{"id":138229,"date":"2010-02-25T00:00:00","date_gmt":"2010-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-25-february-2010"},"modified":"2018-05-20T19:05:20","modified_gmt":"2018-05-20T13:35:20","slug":"suresh-vs-the-state-of-maharashtra-on-25-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-25-february-2010","title":{"rendered":"Suresh vs The State Of Maharashtra on 25 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Suresh vs The State Of Maharashtra on 25 February, 2010<\/div>\n
Bench: A. P. Lavande, P. D. Kode<\/div>\n
                                     1\n\n\n\n\n                                                                               \n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                           NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                       \n                     CRIMINAL APPEAL NO. 444 OF 2004\n\n\n\n\n                                                      \n    Suresh s\/o Narayan Dakhore,\n    Aged about 30 years,\n    R\/o. Kinhi Raja, Taluka Malegaon,\n    District - Washim.                            ..            APPELLANT\n\n\n\n\n                                        \n                          \n                 .. Versus ..\n                         \n    The State of Maharashtra,\n    through Police Station Officer,\n    Jaulka Police Station,\n    Taluka - Malegaon,\n    District - Washim.                            ..            RESPONDENT\n      \n   \n\n\n\n                          .....\n    Mr. V.M. Deshpande, Advocate for Appellant (Appointed),\n    Mr. T.A. Mirza, APP for Respondent.\n                          .....\n\n\n\n\n\n    CORAM : A.P. LAVANDE & P.D. KODE, JJ.\n    DATE OF RESERVING THE JUDGMENT : FEBRUARY 10, 2010\n    DATE OF PRONOUNCING THE JUDGMENT : FEBRUARY 25, 2010\n\n\n\n\n\n    JUDGMENT ( per P.D. Kode, J.)\n<\/pre>\n
    1.           By present appeal, appellant had thrown challenge to<\/p>\n
    judgment and order dated 9.7.2004 passed by learned Adhoc<\/p>\n
    Additional Sessions Judge, Washim in Sessions Trial No.120\/2002<\/p>\n
    convicting     him   for    commission   of    murder          of    one      Laxman<\/p>\n
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\n                                    2<\/span><\/p>\n
    Ramkrushna Naik and sentencing him to suffer imprisonment for life<\/p>\n
    and to pay fine of Rs.5,000\/- and in default to undergo R.I. for a<\/p>\n
    period of one year.\n<\/p>\n
    2.          The said trial has arisen out of charge sheet submitted by<\/p>\n
    Jaulka Police Station    for commission of such offence against the<\/p>\n
    appellant as a result of investigation of F.I.R. No. 35\/2002 Exh.13 on<\/p>\n
    18.7.2002 registered by PSI S.G. Pawar of Jaulka Police Station<\/p>\n
    regarding murder of deceased committed in night in between<\/p>\n
    16.7.2002 up till 18.7.2002 on the basis of oral report Exh.12 lodged<\/p>\n
    by elder brother of deceased namely Eknath Ramkrushna Naik, PW1.\n<\/p>\n
    3.          The facts, in brief, giving rise to the aforesaid prosecution<\/p>\n
    as revealed from the record are as under :-\n<\/p>\n
    a)          PW1 Eknath, deceased Laxman and appellant were<\/p>\n
    residing at village Kinhi Raja in Malegaon Tahsil.            Appellant was<\/p>\n
    close friend of deceased and had lent Rs.1,000\/- to him. Appellant<\/p>\n
    was behind him for returning said amount and on said count conflict<\/p>\n
    has arisen in between them. On 16.7.2002 lunch was arranged in<\/p>\n
    Hanuman Temple of village Kinhi Raja for inviting Lord Varuna. PW1<\/p>\n
    and appellant had been to temple for lunch.       After lunch in between<\/p>\n
    12.00 to 13.00 hours PW1 returned to house. However, deceased<\/p>\n
    and appellant remained at the temple for distribution of food to<\/p>\n
    devotees.     The deceased did not return home till late night, PW1<\/p>\n
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\n                                   3<\/span><\/p>\n
    was unable to trace out the deceased in search made by him on the<\/p>\n
    next day.\n<\/p>\n
    b)          After about two days i.e. on 18.7.2002 PW1 had witnessed<\/p>\n
    a crowd in front of the house of the deceased. A stench was oozing<\/p>\n
    from the said house locked from outside. PW1 went upon the roof<\/p>\n
    and peeped in house of appellant and noticed corpse of his brother<\/p>\n
    Laxman lying in one room. The door of said house was also locked<\/p>\n
    from inside.   The complainant narrating these facts lodged report<\/p>\n
    Exh.12 with Police Station upon which above stated F.I.R. for<\/p>\n
    commission of offence under Section 302 of IPC was registered<\/p>\n
    against the appellant. The investigation of said FIR had led to the<\/p>\n
    conclusion of appellant having committed murder of Laxman on the<\/p>\n
    count of money dispute and hence chargesheet was submitted<\/p>\n
    against the appellant in the Court.\n<\/p>\n
    4.          After committal of case, trial was taken up by learned<\/p>\n
    Sessions Judge, Washim. The appellant vide his plea Exh.6 pleaded<\/p>\n
    not guilty to charge Exh.5 framed on 22.4.2004.\n<\/p>\n
    5.          The prosecution examined in all nine witnesses at the trial<\/p>\n
    and has also relied upon documents of which details are given while<\/p>\n
    discussing the prosecution evidence. The cursory glance at the<\/p>\n
    prosecution evidence reveals of there being no eye witness to the<\/p>\n
    crime committed and the prosecution has rested mainly upon<\/p>\n
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\n                                    4<\/span><\/p>\n
    circumstantial evidence i.e. various circumstances established from<\/p>\n
    the evidence of the witnesses examined and the documents proved.\n<\/p>\n
    6.        The defence of appellant at trial was that of total denial.\n<\/p>\n
    The appellant to questions put to him           during examination under<\/p>\n
    Section 313 of Cr.P.C. about circumstances appearing against him<\/p>\n
    in prosecution evidence has either claimed the same being false or<\/p>\n
    himself being not aware of the same. However he had not given any<\/p>\n
    reason regarding witnesses having deposed against him.\n<\/p>\n
                         ig                                                    He also<\/p>\n
    did not claim to examine any witnesses in support of his defence.\n<\/p>\n
    7.        The trial court after appreciation of evidence adduced by<\/p>\n
    prosecution    came    to    the   conclusion     of    prosecution          having<\/p>\n
    established (i) deceased having died homicidal death, (ii) appellant<\/p>\n
    was having motive for commission of crime, (iii) deceased was seen<\/p>\n
    lastly alive in the company of appellant and (iv) body of deceased<\/p>\n
    was found in the house of appellant with the house locked from<\/p>\n
    outside. The trial court came to the conclusion that all the<\/p>\n
    circumstances were consistent with hypothesis of the guilt of the<\/p>\n
    accused and the same ruled out any other person being the culprit.\n<\/p>\n
    The trial court thus came to the conclusion of the appellant having<\/p>\n
    committed     the   murder    of   the   deceased      and      convicted        and<\/p>\n
    sentenced him as stated earlier.\n<\/p>\n
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\n                                       5<\/span><\/p>\n
    8.           Mr.   V.M.     Deshpande,      learned       appointed          counsel<\/p>\n
    appearing for the appellant urged that the circumstances relied by<\/p>\n
    the prosecution failed to form a complete chain leading to the sole<\/p>\n
    inference of the guilt of the accused as some of the said<\/p>\n
    circumstances cannot be said to have been established by the said<\/p>\n
    evidence adduced.         He further urged that :\n<\/p>\n
    (i)    the prosecution had failed to adduce cogent evidence that the<\/p>\n
    house in which the body was found belonged to the appellant or he<\/p>\n
    was residing in the same.         As the evidence of PW2 itself reveals<\/p>\n
    that police had called the said panch at the house of Anandrao<\/p>\n
    Narayanrao Dakhore i.e. father of appellant and not at the house of<\/p>\n
    appellant.\n<\/p>\n
    (ii)   the evidence of PW3 does not reveal or even otherwise it is not<\/p>\n
    established that the sword allegedly discovered and seized at the<\/p>\n
    behest of the appellant was stained with blood or key allegedly<\/p>\n
    discovered and seized i.e. both under memorandum and discovery<\/p>\n
    panchanamas respectively Exh.20 and 21 was used for any material<\/p>\n
    purpose,     considered along with backdrop that key was not even<\/p>\n
    used by police for opening the house makes the said entire evidence<\/p>\n
    wholly    inconsequential      and    as   such   does      not     advance         the<\/p>\n
    prosecution case in any manner.\n<\/p>\n
    (iii) the evidence of wife of deceased PW4 Kusum itself reveals that<\/p>\n
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\n                                     6<\/span><\/p>\n
    the appellant had returned to the deceased amount of Rs.1,000\/-\n<\/p>\n
    borrowed, and as such the same militates against the theory of the<\/p>\n
    prosecution of there being quarrel regarding the same and hence<\/p>\n
    appellant having motive to commit murder of the deceased.\n<\/p>\n
    (iv) the evidence of PW5 Shankar considered in proper perceptive<\/p>\n
    fails to establish either police had been in search of appellant on<\/p>\n
    16.7.2002 at the Hotel of the said witness at Akola and as such fails<\/p>\n
    to establish that the appellant was absconding.\n<\/p>\n
    (v)     the   evidence   of   PW6   Baban   also runs      counter        to the<\/p>\n
    prosecution case of the appellant having motive against the<\/p>\n
    deceased as the said evidence reveals that said witness had given<\/p>\n
    Rs.1,000\/- to the deceased and not to appellant.\n<\/p>\n
    (vi) the evidence of PW7 Gajanan considered in proper perceptive<\/p>\n
    does not reveal any potential circumstance against the appellant,<\/p>\n
    considering the function arranged in the said village on the relevant<\/p>\n
    date.     Even it is accepted that on the said day the appellant had<\/p>\n
    taken deceased along with him still there being no proximity of time<\/p>\n
    in between the said event with the time at which deceased could be<\/p>\n
    said to have died, no value can be given to said circumstance.\n<\/p>\n
    (vii) the evidence of PW8 Tukaram considered along with the<\/p>\n
    evidence of PW2 clearly reveals that on the basis of the same<\/p>\n
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\n                                   7<\/span><\/p>\n
    conclusion cannot be drawn that the house in which the body was<\/p>\n
    found was belonging to appellant, as PW2 had said the same being<\/p>\n
    the house of father of appellant.\n<\/p>\n
    (viii) the other facet from the evidence of PW8 of having seen<\/p>\n
    deceased and appellant firstly wandering in the rows of person<\/p>\n
    dining at the temple and, thereafter, having been to the house of<\/p>\n
    the appellant is also inconsequential as there is no proximity of the<\/p>\n
    said event with the death of the deceased or with finding of corpse<\/p>\n
    of deceased.\n<\/p>\n
    (ix) the learned counsel thus urged that even in the event of<\/p>\n
    accepting, the deceased being seen lastly alive in the company of<\/p>\n
    the appellant, considering the place at which he was seen, the time<\/p>\n
    at which he was seen with the appellant and the event which had<\/p>\n
    occurred on the said day and the evidence adduced altogether not<\/p>\n
    ruling the possibility of both of them having been to some other<\/p>\n
    place and there being no evidence of appellant having taken<\/p>\n
    deceased to his house and\/or the house in which dead body was<\/p>\n
    found   being   not   established   to be   house     of    appellant        and<\/p>\n
    prosecution having failed to establish motive for appellant to commit<\/p>\n
    such act on the basis of the said evidence conclusion of the guilt of<\/p>\n
    the appellant is not at all warranted.\n<\/p>\n
    (x)   that cardinal rule of the criminal law requires prosecution to<\/p>\n
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\n                                  8<\/span><\/p>\n
    establish its case beyond pale of doubt by standing upon its legs<\/p>\n
    and is not entitled to take advantage of the weakness of the defence<\/p>\n
    and in event of evidence revealing two views possible from the<\/p>\n
    evidence then the view beneficial to the accused is required to be<\/p>\n
    accepted by giving him the benefit of doubt.          In the present case<\/p>\n
    such thing being evident the appellant deserves to be acquitted by<\/p>\n
    giving such benefit by allowing his appeal.\n<\/p>\n
    9.<\/p>\n
              Mr. T.A. Mirza, learned APP appearing on behalf of the<\/p>\n
    Respondent-State supported impugned judgment and order and<\/p>\n
    urged that the trial Court has rightly come to the conclusion of<\/p>\n
    circumstantial evidence adduced having established guilt of the<\/p>\n
    appellant as the said evidence clearly establishes : (i) of deceased<\/p>\n
    having met with unnatural homicidal death, (ii) the body of the<\/p>\n
    deceased being found in the house of the appellant, (iii) appellant<\/p>\n
    having motive for commission of crime through the evidence of PW1,<\/p>\n
    PW4 and PW6, (iv) deceased being lastly seen alive in his company<\/p>\n
    as established by the evidence of PW1, PW7 and PW8, (v)                         the<\/p>\n
    conduct of the appellant of fleeing away as he could not be arrested<\/p>\n
    up till 19.7.2002. He urged that considering the proximity of the<\/p>\n
    said circumstance of last seen together with the time of death as<\/p>\n
    denoted by prosecution evidence considered along with the other<\/p>\n
    two circumstances leads to irresistible conclusion about guilt of the<\/p>\n
    appellant for committing murder of deceased. He urged that failure<\/p>\n
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\n                                    9<\/span><\/p>\n
    on part of appellant to explain the inferences arising of circumstance<\/p>\n
    of last seen with deceased and corpse of deceased being found in<\/p>\n
    his house leads to the conclusion as arrived by the trial Court and as<\/p>\n
    such no interference is warranted with the judgment delivered by<\/p>\n
    the trial Court and the appeal deserves to be dismissed.\n<\/p>\n
    10.        We    have      given    thoughtful       consideration           to     the<\/p>\n
    submissions advanced by both the parties and carefully perused the<\/p>\n
    record for appreciating the same.\n<\/p>\n
    11.        Firstly taking up the question of deceased having met<\/p>\n
    homicidal death or otherwise, the reference to the evidence of PW2<\/p>\n
    panch for inquest panchanama Exh.17 and spot panchanama Exh.16<\/p>\n
    along with the matters stated in the said panchanama and the same<\/p>\n
    considered along with the evidence of PW1 Eknath who had seen the<\/p>\n
    corpse of deceased in the house of appellant from the roof of said<\/p>\n
    house and who had thereafter lodged the report Exh.12 and so also<\/p>\n
    the evidence of PW7 to the extent of having seen body by peeping<\/p>\n
    through the window of the house and of PW8 Tukaram, the same<\/p>\n
    clearly establishes the manner in which the corpse of deceased with<\/p>\n
    injuries   thereon   was    found    lying   in    the     house       which       was<\/p>\n
    undisputedly locked from outside. Needless to add that the said<\/p>\n
    facet of the prosecution evidence and so also even fact of deceased<\/p>\n
    having died homicidal death is not seriously disputed on behalf of<\/p>\n
    the appellant. Apart from the appellant having not disputed such a<\/p>\n
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\n                                   10<\/span><\/p>\n
    facet, said evidence further considered along with the evidence of<\/p>\n
    PW9 Dr. Chawan who had performed post-mortem and his post-\n<\/p>\n
    mortem notes Exh.29 and the opinion given by him clearly<\/p>\n
    establishes deceased having died homicidal death.\n<\/p>\n
    12.        Such a conclusion is inevitable as the evidence of PW 9<\/p>\n
    Dr. Chavan reveals that while performing autopsy on 19.7.2002 at<\/p>\n
    9.30 p.m. during external examination he had noted following<\/p>\n
    serious injuries on the corpse i.e.:\n<\/p>\n
    (i)        Incised would, size 10 cm x 3 cm x 3 cm bone deep, over<\/p>\n
    left cheek, in transverse direction.\n<\/p>\n
    (ii)       Incised wound, size 6 cm x 2 cm x bone deep, over left<\/p>\n
    shoulder region, interior aspect, in verticle direction.\n<\/p>\n
    (iii)      Incised would, two in numbers, size 5 x 1 x 1 cm and 3 x 1<\/p>\n
    x 1 cm. Over left para ambalical region, in transverse direction with<\/p>\n
    fracture of left mandible bone.\n<\/p>\n
    13.        The evidence of PW9 further reveals that during the<\/p>\n
    internal examination he had noticed brain matter having liquified<\/p>\n
    and coming out of cranial cavity with skull bone disfigured due to<\/p>\n
    fracture of skull bone and so also parietal and frontal bones being<\/p>\n
    fractured. He had also noticed signs of decomposition like pool of<\/p>\n
    moving maggots covering whole head including face.                      He had<\/p>\n
    observed similar feature regarding other organs which were<\/p>\n
    decomposed.     He had given cause of death as cardio respiratory<\/p>\n
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\n                                    11<\/span><\/p>\n
    arrest due to shock because of head injury and polytrauma. He had<\/p>\n
    also deposed of internal injuries corresponding to external injuries<\/p>\n
    noticed by him during autopsy. He had further opined of the same<\/p>\n
    must have been caused by hard and blunt object and all of them<\/p>\n
    being dangerous to life with death having occurred after three to<\/p>\n
    four hours from last meals and\/or within 48 to 72 hours from the<\/p>\n
    commencement of post-mortem.\n<\/p>\n
    14.          Upon scrutiny of his evidence the same is found duly<\/p>\n
    corroborated by autopsy note Exh.29 prepared by him. Though he<\/p>\n
    has admitted that he was not able to come to the conclusion<\/p>\n
    whether the injuries noted by him were post-mortem or ante-\n<\/p>\n
    mortem still the said factor clearly appears to be redundant having<\/p>\n
    regard to the fact that decomposition of body had not only<\/p>\n
    commenced but stage for formation of maggots had passed.                         In<\/p>\n
    short, close scrutiny of evidence of PW9 in our considered opinion<\/p>\n
    does   not     reveal   any   circumstance   rendering        his     evidence<\/p>\n
    unacceptable. Having regard to the same and considering the place<\/p>\n
    at which the said body was found and there being absolutely no<\/p>\n
    indication suggestive of any accident could have occurred at said<\/p>\n
    place, the same leads to the conclusion as observed earlier as the<\/p>\n
    same in turn excludes the death being for any other reason other<\/p>\n
    than homicidal death.\n<\/p>\n
    15.          Now considering the other circumstances established by<\/p>\n
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\n                                 12<\/span><\/p>\n
    the prosecution and considering the evidence of PW1,            the glance<\/p>\n
    at the same clearly reveals the appellant being in company of<\/p>\n
    deceased at the temple where dinner programme was arranged,<\/p>\n
    PW1 having left by 12.00 to 13.00 noon but deceased having<\/p>\n
    continued to remain at the said place along with the appellant,<\/p>\n
    deceased having not returned to home by night, deceased being not<\/p>\n
    found during search made by him on the next day and day<\/p>\n
    thereafter himself having seen people gathered at house of the<\/p>\n
    appellant as stench was coming from the said house and, thereafter,<\/p>\n
    himself having been upon the roof and having seen dead body of his<\/p>\n
    brother in the house and door of the house being locked. As an<\/p>\n
    another facet his evidence also discloses of there being dispute<\/p>\n
    between deceased and the appellant, appellant having lent of Rs.\n<\/p>\n
    1,000\/- to the deceased and the quarrels having ensued in between<\/p>\n
    them on the said count. The further part of his evidence reveals of<\/p>\n
    having lodged report Exh.12 with the police and FIR Exh.13<\/p>\n
    registered upon the same.\n<\/p>\n
    16.       The scrutiny of his evidence reveals of the same being<\/p>\n
    duly corroborated by report lodged by him. It also reveals of himself<\/p>\n
    having candidly admitted of his brother consuming alcohol.                 The<\/p>\n
    cross examination reveals that police were required to broke open<\/p>\n
    the lock for opening door of said house of the appellant but were not<\/p>\n
    required to break planks of the door.    Having regard to the said<\/p>\n
    answer it is difficult to accept his claim that the door of the said<\/p>\n
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\n                                    13<\/span><\/p>\n
    house was also locked from inside i.e. a claim which is also not<\/p>\n
    found supported by the evidence of witnesses who had visited the<\/p>\n
    house on the day on which body was found in the house.\n<\/p>\n
    17.       In the same context it can be further added that for<\/p>\n
    discrediting him about his said claim of the house being locked from<\/p>\n
    inside as well as outside, the omission to such effect has been<\/p>\n
    brought on record on behalf of appellant from the report lodged by<\/p>\n
    him. Having regard to the same, his claim of door being locked from<\/p>\n
    inside will be required to be discarded, however, the same being<\/p>\n
    locked from outside will not be liable to be discarded in view of his<\/p>\n
    substantive evidence to the effect of police being required to broke<\/p>\n
    lock   upon    door   having    remain   unshattered       during        cross-\n<\/p>\n
    examination.\n<\/p>\n
    18.       The scrutiny of his evidence further reveals of appellant<\/p>\n
    having mother, father and brother and having lands at Shendurga-\n<\/p>\n
    more being brought on the record. However, PW1 having denied the<\/p>\n
    further suggestion alike other suggestions denied by him that most<\/p>\n
    of the time appellant was residing at Shendurga-more along with his<\/p>\n
    family members, it is difficult to accept criticism made by learned<\/p>\n
    counsel for the appellant that prosecution by cogent evidence<\/p>\n
    having not established that the house in which the body of deceased<\/p>\n
    was found was that of the appellant. It can be further added that<\/p>\n
    the evidence having established the house being locked, key being<\/p>\n
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\n                                 14<\/span><\/p>\n
    recovered from the appellant also leads to the conclusion of faceat<\/p>\n
    of the appellant having mother, father and brother would be<\/p>\n
    redundant factor, for not accepting the prosecution contention that<\/p>\n
    the same was the house of the appellant.             Such conclusion is<\/p>\n
    obvious in absence of the appellant having established on record<\/p>\n
    that he was not residing at the said house and\/or the said mother,<\/p>\n
    father and brother were also residing in the said house.\n<\/p>\n
    19.       As a net result of the aforesaid, it can be safely said that<\/p>\n
    by the said evidence prosecution has duly established of corpse of<\/p>\n
    the deceased after two days after the programme in the temple was<\/p>\n
    found in the house of the appellant.    The same has also established<\/p>\n
    that there were quarrels in between the appellant and the deceased<\/p>\n
    on the count of money lend by the appellant to him i.e. a facet not<\/p>\n
    even denied on part of appellant. Such a conclusion is inevitable in<\/p>\n
    spite of omission to the said effect attempted to be brought on the<\/p>\n
    record during the cross examination of PW1, as examining the said<\/p>\n
    aspect in light of Exh.12 it is clear that the learned Sessions Judge<\/p>\n
    has erroneously allowed such a question in spite of such a matter<\/p>\n
    being borne from the same and omissions being restricted only with<\/p>\n
    respect to the precise amount lent which cannot be considered as an<\/p>\n
    omissions amounting to contradiction.\n<\/p>\n
    20.       Now reference to the evidence of PW2 panch for inquest<\/p>\n
    and spot though reveals that his evidence reveals that he was called<\/p>\n
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\n                                 15<\/span><\/p>\n
    at the house of Anandrao Narayanrao Dakore in true sense<\/p>\n
    considering the said evidence in light of said panchanamas Exh.17<\/p>\n
    and Exh.16 reveals that he was called at the house of Narayanrao<\/p>\n
    Dakore.   Having regard to the same and there being no other<\/p>\n
    evidence surfaced on the record to come to the conclusion that the<\/p>\n
    said house was that of Anandrao Dakore and even the honest<\/p>\n
    witness is bound to commit some mistake while giving evidence,<\/p>\n
    lead to the conclusion that as per police the said house might have<\/p>\n
    been that of Narayanrao Dakore i.e. father of the appellant.\n<\/p>\n
                       ig                                                      Now<\/p>\n
    considering the said mistake made by witness it is difficult to accept<\/p>\n
    on the basis of his evidence that the same was house of father of<\/p>\n
    appellant and not of appellant. Such a conclusion is obvious as PW2<\/p>\n
    does’nt appears to be certain as to who was the owner of the said<\/p>\n
    house. The reason for the same is also apparently found from the<\/p>\n
    material surfaced on record during the evidence of PW1 in which it<\/p>\n
    has been brought on the record of the appellant was having other<\/p>\n
    property at Shendurga property so also at Bramha Wada.                 Similar<\/p>\n
    suggestion being also given to PW2 but himself having denied the<\/p>\n
    same still considering the said evidence in proper perceptive it<\/p>\n
    clearly appears that the same was the house of Dakore family. It<\/p>\n
    needs no saying that houses in villages are generally said to be that<\/p>\n
    of the head of family. Having regard to the same it can be safely<\/p>\n
    said that the evidence of PW2 though to some extent corroborates<\/p>\n
    evidence of PW1 of the same being the house of the appellant the<\/p>\n
    same certainly does not establish that the said house was not that of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                  16<\/span><\/p>\n
    appellant as tried to be canvassed by learned appointed counsel for<\/p>\n
    the appellant.\n<\/p>\n
    21.       Now reference to the evidence of PW3 panch Vishwanath<\/p>\n
    regarding discovery and seizure of Sword and Key in consequent to<\/p>\n
    statement leading to discovery of the same made by appellant;\n<\/p>\n
    under memorandum and discovery panchanamas respectively Exh.\n<\/p>\n
    19 and 20; though there appears substance in the submission of<\/p>\n
    learned counsel for appellant that the said evidence is redundant in<\/p>\n
    view of admission given by the witness recorded in paragraph no.4<\/p>\n
    of his deposition that panchanama was already going on when he<\/p>\n
    had reached to the house of the accused and\/or the said discovery<\/p>\n
    and seizure is insignificant in view of no blood being detected on the<\/p>\n
    said sword or key being not utilised for any meaningful purpose still<\/p>\n
    fact of said evidence revealing the same being house of appellant<\/p>\n
    cannot be ignored. Thus, even the said to some extent have a<\/p>\n
    corroborative value to corroborate the evidence of earlier witnesses<\/p>\n
    of the appellant possessing a house of village Kini-raja.\n<\/p>\n
    22.       Now considering the evidence of wife of the deceased<\/p>\n
    PW4 Kusum the same reveals her evidence being adduced about the<\/p>\n
    aspects of there being money transaction in between appellant and<\/p>\n
    deceased, there being a quarrel in between them upon the same,<\/p>\n
    the deceased having not returned after having left his house for the<\/p>\n
    temple along with the appellant and third day body of deceased<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                  17<\/span><\/p>\n
    being found at the house of accused lying in pool of blood.\n<\/p>\n
    23.          The close scrutiny of the evidence of PW4 though reveals<\/p>\n
    some disparity in her evidence regarding whether appellant had<\/p>\n
    lend the money to the deceased or otherwise, her evidence does<\/p>\n
    not reveal any other circumstance elicited during cross examination<\/p>\n
    except the facet of such quarrel being in the nature of the omission<\/p>\n
    being brought on record.     Since the disparity is regarding precise<\/p>\n
    nature of money transaction, merely a rustic lady is not aware of<\/p>\n
    details about the same would never a good ground for discarding<\/p>\n
    her evidence on the said count. Similarly considering the material<\/p>\n
    point upon which her evidence is adduced i.e. deceased having left<\/p>\n
    along with appellant on the relevant day and having not returned<\/p>\n
    thereafter and since every omission cannot be said to be a material<\/p>\n
    omission unless and until the same is shown to be having an effect<\/p>\n
    of contradiction,   her evidence will not be liable to be rejected on<\/p>\n
    the said count.     It will not be out of place to state that though<\/p>\n
    learned APP tried to canvass of such omissions being not established<\/p>\n
    by the defence on record due to the same being not proved through<\/p>\n
    the investigating officer, we are unable to accept the said<\/p>\n
    submission in view of the prosecution having failed to give such an<\/p>\n
    opportunity to defence by examining the investigating officer at trial<\/p>\n
    who had recorded the statement of said lady and so also the other<\/p>\n
    witnesses.    Having regard to the said aspect we are unable to<\/p>\n
    accept the said submission, as at criminal trial none of the party is<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                  18<\/span><\/p>\n
    entitled to draw benefit from own wrong i.e. in the instant case<\/p>\n
    prosecution having failed to examine the Investigating Officer. As a<\/p>\n
    net result it can be safely said that by the evidence of PW4<\/p>\n
    prosecution has established all the facets referred hereinabove upon<\/p>\n
    which her evidence was adduced at trial. Needless to add amongst<\/p>\n
    other the same also corroborates the evidence of the witnesses<\/p>\n
    referred earlier about body of deceased being found in the house of<\/p>\n
    the appellant.\n<\/p>\n
    24.<\/p>\n
              In the instant case prosecution having not adduced the<\/p>\n
    evidence of Investigating Officer and thus hardly there being any<\/p>\n
    evidence regarding whereabouts of the appellant after his name as<\/p>\n
    an culprit had come in picture after lodging of report Exh.12 by PW1,<\/p>\n
    we find substance in the submission of learned counsel for the<\/p>\n
    appellant that the evidence of PW5 Hotel Keeper from Akola is not<\/p>\n
    helpful to the prosecution to advance        case of prosecution as the<\/p>\n
    said evidence does not transcend beyond police having been to his<\/p>\n
    hotel and not even establishes the date on which they had been to<\/p>\n
    the said place in search of the appellant.\n<\/p>\n
    25.       Now considering the evidence of PW6 Baban whose<\/p>\n
    evidence mainly reveals that eight days prior to incident appellant<\/p>\n
    and deceased had been to his shop for money and he had paid Rs.\n<\/p>\n
    1,000\/- to the deceased, though it is true that the said evidence<\/p>\n
    does not reveal that appellant at that time had not done anything<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                 19<\/span><\/p>\n
    and PW6 had claimed of having paid amount to the appellant still<\/p>\n
    the submission cannot be accepted that the said evidence runs<\/p>\n
    counter to the prosecution case of appellant having motive against<\/p>\n
    the deceased as tried to be canvassed by the learned counsel for<\/p>\n
    the appellant.   On the contrary, in the said context, the appellant<\/p>\n
    having accompanied deceased is also an factor assuring to some<\/p>\n
    extent the earlier inferences of there being monitory transaction in<\/p>\n
    between the appellant and deceased.\n<\/p>\n
    26.<\/p>\n
               Now considering the evidence of PW7 and scrutinizing the<\/p>\n
    same in light of answers brought in cross examination that his claim<\/p>\n
    that deceased was along with him when he had been to Gujri Square<\/p>\n
    and thereafter to temple for enjoying dinner and had met appellant<\/p>\n
    at said place and appellant then was searching deceased, and under<\/p>\n
    influence of alcohol and having told that he wanted to offer liquor to<\/p>\n
    deceased and therefore asked PW7 to go home and not to<\/p>\n
    accompany them and thereafter deceased and appellant had been<\/p>\n
    to Gujri Square and after about three days he had learnt about the<\/p>\n
    death of the deceased in the house of appellant and having seen<\/p>\n
    body in the said house etc. is not found to have been shattered<\/p>\n
    during cross-examination. Such a conclusion is inevitable in spite of<\/p>\n
    the answers elicited during cross examination of his statement being<\/p>\n
    recorded 10 to 12 days after incident and till then he had not<\/p>\n
    disclosed about his said meeting with deceased and appellant to<\/p>\n
    police or to anybody else prior to the said day. Such a conclusion is<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                   20<\/span><\/p>\n
    inevitable as the matters transpired on the said day cannot be said<\/p>\n
    to be of significant nature considering the place at which they had<\/p>\n
    met and the purpose for which appellant had asked PW7 to go to<\/p>\n
    home.    The same matter being not of nature giving reason for<\/p>\n
    suspicion for PW7 to narrate the same immediately to somebody<\/p>\n
    else or even the police immediately on the day on which body was<\/p>\n
    found in the house of the appellant the said feature cannot be<\/p>\n
    regarded as the one rendering evidence of said witness unreliable<\/p>\n
    or unworthy credit. In the same context it will be necessary to say<\/p>\n
    that mere delay in the recording of statement of any witness does<\/p>\n
    not ipso facto will be factor for discarding his evidence unless some<\/p>\n
    facet indicating that the prosecution is trying to rope the said<\/p>\n
    witness for making a altogether new story is brought on the record.\n<\/p>\n
    Having regard to the same and such a thing being not spelt from the<\/p>\n
    evidence of PW7 nor his evidence being found to be improbable<\/p>\n
    after scrutinizing the same on touchstone of probability, the same<\/p>\n
    will not be liable to be rejected.\n<\/p>\n
    27.        Now considering the evidence PW8 the same also reveals<\/p>\n
    some what similar features i.e. claim staked by him of having seen<\/p>\n
    deceased and appellant at temple and, thereafter, going towards<\/p>\n
    the house of the deceased and after 2-3 days himself having learnt<\/p>\n
    about the death of the deceased in the house of the appellant and<\/p>\n
    having seen body of deceased lying in the said house with maggots<\/p>\n
    formed in the corpse. Without unnecessarily repeating the reasoning<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                  21<\/span><\/p>\n
    given for an earlier witness it can be safely said for the same<\/p>\n
    reasons for similar aspects of his statement being recorded five six<\/p>\n
    days after the incident and till then himself having not disclosed the<\/p>\n
    same to the Police or to anybody else prior to the same his evidence<\/p>\n
    also will not be liable to be discarded.\n<\/p>\n
    28.          Having regard to the aforesaid we find that prosecution<\/p>\n
    has duly established the circumstances as narrated in the discussion<\/p>\n
    made so far.       The said evidence has duly established of the<\/p>\n
    deceased being found lastly alive in the company of the appellant<\/p>\n
    prior to his corpse was found three days thereafter in the house of<\/p>\n
    appellant.    The evidence of doctor has also established deceased<\/p>\n
    having met with homicidal death. The evidence of PW9 also reveals<\/p>\n
    the probable date of death would be of 16.7.2002 i.e. prior to 72 to<\/p>\n
    48 hours prior to performing autopsy. In addition to the same the<\/p>\n
    prosecution has established of there being quarrel in between<\/p>\n
    deceased and appellant upon monitory transaction. Ultimately the<\/p>\n
    corpse of deceased was found in the house of appellant.                   Thus<\/p>\n
    considering all these circumstances we find that appellant having<\/p>\n
    failed to explain the same and particularly the circumstance of<\/p>\n
    himself being in the company of deceased prior to death and corpse<\/p>\n
    being found in his house, the said circumstances considered along<\/p>\n
    with other above referred circumstances has serious potential to<\/p>\n
    form a formidable chain of circumstances pointing towards the sole<\/p>\n
    inference of the appellant being perpetrator of the crime. Needless<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:39:09 :::<\/span>
\n                                  22<\/span><\/p>\n
    to add that the said circumstance are compatible with the<\/p>\n
    hypothesis of guilt of the appellant.\n<\/p>\n
    29.       Having regard to the same, in our considered opinion the<\/p>\n
    trial court had not committed any error in convicting and sentencing<\/p>\n
    the appellant which is challenged in the present appeal. Hence, we<\/p>\n
    find no merit in the appeal and dismissed the same.                   We also<\/p>\n
    quantify fees of Advocate V.M. Deshpande, who has rendered<\/p>\n
    valuable service in disposal of appeal at Rs.2,500\/-.\n<\/p>\n
    30.       Appeal stands disposed of accordingly.\n<\/p>\n
              JUDGE                                          JUDGE\n   \n\n\n\n                                      ......\n\n\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 15:39:09 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Suresh vs The State Of Maharashtra on 25 February, 2010 Bench: A. P. Lavande, P. D. Kode 1 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-138229","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSuresh vs The State Of Maharashtra on 25 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-vs-the-state-of-maharashtra-on-25-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh vs The State Of Maharashtra on 25 February, 2010 - 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