Dharyashil Alias Pampi ... vs State Of Maharashtra
2002 Latest Caselaw 575 Bom

JUDGMENT

V.K. Tahilramani, J.

1. Through this appeal, the appellant is challenging the Judgment and order dated 13-12-1996 passed by the learned Additional Judge, Kolhapur in Sessions Case No. 78 of 1996 whereby he has been convicted and sentenced to undergo imprisonment for life for the offence under Section 302 of IPC. He has also been convicted and sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 5000/- i.d. R.I. for 1 year for the offence punishable under Section 201 of the I.P.C.

2. Briefly stated the prosecution case as revealed from the evidence on record is as under:

The appellant i.e. original accused No. 1 who is known as Pampi Sarkar is a resident of Kolhapur. He used to collect cash from jobless persons by giving them assurances that he will give them a job in the office of Maharashtra State Electricity Board, Kolhapur, (Hereinafter referred to as MSEB). Ramchandra Patil (deceased) had collected cash of about Rs. 15000 per head from his villagers and other jobless persons of his acquaintance and deposited it with the appellant who was to get them a job in MSEB. One of them is P.W. 22 Mahadev Patil from Sundi, another is P.W. 16 Parsharam Ghugare, the brother-in-law of Ramchandra Patil who was in service at Bombay. This witness deposited the cash for his own service and the service of his younger brother with the appellant.

In the relevant period one Sushila Mali P.W. 15 was working as a telephone operator in a telephone booth. She came in contact with the appellant Pampi Sarkar. Some illicit relations developed between them, she had also paid Rs. 4000/- to Pampi Sarkar for giving a job to her relative Sarjerao. She and the appellant Pampi Sarkar then made some plan to collect money from jobless persons. The appellant asked and instigated her to speak with the jobless persons on telephone as the wife of one H.A. Baba Patil a Director of the Board of M.S.E.B. Whenever a needy person used to contact Pampi Sarkar, he used to ring Sushila Mali who in reply used to talk as the wife of H.D. Baba and she passed on information to the jobless person that he would be required to pay Rs. 5000/- if he wants the post of clerk and the said cash is to be deposited with the appellant Pampi Sarkar.

However, neither the relative of Sushila Mali nor the persons who on the say of Ramchandra had deposited money with the appellant for getting them a Job could get any job. It appears that some grievance arose in the mind of those persons including deceased Ramchandra. Ramchandra told these facts to his friend P.W. 14 Bharat Patil at Kadgaon. Ramchandra also told him that he has called all the Jobless persons at the house of the appellant at Kolhapur on 27-3-95. On 25-3-95 P.W. 14 Bharat Patil and Ramchandra had been to the house of the appellant. He was not available there. They again went to the house of the appellant on the next day at 9.30 a.m. So on 26-3-95 at about 9.30 a.m., Bharat Patil left Ramchandra at the house of the appellant.

On 26-3-95, appellant went to village Kaljawade to the house P.W.8 Dhondiram Patil. This Dhondiram Patil was acquainted with the appellant since 2 years before the incident, He was also acquainted with deceased Ramchandra. Both the appellant and Ramchandra used to visit the house of Dhondiram and used to stay there. At the house of Dhondiram, on 26-3-95 the appellant got collected the utensils and other materials for preparing the meals and then in the rickshaw of P.W. 12 Suresh Ambi, the appellant, Dhondiram, his brother Jaywant Patil, one Rama Bhosale went to Pombare dam for preparing and taking the meals. At Pombare Dam there is a chowky for the watchman. The chowky consists of more than 4 rooms. The means were prepared there. Then at the instance of appellant P.W.8 Dhondiram came to his village in the rickshaw, to receive some friends of the appellant who was to visit Kaljawade.

On the same day, i.e. 26-3-95 original accused No. 2 Anandrao Shinde and Ramchandra boarded the rickshaw of Mohammed Ismail Nurani, P.W. 12 at Kolhapur. They moved at various places and at 5.30 p.m. they went to the house of Sagar Ruikar, P.W. 13. At the request of Ramchandra Patil, Sagar Ruikar boarded the rickshaw of Nurhani. All of them then went to Kaljawadi at the house of P.W.8 Dhondiram. They reached there in the evening at about 7 p.m. By that time, the appellant who had gone to the dam in the morning returned to the house of Dhondiram.

Then the appellant asked Dhondiram to prepare the meals for all the persons. Dhondiram showed his inability to do so. So no meal was prepared. However, the appellant took Ramchandra to the Pombare dam in the rickshaw of P.W. 11 Suresh Ambi. Ambi left them and again came back to Kalijawade. He again took Dhondiram in his rickshaw towards the dam, as Dhondiram was called by the appellant. However while going towards the darn, they met the appellant coming towards them. He was in a frightened condition, he was not wearing a shirt, He had caught the shift in his armpit, He boarded the rickshaw. The rickshaw driver Ambi and Dhondiram enquired with Pampi Sarkar-appellant about Ramchandra and he replied that Ramchandra ran away with his gun after opening fire for 2 times. Then all these persons came to the house of Dhondiram. Thereafter, the appellant returned to Kolhapur.

On 28-3-95 P.W.7 Laxman Patil, a watchman working at Pombare dam came to the chowky. He found a pool of dried blood in the chowky, he also found a line of blood from the chowky up to the dam. He also found some parts of a human body, floating in the water of the dam. After consulting with his superiors he immediately informed Kale Police Station. The Police from Kale Police Station came to the spot.

On the statement of the watchman Laxman Patil P.W.7 the F.I.R. Exh. 31 was recorded. On the basis of F.I.R. Crime No. 23 of 1995 was registered.

The next morning, the other police staff came there, then the parts of the dead body were removed from the dam. At first, only 3 parts i.e. the portion of the head above the neck, the truck with only left leg and the right leg were found. An inquest panchnama of the same was recorded. Post mortem was done on the spot. A plastic and i.e. piece of a cartridge and pellets were found in the left lung of the deceased. After the post mortem, the pieces of the dead body were kept in the cold room in the C.P.R. Hospital, Kolhapur. On 31-3-1995 the two hands of the deceased were found separately at a distance of about 60 feet from one another in the water of Pombare Dam. Dr. Salunke P.W. 17 has stated that after alignment of all the pieces with each other, he found that the pieces are of one and the same dead body. The body was identified by P.W.20 Anita Patil the wife of the deceased as that of her husband Ramchandra Patil.

A watch was kept on the house of the appellant and he came to be arrested on 2-4-1995. On 2-4-1995 the gun of the appellant Article 10, the licence of his gun Article 12 and the pant Article 13-worn by the appellant at the time of the incident was also seized from his house at his instance. On 4-4-1995, the underwears of the deceased and a sickle (Parali) Article 16 used for cutting the dead body into pieces was recovered at the instance of the appellant. Thereafter, the muddemal was sent to the C.A.

During the investigation it transpired that on the day of the incident, the appellant had purchased 7 cartridges from Maharashtra Armoury i.e. an ammunition shop run by Mahadeo Power P.W.27. Thus, after completion of investigation, the accused came to be charge sheeted by the police for committing the murder of Ramchandra Patil in the night of 26-3-95.

3. The case was committed to the Court of Session in the usual manner whereby the appellant was charged for the offences punishable under Section 302 r.w. 34 and 201 r.w. 34 of the IPC to which charge he pleaded not guilty and claimed to be tried.

4. During the trial, prosecution examined 31 witnesses. There are no eye-witnesses and the case is based only on circumstantial evidence.

5. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated in paragraph 1. Hence, this appeal.

6. We have heard the learned counsel for the parties and perused the entire material on record. In our view, there is sufficient evidence though circumstantial in nature which clinches the participation of the appellant in the claims of murder of Ramchandra Patil and cutting his body into pieces and throwing it in Pombare Dam so as to cause the evidence of murder to disappear.

7. The circumstances which go against the present appellant are as under :

I) Last seen together with deceased

II) Motive

III) Seizure of gun article No. 10 and licence Article No. 12.

IV) The evidence of P.W.27 Mahadev Tukaram Powar who has stated about the appellant purchasing 7 cartridges from him on the date of incident.

V) Recovery of sickle Article No. 16.

VI) Seizure of Pant Article No. 13 which was worn by the appellant at the time of incident.

VII) Conduct of the appellant.

We propose to deal with the above points one after another as under :

I. Last seen : The witnesses on the point of last seen are P.W.8 Dhondiram Patil, and P.W.I3 Sagar Ruikar, P.W.11 Suresh Arnbi and P.W. 12 Mohammed Nurhani.

P.W.8 Dhondiram Bandu Patil states that he knew the appellant and the deceased as they used to visit his house and used to stay with him. He has stated that on 26th March, 1995 at about 10.30 a.m. to 11 a.m. the appellant and one other person came in Autorickshaw to his house. Appellant was having gun at that time. He was told by the appellant that they would have meals at Pombare dam and hence, this witness should bring utensils and other material required for preparing the meals. Witness along with his brother and one Rama went to the dam. After going to the dam, the appellant asked this witness to bring certain material from the shop at Pombare and stated that one of his friends from Kolhapur was also coming hence, this witness along with Rickshaw driver Ambi then returned to his house. After some time the appellant came back to the house from the dam. Within sometime, the original accused No. 2, deceased Ramchandra Patil and one more boy (P.W. 14) came in another rickshaw. Appellant again asked this witness to make arrangements for meal. However, he declined. Thereafter, the appellant and deceased went to the dam in rickshaw. Thereafter, Rama came to the house of this witness and told him that he was called by the appellant. However, in the meanwhile, the tyre of the rickshaw which was standing there got punctured. So nobody could go to the appellant. As the original accused No. 2 and another person were not ready to accompany this witness, he went to dam in Rickshaw. While going towards the dam, he had seen the appellant coming towards them i.e. this witness and the autorickshaw driver. The appellant was not wearing a shirt at that time. The shirt was held by the appellant under his armpit. The appellant boarded the rickshaw. When the witness enquired with the appellant about the deceased, the appellant told him the deceased ran away with the gun of the appellant. All of them then came back to the house of this witness.

This witness did not have any enmity or grudge against the appellant. In fact, from the evidence, it is clear that the relation between this witness and the appellant is cordial, as the appellant used to often stay with this witness. Nothing is elicited in the cross-examination of this witness to discard his testimony that, the deceased was last seen in the company of the appellant on the relevant date. Therefore, it is established from the evidence of P.W. 8 Dhondirarn Patil that in the night of 26-3-1995 both the appellant and deceased went to Pombare dam and only the appellant returned back from the dam.

On this point, the evidence of this witness is corroborated by the evidence of P.W. 11. P.W. 12 and P.W. 13.

P.W. 13 Sagar Ruikar states that on 26th March, 1995, the deceased came to his house at about 5.30 p.m. and asked the witness to accompany him. They boarded a rickshaw No. MMK 4370 (This was the number of rickshaw driven by P.W. 12-Nurhani). They went to the house of P.W. 8 Dhondirarn at Kaljawadi. In his house, there were in all three persons one of them was deceased and one of them was having beard. Then Ghatge Sarkar (appellant) and deceased Ramchandra Patil boarded in another rickshaw standing there. The number of the said other Rickshaw was MH-09-857. (P.W. 11 Suresh Ambi had stated on 26-3-1995, he was driving Autorickshaw No. MHO-857). After few days of the incident, he came to know that name of person having beard was Ghatge Sarkar. The other Rickshaw returned to Kaljawadi after sometime. Only Rickshaw Driver was in the Rickshaw. Therefore, Dhondiram Patil and the said Rickshaw driver again went away. When Rickshaw Driver returned back to Kaljawadi, Dhondiram Patil, the Rickshaw Driver and Ghatge Sarkar came to Kaljawadi. However, deceased Ramchandra Patil was not with them. Ghatge Sarkar voluntarily told them that Ramchandra Patil ran away.

From the statement of P.W. 13 Sagar Ruikar, it appears that he was not knowing the appellant. His statement is relevant insofar as travelling with the deceased Ramchandra Patil from Kolhapur to the house of P.W. 8 Dhondiram at Kaljawadi on 26-3-1995. His testimony tends support and credibility to the testimony of P.W. 8 Dhondiram on the point of the appellant and the deceased being last seen together.

Both P.W. 11 Suresh Ambi and P.W. 12 Ismail Nurhani were Rickshaw Drivers. P.W. 11 Suresh Ambi was declared hostile as he did not identify the appellant. It is to be noted that he has given all the details of what happened on 26-3-1995 which corroborates the testimony of P.W. 8 Dhondiram in all particulars. However, he does not identify the appellant. P.W. 12 Mohammad Ismile Nurhani though, not declared hostile, has not supported the story of the prosecution in respect of identity of the deceased as the passenger who travelled in his Rickshaw on that day. However, this witness has given even the minutest of details of what happened on 26-3-1995. Merely because, a witness turns hostile, his entire testimony cannot be thrown out which is a well settled principle of law in respect of hostile witnesses. Therefore, the facts which these witnesses have supported, can be taken into account along with other evidence to prove the circumstance of last seen.

II. Motive -- On the point of motive, the prosecution has examined P.W. 15 Sushila Annasaheb Mali, P.W. 16 Purshottam Sakharam Salunke, P.W. 19 Avadhut Prabhakar Joshi and P.W. 22 Mahadev Babaji Patil.

From the evidence of these witnesses, it becomes clear that the appellant used to collect cash from jobless persons by giving assurances to give them job in the office of the M.S.E.B. at Kolhapur. Ramchandra Patil (deceased) had collected cash from his villagers and other jobless persons of his acquaintance and those persons had deposited cash of about Rs. 15,000/- per head for getting job. The said cash was handed over by the deceased Ramchandra Patil to the appellant. However, thereafter, as the appellant did not get any job for any person, there was a grievance in the minds of those persons including the deceased. The deceased Ramchandra Patil had called those jobless persons at the house of the appellant at Kolhapur on 27th March, 1995. On 27th March, 1995 when all those persons gathered at the house of the appellant, it would be exposed before all the persons that he had deceived them. If the mediator i.e. the deceased was not there, then the appellant could throw the responsibility on the mediator saying that he does not know anything and everything was known to the mediator. In this context, it is pertinent to note the modus operandi of the appellant for collecting money which is revealed from the evidence of P.W. 15 Sushilabai Mali which is discussed in the earlier part of our judgment. Thus from the evidence of P.Ws. 15, 16 and 19 and 22 it can be seen that the appellant had a motive to do away with the deceased.

III. Seizure of gun and licence : The 12 bore shot gun Article No. 10 and gun licence Article 12 was seized from the house of the appellant at his instance on 2-4-1995. It was seized under the panchnama Exh. 19, A watch was kept on the house of the appellant on 2-4-1995. The appellant was seen entering in his house with a long bag. The Investigating Officer P.S.I. Madhukar Shinde (P.W. 30) along with panchas entered into the house of the appellant and on search thereof, the appellant was found in a frightened condition in the house. He was taken into custody. On enquiry with the appellant about the weapon used in the incident the appellant before the police and panchas stated that the gun had been made into separate pieces and the pieces are kept under the bed in the room. The appellant took out the bag having separate pieces of gun from below the bed and handed it over to the police and thereafter separated parts of the gun which were in the said bag, were joined together. On the point of seizure of the shot gun and licence of the gun the panchnama Exhibit-19 has been exihibited as it was admitted by the defence. It is relevant to note that the appellant does not deny that he is the owner of the gun Article 10 and that the licence for the said gun was standing in his name.

The said gun was sent to the Ballistic Expert. The report Exhibit-146 shows that the shot gun was used for firing prior to its receipt in the Laboratory. However, it was not possible for the Analyst to give the timing of the firing of the gun seized in this case. It is pertinent to note that due to elections, this gun was deposited at the police station on 19th January, 1995 and given back to the appellant only on 24th March, 1995 i.e. two days prior to the date of incident. P.W. No. 24 Chand Mohammad Mullani has deposed on this point and produced the register relating to the deposit of the gun. The said register is at Exhibit-66. Thus, it becomes clear that the gun could have been fired between the period from 24th March, 1995 to 2nd April, 1995 that is the date on which it was seized from the house of the appellant. The report states that the pellets Exhs. 5 and 6 (i.e. found in the body and at the spot) and plastic cup wad piece (Exh. 68) could have resulted due to firing of 12 bore shot gun cartridges of shot size No. 1. The report further states that the plastic cup wad piece (Exh. 6B) from the body of the deceased is consistent with filing of 12 bore shotgun.

Thus from the report Exh. 146, it is seen that the cartridges and the part thereof which were seized in this case were capable of being fired from the shot gun Article 10 belonging to the appellant.

IV. The evidence of P.W. 27 Mahadev Tukaram Powar shows that on 26th March, 1995, the appellant came to his shop to purchase cartridges. The appellant had brought his gun licence with him. This witness sold seven cartridges to him i.e. five Astram cartridges and two paper cartridges. He produced the receipt No. 4794 in respect of sale of the seven cartridges. This receipt which is at Exhibit-74 states that five cartridges of Astram make and two paper cartridges were sold on 26th March, 1995. At the same time that the receipt No. 4794 was prepared the entry of the sale was made in the sale register. The witness has stated that he has obtained signature of the appellant Dhairyashil Ghatge in the said register. The copy of the register is at Exhibit-121. On perusal of the said register, it shows that vide receipt No. 4794, seven cartridges were sold to appellant. His full name and address as well as his licence number is also mentioned in the said register. Moreover, the signature of the appellant is seen in the last column of the said register. Though in the statement under Section 313 of the Code of Criminal Procedure, the appellant has denied that he has signed on the register, however, on perusal of the Vakalatnama filed on behalf of the appellant, we have found that the signature on the sale register and signature of the appellant on the Vakalatnama is identical. P.W. 27 Mahadev Power further states that he made endorsement on page No. 16 of the licence of Dhairyashil Ghatge (appellant). He (P.W. 27) has put his signature on the said licence (Article No. 12) on page No. 16. On perusal of page 16 of the licence of the gun of the appellant, we noticed that on 26th March, 1995, seven cartridges were sold to the appellant and name and rubber stamp of Maharashtra Artillery (i.e. the shop of P.W. 27) is found on the licence; so also signature of P.W. No. 27 Mahadev Tukaram Power is found thereon in Marathi.

There is no cross-examination at all to Mahadev Power P.W. No. 27 on the point that he has obtained the signature of the appellant in the sale register and that he made endorsement on page No. 16 of the gun licence of the appellant. The witness was shown article Nos. 4 and 26. Article No. 4 was a paper-cartridge and article No. 26 was empty Astram cartridge and he has identified them as ones which were sold to the appellant.

Thus, from the evidence of P.W. No. 27 and the documents on record, it is established that on the date of incident i.e. on 26h March, 1995, the appellant had purchased seven cartridges from P.W. No. 27 Mahadev Power.

V. Recovery of Sickle : It is proved from the evidence of Panch P.W. No. 6 Prakash Shivaji Patil that on 4th April, 1995, the underwear of the deceased Ramchandra Patil and one blood-stained sickle came to be recovered at the instance of the appellant. In the Memorandum Panchnama Exhibit-28, the appellant-accused has stated that he would point out the place where he had thrown the underpant of the deceased and the sickle with which he had cut the dead body. He led the police and panchas to the place where he had thrown these articles and produced the articles including blood-stained sickle Article No. 16 before them. Nothing has been brought on record in the cross-examination of this witness so as to disbelieve the testimony of this point on the point of recovery of the aforesaid articles at the instance of the appellant. The sickle was found to have human blood and the C.A. report in this respect is at Exhibit-144. It is further found that the underwears were having human blood of B group. The appellant has not given any explanation for the fact that human blood was found in the sickle. This recovery of the sickle at the instance of the appellant, therefore, connects him with the incident of the murder of deceased. It is pertinent to note that the Doctor P.W. 17 has stated that the incised wounds found on the body of Ramchandra are possible by sickle Article No. 16.

VI. Seizure of Pant : The appellant was arrested on 2-4-1995 in the circumstances mentioned above in para V. At that time an enquiry was also made with the appellant in relation to the clothes which were worn by him at the time of incident. He stated that the shirt was done away by him. However, he was wearing on his person, the pant which was on his body at the time of the incident, he took out the dirty pant Article 13 which was on his body at that time and produced the same before the Police and panchas. The said pant was seized under panchnama Exhibit-19. The said panchnama has been admitted by the defence and hence, it was exhibited.

The pant which was worn by the appellant at the time of incident was sent to the Chemical Analyser and as per the C.A. report Exh. 144, the pant worn by the appellant at the time of incident was found to have human blood. The appellant has not given any explanation at all for the presence of human blood on his pant. This is therefore, another circumstance which connects the appellant with the crime.

VII. Conduct of the Appellant: From the evidence it is clear that on the night of 26-3-1995, the appellant and the deceased had gone to Pombare dam. Shortly thereafter, the appellant alone came back without his shirt. He was holding the shirt under his ambit. On being asked by P.W. 8 he stated that the deceased Ramchandra has taken his gun and ran away. The deceased was not seen alive after 26-3-1995. Thereafter, pieces of his body were found floating in Pombare dam. Parts of a 12 bore shot gun cartridge i.e. pellets and plastic up wad were found in the lung of the deceased. The shot gun of the appellant was seized from the house of the appellant. Thus, the conduct of the appellant in giving false explanation in relation to the deceased that the deceased ran away taking the gun of the appellant is also a circumstance which would go against the appellant.

8. In the trial Court, Ex. 146 the report of the Ballistic Expert and C.A. was exhibited as it was admitted by the defence and hence, the evidence of the Ballistic Expert and C.A. was not recorded during the trial.

9. An application was made in this appeal by the prosecution for leading additional evidence. The said application was bearing No.3360 of 2001. The said application was preferred to explain the apparent bona fide error in Exhibit 146 i.e. report of Ballistic Expert. In the said report Exhibit-3 i.e. Serial No. 3 is wrongly described as "two intact Astram cartridges" instead of "two live intact cartridges of Indian Ordinance Factory". The said application was preferred as the said erroneous description in the report Exh. 146 was likely to cause confusion in appreciating the evidence on account of obvious discrepancy vis-a-vis Exh. 146 and the seizure panchnamas Exhibits 16 and 26, the forwarding letter Exhibit-125, the evidence of P.W. No. 27 Mahadev Tukaram Power and the articles exhibited during the course of trial. As per panchnama Exh. 16 two live cartridges of Astram Company and two live cartridges of Indian Ordinance Factory were seized. As per panchnama Exh. 25, 1live cartridge of Astram Company was seized. These 5 live cartridges were sent to the C.A. The forwarding letter Exh. 125 describes the articles being forwarded as (1) one 12 bore hammer shot gun, (2) two live cartridges of Astram Company, (3) two live cartridges of Indian Ordinance Factories, (4) one live cartridge of Astram Company. The muddemal articles before the Court are (a) three cartridges of Astram Company (including empties after test firing by Ballistic Expert) and (b) two cartridges of Indian Ordinance Factory (including empties after test firing by Ballistic Expert). However, Exh. 146 states as under :

Exhibit 1 : 12 bore shot gun.

Exhibit 2 : 2 intact cartridges Astram Company.

Exhibit 3 : 2 intact cartridges Astram Company.

Exhibit 4 : 2 intact cartridges Astram Company.

Therefore, to explain the obvious error in describing Exhibit-3 in the report Exh. 146, the application was preferred.

10. This Court (Coram : S. S. Parkar and Smt. Ranjana Desai, JJ.) after hearing both the sides, allowed the said application by order dated 4th October, 2001. Pursuant to this order, the evidence of P.W. No. 32 Nandkumar Rokade, P.W. No. 33 Vinayak Digamber Karalkar and P.W. 34 Gautam Natha Ghatge was recorded in the present appeal. P.W. No. 32, P.W. No. 33 were Assistant Chemical Analysers and P.W. No. 34 was holding additional charge of Assistant Chemical Analyser at the relevant time.

11. The learned Counsel for the appellant has urged that report of the Ballistic Expert Exh. 146 shows that five intact Astram Cartridges were sent to the Ballistic Expert and therefore Exh. 6-A i.e. two deformed lead pellets and Exh. 6B one plastic cup wad piece retrieved from the body of the deceased were not fired by the appellant from the said weapon Article No. 10 but could be fired by some other person and as such the appellant cannot be connected with the offence.

12. The learned Counsel for the appellant has submitted that even taking the evidence of the additional witnesses P.W. 32 to 34 into consideration, even then it is not established by the prosecution that 3 Astram cartridges and two 12 KF 12 94 cartridges were sent to C.A. and not 5 Astram cartridges. It was submitted by him that in the absence of examination of Shri A. M. Rao, Assistant Chemical Analyzer who had signed the final ballistic report (Exhibit 146) pertaining to the cartridges, it cannot be said that 3 Astram and two 12 KF 12 94 cartridges were sent to C.A. It was urged that Exhibit 146 clearly speaks of 5 live Astram cartridges being examined by the C.A. In view of the fact that P.W. 27 has stated that he had sold only 5 Astram cartridges to the appellant, the appellant could not have shot one Astram cartridge at the deceased. Hence, the entire prosecution case is doubtful.

13. We have perused the entire evidence of these witnesses i.e. P.Ws. 32 to 34. From Exhibit 125 which is the forwarding letter sent by the I.O. P.W. 30 Shri Shinde to the Ballistic Expert, it is clear that 5 cartridges i.e. 3 live Astram cartridges and two live cartridges of Indian Ordinance Factory bearing mark 12 KF 12 94 on the head were sent. It is to be noted that the cartridges of Indian Ordinance Factory are mentioned as 12 KF 12 94 due to the head stamp marking i.e. the marking on the head of the cartridge. Due to the fact that the cover of the cartridges of Indian Ordinance Factory is made of paper instead of plastic, they are also called paper cartridges.

14. P.W. 26-Police Naik, Shri Pralhad Awade has carried the gun and cartridges in the present case to C.A. (Ballistic) with the covering letter i.e. forwarding letter Exh. 125. This witness has stated that the muddemal was sealed. He obtained the acknowledgment of the receipt of the muddemal from the office of the Ballistic Expert on the office copy of the letter.

15. P.W. 33-Vinayak Karalkar was working in the office of the Forensic Science Laboratory as Assistant Chemical Analyser and Junior Ballistic Expert at the relevant time. This witness has stated that he has received the parcel which was sent along with forwarding letter dated 18-4-1995 Exhibit 125. He opened the sealed parcel with the help of a attendant and he found that the contents of the parcel were in accordance with the forwarding letter Exhibit 125. This witness made an entry in the Entry Register in their office in relation to the contents of the parcel. The said entry was marked as High Court Exh. 1. At serial No. 2 (Exh. 2), of the said entry the articles received are mentioned as two intact 12 bore shot gun cartridges bearing head stamps marking 12 KF 12 Astram. At serial No. 3 (Exh. 3) two intact 12 KF 12 bore shot gun cartridges having head stamp markings 12 KF 12 94 is mentioned. At serial No. 4 (Exh. 4), one intact 12 KF bore shot gun cartridge bearing head stamp marking 12 KF 12 Astram is mentioned. Thus, from the entry register of the Forensic Science Laboratory, which is proved in the evidence of P.W. 32 and P.W. 33, it is clear that 3 Astram Cartridges and two 12 KF 94 cartridges were received by the Forensic Science Laboratory in the present case. It is to be noted that the dispute in the Ballistic Report Exh. 146 is only pertaining to serial No. 3 i.e. Exh.-3 of the said report.

16. Thereafter, these cartridges etc. were examined and rough notes were prepared. These notes are partly in the handwriting of Mr. A. M. Rao and P.W. 34 Gautam Natha Ghatge. Mr. Rao unfortunately expired on 1st May, 2001 therefore, he could not be examined. These witnesses i.e. P.Ws. 32 to 34 who were familiar with the handwriting of Mr. A. M. Rao have identified his handwriting. In the said rough notes which are at High Court Exh. 2, again Exh. 3 in the said Notes speaks about two intact KF 12 bore shot gun cartridges having head stamp marking KF 12 94 12. That particular part of the note has been prepared in the handwriting of P.W. 34 Shri Ghatge.

17. Thereafter, it appears that the draft, of the final report was prepared. This draft report is in the handwriting of Mr. Rao. This draft report is marked High Court Defence Exh. 1. In the said draft not at serial No. 3 (Exh. 3) instead, of stating two intact cartridges bearing head stamp KF 12 94 12, it states two intact KF 12 bore shot gun cartridges having head stamp marking 12 KF 12 Astram. From this draft report, it appears the final report Exh. 146 was prepared which again states that Exh. 3 is two intact cartridges having head stamp marking 12 KF 12 Astram.

18. As per panchnama Exh. 25, 1 live cartridge of Astram Company was seized. As per spot panchnama Exh. 16 what was seized was :

(1) two live cartridges of Astram Company and

(2) two live cartridges of Indian Ordinance Factory.

These 5 live cartridges were sent to the Chemical Analyser. The forwarding letter Exh. 125 describes the articles being forwarded as :

(1) one 12 bore hammer shot gun.

(2) two live cartridges of Astram Company.

(3) two live cartridges of Indian Ordinance Factories.

(4) one live cartridge of Astram Company.

The muddemal articles before the Court are :

(a) three cartridges of Astram Company (including empties after test firing by Ballistic Expert) and

(b) two cartridges of Indian Ordinance Factory (including empties after test firing by Ballistic Expert).

However, report from Ballistic Expert Exh. 146 states as under :

Exhibit 1 : 12 bore shot gun.

Exhibit 2 : 2 intact cartridges Astram Company.

Exhibit 3 : 2 intact cartridges Astram Company.

Exhibit 4 : 2 intact cartridges Astram Company.

Thus from the forwarding letter Exh. 125 sent by the Investigating Officer P.W. 30 to C.A. and from the entry register in the office of the Forensic Science Laboratory and from the evidence of P.W. 33-Shri Karalkar who has opened the parcel and from the entry register (High Court Exh. 1) and from the draft note (High Court: Exh. 2), it is quite clear that what is received by C.A. is 2+1= 3 Astram Cartridges and 2 cartridges bearing head stamp 12 KF 12 94. P.W. 32 Nandkumar Rokade, Assistant Chemical Analyser quite candidly stated that the description given in the Ballistic Expert's Report Exh. 146 with regard to two intact cartridges under the heading Exh. 3 describing them as Astram is incorrect. So also, P.W. 33 Shri Karalkar has stated that entry against Exh. 3 in the report Exh. 146 mentioning two cartridges as of Astram type is not correct. He has stated that the entry against Exh. 3 in the above report ought to have been 12 KF 12 94. He has further stated that the entry must have been done due to oversight or mistake in the final report Exh. 146.

19. P.W. 34 Shri Gautam Ghatge who was holding additional charge of Assistant Chemical Analyser at that time was assisting Mr. A. M. Rao in examination and testing of the cartridges. Part of the original draft notes (High Court Exh. 2) were made by him. He also identifies the handwriting of Dr. A. M. Rao. In the said draft, it is clearly stated that the two cartridges at Exh. 3 was bearing the head stamp 12 KF 12 94. This witness has marked the Exhibits on the muddemal articles i.e. cartridges. He has put the label on the Exh.-3. He has examined the said label and the said label mentions two cartridges 12 KF 12 94. After these cartridges were examined, they were sent back to the Police Station and we have also examined the muddemal wherein we found a total of 3 cartridges of Astram make (including empties due to test firing by C.A.) and two cartridges (including empties due to test firing by C.A.) bearing head stamp 12 KF 12 94. Thus, from these facts it becomes clear that what was sent to Forensic Science Laboratory and what was examined were 3 Astram cartridges and 2 cartridges bearing head stamp 12 KF 12 94. From these facts, it is quite clear that it is due to oversight or mistake that in the final report Exh. 146, Exh. 3 has been mentioned as two cartridges of Astram make instead of 2 cartridges 12 KF 12 94.

20. The learned A.P.P. has submitted that even otherwise, the appellant was the owner of a licensed gun i.e. Article 10, he could always have been in possession of other cartridges of Astram make which were in his possession earlier and it is possible that he could have used one of the cartridges of Astram make procured by him earlier to fire at the deceased. However, we are satisfied that 3 Astram cartridges and 2 cartridges of Indian Ordinance Factory bearing head stamp 12 KF 12 94 were sent to C.A. and due to oversight, Exh. 3 (serial No. 3) at Exh. 146 has been wrongly mentioned as 2 Astram cartridges instead of two 12 KF 12 94 cartridges. Thus, we find no substance in the submissions made by the learned Counsel for the appellant that as 5 live Astram cartridges were sent to the C.A. therefore, the deformed lead pellets and plastic cup wad piece retrieved from the body of the deceased was not fired by the appellant.

21. In respect of the cartridges, it has come in the evidence of P.W. 27 Mahadev Power that on 26th March, 1995 the appellant purchased 7 cartridges i.e. 5 Astram cartridges and 2 Indian Ordinance Factory cartridges. The appellant was the owner of Article 10 i.e. 12 Bore shot gun. As per Exh. 146, all the 5 cartridges found and part of cartridge found in the dead body were capable of being fired from 12 bore shot gun: In the present case, four live cartridges have been seized from the scene of offence i.e. Pombare Dam. Out of these, two were of Astram make (Article 3 colly.) and two were of 12 KF 12 94 make (i.e. of Indian Ordinance Factory) i.e. Article 12 collectively Article No. 8 pellets were also found on the spot. No doubt, panch P.W. No. 1 Sitaram Ganpati Chavan and P.W. 2 Rau Govind Patil have turned hostile on the aspect of seizure of four live cartridges and lead pellets from the spot. However, we see no reason to disbelieve the evidence of Investigating Officer P.S.I. P.W. No. 30 Madhukar Shiride on this aspect. Neither the police nor the witnesses including the Medical Officer who conducted the post-mortem, were aware that on 29th March, 1995 whose dead body it was. At that time, they were not aware who was the accused. They were not even knowing on that day that the appellant possessed a gun. Therefore, on 29th March, 1995 when the pieces of the dead body were found in the dam in decomposed condition, all these persons were in the dark about the identity of the deceased, the accused and the weapon used in the murder. In this background, therefore, on 29-3-1995 there was no reason at all for the Investigating Officer or anyone to plant pellets and live cartridges on the spot or even to insert the pellets and plastic cap of cartridge of 12 bore shot gun in the left lung of the deceased.

22. It was contended by the learned Counsel for the appellant that the prosecution has not explained the whereabouts of one cartridge and this would be fatal to the prosecution case. He urged that four cartridges were seized from the spot. One cartridge has been seized from the house of P.W. No, 8 Dhondiram Patil and part of one cartridge was found in the dead body. The appellant is supposed to have purchased 7 cartridges. However, nothing has been brought on record by the prosecution relating to the lost cartridge. However, it is pertinent to note that at that time only the deceased and the appellant were at Pombare dam and therefore, it would only be within the knowledge of the appellant as to what had happened to this cartridge. In the facts and circumstances of the present case, the whereabouts of the last cartridge are hardly relevant, therefore, non-explanation of the prosecution in respect of this cartridge, would not be fatal to the prosecution.

23. The learned Counsel for the appellant lastly contended that the cause of death has not been proved and therefore, the appellant is entitled to the acquittal of this ground.

The post-mortem was conducted by P.W. 17 Dr. Sharad Govindrao Salunke. The injuries noticed by him at that time are mentioned by him in his evidence as well as in the post-mortem, notes Exh. 52.

In the opinion of the Doctor, all the injuries were grievous in nature. He states that he found a gun shot wound at the back i.e. circular ruptured wound over back 30 cm. below neck in the midline size 3 x 2 cm. i.e. injury No. 6 in column No. 17. He found during the post-mortem two pellets of a cartridge and the plastic cup in the left lung. He identified Muddemal Article No, 9 plastic cup wad i.e. part of cartridge and the pellets as the same cup and pellets. He has stated that the incised wounds are possible by the sickle-muddemal Article No. 16.

This witness has stated that the probable cause of the death is shock due to haemorrhage due to gun shot wound and multiple incised wounds. The gun shot wound alone is sufficient to cause the death in the ordinary course of the nature. The death is also possible by the other injuries. As the body was somewhat decomposed and it could not be ascertained whether the injuries were either ante-mortem or post-mortem, I have given both the causes of death.

No doubt, Dr. Salunke has stated that the probable cause of death is shock due to gun shot wound and multiple incised wounds. He has given both the causes of death i.e. gun shot wound and incised wounds. As stated earlier at the relevant time at Pombare Darn only the accused and the deceased were present. It is the accused himself who has used the gun article 10 as well as the sickle article 16. It is clear that it is only the accused who has caused both these injuries i.e. gun shot wound as well as the incised wounds. In such case even if the cause of death is gun shot wound or even if the cause of death is multiple incised wounds caused by the sickle, it would hardly matter. This is so because all the injuries were caused by the appellant himself to the deceased. If one of the causes of death is innocent and the other is not and the cause of death is not proved, then in that case the accused could be entitled to acquittal for example if the Doctor could not ascertain whether the death was due to a natural heart attack or due to poisoning, the accused would be entitled to the benefit of doubt. However, in the present case in the postmortem notes Exh. 52 it is specifically stated that the cause of death is shock due to haemorrhage due to gun shot wound and multiple incised wounds. He has proved this in his evidence. Both the kinds of injuries are attributable only to the appellant. Thus, in these circumstances, if the exact cause of death is not pinpointed i.e. whether death was caused by incised injuries or by gun shot wound, it would not affect the prosecution case.

24. In the result, we pass the following order :

ORDER

We confirm the order of conviction and sentence of the appellant for the offence punishable under Section 302 of the IPC recorded by the learned Additional Sessions Judge, Kolhapur in Sessions Case No. 78 of 1996.

Rest of the order of the trial Court is maintained.

Appeal is dismissed.

Appellant is in jail and shall serve out the sentence.