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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.56 OF 2017
Ananta Mahadeo Motghare,
Aged about 40 years, Occ.
Labour, r/o. Manguru, Tq.
Nerparsopant, District
Yavatmal. .......... APPELLANT
// VERSUS //
State of Maharashtra,
Through its Police Station Officer,
Police Station, Ramnagar,
Chandrapur, Tq. and Distt.
Chandrapur. .......... RESPONDENT
____________________________________________________________
Mr.A.M.Jaltare, Advocate for the Appellant.
Mr.V.P.Gangane, A.P.P. for the Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 7.11.2017.
Date of pronouncement of the Judgment : 16.11.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant Ananta Mahadeo Motghare was tried for the offence punishable under Section 302 of the Indian Penal Code for committing murder of Nanaji Raghoji Dhok. The learned trial Court convicted the appellant for the said offence and sentenced him to suffer imprisonment for life and to pay a fine of Rs.3,000/-, in default to suffer rigorous imprisonment for three months. Being aggrieved by the Judgment of conviction in Sessions Trial No.26 of 2014, dt.20.11.2015 by the Additional Sessions Judge, Chandrapur, the appellant has filed the present appeal.
2. The case of prosecution, in nutshell, is as under : ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 :::
3 apeal56.17.odt Deceased Nanaji Dhok was residing in Indira Nagar, Triveni Chowk, Chandapur. He had two daughters and two sons. All they were married and residing separately with their families. Appellant was foster son-in-law of the deceased. Appellant and deceased were doing business of selling vegetables. Appellant used to give money to deceased. Some of the money was outstanding against deceased.
3. In the night of incident i.e. on 23.11.2013, complainant Sadanand Nagpure/neighbour was sleeping in his house in the night of 24.11.2013. At about 1.00 a.m., he woke up for urinal. He heard sound from the house of Nanaji Dhok as "Mangala Vachav, Mangala Vachav" ("Mangala save, Mangala save"). Therefore, he woke up his wife Mangala. They went in front of house of Nanaji Dhok. But, they did not dare to enter in the house of Nanaji. Therefore, he woke up Raju Indurwar, Suresh Chamate, Raju Lengure, Ankush Saosagade and Vijay Baddalwar by giving a call. All they went near the front door of house of deceased. He gave a call to deceased to open the ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 4 apeal56.17.odt door. At that time, they heard sound of beating. Thereafter, voice of Nanaji was closed.
4. Complainant suspected that there might be thief in the house. Therefore, he pushed the door. Door was closed from inside. He latched the door from outside. He requested Ankush Saosagade to inform Police Station, Ram Nagar. Ankush informed Police Station, Ramnagar. Within a short time, police jeep came to the house of Nanaji Dhok.
5. As soon as Police vehicle reached there, inner light of the house was put off. Police tried to open the door. But nobody was giving response from inner side. Police broke upon the door and put on the light. Then they saw dead body of Nanaji Dhok was lying near the cot. He had bleeding injury on head. Police searched the room. They saw the accused hiding in one corner behind the drum. Police took the appellant into their custody. Sadanand Nagpure and others identified the appellant because appellant was always visiting the house of deceased. Police asked the name of appellant. Then he told ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 5 apeal56.17.odt his name as Ananta Motghare resident of Chandrapur. One axe stained with blood was lying in the house.
6. Complainant asked appellant as to why he killed Nanaji. Then he replied that there was money transaction and therefore, he killed deceased.
7. Sadanand Nagpure lodged report in the Police Station (Exh.12). Crime was registered for the offence punishable under Section 302 of the Indian Penal Code. API Shivaji Ramrao Bhandawalkar (PW-6) investigated the crime and filed charge sheet before the Court. PSI Ujwala Bhimrao Wakpanjar (PW-8) prepared Spot panchanama (Exh.16) in presence of panchas, seized axe, blood stained soil and plain soil as per Seizure panchanama (Exh.15), prepared Inquest panchanana of dead body (Exh.18). Police Inspector Khanderao Dinaji Pithalewad (PW-10) recorded statements of witnesses and filed Charge sheet before the Judicial Magistrate, First Class, Chandrapur. Same was committed to the Court of Sessions for trial.
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8. Additional Sessions Judge framed charge against the appellant at Exh.5. Same was read over and explained to the appellant. He pleaded not guilty and claimed to be tried.
9. Prosecution has examined ten witnesses. Sadanand Kisan Nagpure (PW-1) has stated in his evidence that in between the night of 23rd and 24th at about 1.00 a.m., he woke up for urinal. He heard noises from the house of deceased Nanaji Dhok as "Mangala save, Mangala save". Mangala is his wife. Hence, he immediately came out of his house along with his wife and went towards the house of Nanaji Dhok.
10. Complainant called Raju Lengure. Thereafter, Suresh Chamate also came there. Voice was coming from the house of Nanaji Dhok. He gave a call in the house of Nanaji Dhok as to what happened. But he heard voice from his door as "save me Baba". He heard shouts of beating inside the house. After sometime, voice stopped. He peeped from the corner of door. He noticed one person. Then he latched the door from outside. Light was on inside the house of Nanaji. 10-15 persons were gathered there. They all circled ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 7 apeal56.17.odt the house. Ankush informed the police from his mobile. After sometime, Ramnagar Police reached there. They asked to open the door. But it could not be opened. Hence, the door was broke open by police. He saw dead body of Nanaji lying on the cot. There was an axe injury on his neck. Blood was lying there. One person i.e. present appellant was hiding behind drum. Police apprehended said person/appellant. Thereafter, he lodged report (Exh.12).
11. Suresh Harishchandra Chamate (PW-2) has stated that police prepared the Inquest panchanama, Spot panchanama (Exh. Nos. 15 and 16). He saw dead body of Nanaji lying under the cot. There was injury to the neck of Nanaji. Police collected blood mixed soil and plain soil. There was one blood stained axe in the house of Nanaji.
12. Vikas Shalik Mankar (PW-3) has stated in his evidence that he had seen dead body of Nanaji in the hospital. Police prepared Inquest panchanama (Exh.18) in his presence. Ankush Namdeo Saosakade (PW-5) has stated that he know deceased Nanaji. Accused is his foster son-in-law. Accused and Nanaji were dealing in ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 8 apeal56.17.odt Vegetable business separately. Deceased Nanaji used to call the accused as his son-in-law. Nanaji was telling that he was to give amount to the accused which he took on credit.
13. Ankush Saosakade (PW-5) has stated in his evidence that at the time of incident on 24.11.2013 at about 1.00 a.m. Suresh came to his house and told that there was sound in the house of Nanaji as "save, save". Therefore, he went towards the house of Nanaji. At that time, neighbours had gathered there. They gave a call to open the door. There was a sound like striking something. After sometime, there was no sound. Then they went towards door of house of Nanaji and saw from the window that one person was wandering in the house. Light in the house was put on. They knocked the door, but nobody opened the door. He along with Sadanand latched both the doors from outside. Thereafter, he gave information to Police Station, Ramnagar from his mobile. After sometime police arrived. After hearing sound of police vehicle, lights in the house were switched off. Police broke open the door. Then they saw Nanaji lying in a pool of blood under the cot. Blood stains ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 9 apeal56.17.odt were lying there. Appellant/accused was hiding in a corner. Police caught him.
14. API Shivaji Ramrao Bhandawalkar (PW-6) has stated in his evidence that, after getting case diary, he seized clothes on the person of accused vide Seizure panchanama (Exh.26). He seized clothes of deceased as per Seizure Panchanama (Exh.27). He seized blood sample of accused given by doctor vide Seizure panchanama (Exh.28). He recorded statements of some of the witnesses.
15. Dr.Anant Govindraoji Kinnake (PW-7), Medical Officer has stated that, on 24.11.2013, he conducted post mortem on the dead body of Nanaji Dhok. He found four injuries on the body. As per his opinion, cause of death was due to sharp lacerated wound on head and neck. Accordingly, he prepared post mortem report (Exh.32). As per his opinion, injuries shown in column nos. 17 and 19 were sufficient in the ordinary course of nature to cause death. He has further stated that, on 26.12.2013, he received query letter and he replied the said queries vide Exh.33. He identified the axe before the Court.
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16. PSI Ujwala Wakpanjar (PW8) has stated in her evidence that, on 23.11.2013, she was on duty in Police Station, Ramnagar as a P.S.I. At about 12.30 p.m., a phone call was received that at Triveni chowk, Indora Nagar, house of Nanaji Dhok was closed from inside and nobody was opening the door. Thereafter, she along with the police staff went to the spot at the house of Nanaji Dhok. House of Nanaji Dhok was closed from inside. It was also latched from outside. There was a group of people outside the house. Light in the house of Nanaji Dhok was switched off. They gave a call from outside. Nobody was responding. On inquiry, Sadanand Nagpure told that he latched from outside because he suspected that some thief may be inside the house.
17. PSI Ujwala Wakpanjar (PW-8) has further stated that they again gave a call, but nobody responded from inside. Therefore, they broke open the door of Nanaji. They put on light of the house of Nanaji. They saw in room that Nanaji was lying under the cot having blood injury on his head. Blood was lying on the floor. One blood stained axe having wooden handle was lying outside. On ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 11 apeal56.17.odt search, they found one person hiding behind the drum in the corner. Said hidden person is accused person before the Court. They took accused/appellant in custody. Appellant replied his name as Ananta Motghare, resident of Hinglaj Bhawani Ward, Chandrapur. People present there also recognized the accused and told that he used to visit the house of Nanaji. They also informed that at about 9.00 p.m. appellant had come to the house of Nanaji. They brought the accused in custody to the Police Station. Thereafter, Sadanand lodged report. She prepared Spot panchanama vide Exh.16, seized iron axe vide Seizure panchanama (Exh.15) and also prepared Inquest panchanama (Exh.18).
18. Head Constable Narendra Ramdas Markande (PW-9) has stated that he had carried the seized property to Chemical Analyser, Nagpur. He was given duty pass vide Exh.37. He has produced Invoice challan (Exh.38). He deposited the muddemal property as per Invoice challan Exh.38 and submitted Compliance report as per Exh.39.
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19. PI Khandrao Pithalewad (PW-10) has stated that he sent seized axe for the opinion of doctor as per letter (Exh.41). He has recorded statement of concerned witnesses, sent seized muddemal property vide letter Exh. Nos. 42 and 43. C.A. Reports are filed on record at Exh. No.45 to 48.
20. Munna Dashrath Rathod (PW-11) has stated that police called him and seized the clothes of deceased and accused in his presence as per Seizure panchanama Exh. Nos. 26 and 27. Police also seized blood samples of accused and deceased.
21. Statement of accused was recorded by the trial Court. Defence appears to be of total denial. After hearing the prosecution and defence, the learned trial Court has convicted the appellant as aforesaid.
22. Heard learned Counsel Mr.Amol Jaltare for the appellant.. He has submitted that there is omission in the evidence of Sadanand Nagpure (PW-1) and Suresh Chamate (PW-2). Learned Counsel has submitted that evidence of eye witnesses of the incident ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 13 apeal56.17.odt are not reliable. Learned trial Court wrongly convicted the appellant. Evidence adduced by prosecution is not trustworthy. Circumstantial evidence adduced by the prosecution is not proved. Therefore, appellant ought not to have been convicted.
23. Learned Counsel Mr.Jaltare has submitted that appellant was arrested on the next day. Learned Counsel has submitted that the circumstances are not sufficient to convict the appellant. In support of his submission, he has pointed out decision in the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra, reported in (1981) 2 SCC 35 and submitted that appellant be acquitted by allowing the present appeal.
24. Heard learned A.P.P. Mr. V.P.Gangane for the State. He has pointed out evidence on record and submitted that appellant was apprehended on the spot of incident itself. Witnesses have stated that they saw the appellant on the spot of incident. Appellant was taken into custody from the spot itself. Seized properties i.e. blood stained axe and clothes of deceased and accused were sent for chemical examination. Blood of deceased was found on the axe and clothes of ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 14 apeal56.17.odt accused and also deceased. All this evidence clearly show that appellant is author of crime and none else and therefore, there is no merit in the appeal. Hence, the appeal is liable to be dismissed.
25. As per the evidence of Sadanand (PW-1), he woke up in the night at about 1.00 a.m. and heard the voice of deceased as "Mangala save me, Mangala save me". Thereafter, he woke up his wife and went to the house of deceased. Door was closed from inside. Thereafter, he gave a call to other witnesses. All they tried to open the door. But door was not opened. Thereafter, Ankush Saosakade (PW-5) informed police. Police reached there. Ujwala (PW-8) along with staff tried to open the door. The door was closed from inside. They broke open the door and entered in the house of the deceased. They put on the light and found dead body of deceased lying near the cot.
26. Learned Counsel for the appellant has pointed out that one of the witnesses has stated that he peeped from window. But window is not shown in the map of spot. It is pertinent to note that the map was prepared by the Revenue Officer. He is not an Architect ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 15 apeal56.17.odt and therefore, he is not expected to give the whole picture of the house. Hence, it cannot be said that there was no window to the house of deceased. As per the Spot Panchanama, house was made of slab. It is a pakka house. Therefore, presence of window cannot be ruled out. Moreover, witness Sadanand and others have stated that they peeped from the door and saw one person inside the house. This particular evidence cannot be discarded only because there was no window shown in the map.
27. Learned Counsel for the appellant has submitted that there are omissions in the evidence of witnesses. We have gone through the statements recorded by the police. Sadanand (PW-1) has stated before the Court as per report lodged by him. From the perusal of his statement, it appears that there is no omission as pointed out by the learned Counsel.
28. Other witnesses also stated about the incident. Nothing material in their evidence is brought on record to discard their testimonies. Evidence of Sadanand Nagpure (PW-1) is well ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 16 apeal56.17.odt corroborated by neighbours Raju Lengure, Suresh Chamate (PW-2), Raju Wasudeo Indurwar (PW-4) and Ankush Saosakade (PW-5).
29. Ankush Saosakade (PW-5) has stated that he informed police from his mobile and thereafter, PSI Ujwala (PW-8) along with police staff reached to the house of Nanaji Dhok. All the witnesses including PSI Ujwala (PW-8) have stated before the Court that door was closed from inside. Lights were off. They gave a call to open the door. But there was no response from inside. Therefore, door was broke open and they entered in the house of deceased. They put on the light and saw the deceased lying in a pool of blood. Appellant/accused was hiding in one corner behind the drum. He was apprehended by PSI Ujwala. They also saw blood stained axe on the spot of incident.
30. PSI Ujwala (PW-8) prepared Spot panchanama of axe, blood stained earth and plain earth. She had also prepared Spot panchanama (Exh.16). On perusal of Exh.16, it is corroborated to the oral evidence stated by witnesses.
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31. Learned Counsel for the appellant has submitted that the appellant was arrested on the next day. It is pertinent to note that the incident took place in the night of 24.11.2013 in between 12.00 to 1.00 a.m. Appellant was taken into custody on the spot of incident itself. This itself shows that he was arrested on the spot itself, but formal arrest was made in the Police Station. On perusal of Arrest panchanama itself, it could be seen that appellant was arrested in the night itself. Therefore, argument advanced by the learned Counsel that he was arrested on the next day has no force.
32. Learned Counsel has submitted that the property was not sealed and therefore, C.A. Report cannot be taken into consideration. On perusal of the Exh.27, it is clear that the I.O. received clothes of deceased, blood sample etc. in sealed condition. Those were seized in the same condition (vide Exh. Nos. 27 and 28). The axe which was sent to Medical Officer for his opinion was sent along with query letter. Copy of query letter is at Exh.33. This query letter shows that axe was received by the Medical Officer (Exh.14) in a sealed condition. Medical Officer examined the axe having blood stains, gave opinion on the query, again sealed and handed over to police ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 18 apeal56.17.odt Constable Yeshwant on 26.12.2013. Therefore, contention of learned Counsel that property was not sealed and therefore, creates doubt about C.A. Report has no force.
33. Learned Counsel has submitted that circumstantial evidence is not reliable in view of Judgment in the case of Shankarlal Gyarasilal Dixit vs. State (supra).
From the reading of para nos. 16 to 25 of the said Judgment of Hon'ble Supreme Court, it is clear that Hon'ble Supreme Court after scanning the evidence has come to the conclusion that the evidence adduced by the Prosecution that Shrinarayan Sharma climbed over the roof of his house for the purpose of entering the appellant's house seems impossible to accept his claim that he saw the appellant/accused sleeping on a cot in a courtyard.
34. The facts in the said decision is very much different. It was a case of rape with murder of a minor child. As per the case of prosecution, dead body was lying in bath room and appellant/accused was sleeping in courtyard. He did not open the ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 19 apeal56.17.odt door. Therefore, his brother Shrinarayan climbed over the roof and opened the door. This particular evidence was not relied by Supreme Court because the Complainant himself admitted in his cross- examination that his wife has not stated that dead body was found in the bathroom of accused. None of the witnesses inquired from the accused. More particularly, Shrinarayan Sharma, who was brother of accused, is much more material witness as noticed by Hon'ble Supreme Court, which shows that case of prosecution was not reliable. It was observed by Hon'ble Supreme Court that "finally no attempt was made immediately after FIR was lodged to have the appellant arrested and there is no evidence on the point as to who arrested him from where and in what circumstances." All the evidence in the cited decision creates doubt about the circumstances relied by the trial Court and therefore, Hon'ble Supreme Court come to the conclusion that the circumstances were not sufficient to convict the accused.
35. Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 20 apeal56.17.odt given five guidelines to convict the accused on the basis of circumstantial evidence. They are as under :
(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should and not "may be" established;
(b) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) The circumstances should be of a conclusive nature and tendency;
(d) They should exclude every possible hypothesis except the one to be proved, and
(e) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 :::
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36. In the present case, following circumstances are proved by the prosecution without any reasonable doubt :
a) As per evidence of witnesses, appellant was foster son-in-law of deceased.
b) There was money transaction between the appellant and deceased. Appellant was to recover money from the deceased.
c) In the night of incident some of the witnesses saw the appellant in the house of deceased at about 9.00 p.m.
d) Sadanand (PW-1) woke up in the night at about 1.00 a.m. and he heard the sound of Nanaji as "Mangala save, Mangala save". Therefore, Sadanand (PW-1) woke up his wife Mangala. He also gave a call to Raju Lengure. Other neighbours also gathered there.
e) When Sadanand (PW-1) and other neighbours reached in front of door of deceased, the door was closed from inside. Nobody gave response to open the door. They heard sound of beating. They saw that one person was inside the house. Then they latched the door from outside. Ankush (PW-5) informed the police from his mobile. PSI Ujwala (PW-8) immediately reached to the spot on her vehicle ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 22 apeal56.17.odt with the staff. She asked the witnesses as to why door was latched from outside. Then they narrated the incident.
f) PSI Ujwala (PW-8) gave a call, but nobody gave response from inner side. Therefore, she broke open the door. Thereafter, they entered the house of deceased and put on light. They found deceased lying in a pool of blood. Appellant was hiding in one corner behind the drum. Blood stained axe was lying there. Appellant was apprehended on the spot of incident itself.
g) PSI Ujwala took the appellant in her custody to Police Station. Thereafter, he was arrested in the night itself in the Police Station. Clothes of appellant and deceased were seized.
h) As per the evidence of Medical Officer Dr.Anant Kinnake (PW-7), the appellant died homicidal death. As per his opinion, cause of death was head injury which was caused by an axe. He examined the said axe and opined that the said injury might be caused by said axe. All the seized properties were sent to the C.A., Nagpur.
i) C.A. Reports are at Exh. Nos.45 to 48 As per C.A. Reports, all the seized properties were received for examination in a sealed condition. Exh.47 shows that articles like Axe, clothes of ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 23 apeal56.17.odt deceased and appellant Exh. Nos.1, 2, 4 5, 6, 7, 8, 9, 11 and 12 were stained with blood group 'A'. As per Exh.48, blood group of deceased was also 'A'. C.A. Reports corroborate that blood found on the clothes of appellant and deceased were of the blood of deceased. The axe was also stained with blood of blood group 'A' i.e. blood of deceased.
j) Prosecution has proved strong circumstantial evidence.
k) Accused has admitted in his statement u/s.313 of the Code of Criminal Procedure that he had strained relations with deceased on account of money transactions.
l) Circumstantial evidence proved by prosecution is in conclusive nature. There is no doubt about it.
m) All evidence proved by prosecution only points towards the guilt of accused.
37. In view of the above, learned trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. There is no infirmity or illegality in the impugned Judgment. Hence, we pass the following order. ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 :::
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// ORDER //
The Appeal is dismissed.
Record and proceedings be sent back to the trial Court.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 ::: 25 apeal56.17.odt ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 02:04:12 :::