{"id":234932,"date":"2010-02-09T00:00:00","date_gmt":"2010-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhurya-gulab-vs-the-state-of-maharashtra-on-9-february-2010"},"modified":"2015-06-10T03:01:21","modified_gmt":"2015-06-09T21:31:21","slug":"bhurya-gulab-vs-the-state-of-maharashtra-on-9-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhurya-gulab-vs-the-state-of-maharashtra-on-9-february-2010","title":{"rendered":"Bhurya @ Gulab vs The State Of Maharashtra on 9 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Bhurya @ Gulab vs The State Of Maharashtra on 9 February, 2010<\/div>\n
Bench: A. P. Lavande, P. D. Kode<\/div>\n
                                 1\n\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                           \n                         NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                   \n                    CRIMINAL APPEAL NO. 356 OF 2004\n\n\n    1.   Bhurya @ Gulab s\/o Fajitya Kale,\n         Aged about 27 years,\n\n\n\n\n                                                  \n         Occupation - Labour work,\n         Resident of Risod, Tahsil - Risod,\n         District - Washim\n\n    2.   Sau. Suman w\/o Bhurya @ Gulab Kale,\n\n\n\n\n                                      \n         Aged about 31 years,\n         Occupation - Labour work,\n                        \n         Resident of Risod,\n         District - Washim.\n         (IN JAIL).                      ..                 APPELLANTS\n                       \n               .. Versus ..\n      \n\n    The State of Maharashtra,\n    Through Police Station Officer, Risod,\n   \n\n\n\n    District - Washim.                        ..            RESPONDENT\n\n\n                           ..........\n    Mr. R.M. Daga, Advocate for the appellants,\n\n\n\n\n\n    Mr. J.B. Jaiswal, APP for the respondent.\n                           ..........\n\n    CORAM : A.P. LAVANDE & P.D. KODE, JJ.\n\n\n\n\n\n    DATE OF RESERVING THE JUDGMENT : JANUARY 22, 2010\n    DATE OF PRONOUNCING THE JUDGMENT: FEBRUARY 09, 2010\n\n\n    JUDGMENT ( per P.D. Kode, J.)\n<\/pre>\n
    1.         By present appeal, the appellants have challenged the<\/p>\n
    judgment    and    order   dated   28.1.2004       convicting         them       for<\/p>\n
    commission of offence of murder of one Dashrath Charmya Kale and<\/p>\n
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\n                                  2<\/span><\/p>\n
    sentencing them to suffer rigorous imprisonment for life and to pay<\/p>\n
    a fine of Rs.5,000\/- (Rs. Five Hundred only) each and in default to<\/p>\n
    undergo further rigorous imprisonment for one year, passed by<\/p>\n
    learned Ad-hoc Additional Sessions Judge, Washim in Sessions Trial<\/p>\n
    No.6\/2003 of the said Court.      The said case has arisen out of<\/p>\n
    chargesheet submitted by Risod Police Station in the Court JMFC,<\/p>\n
    Risod against the appellants      for commission of offence under<\/p>\n
    Section 302 r\/w 34 of IPC after investigation of crime registered vide<\/p>\n
    FIR 173\/02 Exh.18  ig registered upon    report of incident            Exh.16<\/p>\n
    lodged by mother-in-law PW 1 Laxmibai of said deceased Dashrath<\/p>\n
    on 30.10.2002.   PW 8 PSI Vikramsingh Thakur of said Police Station<\/p>\n
    had recorded said report, registered and investigated said crime.\n<\/p>\n
    2.        The prosecution case as disclosed from said report Exh.16<\/p>\n
    lodged by PW 1 with Risod Police Station of the appellants having<\/p>\n
    killed the deceased by means of knife is as follows:\n<\/p>\n
              PW 1 Laxmibai was residing in neighbourhood of her<\/p>\n
    brothers deceased Dashrath and Rama at Risod.             About 14 years<\/p>\n
    back from day of incident Savita, elder daughter of PW 1 Laxmibai,<\/p>\n
    had married   Dashrath and thus PW 1 was also his mother-in-law.\n<\/p>\n
    On 29.10.2002 at about 4 p.m. while PW1 was at house, her cousin<\/p>\n
    i.e. the appellant no.1 along with with his wife- appellant no.2 had<\/p>\n
    been to house of Dashrath and had questioned him as to why<\/p>\n
    Dashrath had beaten their son      Kishor and, thereafter, they had<\/p>\n
    started quarreling with Dashrath. PW6 Badami, mother of PW 1 and<\/p>\n
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\n                                   3<\/span><\/p>\n
    Dashrath, had separated quarrel.     Appellants then had threatened<\/p>\n
    Dashrath that they would see him lateron. Again at about 7.30 PM<\/p>\n
    while Dashrath was having his meals in the house, appellants had<\/p>\n
    been in front of house of Dashrath and taken him along with them<\/p>\n
    towards house of maternal cousin of PW 1 i.e. PW 7 Dagdabai wife of<\/p>\n
    Datta Pawar.\n<\/p>\n
               At about midnight, appellant no.1 had been in front of the<\/p>\n
    house of PW 6. PW 1 had then got up. Appellant no.1 had asked PW<\/p>\n
    6 whether Dashrya   ig   had returned to the house.              Thereafter,<\/p>\n
    appellant no.1 along with appellant no.2 had been away from the<\/p>\n
    said place.    Since 7.00 a.m. PW 1, her mother PW 6, her sisters and<\/p>\n
    other relatives were in search of Dashrath.        PW 7 had appraised<\/p>\n
    them that at about 8 o’clock in the night when she had been in front<\/p>\n
    of her house, Dashrath and appellants were standing in front of her<\/p>\n
    house.    Appellant no.1 had taken money out of pocket of Dashrath<\/p>\n
    and had ran and brought country made liquor ‘Santra’ from country<\/p>\n
    liquor shop and, thereafter, all three of them had been towards field<\/p>\n
    on the rear side of    house through   lane passing by the house of<\/p>\n
    Shankarappa.      At that time both the appellants were carrying<\/p>\n
    knives.   Thereon PW 1 and her companions had made search for<\/p>\n
    Dashrath in fields at rear side of the house.\n<\/p>\n
               Initially one blood smeared    dusky white coffee shawl<\/p>\n
    (Article A) of appellant no.1 and woolen ear-strip belonging to<\/p>\n
    appellant no.2 were noticed lying in the field of Raju Mohale.                As<\/p>\n
    they went ahead in search Dashrath at about 9.30 AM they had seen<\/p>\n
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\n                                       4<\/span><\/p>\n
    dead body of Dashrath with injuries on chest, abdomen with neck<\/p>\n
    cut by knife,         lying in supine condition in thorny fencing of the<\/p>\n
    northern side embankment in the field of Shri Ingle.\n<\/p>\n
    3.          At trial appellants had pleaded not guilty to charge Exh.5<\/p>\n
    framed on 23.7.2003.            The prosecution    examined in all eight<\/p>\n
    witnesses      i.e.    above referred   PW 1, PW 6, PW 7, PW 8 and<\/p>\n
    additionally PW 4 Rajesh on the point of having heard quarrel in<\/p>\n
    between deceased and the appellants at about 12 midnight in the<\/p>\n
    relevant night in a field behind his house; PW 5 Dr. Ramesh Maskey,<\/p>\n
    who had performed post-mortem of the corpse of deceased at Rural<\/p>\n
    Hospital, Risod,       panch PW 2 Pitambar for spot panchanama Exh.18<\/p>\n
    and seizure of shawl Article A of appellant no.1, muffler Article B of<\/p>\n
    appellant no.2 and knife Article A and B stained with blood found<\/p>\n
    lying at the spot and inquest panchanama Exh.20 and seizure of<\/p>\n
    blood stained clothes of deceased Article C and D and panch PW 3<\/p>\n
    Sheikh Rafiq for seizure panchanama Exh.23 regarding seizure of<\/p>\n
    blood stained ash colour saree Article G and lining shirt Article<\/p>\n
    respectively produced by appellant no.1 and appellant no.2 from<\/p>\n
    their house.\n<\/p>\n
    4.           The defence of both appellants at the trial was that of<\/p>\n
    total denial and of false implication. Each of the appellant to the<\/p>\n
    questions put to him\/her during examination under Section 313 of<\/p>\n
    Cr.P.C. about         circumstances appearing against him\/her in the<\/p>\n
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\n                                      5<\/span><\/p>\n
    prosecution evidence had         answered either          same being false or<\/p>\n
    he\/she being unaware of the same. None of the appellant had<\/p>\n
    assigned any specific reason for the                witnesses having falsely<\/p>\n
    deposed against him.\n<\/p>\n
    5.         The prosecution had mainly relied upon the circumstantial<\/p>\n
    evidence    for   establishing       guilt   of    the    appellants         i.e.    the<\/p>\n
    circumstances established from oral and documentary evidence<\/p>\n
    adduced by the prosecution at trial of the nature of appellants<\/p>\n
    having quarreled with the deceased, lateron soon prior to the death<\/p>\n
    being in company of the deceased, human blood stained Articles of<\/p>\n
    the appellants knives, shawl, muffler being found in a field nearby<\/p>\n
    the body of the deceased, their clothes being found stained with<\/p>\n
    blood etc. The Trial Court after assessment of evidence had come to<\/p>\n
    the conclusion of the    said circumstance being established by the<\/p>\n
    prosecution. The trial court on the basis of the same had come to<\/p>\n
    the   conclusion of the appellants being guilty for commission of<\/p>\n
    offence of murder of deceased and convicted and sentenced each<\/p>\n
    of them as stated earlier.\n<\/p>\n
    6.         Mr. R.M. Daga, the learned counsel for the appellant<\/p>\n
    during the course of the arguments                has vehemently contended<\/p>\n
    that trial Court had manifestly erred in taking into consideration<\/p>\n
    incriminating circumstances not put to the appellants during their<\/p>\n
    examination effected under Section 313 of Cr.P.C. i.e.                 shawl Article<\/p>\n
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\n                                   6<\/span><\/p>\n
    A allegedly of appellant no.1 and muffler Article B              allegedly of<\/p>\n
    appellant no.2 and knives Article B and the clothes and findings of<\/p>\n
    CA report thereto   and had further erred in relying upon the same<\/p>\n
    while coming to the conclusion of guilt of the appellants being<\/p>\n
    conclusively established by the circumstantial evidence adduced by<\/p>\n
    the prosecution inclusive of such circumstances.                 The learned<\/p>\n
    counsel has urged of same being not permissible in the law, the<\/p>\n
    conclusion reached and order of conviction based upon the same is<\/p>\n
    vitiated and on said ground alone the judgment and order of<\/p>\n
    conviction passed by the trial Court was liable to be quashed and<\/p>\n
    aside.\n<\/p>\n
    7.        In view of such contentions raised, after hearing both the<\/p>\n
    sides at length upon relevant aspect and considering the decisions<\/p>\n
    of Apex Court cited by both parties for detailed reasons recorded in<\/p>\n
    the order dated 15.1.2010 on the basis of the law pronounced by<\/p>\n
    earlier decision of three Judges’ of the Apex Court in the case of<\/p>\n
    Shivaji   Sahebrao     Bobde         and   another        .vs.      State       of<\/p>\n
    Maharashtra reported in AIR 1973 SC 2622 than the one pointed<\/p>\n
    out by learned counsel for the appellants, it was felt proper not to<\/p>\n
    exclude said circumstances,       but to call for explanation regarding<\/p>\n
    the same through their Advocate.       Accordingly the same were put<\/p>\n
    to the learned counsel for the appellants.\n<\/p>\n
    8.        The learned counsel for the appellants upon instructions<\/p>\n
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\n                                   7<\/span><\/p>\n
    from the appellants had informed that the investigating officer had<\/p>\n
    not collected the blood of the appellants nor sent the same to the<\/p>\n
    Chemical Analyser and had taken the blood of the deceased from<\/p>\n
    the spot and sprinkled the same on weapon and clothes.\n<\/p>\n
    9.        The learned counsel for the appellants further urged that<\/p>\n
    even the circumstance relied by the prosecution are not clinchingly<\/p>\n
    established    by the evidence    relied for the said purpose by the<\/p>\n
    prosecution.   The prosecution evidence failed to establish of there<\/p>\n
    being sufficient motive for commission of such serious offence by<\/p>\n
    the appellants.   The quarrel over beating of son of appellants is<\/p>\n
    hopelessly inadequate for affording reason for commission of such<\/p>\n
    crime. Though it is true that in cases of direct evidence establishing<\/p>\n
    of motive may not be a significant factor still in cases resting upon<\/p>\n
    circumstantial evidence said aspect is of immense importance and<\/p>\n
    from the said angle the said failure on part of prosecution is fatal to<\/p>\n
    the prosecution case. With regard the articles found at the spot i.e.<\/p>\n
    shawl, muffler    and dagger\/knife and the clothes seized from the<\/p>\n
    house of the appellants, the prosecution evidence has failed to<\/p>\n
    establish that appellants were wearing such articles in the relevant<\/p>\n
    night and as such finding of such articles at the spot loses all<\/p>\n
    significance or at least the same fails to connect the appellants with<\/p>\n
    the crime.     Additionally   investigating officer having failed to<\/p>\n
    collect\/send blood of the appellants to the Chemical Analyser and,<\/p>\n
    therefore, merely because the said articles were containing human<\/p>\n
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\n                                  8<\/span><\/p>\n
    blood stains and or some of them of B Group i.e. similar to that of<\/p>\n
    deceased, the same would not           be a circumstance of any<\/p>\n
    consequence.\n<\/p>\n
    10.       The prosecution evidence is not cogent to establish<\/p>\n
    clinchingly the precise time at which appellants were in the<\/p>\n
    company of the deceased prior to his death. The evidence of PW4<\/p>\n
    Rajesh failed to establish that he had seen the same at 12 midnight<\/p>\n
    as his evidence failed to reveal that he had seen them quarreling in<\/p>\n
    the said field and recognized them on the basis of identification of<\/p>\n
    voice and that too while sleeping in the house. Thus even accepting<\/p>\n
    the evidence of other witnesses i.e. PW1, PW6 and PW7                as it is,<\/p>\n
    the same does not reveal the appellants being in company of the<\/p>\n
    deceased after 8 pm in the said night.      Hence even taking into<\/p>\n
    consideration all the circumstances allegedly established by the<\/p>\n
    prosecution, the same by themselves fails to point towards the guilt<\/p>\n
    of the accused. Such a conclusion is inevitable as there exists no<\/p>\n
    small gap in between last seen theory and finding of dead body in<\/p>\n
    the morning at about 9.30 am.    The said evidence does not rule out<\/p>\n
    the possibility of the deceased being killed by his other enemy. As a<\/p>\n
    result aforesaid circumstances being incapable of leading to sole<\/p>\n
    inference about the guilt of the appellants, both of them deserve to<\/p>\n
    be acquitted.\n<\/p>\n
    11.       The learned counsel also placed reliance upon the<\/p>\n
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\n                                   9<\/span><\/p>\n
    following decisions:-\n<\/p>\n
    i)        Ramreddy Rajeshkhanna Reddy & another .vs. State<\/p>\n
    of A.P. reported in 2006 ALL MR (Cri) 1533 (SC),<\/p>\n
    ii)       Inspector of Customs, Akhnoor              .vs. Yashpal and<\/p>\n
    another reported in 2009 (4) Mh.L.J. (Cri) 69,<\/p>\n
    12.       The learned APP supported the impugned judgment and<\/p>\n
    order and submitted that the evidence on record clearly established<\/p>\n
    circumstances making out a case of leading to the both appellants<\/p>\n
    having committed the offence of murder of the deceased. He urged<\/p>\n
    that   motive for crime is established by the evidence of PW1 and<\/p>\n
    PW6. Deceased being taken away at 7.30 pm by the appellants is<\/p>\n
    also established by evidence of PW1 & PW7. The deceased being<\/p>\n
    taken away by the appellants at about 8 pm being established by<\/p>\n
    the evidence of PW7, while appellants quarreling in the field with<\/p>\n
    the deceased is established by the evidence of PW4. The evidence<\/p>\n
    of PW6 also established that the appellants had asked her in the<\/p>\n
    midnight whether deceased had returned.          The fact of deceased<\/p>\n
    lying dead with injuries on person in fencing of field is established by<\/p>\n
    evidence of PW1, PW6 , PW7 and their said evidence is corroborated<\/p>\n
    by the matters stated in spot panchanama Exh.18. The fact of shawl<\/p>\n
    of appellant no.1 and muffler of appellant no.2           (bearing human<\/p>\n
    blood stains as established by CA report) and blood stained<\/p>\n
    dagger\/knife of appellants being found at the spot is established by<\/p>\n
    spot panchanama Exh.18 considered along with the evidence of<\/p>\n
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\n                                  10<\/span><\/p>\n
    PW2, PW1, PW7 and PW8.            The evidence of PW1 is found duly<\/p>\n
    corroborated by matters stated in report Exh.16 lodged by her<\/p>\n
    immediately at about 10 a.m. with the Police.       The prosecution has<\/p>\n
    also established abscondence of the appellants by the evidence of<\/p>\n
    PW6 and investigating officer PW8. The appellants have failed to<\/p>\n
    give the explanation to the said circumstance and the circumstance<\/p>\n
    of their house being found locked and having left the children with<\/p>\n
    father-in-law as established by evidence of PW6.                The alleged<\/p>\n
    omission on part of PW6 being not in the nature of contradiction the<\/p>\n
    said matters are not liable to be discarded. The learned APP thus<\/p>\n
    urged that considering the relationship of the parties, the place at<\/p>\n
    which the offence had taken place hardly there is any appreciable<\/p>\n
    gap in between the circumstance of appellants being seen last in the<\/p>\n
    company of the deceased prior to death, the same by itself is<\/p>\n
    sufficient to come to the conclusion about the appellants being<\/p>\n
    perpetrators of the crime as they have failed to explain the said<\/p>\n
    circumstance. The asking of an appellant to PW6 whether deceased<\/p>\n
    had returned to the house etc. clearly appears to be a farce made<\/p>\n
    by them and the same is apparent after taking into consideration<\/p>\n
    other circumstances established by the prosecution.              All the said<\/p>\n
    circumstances apart from having effect of corroborating conclusion<\/p>\n
    of guilt of the appellants emerging from the circumstance of last<\/p>\n
    seen, additionally cumulative effect of all the circumstances leads<\/p>\n
    only to the conclusion of guilt of appellants as rightly arrived by the<\/p>\n
    trial Court and as such   there are no merits in the appeal and the<\/p>\n
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\n                                 11<\/span><\/p>\n
    same should be dismissed.\n<\/p>\n
    13.        The learned APP, in support of his submission, also<\/p>\n
    placed reliance upon the following decisions:\n<\/p>\n
    i)        Yuvraj Aambar Mohite .vs. State of Maharashtra<\/p>\n
    reported in (2006) 12 Supreme Court Cases 512 and<\/p>\n
    ii)       Manivel and others .vs. State of Tamil Nadu reported<\/p>\n
    in (2008) 12 Supreme Court Cases 748<\/p>\n
    14.       We<\/p>\n
                    have   given     thoughtful      consideration           to     the<\/p>\n
    submissions advanced by both the parties and carefully perused the<\/p>\n
    record and the decisions relied. At the out set it can be safely said<\/p>\n
    that the prosecution case purely rests upon circumstantial evidence.\n<\/p>\n
    Out of the circumstances relied by the prosecution, apart from the<\/p>\n
    appellants having not disputed of deceased having homicidal death,<\/p>\n
    the said fact is apparently established from the unchallenged part of<\/p>\n
    the evidence of PW1, PW4, PW6 & PW7 regarding the place at which<\/p>\n
    his body was found with the injuries on the person and relevant<\/p>\n
    part of the evidence of PW2 Pitambar pertaining to articles found in<\/p>\n
    nearby vicinity of dead body. The said evidence is also found well<\/p>\n
    corroborated   spot panchanama Exh.18, inquest panchanama Exh.\n<\/p>\n
    20 and so also the evidence of PW5 Doctor who had performed post<\/p>\n
    mortem and his PM notes at Exh.27.\n<\/p>\n
    15.       Out of them reference to the evidence of PW5 who had<\/p>\n
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\n                                  12<\/span><\/p>\n
    performed the post mortem on 30.10.2002 while being attached at<\/p>\n
    Rural Hospital, Risod, clearly reveals that he has noted 9 external<\/p>\n
    stab injuries on the person of the deceased with 1 cut injury over<\/p>\n
    throat of dimensions 6 X 6 X 3 cm and 4 abrasions as recorded by<\/p>\n
    him in column no. 17 of PM notes.        His evidence also reveals of<\/p>\n
    having noticed internal injuries to the effect of fracture of thyroid<\/p>\n
    bone over both the sides, fracture of second rib at left side near<\/p>\n
    stearnal line   and fracture of   caricoid cartilage with all tracheal<\/p>\n
    injuries.\n<\/p>\n
    16.         The evidence PW5 also reveals that all the said injuries<\/p>\n
    were caused within 24 hours from the time of himself performing<\/p>\n
    post mortem and the injuries excepting abrasion noticed by him<\/p>\n
    could be caused by sharp edged weapon, while the other injuries<\/p>\n
    were possible by hard and blunt object. All the said injuries were<\/p>\n
    ante mortem with external injuries corresponding to internal injuries<\/p>\n
    caused. He had opined of the said injuries being of grievous nature<\/p>\n
    and the death had been caused due to hemorrhagic shock due to<\/p>\n
    cut throat injury and multiple stab injuries over chest and abdomen<\/p>\n
    noticed. He had also opined of injuries No. 1 to 10 being possible by<\/p>\n
    knife article 3 while the remaining injuries were possible by knife<\/p>\n
    article C. Thus taking into consideration all the said evidence , it can<\/p>\n
    be safely said that by the same the prosecution having established<\/p>\n
    the deceased having met with homicidal death due to the injuries<\/p>\n
    caused to him. It also establishes of the said injuries being possible<\/p>\n
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\n                                 13<\/span><\/p>\n
    by means of weapons before the trial Court i.e. the dagger and knife<\/p>\n
    found at the spot and identified by the witnesses being the knife<\/p>\n
    which were with the appellants.\n<\/p>\n
    17.       Now reverting to the moot question of the prosecution<\/p>\n
    having   established   circumstances     establishing       guilt     of     the<\/p>\n
    appellants. Considering the evidence of PW1 in light of the criticism<\/p>\n
    advanced the same definitely establishes that on the said day at<\/p>\n
    about 4 p.m. quarrel had ensued
\n                       ig                  in between deceased and the<\/p>\n
    appellants on the count of the child and the same was pacified by<\/p>\n
    her mother PW6 Badami.\n<\/p>\n
    18.        Her further evidence also reveals her cousin PW7 having<\/p>\n
    told her that about 7.30 PM both the appellants had been to the<\/p>\n
    house of the deceased while he was taking meals and appellant no.1<\/p>\n
    had caught hold of deceased and taken him towards the house of<\/p>\n
    PW 7 and at the said place appellant no.1 has taken out money from<\/p>\n
    the pocket of the deceased and taken him to liquor-den. Thereafter,<\/p>\n
    appellant no.1 had taken deceased to the field of Mulabai and<\/p>\n
    appellant no.2 was accompanying appellant no.1 all the while. Both<\/p>\n
    the appellants were then possessing knife with them.\n<\/p>\n
    19.       Her further evidence discloses that at about 1.00 AM in<\/p>\n
    the night appellant no.1 again had been to the house of deceased<\/p>\n
    and asked mother of the deceased PW 6 about arrival of Dashrath at<\/p>\n
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\n                                 14<\/span><\/p>\n
    home. Her further evidence relates to search made by them in the<\/p>\n
    morning for Dashrath having noticed blood stained Shawl of<\/p>\n
    appellant no.1 and blood stained Muffler of appellant no.2 lying in<\/p>\n
    the said field and also having dead body of Dashrath in the fencing<\/p>\n
    of the field with bleeding injuries on neck, stomach and chest with<\/p>\n
    neck being cut with knife. It also discloses of herself having lodged<\/p>\n
    FIR Exh.16 against the appellants.\n<\/p>\n
    20.         Close scrutiny of her evidence does not reveal any<\/p>\n
    tangible material being elicited during the cross examination<\/p>\n
    rendering her evidence unbelievable.    The matters elicited during<\/p>\n
    the cross examination in the nature of omissions of herself having<\/p>\n
    not told the police of the appellants (i) while taking away deceased<\/p>\n
    having held his hand or (ii) having not stated of appellant no.1<\/p>\n
    taking Dashrath to liquor-den or (iii) her inability to assign the<\/p>\n
    reason for the same, clearly appears to be trifle nature. Needless to<\/p>\n
    add that the said matters or further matters put to her which were<\/p>\n
    denied by her cannot be said to be having any effect of rendering<\/p>\n
    evidence given by her unbelievable or unacceptable.            Needless to<\/p>\n
    add that the said matters will be required to be held established are<\/p>\n
    as the same are found corroborated by matters stated by her in FIR<\/p>\n
    Exh.16 and so also the evidence of PW 6 Badami and PW 7<\/p>\n
    Dagdabai.\n<\/p>\n
    21.         Now considering the evidence of PW 6 Badami, who is<\/p>\n
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\n                                 15<\/span><\/p>\n
    mother of the deceased and so also PW 1, also reveals a<\/p>\n
    corroborative account given by her regarding the quarrel occurred in<\/p>\n
    between both the appellants and Dashrath at about 4.30 PM on<\/p>\n
    account of beating of Kishore, son of the appellant, by the deceased<\/p>\n
    and threats given by the appellants to the deceased. The same also<\/p>\n
    reveals further corroborative account given by her regarding at 7.30<\/p>\n
    PM appellants again having been to their house and appellant no.1<\/p>\n
    having caught hold of Dashrath and having taken him along with<\/p>\n
    him and appellant no.2 having followed them.\n<\/p>\n
                       ig                                 Her evidence also<\/p>\n
    discloses of both the appellants again having been to her house at<\/p>\n
    12.00 to 1.00 in the night and having informed her that Dashrath<\/p>\n
    was sleeping with them in the field at Mohali but they were not<\/p>\n
    knowing as to where he had been thereafter.          It also discloses of<\/p>\n
    herself having got suspicion     about them as she had seen knives<\/p>\n
    with them when they had been to her house earlier. It also discloses<\/p>\n
    that thereafter she had made      efforts for searching Dashrath but<\/p>\n
    was unable to trace for whole    night. It also discloses that she had<\/p>\n
    been to the house of the appellants but their door was locked and<\/p>\n
    they were not found in the house along with the children and having<\/p>\n
    left their children with the residence of father-in-law of appellant<\/p>\n
    no.1.\n<\/p>\n
    22.       Further evidence of PW 6 discloses of herself having<\/p>\n
    roamed in the village whole night, she could not sleep, early in the<\/p>\n
    field having been to the field of Mohali and having witnessed blood<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                 16<\/span><\/p>\n
    stained knife in the field of Mohali with blood stained shawl of<\/p>\n
    appellant no.1 and muffler of appellant no.2 lying in the said field<\/p>\n
    and the corpse of the deceased in fencing with the injuries on chest<\/p>\n
    and abdomen and so also neck cut.\n<\/p>\n
    23.       Now scrutiny of the evidence reveals of omission about<\/p>\n
    her claim of quarrel so also about the threats given being brought<\/p>\n
    on the record.   Similarly the omissions in respect of the claim of<\/p>\n
    having seen knife in the hand of the accused, having been to the<\/p>\n
    house of the appellants, having found door locked, accused having<\/p>\n
    escaped along with children, having left the children at the<\/p>\n
    residence of father-in-law and hidden in the bushes, having<\/p>\n
    witnessed blood stained knife on the spot of the incident or so also<\/p>\n
    shawl and muffler etc. being brought on the record. The scrutiny of<\/p>\n
    her evidence does not reveal any other circumstances being brought<\/p>\n
    on the record rendering her other evidence unbelievable and thus<\/p>\n
    the same would deserve due credence.\n<\/p>\n
    24.       Now considering the effect of the omissions from her<\/p>\n
    evidence brought on the record and out of them her claim of having<\/p>\n
    seen knives with the appellants will be required to be excluded after<\/p>\n
    considering the same on the preponderance of probability.                  The<\/p>\n
    same is obvious as even it is not the case of the witness that any<\/p>\n
    occasion has arisen for taking out the knives during the quarrel<\/p>\n
    ensued in between the appellants and deceased about which she<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                   17<\/span><\/p>\n
    has deposed. However, with regard to the other aspects since the<\/p>\n
    said matter apparently being not in the nature of the contradiction<\/p>\n
    with   further claim staked by her and on the contrary being<\/p>\n
    consistent with natural conduct of mother who had received<\/p>\n
    information from the appellants of deceased being missing from the<\/p>\n
    field in which he was sleeping, it is difficult to accept her further<\/p>\n
    evidence regarding the search made by her. Since deceased had<\/p>\n
    left in the company of the appellants and the appellants had<\/p>\n
    informed her about himself being missing her claim of having gone<\/p>\n
    to their house etc. also cannot be said to be unnatural claim. The<\/p>\n
    same is the case about her claim of in the morning during search<\/p>\n
    herself having found things and corpse in the field. Thus, judging on<\/p>\n
    the preponderance of probability and expected conduct of mother<\/p>\n
    whose son was missing the said part of her evidence will not be<\/p>\n
    liable to be discarded due to omissions regarding the same being<\/p>\n
    brought on the record. Needless to add thus excepting the matters<\/p>\n
    liable to be discarded as observed earlier, her rest of the claim will<\/p>\n
    be required to be accepted.\n<\/p>\n
    25.       Now considering the evidence of PW7 the same in terms<\/p>\n
    reveals of having seen appellants and deceased coming in front of<\/p>\n
    her house at about 8.00 PM while she was sitting in the door. The<\/p>\n
    same also reveals of appellant no.1 started checking pockets of<\/p>\n
    deceased, having demanded money from deceased, in spite of<\/p>\n
    reluctance of deceased, appellant no.1 having taken out money from<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                 18<\/span><\/p>\n
    the pocket of deceased, having gone to liquor shop and having<\/p>\n
    returned by purchasing liquor where deceased and appellant no.2<\/p>\n
    were standing and all of them having gone in the field of Mohali. It<\/p>\n
    also reveals of PW 7 having witnessed knife in the hands of both the<\/p>\n
    appellants, her further part of evidence relates to her aunty PW 6<\/p>\n
    being to her house in the morning and having asked about the<\/p>\n
    Dashrath. It also discloses of PW 7 having told them of having seen<\/p>\n
    Dashrath lastly on previous night with the appellants and having<\/p>\n
    disclosed everything to them witnessed by her. Her further part of<\/p>\n
    evidence relates to the search made and having found blood stained<\/p>\n
    knives, blood stained shawl of appellant no.1 and blood stained<\/p>\n
    muffler of appellant no.2 and corpse of deceased in the Mohali field<\/p>\n
    with the injuries as deposed by PW 1. She has also identified the<\/p>\n
    knives before the court being the same knife and so also about<\/p>\n
    shawl and muffler being the same which was found in the said field.\n<\/p>\n
    26.       Now scrutiny of her evidence reveals that her statement<\/p>\n
    was not recorded by the police.       It also reveals that she was<\/p>\n
    frightened and had been to Hingoli to the house of her daughter. It<\/p>\n
    also reveals that she had seen the appellants and Dashrath from<\/p>\n
    distance of 15 feet from her house.      Beyond the said matters the<\/p>\n
    cross examination effected does not reveal any circumstance being<\/p>\n
    brought on record for not accepting the matters spoken by her. It is<\/p>\n
    true that her statement was not recorded by the police. However,<\/p>\n
    taking into consideration her evidence    that she was frightened and<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                  19<\/span><\/p>\n
    had been to Hingoli to the house of her        daughter and no other<\/p>\n
    material being      brought on record, it is difficult to reject her<\/p>\n
    testimony on the count of her statement being not recorded during<\/p>\n
    course of investigation. Such a conclusion is inevitable as one of the<\/p>\n
    prime object of recording a statement being to rule out the<\/p>\n
    possibility of false witness being roped   by the prosecution at the<\/p>\n
    later stage of    proceeding and such a possibility apparently being<\/p>\n
    not spelt out      and\/or brought on the record during the cross<\/p>\n
    examination. Since the criminal trials are required to be decided on<\/p>\n
    the basis of substantive evidence with due                 opportunity for<\/p>\n
    adversary to test the same, her evidence inspiring confidence will<\/p>\n
    not be liable to be rejected on the ground urged by learned counsel<\/p>\n
    for appellants.     However, the caution will require to seek a<\/p>\n
    corroboration for her evidence and so also the same will be required<\/p>\n
    to be tested on the touchstone of probability factor.\n<\/p>\n
    27.        Thus from such an angle considering her evidence and<\/p>\n
    same being found corroborated by evidence of PW 1 and PW 6 and<\/p>\n
    nowhere the defence having thrown a challenge that at the relevant<\/p>\n
    time she was not residing at the relevant place, merely because of<\/p>\n
    the suggestion put of herself having not seen the matters, her<\/p>\n
    evidence will not be liable to be rejected for the matters which are<\/p>\n
    corroborated.     However, considering in proper perspective                  the<\/p>\n
    events which she had claimed to have occurred in front of her house<\/p>\n
    and the same by itself not denoting any occasion of herself getting a<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                  20<\/span><\/p>\n
    chance to see the dagger\/knife with the appellants, if any, it is<\/p>\n
    difficult to accept the said claim.    The same is obvious as her<\/p>\n
    account of an incident of the said event does not reveal any<\/p>\n
    occasion having arisen for appellants taking out the dagger\/knife<\/p>\n
    and so also it will be highly improbable to expect appellants then<\/p>\n
    would have been moving with knives in their hands. In view of the<\/p>\n
    same, her said claim will be required to be discarded and<\/p>\n
    consequently the prosecution submission of such a facet being<\/p>\n
    established by them through her evidence.\n<\/p>\n
    28.       In the aforesaid context having due regard to the<\/p>\n
    tendency of the witnesses to intermix the facts pertaining to the<\/p>\n
    subsequent events merely because of discarding of some facets of<\/p>\n
    evidence PW 6 and PW7, entire evidence of each of them will not be<\/p>\n
    liable to be discarded. The same will not be liable to be discarded in<\/p>\n
    view of the tendency of the witnesses to intermix the facts about<\/p>\n
    which they had gained knowledge           lateron, while giving the<\/p>\n
    evidence, the doctrine of falsus in uno    falsus in omnibus has not<\/p>\n
    been found applied in our country.\n<\/p>\n
    29.       Now reverting to the evidence of PW 4 the same reveals a<\/p>\n
    claim being staked by him that in the relevant night while sleeping<\/p>\n
    in the house he had heard a quarrel between deceased and<\/p>\n
    appellants in his field on the rear side of his house.              However,<\/p>\n
    considering the nature of said claim staked by him it will be difficult<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                  21<\/span><\/p>\n
    to place much reliance upon the same. However, his further claim of<\/p>\n
    having seen appellant no.1 and deceased being seen roaming in<\/p>\n
    their locality one day prior to himself receiving information about the<\/p>\n
    death of deceased on the next day morning from the mother of the<\/p>\n
    deceased and, thereafter, himself having seen body of the deceased<\/p>\n
    in the field and having noticed injuries as noticed by the other<\/p>\n
    witnesses on the said body will not be liable to be discarded only on<\/p>\n
    the count of his claim of seeing them in company being in the nature<\/p>\n
    of omission brought on the record.\n<\/p>\n
                        ig                   Needless to add the same will<\/p>\n
    not be liable to be rejected due to same being somewhat<\/p>\n
    corroborated by the other evidence on record.\n<\/p>\n
    30.       In addition to the aforesaid considering the evidence of<\/p>\n
    the panch witnesses PW 2 Pitambar in light of            the matters from<\/p>\n
    inquest panchanama Exh.20, seizure of clothes of the deceased,<\/p>\n
    panch witness PW 3 Shaikh Rafiq regarding seizure of the clothes of<\/p>\n
    the accused      under   panchanama      Exh.24 and          particularly      the<\/p>\n
    evidence of investigation officer (PW 8) and considering the same in<\/p>\n
    proper perceptive, the same duly corroborates the aforesaid<\/p>\n
    evidence regarding the relevant facets and           also establishes the<\/p>\n
    articles seized from the field i.e. knives, shawl and muffler were<\/p>\n
    found stained with blood.\n<\/p>\n
    31.       Thus    reappreciating   the    evidence      of    the     aforesaid<\/p>\n
    witnesses and discarding the circumstances not established by the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                  22<\/span><\/p>\n
    the same,    the submission of the learned APP        of the prosecution<\/p>\n
    having the circumstances is found to be justified to the tune of<\/p>\n
    having established    : (a) the deceased having met with homicidal<\/p>\n
    death, (b) prior to the day of his death deceased at about 4.00 pm<\/p>\n
    he had quarrel with the appellants on the count of beating of their<\/p>\n
    son by deceased at his house, (c) on the same day at about 7.30 pm<\/p>\n
    appellants had been to the house of deceased and taken him away<\/p>\n
    from the house, (d) at about 8.00 pm in front of the house of PW 7<\/p>\n
    appellant no.1 had taken money from the deceased purchased<\/p>\n
    liquor and both the appellants along with the deceased had been in<\/p>\n
    the field , (e) the appellants had been to the house of PW 6 at about<\/p>\n
    1.00 midnight and having informed her that deceased was sleeping<\/p>\n
    with them in the field of Mohali but they did not know as to where he<\/p>\n
    had been thereafter, (f) appellants were not found in their house in<\/p>\n
    the said night, (g) the body of the deceased being found with injuries<\/p>\n
    on his person at 9.30 AM at the field of Mohali, (h) human blood<\/p>\n
    stained shawl and human blood stained muffler being found in the<\/p>\n
    said field, (i) blood stained dagger and knife being found in the said<\/p>\n
    field, (j) clothes of the accused being also found stained with blood.\n<\/p>\n
    32.         Now taking into consideration the said circumstances duly<\/p>\n
    established by the prosecution evidence and failure of the accused<\/p>\n
    to give any cogent explanation for any of the same has definitely<\/p>\n
    effect to reach to the conclusion as arrived by the trial court.\n<\/p>\n
    Though it is true that the motive assumes an important in cases of<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                   23<\/span><\/p>\n
    circumstantial evidence still it is difficult to accept the submission of<\/p>\n
    the learned counsel for the appellants that the motive established<\/p>\n
    by the prosecution in the instant case i.e. quarrel on the count of<\/p>\n
    beating of son could never have been sufficient motive to the<\/p>\n
    appellants to commit such a heinous act. We are unable to accept<\/p>\n
    said submission as the prosecution is required to establish only the<\/p>\n
    probable motive even in such a cases and the possibility of the said<\/p>\n
    quarrel being sufficient being not ruled out by any of the<\/p>\n
    circumstances adduced on the record and on the contrary there is<\/p>\n
    positive evidence on the record of the appellants having given<\/p>\n
    threat to the deceased after the said quarrel that they would be<\/p>\n
    seeing him lateron.\n<\/p>\n
    33.       With regard to the submission canvassed by the learned<\/p>\n
    counsel for the appellants of the evidence having not surfaced on<\/p>\n
    the record that on the said day appellant no.1 was having                    said<\/p>\n
    shawl or appellant no.2 said muffler which was found nearby dead<\/p>\n
    body found in the field the same appears to be correct. In view of<\/p>\n
    the same, his further submission that it is difficult to accept<\/p>\n
    prosecution having established with cogent evidence of such articles<\/p>\n
    found at the spot being that of the respective appellants will also<\/p>\n
    deserve due credence and as such the said aspect will be required<\/p>\n
    to be left out of consideration. Needless to add it clearly appears to<\/p>\n
    be hazardous to accept such a claim of identification of articles<\/p>\n
    staked by relevant prosecution witnesses.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                            24<\/span><\/p>\n
    34.          In        the      same        context        even         accepting           the<\/p>\n
    submission\/explanation of the appellants regarding the factual<\/p>\n
    aspect of their blood being not collected by investigating officer still<\/p>\n
    themselves having not claimed of the said clothes\/articles were<\/p>\n
    containing their own blood, it will be difficult to accept that the said<\/p>\n
    circumstance will not have any value. The same appears accordingly<\/p>\n
    as hardly any foundation has been led during the cross examination<\/p>\n
    of PW 8 for accepting that he had sprinkled the blood of deceased<\/p>\n
    upon the said articles as claimed by the appellants.\n<\/p>\n
                               ig                                                 In the same<\/p>\n
    context it can be added that presumption of honesty being equally<\/p>\n
    applicable        to   the     evidence     of   police    personnel         without       any<\/p>\n
    foundation and\/or any circumstance supporting conclusion of PW 8<\/p>\n
    being interested person, the said theory cannot be accepted.\n<\/p>\n
    35.          Now        with     regard to the decisions cited by both the<\/p>\n
    parties and without               unnecessarily making threadbare dilation<\/p>\n
    about   each           of them it can be safely said that the potential of<\/p>\n
    circumstance last seen in the company of deceased has been<\/p>\n
    explained by the Hon’ble Apex Court is bound to very from case to<\/p>\n
    case dependent upon the relevant factors and facets involved in the<\/p>\n
    same.   Thus considering such a circumstance established against<\/p>\n
    the appellants, the narrow gap in between deceased being seen<\/p>\n
    alive in company of appellant and probable time of death of the<\/p>\n
    deceased prior to finding of his corpse, coupled with the other<\/p>\n
    circumstances affording corroboration to inference arising out of the<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:35:33 :::<\/span>
\n                                 25<\/span><\/p>\n
    same it clearly leads to no other conclusion of there existing a very<\/p>\n
    short gap in between the appellants being seen in company of<\/p>\n
    deceased and the time at which the he was found dead and the<\/p>\n
    probable time by which he would have been killed. The narrow time<\/p>\n
    gap considered along with the other incriminating circumstances<\/p>\n
    established by the prosecution, rules out any reasonable probability<\/p>\n
    of culprits being anybody else other than the appellants.                Such a<\/p>\n
    conclusion is inevitable as the law pertaining to the circumstantial<\/p>\n
    evidence though requires exclusion of other possibilities the same<\/p>\n
    means the reasonable possibility and not altogether far fetch<\/p>\n
    possibility as observed repeatedly by the Hon’ble Apex Court.\n<\/p>\n
    36.       As   a net   result   of   the   aforesaid     discussions        after<\/p>\n
    reappraisal of the evidence, we do not find any error having been<\/p>\n
    committed by the trial court warranting an interference on our part<\/p>\n
    with the judgment impugned in the appeal.           Thus there being no<\/p>\n
    merits in the appeal, the same deserves to be and accordingly<\/p>\n
    stands dismissed.\n<\/p>\n
              JUDGE                                           JUDGE\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 15:35:33 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Bhurya @ Gulab vs The State Of Maharashtra on 9 February, 2010 Bench: A. P. Lavande, P. D. Kode 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO. 356 OF 2004 1. Bhurya @ Gulab s\/o Fajitya Kale, Aged about 27 years, Occupation – Labour […]<\/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-234932","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBhurya @ Gulab vs The State Of Maharashtra on 9 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\/bhurya-gulab-vs-the-state-of-maharashtra-on-9-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhurya @ Gulab vs The State Of Maharashtra on 9 February, 2010 - 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