1 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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