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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 444 OF 2004
Suresh s/o Narayan Dakhore,
Aged about 30 years,
R/o. Kinhi Raja, Taluka Malegaon,
District - Washim. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through Police Station Officer,
Jaulka Police Station,
Taluka - Malegaon,
District - Washim. .. RESPONDENT
.....
Mr. V.M. Deshpande, Advocate for Appellant (Appointed),
Mr. T.A. Mirza, APP for Respondent.
.....
CORAM : A.P. LAVANDE & P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : FEBRUARY 10, 2010
DATE OF PRONOUNCING THE JUDGMENT : FEBRUARY 25, 2010
JUDGMENT ( per P.D. Kode, J.)
1. By present appeal, appellant had thrown challenge to
judgment and order dated 9.7.2004 passed by learned Adhoc
Additional Sessions Judge, Washim in Sessions Trial No.120/2002
convicting him for commission of murder of one Laxman
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Ramkrushna Naik and sentencing him to suffer imprisonment for life
and to pay fine of Rs.5,000/- and in default to undergo R.I. for a
period of one year.
2. The said trial has arisen out of charge sheet submitted by
Jaulka Police Station for commission of such offence against the
appellant as a result of investigation of F.I.R. No. 35/2002 Exh.13 on
18.7.2002 registered by PSI S.G. Pawar of Jaulka Police Station
regarding murder of deceased committed in night in between
16.7.2002 up till 18.7.2002 on the basis of oral report Exh.12 lodged
by elder brother of deceased namely Eknath Ramkrushna Naik, PW1.
3. The facts, in brief, giving rise to the aforesaid prosecution
as revealed from the record are as under :-
a) PW1 Eknath, deceased Laxman and appellant were
residing at village Kinhi Raja in Malegaon Tahsil. Appellant was
close friend of deceased and had lent Rs.1,000/- to him. Appellant
was behind him for returning said amount and on said count conflict
has arisen in between them. On 16.7.2002 lunch was arranged in
Hanuman Temple of village Kinhi Raja for inviting Lord Varuna. PW1
and appellant had been to temple for lunch. After lunch in between
12.00 to 13.00 hours PW1 returned to house. However, deceased
and appellant remained at the temple for distribution of food to
devotees. The deceased did not return home till late night, PW1
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was unable to trace out the deceased in search made by him on the
next day.
b) After about two days i.e. on 18.7.2002 PW1 had witnessed
a crowd in front of the house of the deceased. A stench was oozing
from the said house locked from outside. PW1 went upon the roof
and peeped in house of appellant and noticed corpse of his brother
Laxman lying in one room. The door of said house was also locked
from inside. The complainant narrating these facts lodged report
Exh.12 with Police Station upon which above stated F.I.R. for
commission of offence under Section 302 of IPC was registered
against the appellant. The investigation of said FIR had led to the
conclusion of appellant having committed murder of Laxman on the
count of money dispute and hence chargesheet was submitted
against the appellant in the Court.
4. After committal of case, trial was taken up by learned
Sessions Judge, Washim. The appellant vide his plea Exh.6 pleaded
not guilty to charge Exh.5 framed on 22.4.2004.
5. The prosecution examined in all nine witnesses at the trial
and has also relied upon documents of which details are given while
discussing the prosecution evidence. The cursory glance at the
prosecution evidence reveals of there being no eye witness to the
crime committed and the prosecution has rested mainly upon
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circumstantial evidence i.e. various circumstances established from
the evidence of the witnesses examined and the documents proved.
6. The defence of appellant at trial was that of total denial.
The appellant to questions put to him during examination under
Section 313 of Cr.P.C. about circumstances appearing against him
in prosecution evidence has either claimed the same being false or
himself being not aware of the same. However he had not given any
reason regarding witnesses having deposed against him.
ig He also
did not claim to examine any witnesses in support of his defence.
7. The trial court after appreciation of evidence adduced by
prosecution came to the conclusion of prosecution having
established (i) deceased having died homicidal death, (ii) appellant
was having motive for commission of crime, (iii) deceased was seen
lastly alive in the company of appellant and (iv) body of deceased
was found in the house of appellant with the house locked from
outside. The trial court came to the conclusion that all the
circumstances were consistent with hypothesis of the guilt of the
accused and the same ruled out any other person being the culprit.
The trial court thus came to the conclusion of the appellant having
committed the murder of the deceased and convicted and
sentenced him as stated earlier.
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8. Mr. V.M. Deshpande, learned appointed counsel
appearing for the appellant urged that the circumstances relied by
the prosecution failed to form a complete chain leading to the sole
inference of the guilt of the accused as some of the said
circumstances cannot be said to have been established by the said
evidence adduced. He further urged that :
(i) the prosecution had failed to adduce cogent evidence that the
house in which the body was found belonged to the appellant or he
was residing in the same. As the evidence of PW2 itself reveals
that police had called the said panch at the house of Anandrao
Narayanrao Dakhore i.e. father of appellant and not at the house of
appellant.
(ii) the evidence of PW3 does not reveal or even otherwise it is not
established that the sword allegedly discovered and seized at the
behest of the appellant was stained with blood or key allegedly
discovered and seized i.e. both under memorandum and discovery
panchanamas respectively Exh.20 and 21 was used for any material
purpose, considered along with backdrop that key was not even
used by police for opening the house makes the said entire evidence
wholly inconsequential and as such does not advance the
prosecution case in any manner.
(iii) the evidence of wife of deceased PW4 Kusum itself reveals that
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the appellant had returned to the deceased amount of Rs.1,000/-
borrowed, and as such the same militates against the theory of the
prosecution of there being quarrel regarding the same and hence
appellant having motive to commit murder of the deceased.
(iv) the evidence of PW5 Shankar considered in proper perceptive
fails to establish either police had been in search of appellant on
16.7.2002 at the Hotel of the said witness at Akola and as such fails
to establish that the appellant was absconding.
(v) the evidence of PW6 Baban also runs counter to the
prosecution case of the appellant having motive against the
deceased as the said evidence reveals that said witness had given
Rs.1,000/- to the deceased and not to appellant.
(vi) the evidence of PW7 Gajanan considered in proper perceptive
does not reveal any potential circumstance against the appellant,
considering the function arranged in the said village on the relevant
date. Even it is accepted that on the said day the appellant had
taken deceased along with him still there being no proximity of time
in between the said event with the time at which deceased could be
said to have died, no value can be given to said circumstance.
(vii) the evidence of PW8 Tukaram considered along with the
evidence of PW2 clearly reveals that on the basis of the same
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conclusion cannot be drawn that the house in which the body was
found was belonging to appellant, as PW2 had said the same being
the house of father of appellant.
(viii) the other facet from the evidence of PW8 of having seen
deceased and appellant firstly wandering in the rows of person
dining at the temple and, thereafter, having been to the house of
the appellant is also inconsequential as there is no proximity of the
said event with the death of the deceased or with finding of corpse
of deceased.
(ix) the learned counsel thus urged that even in the event of
accepting, the deceased being seen lastly alive in the company of
the appellant, considering the place at which he was seen, the time
at which he was seen with the appellant and the event which had
occurred on the said day and the evidence adduced altogether not
ruling the possibility of both of them having been to some other
place and there being no evidence of appellant having taken
deceased to his house and/or the house in which dead body was
found being not established to be house of appellant and
prosecution having failed to establish motive for appellant to commit
such act on the basis of the said evidence conclusion of the guilt of
the appellant is not at all warranted.
(x) that cardinal rule of the criminal law requires prosecution to
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establish its case beyond pale of doubt by standing upon its legs
and is not entitled to take advantage of the weakness of the defence
and in event of evidence revealing two views possible from the
evidence then the view beneficial to the accused is required to be
accepted by giving him the benefit of doubt. In the present case
such thing being evident the appellant deserves to be acquitted by
giving such benefit by allowing his appeal.
9.
Mr. T.A. Mirza, learned APP appearing on behalf of the
Respondent-State supported impugned judgment and order and
urged that the trial Court has rightly come to the conclusion of
circumstantial evidence adduced having established guilt of the
appellant as the said evidence clearly establishes : (i) of deceased
having met with unnatural homicidal death, (ii) the body of the
deceased being found in the house of the appellant, (iii) appellant
having motive for commission of crime through the evidence of PW1,
PW4 and PW6, (iv) deceased being lastly seen alive in his company
as established by the evidence of PW1, PW7 and PW8, (v) the
conduct of the appellant of fleeing away as he could not be arrested
up till 19.7.2002. He urged that considering the proximity of the
said circumstance of last seen together with the time of death as
denoted by prosecution evidence considered along with the other
two circumstances leads to irresistible conclusion about guilt of the
appellant for committing murder of deceased. He urged that failure
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on part of appellant to explain the inferences arising of circumstance
of last seen with deceased and corpse of deceased being found in
his house leads to the conclusion as arrived by the trial Court and as
such no interference is warranted with the judgment delivered by
the trial Court and the appeal deserves to be dismissed.
10. We have given thoughtful consideration to the
submissions advanced by both the parties and carefully perused the
record for appreciating the same.
11. Firstly taking up the question of deceased having met
homicidal death or otherwise, the reference to the evidence of PW2
panch for inquest panchanama Exh.17 and spot panchanama Exh.16
along with the matters stated in the said panchanama and the same
considered along with the evidence of PW1 Eknath who had seen the
corpse of deceased in the house of appellant from the roof of said
house and who had thereafter lodged the report Exh.12 and so also
the evidence of PW7 to the extent of having seen body by peeping
through the window of the house and of PW8 Tukaram, the same
clearly establishes the manner in which the corpse of deceased with
injuries thereon was found lying in the house which was
undisputedly locked from outside. Needless to add that the said
facet of the prosecution evidence and so also even fact of deceased
having died homicidal death is not seriously disputed on behalf of
the appellant. Apart from the appellant having not disputed such a
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facet, said evidence further considered along with the evidence of
PW9 Dr. Chawan who had performed post-mortem and his post-
mortem notes Exh.29 and the opinion given by him clearly
establishes deceased having died homicidal death.
12. Such a conclusion is inevitable as the evidence of PW 9
Dr. Chavan reveals that while performing autopsy on 19.7.2002 at
9.30 p.m. during external examination he had noted following
serious injuries on the corpse i.e.:
(i) Incised would, size 10 cm x 3 cm x 3 cm bone deep, over
left cheek, in transverse direction.
(ii) Incised wound, size 6 cm x 2 cm x bone deep, over left
shoulder region, interior aspect, in verticle direction.
(iii) Incised would, two in numbers, size 5 x 1 x 1 cm and 3 x 1
x 1 cm. Over left para ambalical region, in transverse direction with
fracture of left mandible bone.
13. The evidence of PW9 further reveals that during the
internal examination he had noticed brain matter having liquified
and coming out of cranial cavity with skull bone disfigured due to
fracture of skull bone and so also parietal and frontal bones being
fractured. He had also noticed signs of decomposition like pool of
moving maggots covering whole head including face. He had
observed similar feature regarding other organs which were
decomposed. He had given cause of death as cardio respiratory
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arrest due to shock because of head injury and polytrauma. He had
also deposed of internal injuries corresponding to external injuries
noticed by him during autopsy. He had further opined of the same
must have been caused by hard and blunt object and all of them
being dangerous to life with death having occurred after three to
four hours from last meals and/or within 48 to 72 hours from the
commencement of post-mortem.
14. Upon scrutiny of his evidence the same is found duly
corroborated by autopsy note Exh.29 prepared by him. Though he
has admitted that he was not able to come to the conclusion
whether the injuries noted by him were post-mortem or ante-
mortem still the said factor clearly appears to be redundant having
regard to the fact that decomposition of body had not only
commenced but stage for formation of maggots had passed. In
short, close scrutiny of evidence of PW9 in our considered opinion
does not reveal any circumstance rendering his evidence
unacceptable. Having regard to the same and considering the place
at which the said body was found and there being absolutely no
indication suggestive of any accident could have occurred at said
place, the same leads to the conclusion as observed earlier as the
same in turn excludes the death being for any other reason other
than homicidal death.
15. Now considering the other circumstances established by
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the prosecution and considering the evidence of PW1, the glance
at the same clearly reveals the appellant being in company of
deceased at the temple where dinner programme was arranged,
PW1 having left by 12.00 to 13.00 noon but deceased having
continued to remain at the said place along with the appellant,
deceased having not returned to home by night, deceased being not
found during search made by him on the next day and day
thereafter himself having seen people gathered at house of the
appellant as stench was coming from the said house and, thereafter,
himself having been upon the roof and having seen dead body of his
brother in the house and door of the house being locked. As an
another facet his evidence also discloses of there being dispute
between deceased and the appellant, appellant having lent of Rs.
1,000/- to the deceased and the quarrels having ensued in between
them on the said count. The further part of his evidence reveals of
having lodged report Exh.12 with the police and FIR Exh.13
registered upon the same.
16. The scrutiny of his evidence reveals of the same being
duly corroborated by report lodged by him. It also reveals of himself
having candidly admitted of his brother consuming alcohol. The
cross examination reveals that police were required to broke open
the lock for opening door of said house of the appellant but were not
required to break planks of the door. Having regard to the said
answer it is difficult to accept his claim that the door of the said
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house was also locked from inside i.e. a claim which is also not
found supported by the evidence of witnesses who had visited the
house on the day on which body was found in the house.
17. In the same context it can be further added that for
discrediting him about his said claim of the house being locked from
inside as well as outside, the omission to such effect has been
brought on record on behalf of appellant from the report lodged by
him. Having regard to the same, his claim of door being locked from
inside will be required to be discarded, however, the same being
locked from outside will not be liable to be discarded in view of his
substantive evidence to the effect of police being required to broke
lock upon door having remain unshattered during cross-
examination.
18. The scrutiny of his evidence further reveals of appellant
having mother, father and brother and having lands at Shendurga-
more being brought on the record. However, PW1 having denied the
further suggestion alike other suggestions denied by him that most
of the time appellant was residing at Shendurga-more along with his
family members, it is difficult to accept criticism made by learned
counsel for the appellant that prosecution by cogent evidence
having not established that the house in which the body of deceased
was found was that of the appellant. It can be further added that
the evidence having established the house being locked, key being
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recovered from the appellant also leads to the conclusion of faceat
of the appellant having mother, father and brother would be
redundant factor, for not accepting the prosecution contention that
the same was the house of the appellant. Such conclusion is
obvious in absence of the appellant having established on record
that he was not residing at the said house and/or the said mother,
father and brother were also residing in the said house.
19. As a net result of the aforesaid, it can be safely said that
by the said evidence prosecution has duly established of corpse of
the deceased after two days after the programme in the temple was
found in the house of the appellant. The same has also established
that there were quarrels in between the appellant and the deceased
on the count of money lend by the appellant to him i.e. a facet not
even denied on part of appellant. Such a conclusion is inevitable in
spite of omission to the said effect attempted to be brought on the
record during the cross examination of PW1, as examining the said
aspect in light of Exh.12 it is clear that the learned Sessions Judge
has erroneously allowed such a question in spite of such a matter
being borne from the same and omissions being restricted only with
respect to the precise amount lent which cannot be considered as an
omissions amounting to contradiction.
20. Now reference to the evidence of PW2 panch for inquest
and spot though reveals that his evidence reveals that he was called
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at the house of Anandrao Narayanrao Dakore in true sense
considering the said evidence in light of said panchanamas Exh.17
and Exh.16 reveals that he was called at the house of Narayanrao
Dakore. Having regard to the same and there being no other
evidence surfaced on the record to come to the conclusion that the
said house was that of Anandrao Dakore and even the honest
witness is bound to commit some mistake while giving evidence,
lead to the conclusion that as per police the said house might have
been that of Narayanrao Dakore i.e. father of the appellant.
ig Now
considering the said mistake made by witness it is difficult to accept
on the basis of his evidence that the same was house of father of
appellant and not of appellant. Such a conclusion is obvious as PW2
does’nt appears to be certain as to who was the owner of the said
house. The reason for the same is also apparently found from the
material surfaced on record during the evidence of PW1 in which it
has been brought on the record of the appellant was having other
property at Shendurga property so also at Bramha Wada. Similar
suggestion being also given to PW2 but himself having denied the
same still considering the said evidence in proper perceptive it
clearly appears that the same was the house of Dakore family. It
needs no saying that houses in villages are generally said to be that
of the head of family. Having regard to the same it can be safely
said that the evidence of PW2 though to some extent corroborates
evidence of PW1 of the same being the house of the appellant the
same certainly does not establish that the said house was not that of
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appellant as tried to be canvassed by learned appointed counsel for
the appellant.
21. Now reference to the evidence of PW3 panch Vishwanath
regarding discovery and seizure of Sword and Key in consequent to
statement leading to discovery of the same made by appellant;
under memorandum and discovery panchanamas respectively Exh.
19 and 20; though there appears substance in the submission of
learned counsel for appellant that the said evidence is redundant in
view of admission given by the witness recorded in paragraph no.4
of his deposition that panchanama was already going on when he
had reached to the house of the accused and/or the said discovery
and seizure is insignificant in view of no blood being detected on the
said sword or key being not utilised for any meaningful purpose still
fact of said evidence revealing the same being house of appellant
cannot be ignored. Thus, even the said to some extent have a
corroborative value to corroborate the evidence of earlier witnesses
of the appellant possessing a house of village Kini-raja.
22. Now considering the evidence of wife of the deceased
PW4 Kusum the same reveals her evidence being adduced about the
aspects of there being money transaction in between appellant and
deceased, there being a quarrel in between them upon the same,
the deceased having not returned after having left his house for the
temple along with the appellant and third day body of deceased
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being found at the house of accused lying in pool of blood.
23. The close scrutiny of the evidence of PW4 though reveals
some disparity in her evidence regarding whether appellant had
lend the money to the deceased or otherwise, her evidence does
not reveal any other circumstance elicited during cross examination
except the facet of such quarrel being in the nature of the omission
being brought on record. Since the disparity is regarding precise
nature of money transaction, merely a rustic lady is not aware of
details about the same would never a good ground for discarding
her evidence on the said count. Similarly considering the material
point upon which her evidence is adduced i.e. deceased having left
along with appellant on the relevant day and having not returned
thereafter and since every omission cannot be said to be a material
omission unless and until the same is shown to be having an effect
of contradiction, her evidence will not be liable to be rejected on
the said count. It will not be out of place to state that though
learned APP tried to canvass of such omissions being not established
by the defence on record due to the same being not proved through
the investigating officer, we are unable to accept the said
submission in view of the prosecution having failed to give such an
opportunity to defence by examining the investigating officer at trial
who had recorded the statement of said lady and so also the other
witnesses. Having regard to the said aspect we are unable to
accept the said submission, as at criminal trial none of the party is
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entitled to draw benefit from own wrong i.e. in the instant case
prosecution having failed to examine the Investigating Officer. As a
net result it can be safely said that by the evidence of PW4
prosecution has established all the facets referred hereinabove upon
which her evidence was adduced at trial. Needless to add amongst
other the same also corroborates the evidence of the witnesses
referred earlier about body of deceased being found in the house of
the appellant.
24.
In the instant case prosecution having not adduced the
evidence of Investigating Officer and thus hardly there being any
evidence regarding whereabouts of the appellant after his name as
an culprit had come in picture after lodging of report Exh.12 by PW1,
we find substance in the submission of learned counsel for the
appellant that the evidence of PW5 Hotel Keeper from Akola is not
helpful to the prosecution to advance case of prosecution as the
said evidence does not transcend beyond police having been to his
hotel and not even establishes the date on which they had been to
the said place in search of the appellant.
25. Now considering the evidence of PW6 Baban whose
evidence mainly reveals that eight days prior to incident appellant
and deceased had been to his shop for money and he had paid Rs.
1,000/- to the deceased, though it is true that the said evidence
does not reveal that appellant at that time had not done anything
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and PW6 had claimed of having paid amount to the appellant still
the submission cannot be accepted that the said evidence runs
counter to the prosecution case of appellant having motive against
the deceased as tried to be canvassed by the learned counsel for
the appellant. On the contrary, in the said context, the appellant
having accompanied deceased is also an factor assuring to some
extent the earlier inferences of there being monitory transaction in
between the appellant and deceased.
26.
Now considering the evidence of PW7 and scrutinizing the
same in light of answers brought in cross examination that his claim
that deceased was along with him when he had been to Gujri Square
and thereafter to temple for enjoying dinner and had met appellant
at said place and appellant then was searching deceased, and under
influence of alcohol and having told that he wanted to offer liquor to
deceased and therefore asked PW7 to go home and not to
accompany them and thereafter deceased and appellant had been
to Gujri Square and after about three days he had learnt about the
death of the deceased in the house of appellant and having seen
body in the said house etc. is not found to have been shattered
during cross-examination. Such a conclusion is inevitable in spite of
the answers elicited during cross examination of his statement being
recorded 10 to 12 days after incident and till then he had not
disclosed about his said meeting with deceased and appellant to
police or to anybody else prior to the said day. Such a conclusion is
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inevitable as the matters transpired on the said day cannot be said
to be of significant nature considering the place at which they had
met and the purpose for which appellant had asked PW7 to go to
home. The same matter being not of nature giving reason for
suspicion for PW7 to narrate the same immediately to somebody
else or even the police immediately on the day on which body was
found in the house of the appellant the said feature cannot be
regarded as the one rendering evidence of said witness unreliable
or unworthy credit. In the same context it will be necessary to say
that mere delay in the recording of statement of any witness does
not ipso facto will be factor for discarding his evidence unless some
facet indicating that the prosecution is trying to rope the said
witness for making a altogether new story is brought on the record.
Having regard to the same and such a thing being not spelt from the
evidence of PW7 nor his evidence being found to be improbable
after scrutinizing the same on touchstone of probability, the same
will not be liable to be rejected.
27. Now considering the evidence PW8 the same also reveals
some what similar features i.e. claim staked by him of having seen
deceased and appellant at temple and, thereafter, going towards
the house of the deceased and after 2-3 days himself having learnt
about the death of the deceased in the house of the appellant and
having seen body of deceased lying in the said house with maggots
formed in the corpse. Without unnecessarily repeating the reasoning
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given for an earlier witness it can be safely said for the same
reasons for similar aspects of his statement being recorded five six
days after the incident and till then himself having not disclosed the
same to the Police or to anybody else prior to the same his evidence
also will not be liable to be discarded.
28. Having regard to the aforesaid we find that prosecution
has duly established the circumstances as narrated in the discussion
made so far. The said evidence has duly established of the
deceased being found lastly alive in the company of the appellant
prior to his corpse was found three days thereafter in the house of
appellant. The evidence of doctor has also established deceased
having met with homicidal death. The evidence of PW9 also reveals
the probable date of death would be of 16.7.2002 i.e. prior to 72 to
48 hours prior to performing autopsy. In addition to the same the
prosecution has established of there being quarrel in between
deceased and appellant upon monitory transaction. Ultimately the
corpse of deceased was found in the house of appellant. Thus
considering all these circumstances we find that appellant having
failed to explain the same and particularly the circumstance of
himself being in the company of deceased prior to death and corpse
being found in his house, the said circumstances considered along
with other above referred circumstances has serious potential to
form a formidable chain of circumstances pointing towards the sole
inference of the appellant being perpetrator of the crime. Needless
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to add that the said circumstance are compatible with the
hypothesis of guilt of the appellant.
29. Having regard to the same, in our considered opinion the
trial court had not committed any error in convicting and sentencing
the appellant which is challenged in the present appeal. Hence, we
find no merit in the appeal and dismissed the same. We also
quantify fees of Advocate V.M. Deshpande, who has rendered
valuable service in disposal of appeal at Rs.2,500/-.
30. Appeal stands disposed of accordingly.
JUDGE JUDGE
......
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