Sunil S/O Mahaderao Nikhade (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 549 Bom

                                                                           APEAL.504.13
                                               1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                             
                                   NAGPUR BENCH, NAGPUR.




                                                     
                                CRIMINAL APPEAL NO. 504 OF 2013




                                                    
         Sunil s/o Mahadeorao Nikhade,
         Aged 35 years, Occ. Labour,
         R/o Khangaon, Tah. Kalmeshwar,




                                         
         Dist. Nagpur. 
         (Presently in Central Jail,
                             
         Nagpur).                                           ....          APPELLANT.

                      // VERSUS //
                            
         The State of Maharashtra, 
         through its Police Station
         Officer, Police Station 
      

         Kalmeshwar, Dist. Nagpur.                          ....           RESPONDENT.
   



         Mr. A.K. Bhangde, Advocate for appellant,
         Mr. M.K. Pathan, Additional Public Prosecutor for respondent.





                               CORAM :  B.R. GAVAI & A.S. CHANDURKAR, JJ.     
                                DATED  :  MARCH 11, 2016.





         JUDGMENT (PER B.R. GAVAI, J.)

1] Being aggrieved by the judgment and order passed by the

learned Additional Sessions Judge-3, Nagpur dated 10.5.2013 in

Sessions Trial No. 306/12, thereby convicting the appellant for the

offence punishable under Sections 302 of the Indian Penal Code and

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sentencing him to suffer imprisonment for life and to pay a fine of

Rs.500/- and in default, to suffer further R.I. for three months, the

appellant has approached this Court.

2] The prosecution story, in brief, as could be gathered from

the material placed on record is as under :-

That on 4.4.2012 when PW.9 Damodhar Rathod, A.P.I.

Saoner Police Station was in the Police Station, he received a phone

call between 1 to 1.30 p.m. from PW.1 Narendra Padole that one

person had been to him and that person was saying that he had

committed murder of his wife. On the receipt of that information, he

went to village Sonpur along with other police officials at the house of

PW.1 Narendra Padole. After he went, he saw that accused Sunil

was sitting in the courtyard of house of PW.1 Narendra Padole and

clothes worn by the accused were stained with blood. When he

enquired from him about the incident, he told him that spot of the

incident was near therefrom and dead body of his wife was lying in

agricultural road. Thereafter, the accused took him, Narendra

Padole and other villagers on the spot of the incident.

3] PW.9 Damodhar obtained report of PW.1 Narendra

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Padole on the spot of the incident and forwarded the same to the

Police Station. He issued summons to panchas and prepared spot

panchnama and inquest panchnama below Exhs. 16 & 17. The dead

body was identified to be that of Pushpa, the wife of the appellant.

Deep injury was found on the throat of the deceased as well as on

her right elbow. Blood and six broken pieces of country liquor glass

bottle were lying near the legs of the dead body. The said pieces of

glass, blood mixed earth and sample earth from the spot were

seized. The seizure panchnama was prepared which is at Exh. 20.

4] On the basis of the oral report lodged by PW.1 Narendra

Padole which is at Exh. 40, the First Information Report was

registered. The printed FIR was registered at Exh. 31. Thereafter,

the blood stained clothes from the person of the accused came to be

seized. The seizure panchnama of seizure of the said clothes was

prepared below Exh. 27. The accused came to be arrested by

executing arrest panchnama below Exh. 43. The further investigation

was carried out. Upon completion of investigation, the charge-sheet

came to be filed in the Court of learned J.M.F.C., Kalmeshwar.

However, since the case was exclusively triable by the Court of

Sessions, the same came to the committed to the Court of learned

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Sessions Court, Nagpur.

5] The learned trial Judge framed the charge against the

accused for the offence punishable under Section 302 of the Indian

Penal Code. The accused pleaded "not guilty" and claimed to be

tried. At the conclusion of the trial, the learned trial Judge recorded

the order of conviction and sentence against the present appellant as

aforesaid. Being aggrieved by the order of conviction and sentence,

the present appeal has been filed by the appellant.

6] Mr. A.K. Bhangde, the learned Counsel appearing on

behalf of the appellant, submits that the learned trial Judge has

grossly erred in passing the order of conviction. He submits that the

present case is a case based on circumstantial evidence and unless

all the circumstances are proved beyond reasonable doubt and

further that a chain of proven circumstances which leads to no other

conclusion than the guilt of the accused is established, the conviction

could not be sustainable. He further submits that the evidence of

PW.8 Dr. Wakode read with post-mortem report would also not

establish that the death was by way of strangulation. He further

submits that most of the witnesses have turned hostile and as such,

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their testimony could not have been taken into consideration by the

learned trial Judge while recording the finding of conviction. He,

therefore, submits that the order of conviction and sentence is liable

to be set aside.

7] Per contra, Shri M.K. Pathan, the learned Additional Public

Prosecutor appearing on behalf of respondent, submits that the

prosecution has proved beyond reasonable doubt the following

circumstances :-

I. On the basis of evidence of PW.3 Sunita, the accused last

seen in the company of the deceased and the death of the

deceased occurring shortly thereafter,

II. The blood group 'B' of the deceased being found on the clothes

which were seized from the person of the accused,

III. The discovery of the dead body at the instance of the

appellant,

IV. Non-explanation of the circumstances given by the appellant in

his statement recorded under Section 313 of the Criminal

Procedure Code.

8] Dealing with the contention on behalf of the learned

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Counsel for the appellant that since the witnesses have turned

hostile, their testimony could not be relied upon, the learned A.P.P.

relying on the judgment of the Apex Court in the case of Khujji @

Surendra Tiwari .vs. State of Madhya Pradesh reported in AIR

1991 S.C. 1853 submits that even in the case of hostile witnesses,

such part of their testimony as could be found trust-worthy and

reliable can always be relied by the Court. To deal with the

contention of the learned Counsel for the appellant that there is no

memorandum under Section 27 of the Indian Evidence Act with

regard to the statement of the accused and discovery thereon of the

dead body of the deceased, the learned A.P.P. submits that even in

the absence of such a memorandum under Section 27, if the Court

finds such a discovery to be reliable, then non-recording of such

statement under Section 27 would not be fatal to the prosecution

case.

9] With the assistance of the learned A.P.P. and the learned

Counsel for the appellant, we have scrutinized the entire evidence.

10] By now, the law on the conviction based on circumstantial

evidence is well-established. It will be appropriate to refer to the

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following observations of Their Lordships of the Apex Court in the

case of Sharad Birdhichand Sarda .vs. State of Maharashtra

reported in AIR 1984 SC 1622 :

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt

is to be drawn should be fully established. It may be noted here that this Court indicated that the

circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should

be proved' as was held by this Court in Shivaji Sahabrao

Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :

"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and

'must be' is long and divides vague conjectures from sure conclusions."

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

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(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."

"153. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on circumstantial evidence."

11] It could thus be seen that as held by Their Lordships, it is

necessary that the circumstances from which the conclusion of guilt

is to be drawn should be fully established. It is further necessary that

the facts so established should be consistent only with the hypothesis

of the guilt of the accused. It should be established that the facts

established should not be explainable on any other hypothesis

except that the accused is guilty. It is necessary that the facts

established should exclude every possible hypothesis, except the

one to be proved, i.e. the guilt of the accused. It has further been

held that there must be a chain of evidence so complete as not to

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leave any reasonable doubt 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 alone.

12] In the light of these guiding principles, we will have to

examine the present case. The first attack by the learned Counsel

for the appellant is that the death is not by strangulation. In this

respect, the learned Counsel for the appellant heavily relies on the

evidence of PW.8 Dr. Pravin Wakode, who has carried out the

autopsy. The learned Counsel submits that in the present case there

is no recording in the post-mortem report that the fists were clenched

and that the mouth of the deceased was open. The learned Counsel

further states that in the post-mortem report there were no marks of

fingers or the thumb found on the front or back side of the neck of the

deceased and, therefore, the prosecution case that the death was by

strangulation cannot be believed. In this respect, it will be relevant to

refer to inquest panchnama Exh. 17. The inquest panchnama clearly

states that both the wrists of the deceased were clenched and the

hands were above head. It further states that the mouth of the

deceased was open. In so far as the absence of the mark of fingers

or thumb is concerned, the learned trial Judge relying on the authority

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on Modi's Medical Jurisprudence and Toxicology, has succinctly

considered the position as under :-

"...........In Modi's Medical Jurisprudence and Toxicology,

Twenty-first Edition published by N.M. Tripathi, Private Limited 1988, it is mentioned at page no. 199 that the cartilages of the larynx or the rings of the trachea may be

fractured, when considerable force is used. It appears

from the opinion expressed by Modi that in every case the possibility of having signs and appearances of ligature

mark would not be possible more particularly if by using considerable force the trachea ring is fractured. Modi is the authority on medical jurisprudence hence, merely of

having no appearances of finger or thumb marks or any

other ligature mark it cannot be said that death of the accused is not caused by strangulation. On the contrary,

having regard to the injuries described in post mortem report (Exh. 36) the only inference can be drawn that the trachea was fractured by using the considerable force and it may even by the first blow. Therefore the submissions

made by the Learned counsel Shri Bhanbgde for the accused that the evidence of Dr. Wakode (PW.8) cannot be believed cannot be accepted."

We are in full agreement with the view taken by the learned trial

Judge. As such, the argument advanced in that respect needs to be

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rejected.

13] That leaves us to consider the evidence with respect to

the other circumstances on which the prosecution relies. The first

circumstance is the accused last seen together with the deceased

and the death of the accused occurring shortly thereafter. As has

been held by the Apex Court in the catena of decisions that the

circumstance of last seen together is an important circumstance in

the case based on circumstantial evidence. It has been held that if

the time gap between the accused last seen in the company of the

deceased and the death of the deceased occurring is so short that

leads to no other conclusion than it is the accused who must have

committed the crime, then such a circumstance can be used against

the accused to hold the accused guilty of the crime. In the present

case, it will be relevant to refer to the evidence of PW.3 Sunita, who

is the sister-in-law of the appellant. In her deposition, she clearly

states that on 4.4.2012 at around 8 a.m. the deceased, his wife and

two daughters left the house for proceeding towards village

Dhapewada. She further states that at around 2 p.m. her husband

told her that Sunil killed Pushpa. She further states that someone

had given the said information to her husband. She states that

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thereafter she went to the place where the dead body of Pushpa was

lying. She further states that the police took her assistance to

examine the private parts and whole body of Pushpa. She further

states that when she reached on the spot, both the daughters of the

accused were weeping there. This witness has been thoroughly

cross-examined. Though an omission has been sought to be brought

on record, the said omission is only with regard to the two daughters

accompanying the deceased and the accused and leaving for village

Dhapewada. However, in so far as their version regarding the

accused last seen in the company of the deceased and thereafter

immediately the death of deceased occurring has remained

unshattered. In spite of a vigorous cross-examination, she has

withstood her version. We do not find any reason to disbelieve her

testimony. As such, we find that the prosecution has proved the

circumstance of the deceased last seen in the company of the

accused and the death of the deceased occurring shortly thereafter is

proved beyond reasonable doubt.

14] The next circumstance is with regard to seizure of clothes

on the person of the accused and finding of blood stains which are

found to be having the blood group of the deceased. As could be

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seen from the material placed on record that on receipt of the

information PW.9 Damodhar had immediately arrived and after the

appellant had taken the police party to the spot where the deceased

body was kept, the appellant was immediately arrested. His clothes

were seized under seizure-panchnama below Exh. 27. Though

panch witness PW.5 Namdeo Chikte has partly turned hostile, he has

proved this seizure panchnama in his cross-examination. He has

also identified the blood stained clothes in the Court. PW.4 Manohar

Gulabrao Gaikwad has also stated in his evidence that the clothes of

the accused were stained with blood, so also PW.6 Chetan

Shivkumar Nimbalkar has stated in his evidence that he had seen the

accused wearing Safari of brownish colour. He has further stated

that the clothes on his person were blood stained. The Chemical

Analyser's report below Exh. 56 shows that the blood group of the

deceased was 'B'. The Chemical Analyser's report at Exh. 56 further

shows that the clothes of the deceased so also clothes of the

accused, the earth sample, so also the pieces of the glass bottle

were all having blood stains of group 'B'. It could thus be seen that

the prosecution has established the circumstances regarding the

accused wearing the clothes having blood stains immediately after he

was seen in the village by the villagers, the seizure of the said

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clothes and the said clothes along with the clothes of the deceased

and other material seized from the spot having blood stains of group

'B' beyond reasonable doubt.

15] The next circumstance on which the prosecution relies is

the discovery of the body at the instance of the accused. In this

respect, the prosecution relies on the evidence of PW.9 Damodhar

as well as the other witnesses. No doubt that some witnesses have

turned hostile. However, merely because the witnesses have turned

hostile, their entire testimony need not be discarded. Reliance in this

respect could be made to the judgment of the Hon'ble Apex Court in

the case of Khujji @ Surendra Tiwari .vs. State of Madhya

Pradesh (cited supra) wherein Their Lordships observed in para 6

thus :-

"...............that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose

to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof....."

PW.1 Narendra the first informant though has turned hostile, has

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stated in his evidence that the accused had come to his house and,

therefore, he had phoned to Police Station. Thereafter, the police

came, they caught the accused and they took him to Khangaon. He

has further admitted in his cross-examination by the A.P.P. that it is

true to say that while going to Khangaon accused had shown the

dead body of his wife in Pandhan in Khangaon Shivar.

16]

PW.9 in his evidence has stated that after receipt of the

phone call from Narendra Padole, he went to the village along with

other police officials. Accused informed him that the spot of the

incident was near therefrom and dead body of his wife was lying in

agricultural road. He further states that thereafter accused took him,

Narendra Padole and other villagers at the spot of the incident and

accordingly, the accused had taken the police personnel and the

other persons to the spot of the incident. It can thus be seen from

the evidence of PW.1 Narendra and PW.9 Damodhar that the dead

body of the deceased was shown by the accused to the police

personnel.

17] In so far as the seizure of the blood-stained earth, sample

earth lying near the body and broken pieces of glass bottles are

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concerned, the prosecution has examined two witnesses - PW.2

Ishwar Gowardipe and PW.5 Namdeo Chikte. Though these

witnesses have turned hostile in their cross-examination by the

learned A.P.P. they have admitted regarding the seizures being

made of the aforesaid articles in their presence. As already

discussed hereinabove that the blood on those articles matches with

the blood group of the deceased, so also the circumstance of the

blood found on the person of the accused.

18] It will be relevant to refer to paragraph no. 71 of the

judgment of the Apex Court in the case of Suresh Chandra Bahri

.vs. State of Bihar reported in AIR 1994 SC 2420, which reads

thus:

"71. The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any

offence and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually

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discovered in consequence of information given, some

guarantee is afforded thereby that the information was true

and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the

discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the

present case as discussed above the confessional

statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the

incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of

credence."

In the said case also, no written memorandum under Section 27 of

the Indian Evidence Act was made. However, on the basis of

information given by the accused when he was in police custody, the

incriminating articles were recovered. In the present case also, on

the basis of the discovery made by the accused immediately after the

police arrived at the scene, the dead body and the other incriminating

material were recovered. In that view of the matter, we find that this

circumstance would also be a clinching circumstance against the

present accused. We find that the aforesaid three circumstances

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interwoven to each other lead to no other conclusion than the guilt of

the accused.

19] Another circumstance is a non-explanation of the

appellant with regard to the circumstances proven against him. We

are aware about the legal position that the circumstance regarding

false explanation or non-explanation cannot be used to complete the

chain to arrive at a finding of guilt. It will be appropriate to refer to the

following observations of the Apex Court in para 151 in the case of

Sharad Birdhichand Sarda cited supra :

"151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a

criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1)

This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

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"It is well to remember that in cases where the

evidence is of a circumstantial nature, the circumstances

from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the

one proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the

innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

Though we are not using the circumstance regarding non-explanation

of proved circumstances against the appellant to complete the chain,

as has been discussed hereinabove, we find that on the basis of the

proved circumstances the chain is complete to establish that the

appellant is the author of the crime. We are using the said

circumstance only to fortify the finding already recorded by us.

20] In the result, the Criminal Appeal is dismissed.

         J.                  JUDGE                                                
                                                                                 JUDGE .