Baban vs Kalamnuri
2010 Latest Caselaw 306 Bom

     drp                               {1}               Cri. Appeal No.200/2009


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                          
                          BENCH AT AURANGABAD




                                                  
                    CRIMINAL APPEAL NO.200 OF 2009

     Baban s/o Ananda Dange                                          APPELLANT
     Age-45 years, Occ-Agriculture




                                                 
     R/o Vaijapur

           VERSUS




                                     
     The State of Maharashtra 
     Through Police Station
                      
     Kalamnuri, Dist-Hingoli                                     RESPONDENT

                                    .......

Mr.B.R.Kedar h/f Mr.S.B.Talekar, Advocate for appellant Mr.K.S.Patil, APP for respondent State .......

[CORAM : P.V.HARDAS, AND

A.V.POTDAR, J.J.]

DATE : 20th December 2010

ORAL JUDGMENT (PER A.V.POTDAR, J.):

1. By this appeal, the appellant has challenged his

conviction u/s 302 and 201 of the Indian Penal Code awarded vide

judgment and order dated 25.11.2008 by the Additional Sessions

Judge, Hingoli in Sessions Trial No.25/2005. By the said

judgment the appellant is sentenced to life imprisonment and to

pay a fine of Rs.5000/-, in default to suffer SI for six month and

drp {2} Cri. Appeal No.200/2009

Rigorous Imprisonment for three years and to pay a fine of Rs.

500/-, in default to suffer SI for 15 days, respectively.

2. Brief facts of the case can be summarized thus-

a) Prakash Vishwanath Ghongade (PW-1) lodged a

missing report on 17.04.2005 in Narsi police station that

his brother Badrinath was missing. Investigation of the

said complaint was entrusted to Beet Jamadar. On

18.04.2005 PW-1 Prakash lodged complaint (Exhibit-22)

against the present appellant and hence offence

punishable under section 302 and 201 of the Indian Penal

Code was registered against the appellant at Crime No.

17/2005. Investigation of the said offence was entrusted to

PW-10 Baburao Chavan. Thereafter, the appellant came to

be arrested in connection with the said offence.

b) After the arrest, the appellant made a disclosure

statement (Exhibit-24), in presence of Pancha witnesses.

Accordingly, Executive Magistrate / Tahsildar was

requested to remain present at the spot. From the spot

shown by the appellant in presence of Pancha witnesses

and the Executive Magistrate, dead body, which was

buried in the agricultural field, was recovered. The dead

body was identified by PW-1 Prakash and others as the

dead body of Badrinath. Panchanama (Exhibit-24-A) so

drp {3} Cri. Appeal No.200/2009

also inquest Panchanama (Exhibit-25) were prepared at

the spot in presence of the Pancha witnesses. Medical

Officer was called at the spot.

c) Dr.Vibhutkar (PW-9) performed the Postmortem on

the dead body at the spot. He noticed the following

external injuries on the dead body.

1. CLW of forehead right side measuring 5X2X1 cm.

2. Stab injury at centre of forehead measuring 2x2cm

3. CLW below right orbit measuring 3x2x1 cm with

fracture of zygometic bone right side.

4. Fracture of nasalbidge

5. CLW on left parietal region measuring 5X1X1 cm

6. CLW on left zygomatic bone measuring 3x2x1 cm

7. CLW on left parietal occipital region measuring

7x2x2 cm

8. Left ear external pinne folded

9. Dempending at right parotio region measuring

4x4x1 cm

On the internal examination medial officer noticed

that the injuries under scalp and skull-vault were

corresponding to the injuries mentioned in column

No.17. Brain was congested showing evidence of

intracranial hemorrhage in left occipital and parietal

drp {4} Cri. Appeal No.200/2009

region and left temporal region. The right and left

lungs as well as pericardium were congested. Right

chamber was full of blood, left chamber was empty.

The Medical officer has opined that the probable cause of

death is due to shock due to intra cranial hemorrhage due

to head injury. Accordingly, Postmortem report

(Exhibit-41) was prepared.

d) Clothes on the person of the deceased were removed

and were seized under Panchanama (Exhibit-30).

e) On 19.04.2005, appellant shown the spot of

incident, which was in his field, in presence of the Pancha

witnesses. Spot Panchanama (Exhibit-29) was drawn in

presence of the Pancha witnesses. From the place of the

incident, blood stained grass, leaves and broken handle of

axe, blood mixed soil and plain soil were seized under

Panchanama. On 20.04.2005, the appellant made further

disclosure statement (Exhibit-27) in presence of Pancha

witnesses, which lead to recovery of one axe with broken

handle and one stone, stained with blood and one torch,

which were concealed below the fodder. The said articles

were seized under recovery Panchanama (Exhibit-27A). On

21.04.2005, again the appellant made a disclosure

statement (Exhibit-28) in presence of Pancha witnesses,

drp {5} Cri. Appeal No.200/2009

which lead to the recovery pickaxe and spade, which were

concealed below the soil and Dhoti, shirt, banian and cap

from the roof of the hut, which were seized under

Panchanama (Exhibit-28A).

f) Statements of certain witnesses were recorded

during the investigation and the seized articles were sent

to the CA along with forwarding letter. After receipt of the

CA report and after completion of the investigation, charge

sheet was submitted before the JMFC, Hingoli, who

committed the trial to the Additional Sessions Judge,

Hingoli.

g) The trial court framed charge (Exhibit-14) against

the appellant for an offence punishable u/s 302 and 201

of the Indian Penal Code. The appellant pleaded not guilty

to the charge and claimed to be tried. It appears that the

prosecution had examined in all 10 witnesses to prove the

guilt of the appellant. The witnesses examined before the

trial court were - PW-1 Prakash Ghongde- complainant

and brother of the deceased; PW-2 Pandurang Ghongde-

Pancha witness to the disclosure memorandum by the

appellant, which lead to recovery of dead body and also a

Pancha witness to the inquest Panchanama; PW-3

Namdeo Pawar- a Pancha witness to the disclosure

memorandum which lead to the recovery of the weapons

drp {6} Cri. Appeal No.200/2009

used to assault the deceased as well as a Pancha witness

to the disclosure memorandum which lead to the recovery

of material to conceal the dead body and the clothes of the

appellant, this witness was also the Pancha to the spot

Panchanama; PW-4 Bhagwan Ghongde and PW-5 Gajanan

Ghongde- witnesses on the point deceased was last seen

together with the appellant proceeding towards Vaijapur;

PW-6 Vithal Ghongde-a witness who took out the dead

body, which was buried in the agricultural field; PW-7

Vishwanath Ghongde-father of the deceased; PW-8

Shivkumar Swami- Tahsildar / Executive Magistrate in

whose presence the appellant had pointed out the spot

from where the dead body was recovered; PW-9

Dr.Pandurang Vibhutkar- Medical Officer who had

performed the postmortem and PW-10 Baburao Chavan-

the investigating Officer. The trial court accepted the

evidence of these witnesses and convicted the appellant

accordingly.

3. From the evidence of the prosecution, it is clear that

the case of the prosecution rests on circumstances. It is also not

disputed that the death of Badrinath is a homicidal one. Bearing

in mind these aspects, before we embark upon the rival

submissions, it is necessary to advert to the evidence of the

material witnesses.

4. It is in the evidence of PW-1 Prakash that he is brother

drp {7} Cri. Appeal No.200/2009

of deceased and was residing with his parents, wife, brother

Badrinath and wife of Badrinath. In the night of the incident,

Badrinath had gone to Maruti temple to attend Kirtan (religious

preaching). Appellant had came to their house and had enquired

about Badrinath at that time he had informed the appellant that

Badrinath had gone to the temple. In that night, Badrinath did not

return to the house. In the next morning, announcement was

made for Badrinath to return home. Gajanan (PW-5) and one

Ramesh informed that Badrinath went along with the appellant.

Thereafter Prakash, along with his father and others, approached

the appellant and enquired with him about Badrinath, to which it

was informed that he had sent Badrinath to Mumbai to bring his

son. Prakash suspected some foul play. Badrinath knew about the

illicit relations of the appellant with his daughter in law and hence

Prakash suspected that in order to save from defamation, the

appellant might have killed Badrinath and therefore, complaint

(Exhibit-22) was lodged with the Narsi police station. He has

further stated that after arrest of the appellant, dead body of

Badrinath was recovered from the field of the appellant at the

instance of the appellant. Prakash had identified the dead body

from the clothes (Articles-1 and 2) and shoes (Article-3).

5. In the cross examination of PW-1 Prakash it is brought

on record that the date of incident was 14th April and in that night

police were present in the village due to Dr.Ambedkar Jayanti

bandobast. He has also stated in the cross examination that the

drp {8} Cri. Appeal No.200/2009

appellant had visited their house around 9.30 p.m. and Badrinath

had gone to the temple at about 9.00 p.m. He has admitted in the

cross examination that missing report was lodged in the police

station on 17.04.2005 i.e. a day prior to the lodging of the

complaint.

6. PW-7 Vishwanath Ghongde, father of the deceased,

supported the evidence of PW-1 Prakash, except that Bhagwan

(PW-4) had came to their house and had informed that Badrinath

went along with the appellant from Maruti temple.

7. It is in the evidence of Bhagwan (PW-4) that he was

present in the temple where Kirtan (religious preaching) was

arranged. He has stated that Badrinath had also attended the said

programme. He has further stated that the appellant came there to

call Badrinath (deceased) and Badrinath had accompanied the

appellant. On the next day there was announcement from the

temple. Thereafter, he came to the house of Badrinath and

informed that Badrinath had accompanied the appellant. He has

stated in his cross examination that Gajanan was not present in

the temple. According to him he went to the house of Badrinath

after hearing the announcement from the temple. He has stated

that he is not aware as to whether there was anything in the hands

of the appellant when he came to the temple to call Badrinath.

8. It is in the evidence of Gajanan (PW-5) that in the

drp {9} Cri. Appeal No.200/2009

night, at about 10.00 p.m. he had gone to answer the nature's call

by the side of road at that time he saw that Badrinath and

appellant were proceeding towards Vaijapur. On his inquiry,

Badrihand had told him that he would go and return back. At that

time Badrinath was holding torch in his hands. On 15.04.2005, on

hearing the announcement from the temple, he and Ghanshyam

had went to the house of Prakash and informed him that

Badrinath had accompanied the appellant to Vaijapur. He has

admitted in the cross examination that he had not gone to the

temple to attend the Kirtan. He saw the appellant and Badrinath in

the street light. There was torch in the hand of Badrinath when he

enquired with him.

9. It is in the evidence of PW-2 Pandurang that on

18.04.2005, he was called in Narsi police station and in his

presence and in presence of co-Pancha, the appellant made

disclosure statement. Thereafter they went to the field of the

appellant along with police. In the agricultural filed, the appellant

pointed out the spot in presence of Tahsildar. After digging about 2

feet, one dead body was found buried. From the clothes on the

person of the dead body, Prakash identified that it was of

Badrinath. Accordingly, recovery Panchanama was drawn in his

presence. He has further stated that thereafter Tahsildar Swami

drew Inquest Panchanama on the dead body. He identified the

clothes (Articles 1 and 2) and shoes (Article-3). It has come in his

cross examination that the dead body was recovered from field

drp {10} Cri. Appeal No.200/2009

Survey / Gut No.592 and the same belonged to the appellant. The

agricultural field was ploughed. He has further stated that he

knew Tahsildar, who was present at the spot and drew the inquest

Panchanama.

10. The prosecution proved recovery of weapon used for

assault on the deceased from the disclosure memorandum

(Exhibit-27) and recovery Panchanama (Exhibit-27A) as well as the

material used to conceal the dead body and the spot where the

incident had occurred, on disclosure statement made before the

Pancha witness Namdeo Pawar, who is the witness to these

Panchanamas.

11. From the evidence of the prosecution witnesses it is

clear that the case of the prosecution revolves round the evidence,

which is circumstantial in nature. The circumstances, relied upon

by the prosecution are - i) motive ii) deceased was last seen

together with the appellant iii) discovery of dead body at the

instance of the appellant, under disclosure memorandum which

was found buried in his agricultural field iv) discovery of

incriminating articles at the instance of the appellant and v)

absence of explanation by the appellant.

12. Learned counsel for the appellant has urged that it is

the defence of the appellant that merely because the dead body

was recovered from his field, he was falsely implicated in this case.

drp {11} Cri. Appeal No.200/2009

It is also urged that the place from where the dead body was

recovered, was already within the knowledge of the police officers,

and hence it cannot be held that the dead body was discovered at

the instance of the appellant. It is also urged that the motive

behind the crime was not established by the prosecution

witnesses. Evidence on the point of last seen together, of witnesses

Bhagwan and Gajanan is not believable. According to the learned

counsel for the appellant, there is no reference of information given

by Bhagwan, in the oral testimony of Prakash so also there is no

reference of Gajanan in the evidence of the father of the deceased.

It is further urged that the CA report does not disclose that the

blood found on the seized articles as well as on the clothes of the

deceased was of the blood group of the deceased. The CA report

indicates that the result of the analysis of the blood group is

inconclusive. According to the learned counsel for the appellant,

the circumstances relied upon by the prosecution are not

established beyond reasonable doubt and hence benefit of doubt

be given to the appellant and the appeal be allowed by setting aside

the conviction. In support of his submissions, learned counsel for

the appellant placed reliance on the observations of the Division

Bench of this Court in para 7 of the judgment in the matter of

"Santosh Changdeo Dhanade V/s State of Maharashtra" 2005

ALL MR (Cri) 928; on the observations of the Division Bench of

this Court in paragraphs No.8 and 10 of the judgment in the

matter of "Bhausaheb Maruti Kalane V/s State of Maharashtra"

2006 ALL MR (Cri) 1130 and on the observations of the Division

drp {12} Cri. Appeal No.200/2009

Bench of this Court in the judgment in the matter of "State of

Maharashtra V/s Bittu @ Gurumitsingh" 2006 ALL MR (Cri)

1059. The facts and circumstances of the case in hand and the

facts and circumstances in the judgments relied upon by the

appellant are clearly distinguishable. Therefore, the ratio laid down

in the above referred judgments, according to us, is not applicable

to the present case.

13. Further reliance is placed by the learned counsel for

the appellant on the judgment of the Apex Court in the matter of

"Sattatiya @ Satish Rajanna Kartalla V/s State of

Maharashtra" 2008 (1) Crimes 191 (SC). Observations in para 8

of the said judgment is a settled law in respect of appreciation of

evidence based on circumstances. Therefore, no discussion is

required about the said observations.

14. Per contra, learned APP supported the impugned

judgment and urged to dismiss the appeal thereby confirming the

conviction and sentence awarded to the appellant.

15. At this juncture, it may be useful to refer to the

observations of the Apex Court, in the mater of "State of

Maharashtra V/s Suresh" (2000) 1 SCC 471, relating to the

recovery of dead body / bodies u/s 27 of the Evidence Act, which

reads thus -

drp {13} Cri. Appeal No.200/2009

26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating

that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was

concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was

concealed by the accused himself. This is because the accused is the only person who can offer the

explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the

presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in section 27 of the Evidence

Act."

16. It may also be useful to refer the position of law in

relation to section 27 of the Evidence Act, as observed by the Apex

Court in the matter of "Geejaganda Somaiah V/s State of

Karnataka" 2007 AIR SCW 1681. The Apex Court, in the said

judgment has observed thus-

"23. The position of law in relation to section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others V.s Emperor [AIR 1947 PC 67] Wherein it was held :

"Section 27, which is not artistically worded, provides

drp {14} Cri. Appeal No.200/2009

an exception to the prohibition imposed by the preceding section, and enables certain statements made by a

person in police custody to be proved. The condition necessary to bring the section into operation is that

discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to and thereuopn so much of the information as relates

distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the

information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of

the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into

operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is

accused. Mr.Megaw, for the crown has argued that in such a case the 'fact discovered' is the physical object

produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon

produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban

imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban can be inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to

drp {15} Cri. Appeal No.200/2009

suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban

will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by

S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the

place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the

object produced is not related to its discovery in the setting in which it is discovered. Information supplied

by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many

years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is

very relevant. But if to the statement the words be added 'with which I stabbed A' these words are

admissible since they do not relate to the discovery of the knife in the house of the informant."

17. Considering the rival submissions, in the light of the

above legal position, now we may deal with the circumstances, on

which the prosecution has relied upon. The motive behind the

crime is that Badrinath knew about the illicit relations of the

appellant with his daughter in law, which finds place in the oral

testimony of PW-1 Prakash, brother of the deceased and PW-7

Vishwanath, father of the deceased. Daughter in law of the

appellant is the niece of the deceased (daughter of sister). It is the

drp {16} Cri. Appeal No.200/2009

version of the prosecution witnesses that apprehending that if

Badrinath would disclose the illicit relations, then defamation

would cause to appellant and his daughter in law and hence he

was killed by the appellant. This evidence is not challenged by the

appellant in the cross examination of the witnesses. Thus, it can

safely be inferred that the motive behind the crime stands

established by the prosecution.

18. The second circumstance is that the deceased was last

seen in the company of the appellant, as stated by PW-4 Bhagwan

and PW-5 Gajanan. Though it is vehemently urged that there is no

reference of Bhagwan informing that Badrinath accompanied the

appellant from the temple in the evidence of PW-1 Prakash so also

there is no reference of PW-5 Gajanan informing that Badrinath

accompanied appellant in the evidence of Vishwanath, yet on

careful perusal of evidence of PW-4 Bhagwan and PW-5 Gajanan it

is clear that though Bhagwan has admitted that Gajanan was not

present in the temple yet it is not the evidence of Gajanan that he

was present in the temple. It is in the evidence of PW-4 Bhagwan

that the appellant called and collected Badrinath from the temple

and it is in the evidence of PW-5 Gajanan that he saw the

appellant and Badrinath while proceeding towards Vaijapur. No

doubt, there is no reference of information received from both in

the testimony of Prakash and Vishwanath, yet merely on that

ground their evidence cannot be discarded. It is to be noted that it

has come in the evidence of PW-4 Bhagwan that the appellant

drp {17} Cri. Appeal No.200/2009

collected Badrinath from the temple while it is in the evidence of

PW-5 Gajanan that he saw Badrinath proceeding with the

appellant to Vaijapur. Therefore, it can also safely be inferred that

the circumstance of last seen together, is also stand established.

19. Now, the third and most important circumstance about

the discovery of the dead body of the deceased at the instance of

the appellant from his agricultural field. We are not in agreement

with the submission advanced by learned counsel for the appellant

that the police were aware that the dead body of Badrinath was in

the field of the appellant. The portion marked "A" (Exhibit-40) in

Exhibit-22 in the evidence of IO, demonstrates that PW-1 Prakash

had stated the same on suspicion, however he has not mentioned a

particular place. In this regard, evidence of PW-2 Pandurang, PW-1

Prakash and PW-8 Tahsildar Swami play a very important role. The

dead body was found buried two feet deep in the agricultural field

of the appellant. As observed by the Apex Court in the matter of

"State of Maharashtra V/s Suresh" (referred supra), once this fact

stands proved from the evidence of PW-2 Pandurang and PW-8

Tahsildar Swami that the dead body was recovered from the spot

pointed out by the appellant, from his agricultural field, then it is

clear that the fact that the dead body was buried at the particular

spot was within the exclusive knowledge of the appellant and the

appellant only. As observed by the Apex Court in the matter of

""Geejaganda Somaiah V/s State of Karnataka" (referred supra)

three inferences can be drawn that the appellant had seen

drp {18} Cri. Appeal No.200/2009

somebody buried the dead body, or the appellant had knowledge

that somebody had buried the dead body or the appellant himself

had buried the dead body at the particular spot. However, it is not

the case of the appellant and he has not explained otherwise as to

how the dead body of Badrinath was buried at the spot, came to

his knowledge. In absence of any explanation offered by the

appellant it has to be inferred that this fact was within the

exclusive knowledge of the appellant. This is the strongest

circumstance against the appellant. Once it is held as stand

established that dead body of Badrinath (deceased) was recovered,

found buried in the agricultural field of the appellant, which was

within the exclusive knowledge of the appellant and not explained

otherwise, then the only inference and conclusion can be drawn

that Badrinath was killed by the appellant and to destroy the

evidence had concealed the dead body in his agricultural field,

which was within his exclusive knowledge. Once, this fact is duly

established, then the other circumstances, regarding CA report

stating that no conclusive opinion can be formed about the blood

found on the seized articles, is of no consequence. However, it has

to be held that the appellant and the appellant only is the author

of the murder of Badrinath.

20. In the light of the above discussion, we are of the

considered view that there are no merits in the appeal and hence

no interference is required by this Court in the conviction and

sentence recorded by the trial court.

drp {19} Cri. Appeal No.200/2009

21. Consequently, the appeal is dismissed.

           [A.V.POTDAR, J.]                   [P.V.HARDAS, J.]




                                             
     drp/B10/criapel200-09