                                                       
                     CRIMINAL APPEAL NO.909 OF 2005
                                 WITH 
                     CRIMINAL APPEAL NO.962 OF 2005




                                                      
    CRI.APPEAL 909/05:

    Prashant Dattatraya Belapurkar.




                                           
    Prisoner No.C/-2919,
    Kolhapur Central Prison, Kalamba, 
                              
    Dist. Kolhapur,
    R/o. Near/Firangai Mandir,
                             
    Shivaji Peth, Kolhapur.                               ...Appellant.
                            Vs.
    The State of Maharashtra.                             ...Respondent.  
                                    ....
           

    CRI.APPEAL 962/05:
        



    Deepak Anil Mali.
    Convict No.2918, 
    Kolhapur Central Prison,
    R/o. Fulewadi, 2nd Bus Stop, Kolhapur.                 ...Appellant.





                            Vs.
    The State of Maharashtra.                              ...Respondent.  
                                    ....
    Shri Ashokkumar N. Kotangle for the Appellants.





    Smt. V.R. Bhonsale, APP for the Respondent.
                                    .....
                                    CORAM : SMT.RANJANA DESAI & 
                                            DR.D.Y.CHANDRACHUD,  JJ.

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August 30, 2008.

JUDGMENT : (Per Dr. D.Y. Chandrachud, J.) :

The Additional Sessions Judge, Kolhapur, by a judgment

dated 16th April 2005, convicted the Appellants of offences

punishable under Section 302 read with Section 34 of the Penal

Code and sentenced them to imprisonment for life, to a fine of

Rs.500/- and in default, to suffer rigorous imprisonment for two

months. The case of the prosecution is that the deceased, Mahesh,

was engaged in the business of repairing two wheelers and resided at

Mangalwar Peth in Kolhapur with his mother and two brothers. The

accused Nishikant, Deepak and Prashant (the last two being the

Appellants in these proceedings) had lent and advanced an amount

of Rs.200/- to Mahesh. The accused were allegedly visiting Mahesh

for the repayment of the amount. On 17th November 2003, the three

accused came to the residence of Mahesh at 5 p.m. and called for

him. Mahesh was then on the first floor of the house. Nishikant,

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accused No.1, went to the first floor and brought Mahesh down to the

ground floor. All the three accused and Mahesh thereupon went

away. Mahesh was in the habit of returning home late at night and his

dinner was kept in a room on the first floor. Mahesh and his brother

Ravindra used the room on the first floor. When Ravindra woke up on

18th November 2003 at 7 a.m., he realised that Mahesh had not

returned home and the dinner had not been consumed. At 8.45 a.m.

the Police from Rajwada Police Station came to the house and

informed Gajanan, the other brother of Mahesh that the dead body of

Mahesh has been found at Gandhi Maindan. The body was removed

to the CPR Hospital, Kolhapur. The deceased had suffered as many

as nine injuries including contused lacerated wounds and incised

wounds. The FIR was lodged on 18th November 2003 by Gajanan

(PW 3) who was the brother of the deceased. Investigation was taken

up and the accused were arrested on 18th November 2003. The

clothes on the person of the accused were seized under a

panchanama. A bottle of alcohol and a glass were found in close

proximity to the place where the dead body had been found. The

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bottle and the glass were forwarded to a finger-print Expert through

the Superintendent of Police, Kolhapur, by a letter at Exh.72.

Accused Nishikant furnished a statement to the Police which led to

the discovery of a barber’
s razor (Vastara) which was found near a

cement pipe in close proximity to a toilet at Gandhi Maidan where the

body had been found. The muddemal properties were forwarded to

the Chemical Analyser whose report was obtained. Three accused

including the Appellants before this Court were tried on the charge of

murder. The prosecution examined sixteen witnesses. The

Additional Sessions Judge found the accused guilty under Section

302 read with Section 34 of the Penal Code and sentenced them to

imprisonment for life.

2. On behalf of the Appellants, it has been submitted that the

case of the prosecution has rested on circumstantial evidence. The

chain of circumstances, it is urged, linking the accused with the

commission of offence is not complete. It is submitted that the

blood group of the deceased was not established; the role played by

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each of the accused was not proved and the body was found in a

public Maidan. On the other hand, the Learned APP submitted that

PW 3, the brother of the deceased and PW 10, the mother of the

deceased consistently deposed to the fact that at 5 p.m. on 17th

November 2003 the accused had come to their residence and that

they had taken the deceased with them. It was urged that the motive

was established since the accused had lent and advanced money to

the deceased of which they were seeking repayment. The Learned

APP urged that the accused were arrested soon after the offence on

18th November 2003; the clothes of the accused were seized under a

seizure panchanama and were found to be bloodstained. The report

of the Chemical Analyser shows that the clothes which were worn by

accused Deepak (the Appellant in Appeal 962 of 2005) had

bloodstains of blood group ‘
B’ which corresponded to the blood which

was found on the muddemal property, namely, the stone and the

barber’
s razor. In so far as accused Prashant (the Appellant in

Appeal 909 of 2005) is concerned, it was urged that the evidence of

the finger-print expert establishes the finger prints of the aforesaid

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accused on the wine bottle and glass which were found at the scene

of offence. Neither of the Appellants have in their statements under

Section 313 of the Code of Criminal Procedure, 1973 claimed that

they had suffered injuries or that there was a scuffle or that they had

exercised the right of self defence. In other words, it was not the

contention of any of the accused that the blood on the bloodstained

clothes was their own blood, due to injuries sustained during the

course of a scuffle. Thus, it was urged that the oral evidence of PW

3 and PW 10 who had seen the accused taking away the deceased at

5 p.m. on 17th November 2003 coupled with the corroborative

evidence of the finger-print expert, PW 13, Atmaram Angre and the

report of the Chemical Analyser would link the accused to the crime

and establish the case of the prosecution beyond reasonable doubt.

As many as nine injuries were found during the course of post mortem

and the evidence of PW 11, Dr.Ruikar, was that these injuries were

capable of being caused by a razor, or as the case may be, by a

stone.

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3. In assessing the merits of the rival contentions, it would be

in order to advert to the salient aspects of the oral evidence. PW 3

Gajanan was the brother of the deceased. The deceased resided

with PW 3 together with his mother and another brother. PW 3

deposed that at 5 p.m. on 17th November 2003, the accused had

come to their house and had called for the deceased Mahesh, who

was also known as Bajrang. P.W. 3 stated that he stood outside the

house and had seen each of the accused who were friends of

Mahesh. PW 3 deposed that a loan of Rs.200/- was obtained by

Mahesh from the accused and the accused had been visiting the

house to take back that amount. On 17th November 2003, Nishikant,

one of the three accused, went to the first floor and brought Mahesh

down, after which the accused and Mahesh went away together. PW

3 was informed by the Police the next morning of the discovery of the

dead body of Mahesh at Gandhi Maidan. PW 10, Vatsala, the

mother of the deceased, was also present at home on 17th November

2003 and deposed in terms similar to what was stated by PW 3. The

oral depositions of PW 3 and PW 10 have established that the

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accused were known to the deceased; that on 17th November 2003,

the accused had come to the house of the deceased; that some

amount had been borrowed by the deceased from the accused which

the accused were demanding back and that at or about 5 p.m. the

deceased had left home together with the accused, including the two

Appellants.

4.

The body of the victim was found at or around 7 a.m. on

18th November 2003 by PW 12, Dattaji Tipugade, who had gone to

the Gandhi Maindan for exercise. He deposed that he had noticed a

dead body lying on the earth behind the toilet at the Maidan and he

intimated this fact to the Rajwada Police Station on the telephone;

besides bringing it to the notice of the watchman. Following the arrest

of the accused on 18th November 2003, a recovery was effected on

19th November 2003 of a razor (Article 15) from near a cement pipe

near the toilet. The razor was seized under a seizure panchanama

(Exh.27). The clothes worn by the accused came to be seized under

a seizure panchanama (Exh.16). The seizure panchanama of the

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clothes worn by the accused (Exh.16) which was proved in evidence

through PW 1 Santosh Pisal shows that bloodstains were found on

the clothes worn by both the Appellants. The panchanama was

recorded between 1515 hours and 1645 hours on 18th November

2003. One important link in the case of the prosecution is the

presence of bloodstains on the clothes which were worn by the

accused. The accused, as noted earlier, were arrested on 18th

November 2003 soon after the offence.

5. The clothes worn by the accused as well as the muddemal

property were submitted for chemical analysis. These articles were

forwarded for chemical examination on 29th November 2003 vide

Exhibit 74. The report of the Chemical Analyser showed bloodstains

of blood group ‘
B’ on the stone and the razor. In so far as the clothes

which were worn by accused Deepak are concerned, they too showed

the presence of bloodstains of blood group ‘
B’. In the statement

under Section 313 of the Code of Criminal Procedure, 1973, the

accused denied that any bloodstains whatsoever were found on the

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clothes which were seized under the seizure panchanama.

Significantly, it was not the case of the accused that he had suffered

any injury which had resulted in bleeding or that there was a scuffle or

for that matter, that he had exercised the right of self defence. There

was a blatant denial by the accused of any bloodstains on the clothes

worn at the time of arrest.

6.

The next important link in the case of the prosecution is the

evidence of the finger-print expert, PW 13, Atmaram Angre. PW 13 is

a Government servant at the Finger Print Bureau and he has, during

the course of his deposition, testified that the finger prints found on

the glass and bottle of alcohol were those of accused – Appellant

Prashant. Both the bottle and the glass were recovered from the

place where the dead body of Mahesh was found.

7. The medical evidence of PW 11, Dr.Ruikar, who conducted

the post mortem, shows that the deceased had suffered as many as

nine injuries which were as follows:

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“1) C.L. W. frontal region-Right side-5.1 x 2.3 x bone deep.

2) C.L. W. Lateral margin of right eye-brow – 2.1 x 0.8 cm. x

bone deep.

3) Incised wound-below right eye-5.3 cm. x 1.6 cm. x bone

deep.

(Marcins gaping).

4) C. L. W. – Lateral margin of base of right nostril 1.9 x 0.6

cm x bone deep.

5) C. L. W. – above lateral end of upper lip right side – 1.2 x

0.4 cm. x bone deep.

6) Incised wound – in front of right ear involving Rt. ear

Right tragus lost 8.2 x 2.9 cm x bone deep (Margin gaping)

7) C. L. W. below chin – centrally – 2.1 x 0.6 cm x bone

deep.

8)Abrasion right sterno-clavicular joint horizontal – lin ear –

4.1 x 0.2 cm. colour of injuries 1 to 8 – dark red.

9) Dislocation upper 2 – central incisears – on examination

vital reaction – colour – dark red.”

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The deceased was also found to have suffered internal injuries

including a fracture on the skull. Some of the external injuries were

contused while others were incised. PW 11 deposed that the

contused wounds were capable of being caused by a stone and that it

was likely that the skull would be smashed as a result of an assault

by a stone. The incised injuries were attributed to the razor or

Vastara. The injuries sustained by the deceased, PW 11 deposed,

were the cause of death.

8. The prosecution has established all the necessary links in

terms of circumstantial evidence, beyond reasonable doubt. These

circumstances are: (i) The deceased was last seen together with the

accused at 5 p.m. on 17th November 2003 at his residence by PW 3

who was his brother and by his mother, PW 10, and had left his place

of residence together with the accused; (ii) The accused were

arrested on 18th November 2003 soon after the offence and the

clothes worn by them were seized under a seizure panchanama; (iii)

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The clothes which were worn by the accused had bloodstains; (iv)

The bloodstains on the clothes worn by accused the Appellant –

Deepak, belonged to blood group ‘
B’ and corresponded to the

grouping of the bloodstains found on the muddemal property, namely,

the stone and the razor; (v) The medical evidence shows that death

was caused due to the injuries sustained by the deceased through the

razor and the stone; (vi) The evidence of finger-print expert, PW 13,

shows that the finger prints on the glass found together with the bottle

of alcohol at the place where the dead body was located, belonged to

accused Prashant; (vii) In the statement under Section 313, the

accused chose to deny that any bloodstains existed at all and it was

not the case that the bloodstains on the clothes related to injuries

suffered by them during the course of a scuffle or while exercising the

right of self defence. The case of the prosecution rested on

circumstantial evidence, and all the links in the case of the

prosecution have been established beyond reasonable doubt. The

circumstantial evidence is consistent with the guilt of the accused

alone. It is a settled principle of law that in a case based on

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circumstantial evidence, the chain of circumstances must be

complete and must be consistent with only one possible inference,

namely, the guilt of accused. That requirement has been duly fulfilled

the present case. The prosecution has established its case beyond

reasonable doubt. The judgment of the Learned Additional Sessions

Judge does not suffer from any infirmity.

9.

There is no merit in the appeals which shall accordingly

stand dismissed.

( SMT.RANJANA DESAI, J.)

( DR.D. Y. CHANDRACHUD, J.)

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