Shrikrishna Mahadeo Pendam (In ... vs The State Of Maha., Thr. P.S. ...
2016 Latest Caselaw 2693 Bom

        APPEAL103.15                             1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR


                           CRIMINAL APPEAL NO.103 OF 2015.




                                                            
       APPELLANT:                     Shrikrishna s/o Mahadeo Pendam,
                                      aged about  22 years, Occu:Agrist.




                                             
                                      R/o Poha, Tq.Karanja Lad, Distt.
                              ig      Washim.

                                                : VERSUS :
                            
       RESPONDENT:                  The State of Maharashtra,
                                    through P.S.O.,P.S.Karanja,
                                    Distt.Washim.
      


       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
       Mr.R.M.Daruwala, Advocate (appointed) for the appellant.
   



       Mr.M.K.Pathan, Addl.Public Prosecutor for the respondent.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





                                      CORAM:      B.R.GAVAI AND 
                                                             V.M.DESHPANDE, JJ.

DATE: 9th JUNE, 2016.

ORAL JUDGMENT (Per V.M.Deshpande, J.)

1. By the present appeal, the appellant questions

correctness of his conviction and sentence imposed upon him by

the learned Ad hoc Additional Sessions Judge, Washim, dated 1 st

of April, 2006 in Session Trial No.122 of 2004, whereby the

learned Judge of the Court below has convicted him for the

offence punishable under Sections 302, 364 and 201 of the Indian

Penal Code.

The sentence awarded to the appellant on account of his

conviction for the offence punishable under Section 302 of the

Indian Penal Code is sufferance of imprisonment for life and to

pay a fine of Rs.1000/- and in default of payment of fine to suffer

rigorous imprisonment for two months.

Similarly, appellant is directed to suffer imprisonment

for life and to pay a fine of Rs.1000/- and in default of payment of

fine to suffer further rigorous imprisonment for two months for

the offence punishable under Section 364 of the Indian Penal

Code and on account of his conviction under Section 201 of the

Indian Penal Code, it is directed that the appellant shall suffer

rigorous imprisonment for seven years and to pay a fine of

Rs.1000/- and in default of payment of fine to suffer further

rigorous imprisonment for two months. All the substantive

sentences were directed to run concurrently.

2. The Criminal Law was set into motion by Manoj

Kumbhare (PW 1), the father of unfortunate Yash whose life came

to an end when he was only 4½ years of age.

3.

The report (Exh.12) lodged by Manoj Kumbhare is

dated 23rd of September, 2004. Manoj Kumbhare (PW 1) works

as a Laboratory Technician in Primary Health Center at Pathrot.

His marriage was performed with daughter of Mahadeorao Sayam

(PW 6). The name of his wife is Geeta (PW 3). The couple was

blessed with a son Yash and a daughter Khushi, aged about six

months.

Geeta along with her kids came to her parental house at

village Poha on account of Pola festival. On 22nd of September,

2004, Manoj, the first informant, made a phone-call at Poha and

called his wife Geeta at Pathrot. Therefore, Geeta started making

preparation to return to Pathrot. That time, deceased Yash was

playing nearby. After preparation, Geeta noticed absence of Yash.

Ultimately, the said fact was informed to first informant Manoj by

his father-in-law, which required Manoj to come at Poha. That

time, the aforesaid was narrated to him by his wife Geeta. It was

also stated in the First Information Report that missing report was

immediately lodged by Mahadeo Pendam, his father-in-law, with

Police Station Karanja.

It is also reported in the First Information Report that

the first informant is having suspicion against one Ganesh Pendam

and Shrikrishna Pendam (appellant) that they must have

kidnapped his son.

4. The report of Manoj (PW 1) was registered as Crime

No.235 of 2004 for the offence punishable under Section 363 read

with Section 34 of the Indian Penal Code by Shri M.B.Khan, a PSI,

who could not be examined during trial due to his demise. The

investigation of Diary of Crime No.235 of 2004 was entrusted to

Sudam Pawar (PW 9) who went to village Poha on 23 rd of

September 2004. He prepared panchanama of the house of

Mahadeo Sayam (PW 6). He arrested the appellant on 23 rd of

September, 2004 under arrest panchanama (Exh.16).

On 24th of September, 2004 Sudam Pawar got a lead

from the appellant that deceased Yash is kidnapped by Ganesh

Pendam and is at Bhopal, therefore, Sudam Pawar, the

Investigating Officer, along with Mahadeo Sayam (PW 6) and the

appellant/accused started for Bhopal. They left Karanja at 4 p.m.

on 24th of September, 2004. They reached to Bhopal on 25 th of

September, 2004 at 5 a.m. He sought assistance from the

concerned Police Officer at Bhopal. In the meanwhile, the

Investigating Officer received telephonic message from Police

Station Karanja that the dead body of Yash was found inside the

house of appellant, therefore, the said party returned to Karanja

from Bhopal. The offence was thereafter converted for the

offence punishable under Section 302 of the Indian Penal Code

and then the investigation was handed over to PW 14 Jagdeo

Akhare, who was Police Inspector at Police Station Karanja. He

seized clothes on the dead body brought by Police Constable from

Medical Officer, Rural Hospital at Karanja as per Seizure Memo

(Exh.29). He also seized clothes of appellant under seizure Memo

(Exh.30). He also recorded statements of the witnesses. After

other usual investigation charge-sheet was filed against the

appellant in the Court of Judicial Magistrate (F.C.), Karanja, who

committed the case to the Court of Sessions. The learned

Additional Sessions Judge, Washim framed the charge against the

appellant. He denied the charge and claimed for his trial. In

order to bring home the guilt of the appellant the prosecution has

examined in all fourteen witnesses. After the culmination of trial,

the learned judge of the Court below found that the appellant is

guilty and therefore, he was convicted and sentenced as

mentioned in the opening paragraph of this judgment. Hence, this

appeal.

5. We have heard Shri R.M.Daruwala, the learned counsel

appointed from Legal Aid Committee to represent the appellant

and Shri M.K.Pathan, learned Additional Public Prosecutor for the

State.

According to the learned counsel for the appellant, this

is a fit case for extending the benefit of doubt in favour of the

appellant since nobody has seen the appellant while committing

murder of Yash. On the contrary, the learned Additional Public

Prosecutor has supported the judgment of conviction and prayed

for dismissal of the appeal.

6. PW 10 Dr.Rajeshkumar Munde is a Medical Officer. On

25th of September, 2004 he was working as such at Rural Hospital,

Karanja. On the said day, dead body of Yash was referred to him

for Post Mortem by Police Officer, Karanja. On examination of

the dead body, Autopsy Surgeon found that there was ligature

mark over the neck at the level of thyroid cartilage with rope of

coconut fiber. He also noticed that rope was attached to the

dead body and it was of brown colour. The breadth of the said

rope was 1 cm. approximately and it was 24 inches in length. He

noticed that there was slip knot in front of neck. He also found

that the characteristic of the ligature mark was directed

horizontally and it encircled completely the neck. Groove was

present which was approximately 1 cm. deep and breadth of

groove was approximately 1½ cm. Circumference of the neck

was noticed approximately 10 inches. Colour of groove was

blackish brown. There was a fracture of tracheal ring and fracture

of laryngeal cartilage. Accordingly to the Autopsy Surgeon

Dr.Munde, all the injuries were anti mortem.

On internal examination he noticed fracture of tracheal

ring and laryngeal cartilages. The internal injuries were

corresponding to the injuries mentioned in Column No.17 of the

Post Mortem report (Exh.39) which he proved.

In the cross-examination of Dr.Munde, it is brought on

record that death occurred within 40 to 50 hours before the Post

Mortem.

In view of the evidence of Dr.Rajeshkumar Munde,

injuries as noticed by him and the Post Mortem report which gives

cause of death as asphyxia due to strangulation (with use of

ligature), it is evident that the nature of the death of Yash was

homicidal in nature.

7. The prosecution case is completely based on

circumstantial evidence. By now, the principles are well settled as

to how the prosecution case based on circumstantial evidence is to

be decided. The guiding lamp in that respect is a authoritative

pronouncement of Hon'ble Apex Court in the case of Sharad

Birdhichand Sarda ..vs.. State of Maharashtra reported in

(1984)4 SCC 116. The said pronouncement suggests as under :-

(1) 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;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that his to say, they should not be explainable on any other

hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except

the one to be proved; and

(5) 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.

8. The prosecution case states that the appellant was seen

near to deceased Yash and he was also asking PW 3 Geeta, the

unfortunate mother, not to leave village Poha. Further, two

prosecution witnesses, namely; Tamijkha (PW 4) and Parashram

Khurade (PW 5) had seen the appellant lifting a boy and entering

his house, where his dead body was found.

9. Mahadeo Sayam (PW 6) is father of Geeta (PW 3) with

whom she was residing with her kids from festival of Pola. When

he returned to his house it was informed to him by Geeta (PW 3)

that Yash is missing. Therefore, he immediately went to the Police

Station Karanja and lodged missing report (Exh.24).

10.

Evidence of Manoj (PW 1) shows that after he reached

to Poha, he started making search along with all other villagers,

however, appellant was only sleeping. Manoj felt little strange

that though appellant was close to the family of Geeta, he is not

participating in the search of Yash. Therefore, a suspicion against

the appellant was crept in his mind.

On 23rd of September, 2004 Manoj took appellant with

him in an auto rickshaw for search of his son. During search, as a

concerned father he made enquiries with the appellant as to who

must be the kidnapper. On that, the appellant quipped that

Ganesh Pendam may be the kidnapper therefore, according to

Manoj, he inferred that there is some information of his son with

accused/appellant. And therefore, he gave report in the Police

Station disclosing suspicion against the appellant and Ganesh

Pendam which was ultimately registered an offence vide Crime

No.235 of 2004.

11. PW 3 Geeta is mother of Yash. She is daughter of

Mahadeo Sayam (PW 6), who resides at village Poha, Tq.Karanja.

The appellant is also resident of Poha and his house is situated at

the distance of 200 ft. from the house of Mahadeo Sayam.

Location of the house is not disputed by the appellant.

Staying of Geeta at Poha along with her two kids, as

stated in the First Information Report, is not at all challenged.

Further, presence of Geeta on 22nd of September 2004 when Yash

disappeared is an admitted position, if the answer of appellant,

which he has given to question No.60 while recording his

statement under Section 313 of the Code of Criminal Procedure, is

seen.

12. Making a phone-call by Manoj to his wife Geeta on 22 nd

of September, 2004 is duly corroborated by Geeta. It was most

natural on her part to make preparation to go to Pathrot as

requested by her husband.

The evidence of Geeta reveals the presence of the

appellant on the platform of the house of one Rajik Bagwan from

where she had a telephonic conversation with her husband. She

further states that thereafter she returned to her house and

disclosed to her mother her intention to go to Pathrot. It is her

evidence that she bowed down to her father and disclosed her

desire to proceed towards Pathrot which is also most natural on

her part. Thereafter, she started arrangement to proceed. She

made her son Yash fresh and also put shoes to him. That time,

appellant came there. Evidence of Geeta further states that she

asked Yash that he should not go here and there as they have to

go to Pathrot. That time, the present appellant asked Geeta that

she should not leave village Poha prior to Ganpati immersion.

Not only that, he states to Geeta that if she decides to leave Poha

prior to Ganpati immersion then he will conceal her son. On that,

Geeta asked appellant that she is required to go to Pathrot since

her husband is not keeping good health.

13. The evidence of Geeta further states that, that time her

son was playing outside the house and when she was arranging

bag, the appellant was present there. After getting herself ready,

which took about half an hour, when she came outside she gave a

call to Yash who was not noticed there. Therefore, she and her

sister started making search of Yash. She kept bag in courtyard

and went back side of the house. That time, she noticed that

appellant Shrikrishna was coming towards the house and was not

making any eye contact with Geeta but was looking downwardly.

Then appellant went inside her house. Upon enquiry with the

appellant from Geeta whether he has seen Yash, the appellant

replied that Yash might have gone ahead. She also felt like that,

and therefore, she proceeded ahead in search of Yash. They

reached up to Jagdamba temple. That time, she was

accompanied by the appellant, Jagdish Chaudhari, her mother

and sister. However, Yash could not notice therefore Geeta asked

others to make search of Yash. According to the evidence of

Geeta, that time appellant was standing with her and was not

making any eye contact with Geeta but was looking downwardly.

Inspite of the search, Yash could not be traced therefore naturally

Geeta was frightened. The father of Geeta lodged a missing report

(Exh.24) immediately. On the same day, at about 10.30 to 11

p.m., Manoj Kumbhare (PW 1) reached to Poha. Everyone started

searching Yash including all villagers, except the appellant.

In our view, the evidence of Geeta (PW 3) is free from

exaggeration. No improvements are found in her evidence.

Though her statement is recorded on 3rd of October, 2004, she has

given proper explanation for the belated recording of her

statement. She has stated that on 3 - 4 occasions Police had been

to her, however, due to her mental condition her statement was

not recorded.

We cannot forget that she has lost her son. Therefore,

the explanation given by this unfortunate mother, in our view, is

required to be accepted and the appellant cannot derive any

benefit out of recording of such belated statement.

14. The evidence of Tamijkha (PW 4) shows that on 22 nd of

September, 2004 he had gone to Kamargaon. He and Shakil were

in search of missing pair of bullocks. They reached at S.T. Stand

of village Poha. When they were crossing the house of one

Gulabrao Kadam to reach their house, Tamijkha noticed the

appellant throwing stones towards the bullock cart of Gajanan

Dere. That time he noticed one boy of 4 years standing, wearing

red coloured little shirt. He noticed the appellant lifting the said

boy, entering his house and thereafter shutting the door of his

house.

15. This prosecution witness came back to village Poha on

25th of September, 2004. Though in examination-in-chief he has

not given the timing of his return at Poha, the cross-examination

of Tamijkha (PW 4) reveals that he returned to village Poha at 9

O'clock in the night. In that view of the matter, no eye-brows

could be raised against the claim of this prosecution witness that

he was not aware whether Police visited village Poha on 25th of

September, 2004. In view of this, it cannot be said that the

statement of this witness which was recorded on 26 th of

September, 2004 is recorded at belated stage.

This prosecution witness has specifically stated from the

witness box that the boy who was lifted by the appellant was

wearing red coloured T-shirt and blue pant. His evidence in that

behalf is not found to be shattered. There was no reason for this

prosecution witness to state against the present appellant.

Inquest Panchanama is at Exh.28. It shows that the

deceased was having red coloured T-shirt and blue pant on his

person.

16. Another witness of last seen theory is Parashram

(PW 5). He works as a Lineman in the electricity Board. He was

returning at 1 O'clock in the noon after shutting D.P. When he

had been near to the house of Mahadeo Sayam (PW 6) he noticed

presence of Tamijkha (PW 4). Thus the presence of Tamijkha

stood corroborated by this prosecution witness. Further, as per

the evidence of Parashram he noticed the appellant taking one boy

with him. This prosecution witness thereafter proceeded to

Karanja and thereafter to Yavatmal. He stayed their for four to

five days and returned at village Poha on 25 th of September, 2004

at about 4 O'clock in the evening. His statement is recorded by

Police on 26th of September, 2004. In the cross-examination of

this witness a serious challenge was made that it was not possible

for this prosecution witness to go from the house of Mahadeo

Sayam. This prosecution witness has stoutly denied the

suggestion given to him that there was no occasion to proceed

from the house of Mahadeo Sayam after shutting the D.P. It is to

be noted here that in the cross-examination it is brought on

record, the distance between the D.P. and the house of Mahadeo

Sayam and it is 300 to 400 ft. Thus, the house of Mahadeo Sayam

appears to be in close situation of D.P. Therefore, the presence of

Lineman on the spot from where he has seen the appellant

proceeding with a boy is most probable.

Worth to note here is the evidence of Mahadeo Sayam

(PW 6) in order to appreciate the version given by these two

witnesses who had seen deceased in the company of appellant

lastly.

When Mahadeo Sayam (PW 6) was under cross

examination, it is brought on record that his relations with

Tamijkha (PW 4) and Parashram (PW 5) are not good. If that be

so, there was no occasion for these two witnesses to oblige

Mahadeo and his family by deposing before the Court that they

had seen appellant with a boy who was having red coloured

T-shirt and blue pant.

17. The house from where the dead body was recovered

was belonging to appellant as it could be seen from the answer

given by him to the question No.14 when he was examined under

Section 313 of the Code of Criminal Procedure. It is established

on record that the appellant was residing in the said house.

18. Dead body of Yash was found inside the house of

appellant and the said fact is not seriously challenged by the

appellant.

19. In our view, following are the circumstances which are

established on record by the prosecution to complete the chain:-

(i) That the appellant is having his house adjacent

to the house of PW 6 Mahadeo Sayam at village Poha.

(ii) That from festival of Pola PW 3 Geeta was residing along with deceased and her daughter at her father's house i.e. house of PW 6

Mahadeo Sayam at village Poha.

(iii) That on 22nd of September, 2004 PW 1 Manoj, husband of PW 3 Geeta, made a phone-call to her and asked her to come to Pathrot.

(iv) PW 3 Geeta upon receipt of the phone-call decided to proceed to Pathrot and prepared herself and her son deceased Yash.

(v) At the time of receipt of phone-call from Manoj

to Geeta, the appellant was near the house of

Rajik Bagwan where the prosecution witness Geeta received phone-call.

(vi) At the time when PW 3 Geeta was preparing herself to proceed to Pathrot that time appellant

was present in the house of Geeta.

(vii) appellant asked Geeta not to leave village Poha else he will conceal her son.

(viii) After preparing Yash to proceed for Pathrot, Geeta started preparation for herself and Yash

was in the courtyard.

(ix) The receipt of the phone-call was at 1 O'clock and thereafter Geeta started making preparing to go to Pathrot.

(x) In the noon hours of 22nd of September, 2004 prosecution witness No.4 Tamijkha noticed that one boy who was wearing red coloured T-shirt

and blue pant was lifted by the appellant and took him inside his house and closed the door.

Similarly, prosecution witness no.5 Parashram

Kurhade also states that he noticed the appellant in the company of one boy.

(xi) The dead body of Yash was found inside the house where the appellant resides.

(xii) That, as per evidence of PW 10, the death occurred within 40 to 50 hours before Post Mortem which relate back to the timing of Yash

being disappeared.

(xiii) The inquest panchanama (Exh.28) shows that

at the time of noticing the dead body the dead body was having red coloured T-shirt and blue pant.

(xiv) Conduct of appellant prior to his arrest and after his arrest.

(xv) Prior to arrest of appellant when entire villagers

were searching Yash that time though the appellant was having close relation with Mahadeo (PW 3) he did not participate in

search and was found to be sleeping. (xvi) After his arrest he misled the Investigation

Officer by giving false information that boy

must be at Bhopal with Ganesh Pendam requiring Investigating Officer to travel with

appellant up to Bhopal.

19. The aforesaid facts so established are consistent with

the hypothesis of the guilt of the appellant and in our view the

chain of evidence so complete that there is no reasonable ground

to reach to the conclusion consistent with the innocence of the

appellant.

20. In view of the aforesaid, we are of the view that guilt of

the appellant is conclusively proved by the prosecution beyond

reasonable doubt. Hence, we pass the following order.

-ORDER-

The Criminal appeal is dismissed.

Fees payable to the learned counsel appointed by the

Legal Aid Committee to represent the appellant are quantified at

Rs.5000/- (Rupees five thousand only).

                      JUDGE   ig                                   JUDGE
                            
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