Bombay High Court
Barku Tulshiram More vs The State Of Maharashtra on 29 November, 2012
Bench: V.K. Tahilramani, A. R. Joshi
1/11 apeal753-05
rpa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 753 OF 2005
Barku Tulshiram More ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mrs. Rohini Dandekar, Advocate appointed for the Appellant.
Mr. D. P. Adsule, A.P.P. for the Respondent - State.
...
CORAM : MRS. V.K. TAHILRAMANI &
A. R. JOSHI, JJ.
DATED : November 29, 2012.
ORAL JUDGMENT : [PER SMT. V. K. TAHILRAMANI, J.]
The Appellant/original Appellant has directed this Appeal
against the Judgment and order dated 14th March, 2005, passed by
the learned First Ad-hoc Additional Sessions Judge Nashik, in
Sessions Case No.138 of 2004. By the said Judgment and order, the
learned Sessions Judge convicted the Appellant under Section 302
of the Indian Penal Code (IPC) and sentenced him to R.I. for life
and to pay fine of Rs.200/- in default R.I. for one month.
2/11 apeal753-05
2 The prosecution case, briefly stated, is as under :
This is a case of double murder. Laxmibai (deceased) was
married to the Appellant. Father of Laxmibai was Karbhari
(deceased No.2). At the time of the incident, the Appellant was
residing along with his wife deceased Laxmbai and son at Bhilati
village Dahiwad. At the time of Makar Sankrant of the year 2004,
the accused had been to village Barshi i.e. the village of his father-
in-law, for settling the date of hair cutting ceremony of his son. The
accused called his father-in-law for fixing the date of the said
programme. That night the accused halted in the house of his
father-in-law. On the next day, the accused and his father-in-law
went to Dahiwad together. On 14 th February, 2004 at about 5.30 to
6.00 a.m., P.W.No.1 Madhukar Shinde who is the police patil of
village Dahiwad was told by the Appellant that he had killed his
wife and his father-in-law. P.W.No.1 Shinde, then lodged his First
Information Report (FIR). Thereafter, investigation commenced.
The dead body of Laxmibai and Karbhari was sent for post-mortem.
P.W.No.6 Dr. Inder Mohan Singh conducted the post-mortem on the
dead body of Laxmibai and Karbhari. On examination of Laxmibai,
the Doctor noticed bleeding through ear of right side further he
3/11 apeal753-05
noticed dislocation of tempro mandibular joint of left side. On
internal examination, he found haematoma under scalp under right
temporal region. There was a fracture of both temporo, mandibular
joint. In brain large subdural harmatoma covering both frontal and
partial region was seen. According to the doctor the injuries were
ante-mortem. In his opinion, the death of Laxmibai was caused due
to hemorrhagic shock due to subdural hematoma. Thereafter, the
very same Doctor conducted the post-motem on the dead body of
Karbhari. He found two external injuries on the person of Karbhari
i.e. :
i) C.L.W. on left perietal region of size 4 x 2 x 2 cm.
ii) Contusion over occipital region of size 7 x 4 cm.
The injuries were ante-mortem.
On internal examination, he found large haematoma under
scalp left parieto temporal region extending over right side. Linear
fracture of left parietal region extending over right side was noticed.
In his opinion, death was caused due to hemorrhagic shock due to
skull fracture. After completion of investigation, charge-sheet came
to be filed.
4/11 apeal753-05
3 Charge came to be framed against the Appellant-original
Accused under Section 302 of the Indian Penal Code (IPC), for
causing the death of his wife Laxmibai and for causing the death of
his father-in-law Karbhari. The accused pleaded not guilty to the
said charge and claimed to be tried. His defence is of total denial
and false implication. His further defence is that on the day of the
incident in the night he had gone to attend the call of nature. When
he returned back, he saw his wife Laxmibai and his father-in-law
Karbhari having sexual intercourse. Hence, he picked up a stone
and hit both of them on the head and killed them. After going
through the evidence adduced by the prosecution and the defence
raised by the Appellant, the learned Sessions Judge convicted and
sentenced the Appellant as stated in paragraph No.1 above, hence
this Appeal.
4 We have heard Advocate Ms. Rohini Dandekar, the learned
advocate for the Appellant and Mr. D.P. Adsule, learned A.P.P. for the
Respondent - State. We have carefully perused the evidence on
record. After carefully considering the matter, we are of the opinion
for the below mentioned reasons, that there is no merit in the
Appeal.
5/11 apeal753-05
5 There is no eye witness in the present case and the case is
based entirely on the circumstantial evidence. The first
circumstance is that of motive. P. W. No.3 Sahebrao Sonawane has
stated that he knew the Appellant. He and the Appellant did labour
work together. He stated that when he went to the house of father
of Laxmibai, the father of Laxmibai informed him that the Appellant
used to ill-treat and beat his daughter and also suspect the
character of Laxmibai. So also P.W. No.4 Shantaram Wagh, who was
the paternal uncle of deceased Laxmibai has also stated that the
accused used to suspect her character.
6 The next circumstance against the Appellant is that
immediately after the incident, P.W. No.1 Madhukar Shinde, who is
the complainant in the present case has seen the Appellant with
blood stains on his clothes. It is also pertinent to note that the arrest
panchanama Exhibit-23 shows that at the time of arrest of the
Appellant, his clothes i.e. full pant had blood on both the legs.
So also the baniyan had blood stains. The Appellant has been
arrested immediately after the incident and the arrest panchanma
was drawn immediately thereafter. It is pertinent to note that this
panchanma has been admitted and is exhibited under Section 294
6/11 apeal753-05
of the Code of Criminal Procedure. Thus, the factual circumstance
which emerges is that immediately after the incident, the Appellant
was found to have extensive blood stains on his clothes. This is a
highly incriminating circumstance.
7 The next circumstance which goes against the Appellant is
the evidence of P.W.No.1 Madhukar Shinde, who is the police patil
of village Dahiwad. Immediately after the incident, the accused
went to the house of this witness and informed him that he has
committed the murder of his wife and his father-in-law. It is well
settled that an extra judicial confession to a police patil would not
fall under the category of confession to a police officer and as such
it would not hit by Section 25 and 26 of the Evidence Act. In this
connection, we may usefully refer to the decision of the Full Bench
of this Court in the case of Rajeswar Hiraman Mohurle V/s. State
of Maharashtra, reported in 2009 ALL MR (Cri) 1926. The Full
Bench has observed as under :
"The duties, functions and powers of the Police Patil under
the provisions of the Village Police Act do not vest him
with the powers which are vested in a Police Officer under
the provisions of the Criminal Procedure Code. The
7/11 apeal753-05
powers given to him under the Village Police Act are
limited in their nature and scope and are not wide,
specific, consequential as the powers of a Police Officer
under the provisions of Criminal Procedure Code. The
Police Patil is to act unlike a Police Officer under the
orders of the District Magistrate and has to report the
matters to him and even where he makes some inquiry or
investigation, he is expected to submit report to the
Station Officer and has not been empowered to take any
further action, like preparation of a charge-sheet or its
presentation before the Court of competent jurisdiction.
He is vested with no powers in regard to the powers vested
in an investigating officer under the provisions of Section
173 of the Criminal Procedure Code. The Act does not
contain any deeming provisions which by fiction of law
would term a Police Patil as a Police Officer. It could be
possible that an Act may specifically stipulate that a
Police Patil for all intent or purpose shall be deemed to be
a Police Officer under the provisions of the Village Police
Act and/or the Criminal Procedure Code. In absence of
such a deeming fiction of law, it is difficult to confer the
status of a Police Officer in law upon a Police Patil or
accept the contention that the Police Patil is clothed with
the powers and functions of a police officer. Neither there
is any specific provisions in the Act nor on principle of
implied interpretation it can be said that the provisions of
the Act suggest that the Police Patil is a Police Officer in
8/11 apeal753-05
law. His duties, functions and powers are not identical or
even closely identical to the powers of a Police Officer
under the provisions of the Criminal Procedure Code.
The Supreme Court in the case of Badaku Joti Savant V/s.
The State of Mysore, reported in AIR 1966 SC 1746, has held that
unless an officer is vested with special powers of investigation
under the Code of Criminal Procedure, including the power to
submit report under Section 173, he cannot be regarded as a police
officer, under Section 25 of the Evidence Act.
8 It is well settled position of law that extra judicial confession,
if true and voluntarily made, it can be relied upon by the Court to
convict the Appellant for the commission of the crime alleged. The
evidence in the form of extra judicial confession made by the
accused to a witness, cannot always be treated to be tainted
evidence. The Supreme Court in its decision in the case of Maghar
Singh V/s. State of Punjab [AIR 1975 SCC 1320], has observed
that if the Court believes the witnesses before whom the confession
is made and it is satisfactory, then in such a case the conviction can
be founded on such evidence alone.
9/11 apeal753-05
9 The last circumstance which goes against the Appellant is that
at the time of incident, the accused, his wife Laxmibai and his
father-in-law Karbhari were the only persons present in the house.
In such case it is for the Appellant to explain in what circumstances
they sustained injuries and died. P.W. No.6 Dr. Inder Mohan Singh
conducted the post-mortem. From the evidence of Doctor, it is clear
that both of them died a homicidal death. The Appellant has not
given any plausible explanation for the death of Laxmibai and
Karbhari. Form the cross-examination of witnesses, we find that the
defence is sought to be put forth that the Appellant saw his wife and
his father-in-law i.e. the father and daughter having sexual
intercourse. Therefore, he assaulted both of them on the head with
a stone and killed them. It is pertinent to note that in his statement
under Section 313 of the Code of Criminal Procedure, no such
defence has been taken by the Appellant. Moreover, on going
through the CA report Exhibit 54, it is found that the vaginal swab
of Laxmibai did not contain any semen. The C.A. report Exhibit-83
shows that the pubic hair of deceased Karbhari i.e. the father of
Laxmibai did not have any semen on it. Thus, this also belies the
defence tried to be taken by the Appellant.
10/11 apeal753-05
10 The defence of the Appellant appears to be that he saw his
wife and his father-in-law, having sexual intercourse and hence he
assaulted both of them on their head with stone. This defence
presupposes that when the accused saw both his wife Laxmibai and
his father-in-law Karbhari they were awake and were indulging in
sexual intercourse, this shows that they were very much awake and
in such case it will be difficult for the accused to accurately assault
both his wife and his father-in-law on the head and kill them. It is
pertinent to note that no other injuries were found on the person of
deceased Laxmibai or deceased Karnbhai except those on the head.
If both Laxmibai and Karbhari were awake, and the Appellant
assaulted, one of them first by which time the other person would
evade assault or scuffle with the accused to prevent him from
further assaulting. The defence presupposes that the Appellant saw
them having sexual intercourse, then he went and got a stone and
assaulted both of them on the head with stone. This defence does
not at all appear to be probable in the facts and circumstances of
this case. It would be important to note that the Appellant has not
received any injuries, which he would have if he assaulted one
person first, then the other person would have engaged into a
scuffle with him either to stop him from assaulting the other person
11/11 apeal753-05
or assaulting the person himself or herself. Absence of injuries on
the person of the Appellant as well as on any other part of the body
of Laxmibai or Karbhari, except head in fact shows that the accused
assaulted both of them when they were sleeping and were not in a
position to put up any resistance.
11 Looking to the evidence on record, we find that there is
sufficient evidence to connect the Appellant with the murder of his
wife Laxmibai as well as the murder of his father-in-law Karbhari.
Hence, we find no merit in this Appeal. Appeal is dismissed.
12 The office to communicate this order to the Appellant who is
in jail.
(A.R. JOSHI, J.) (V.K. TAHILRAMANI , J.)
