Bombay High Court
The State Of Maharashtra And Ors vs Satish Trimbak Rasal And Ors on 5 December, 2017
Bench: T.V. Nalawade
Cri.Appeal 475/2001
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 475 OF 2001
The State of Maharashtra,
through the Police Station,
Lohara, District Osmanabad ..Appellant
Versus
1. Satish Trimbak Rasal,
Age 30 years
2. Indubai Trimbak Rasal
Age 55 years
3. Vishwanath Shantaram
Gadhave, Age 50 years
4. Kamlakar Sopan Rasal,
Age 35 years
All r/o Lohara (Khurd),
Taluka Lohara,
District Osmanabad ..Respondents
Mr P.G. Borade, A.P.P. for appellant
Mr K.J. Ghute Patil, Advocate for respondents
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 6.11.2017
DATE OF PRONOUNCING
THE JUDGMENT : 5.12.2017
JUDGMENT (Per A.M. Dhavale, J.)
1. This is an appeal by the State challenging the judgment dated
21.7.2001 passed in Sessions Case No.12/2001 by learned II
Additional Sessions Judge, Osmanabad of acquittal of the four
respondents prosecuted for committing murder of father of accused
no.1 Satish and husband of accused no.2 Indubai.
Cri.Appeal 475/2001
2. The facts as per F.I.R. may be stated as follows :
Deceased Trimbak aged around 60 years was handicapped due
to Polio. He was resident of Lohara (Khurd). Accused no.1 Satish is
his son, accused no.2 Indubai is his wife. It is claimed that since they
were not maintaining him, he was residing at Lohara (Bk), District
Osmanabad. Since two years prior to the incident, he had quarrels
with accused nos.1 and 2. He was taking his meals and residing with
third persons. He was demanding partition of his agricultural land.
P.W.3 Vyankat Rasal is grandson of deceased Trimbak's mother's
sister and he was his neighbour. P.W.3 Vyankat had seen quarrels
and abusing to Trimbak by the accused nos.1 and 2 and he had
intervened in the quarrel many a times. Since two months prior to the
incident, Trimbak had gone to Lohara (Bk.) as his land dispute with
wife and son was pending in the Court. On 28.4.2000 at 7.00 p.m.,
accused no.1 Satish and accused no.2 Indubai and her brother
accused no.3 Vishwanath brought Trimbak from Lohara (Bk.) to
Lohara (Khurd) in a jeep. Thereafter, P.W.3 Vyankat heard verbal
exchange between them. They three had taken him to their house.
Accused no.4 Kamlakar is maternal cousin of accused no.1. Accused
nos.1 to 4 were moving in and out of the house. On 1.5.2000 at 3.30
p.m., P.W.3 Vyankat received a phone call from uncle of accused
no.1's wife that Trimbak was dead. P.W.3 Vyankat visited the house
of the deceased and found his dead body lying in the varandah of the
house. There were bleeding injuries on back, hands, legs and on
private parts and his baniyan and dhoti were stained with blood.
There was ligature mark of strangulation on his neck. P.W.3 Vyankat
Cri.Appeal 475/2001
accordingly submitted report stating that accused nos.1 to 4 by
means of fist blows and stones and by twisting private parts of
Trimbak killed him between 8.00 a.m. to 11.00 a.m. On the basis of
report lodged at 21.15 hrs., crime was registered at C.R.No.20/2000 at
Lohara police station and the same was investigated into by P.W. 7
P.S.I. Jadhav. P.S.I. Jadhav had received the information about
homicidal death of Trimbak at about 4.30 to 5.00 p.m. He had gone to
Lohara (Khurd) for verification and seen the dead body in the
courtyard of the house. There were external injuries on the body
including ligature mark on the neck. There were other injuries on
wrist, back, legs and mainly to penis and scrotum. There was blood
on the clothes and body and on one cloth 'Uparne'. There was one
stick with blood stains and one cord lying near the dead body. P.S.I.
Jadhav arranged to get photographs of the dead body. He prepared
inquest panchnama (Exh.25) on the spot and recorded F.I.R. and
forwarded the body for post mortem. During the investigation, he
drew spot panchnama, seized the clothes of the deceased and the
weapons stick and cord. He arrested all the accused on 1.5.2000 and
recorded statements of material witnesses. He forwarded the seized
articles to Chemical Analyst at Aurangabad. After completion of
investigation, the charge-sheet was submitted in the Court of Judicial
Magistrate.
In due course, the case was committed to the Court of Sessions.
The learned Additional Sessions Judge, Osmanabad framed charge at
Exh.13 against all the accused. The accused pleaded not guilty. The
prosecution examined seven witnesses. As discussed above, the case
Cri.Appeal 475/2001
is based on last seen together and custodial death. The learned II
Additional Sessions Judge, Osmanabad acquitted all the accused.
Hence this appeal.
3. Mr P.G. Borade, learned A.P.P. for the State has taken us
through the evidence on record. He stated that there is convincing
evidence as follows :
(I) Accused nos.1 and 2 son and wife of the deceased were not
maintaining him and were harassing him, abusing and assaulting him.
Therefore, deceased Trimbak had gone to Lohara (Bk.) for residing.
(II) On 28.4.2000 accused nos.1 to 3 went to Lohara (Bk.) in a jeep
and brought Trimbak from Lohara (Bk.) to Lohara (Kd.). Deceased was
crying while he was being brought to his house. It was witnessed by
P.W.3 Vyankat Rasal, Sarpanch, P.W.5 Kisan Rasal.
(III) On the fateful day, 1.5.2000, the deceased was found killed and
his dead body was found in his house. Accused nos.1 and 2 have not
given any explanation about the same though they were residing with
him in the said house. The medical evidence clearly shows that it was
a case of homicidal death. Thus, the learned trial Judge ought to have
accepted the evidence of prosecution witnesses and should have
convicted the accused. In the alternative, he claimed that atleast
accused nos.1 and 2 should have been convicted.
Cri.Appeal 475/2001
(IV) There is also evidence of P.W.6 Allah Baksh that he has
provided huge amount of Rs.1,21,000/- to the deceased for his
maintenance and the deceased had executed deed in respect of his
land in favour of him (Allah Baksh). Allah Baksh was having civil
litigation with deceased and accused nos.1 and 2. The land of the
deceased was in possession of accused nos.1 and 2. He has also seen
accused nos.1 to 3 taking deceased from Lohara (Bk.) to Lohara (Kd.).
4. Per contra, learned Advocate Mr K.J. Ghute Patil has strongly
supported the judgment of the trial Court. He argued that the
evidence of prosecution is not at all convincing, trustworthy and
reliable. There was political rivalry between accused no.3 Vishwanath
and P.W.3 Vyankat who were belonging to rival groups and had
contested election against each other. The civil suits were pending
between the parties. P.W.3 Vyankat's father had prosecuted
deceased Trimbak and accused no.2 Indubai for committing murder of
step mother of Trimbak by name Subabai, as he was related to
Subabai. The said case has ended into acquittal. The partition had
already taken place and there was no question of grabbing the share
of deceased by accused nos.1 and 2. He pointed out that the
witnesses who had seen abducting of deceased Trimbak by accused
nos.1 to 3 have not taken any action nor reported the matter to the
Police. It is not a case of custodial death. There is no material to
connect the accused with the crime. Hence, the accused may be
acquitted.
Cri.Appeal 475/2001
5. The points for our consideration with our findings are as follows:
(I) Whether deceased met with
homicidal death ? .. Proved
(II) Whether accused nos.1 to 4 in .. In the affirmative
furtherance of their common against accused
intention committed murder of nos.1 and 2 only
deceased Trimbak ?
(III) What sentence and order ? .. The Appeal is partly
allowed.
The order of
acquittal accused
nos.3 and 4 is
maintained. The
accused nos.1 & 2
are convicted for
committing murder
of Trimbak.
- REASONS -
6. Point no.1: P.W.1 Dr. Deepak Mendhekar has conducted post
mortem on the dead body of Trimbak on 2.5.2000 at 7.00 to 8.45 a.m.
brought by police of Lohara police station to him on 1.5.2000. He
found following injuries on his person :
(1) Face was swollen, eyes were closed. Tongue caught
within teeth. Reddish colour found oozing from nostril
and the mouth.
(2) Condition of skin was with marks with blood.
Cri.Appeal 475/2001
Injuries
(1) Ligature mark round the neck (continued below the
Thyroid. Abrasions and echymosed round about the
edge of ligature mark subcutaneous tissue under the
marks echymosed.
(2) Injury mark on lateral side of right eye of bruising
nature 5 x 3 cm in size.
(3) Injury mark near left eye of abrasion nature 1 x 1 cm
in size
(4) Abrasion mark on left side on left arm on medial site
of 4 x 3 cm in size
(5) Abrasion of 2 x 1 cm on left side of back below
scapula
(6) Abrasion mark seen on left wrist region 2 x 2 cm
(7) Abrasion on left hand in interphalangeal region of -
(A) 2 x 1 cm
(B) 2 x 2 cm
(C) 2 x 1 cm respectively
(8) Sloughing on skin of cubital, forearm and arm region
right side
(9) Abrasion mark on interphalangeal region of right
hand between thumb and index finger
(10) Scrotum swollen oedematous bluish colour and penis
swollen inflamed along with abrasion of size 2 x 1 cm
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(11) Abrasion mark on right lower limb at thigh region on
leg region of 5" x 2".
7. P.W.1 Dr. Deepak has given opinion that the deceased has died
due to compression of neck. He had found abrasion by the side of
ligature mark and opined that it was a case of homicidal death. The
abrasions on the neck supports his opinion that it was a case of
throttling. Besides injuries to the scrotum and penis showing that
those must have been squeezed or twisted. We find that these
injuries can be neither accidental nor suicidal. The opinion of Medical
Officer that those were homicidal is not disputed by the defence. On
the basis of evidence of P.W.1 Dr. Mendhekar, we hold that Trimbak
met with homicidal death.
8. Point no.2 : Murder by the accused nos.1 to 4:
The prosecution has led evidence of following nature :
(1) Last seen together : P.W.3 Vyankat Rasal, son of maternal
cousin of deceased Trimbak, P.W.4 Kisan Rasal.
(2) Evidence of past harassment and neglect by accused nos.1 and
2 to the deceased. P.W.3, Vyankat, P.W.5 Kisan and P.W. Allah Baksh
(3) Dead body found in the house of accused nos.1 and 2. P.W.2
Gajendra in whose presence inquest panchnama (Exh.25) and spot
panchnama (Exh.26) were drawn and clothes of the deceased Dhoti
and baniyan (Articles 4 and 5) were seized vide Exh.27. In his
presence, one noose of rope and one stick having blood stains were
also seized from the spot (Exh.26).
Cri.Appeal 475/2001
9. P.W.4 - Jeep driver Shivaji Jadhav had brought deceased
Trimbak from Lohara (Bk.) to Lohara (Khurd) at the instance of
accused nos.1 to 3, but he has turned hostile. The Investigating
Officer P.W.7 has deposed about the investigation carried out by him
and about drawing of inquest panchnama, spot panchnama, seizure
panchnama and forwarding of seized articles namely clothes of the
deceased, stick and rope to the office of Chemical Analyst. The report
of Chemical Analyst is at Exh.34, which shows blood stains on the
clothes and the stick.
10. This is a case of custodial death. Admittedly, accused no.1
Satish is son of deceased Trimbak and accused no.2 Indubai is his
wife. Admittedly, they were residing together at Lohara (Kd) in the
house of the deceased Trimbak. The only difference is that as per the
prosecution case, as accused nos.1 and 2 were not maintaining
deceased Trimbak, he had gone to Lohara (Bk.) two months prior to
28.4.2000 and on 28.4.2000, he was brought home by accused nos.1
to 3 in a jeep. In normal course, accused nos.1 to 3 would be residing
together under one roof and there is not even whisper by the accused
that deceased Trimbak was residing separately from them.
11. There is cogent, convincing and unimpeachable evidence that
on 1.5.2000 at about 4 to 4.30 p.m. dead body of deceased Trimbak
was found in his house where accused nos.1 and 2 were also residing.
There was ligature mark around his neck. As discussed earlier, the
deceased was killed by compression of his neck and by twisting or
Cri.Appeal 475/2001
squeezing his private parts. There is no challenge to the evidence of
P.W.1 Deepak Mendhekar that it was a case of homicidal death.
12. As per evidence of P.W.1 Dr. Deepak Mendhekar, the stomach
of deceased Trimbak was found empty and he he found undigested
food and gases in large intestine. On the basis of these observations,
he stated that the deceased must have died at least four hours after
taking his last meal.
13. Now the question arises as to which meal he must be referring
to. Rigor mortis gives clue to the same. P.W.1 Dr. Deepak conducted
post mortem on dead body on 2.5.2000 at 7.00 a.m. He noted that
the rigor mortis had disappeared.
14. In Medical Jurisprudence and Toxicology by Modi, 25th edition
2016 at page 342, in respect of rigor mortis it is observed:
"Time of onset : This varies greatly in different cases, but
the average period of its onset may be regarded as three
to six hours after death in temperate climate, and it may
take two to three hours to develop. In India, it usually
commences in one to two hours after death.
" Duration: In temperate regions, rigor mortis usually lasts for two to
three days. In northern India, the usual duration of rigor mortis is 24
to 48 hours in winter and 18 to 36 hours in summer. According to the
investigations of Mackenzie, in Calcutta, the average duration is
nineteen hours and twelve minutes, the shortest period being three
Cri.Appeal 475/2001
hours, and the longest forty hours. In Colombo, the average duration
is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly
and vice versa. In general, rigor mortis sets in one or two hours after
death and is well developed from head to foot in about twelve hours.
Whether rigor is in the developing phase, established phase, or
maintained phase is decided by associated findings like marbling,
right lower abdominal discolouration, tense or taut state of the
abdomen, disappearance of rigor on face and eye muscles. If on
examination, the body is stiff, the head cannot be fixed towards the
chest, then in all probability, the death might have occurred six to
twelve hours or so more before the time of examination."
15. The death of Trimbak had taken place in the month of April,
which are hot days. It can curtail the time of rigor mortis to some
extent. In any case, deceased Trimbak must have died around 30 to
48 hours before the post mortem. Taking the normal course of meals
at 11.00 a.m. to 1.00 p.m. and as per post mortem stomach of
Trimbak was empty and undigested food was in the large intestine, his
death must have occurred within four to six hours after his last meal.
When these two opinions are taken together, we find that the Trimbak
must have died on 30.4.2000 after four hours from the morning meal
or after four hours of the evening meal. Taking the time of meals, he
must have died at 4.00 p.m. on 30.4.2000 or at 1.00 a.m. on 1.5.2000.
Considering the fact that the death took place particularly in hot days,
it must have been on 1.5.2000 at about 1.00 to 3.00 a.m.
Cri.Appeal 475/2001
16. It is thus clear that accused nos.1 and 2 were having special
knowledge as to what happened on the night in the house when
deceased Trimbak met with homicidal death.
17. In the matter of appreciation of evidence, it is observed in State
of U.P. Vs. Hari Mohan AIR 2001 SC 142 :
"7. While appreciating the ocular testimony of witnesses
and the circumstantial evidence in a criminal case, the
criminal courts are expected to keep in mind the
observations of this Court in State of Punjab v. Jagbir Singh,
Baljit Singh & Karam Singh [1974 (3) SCC 277] wherein it
was held:
" A criminal trial is not like a fairy tale wherein one is free
to give fight to ones imagination and phantasy. It concerns
itself with the question as to whether the accused
arraigned at the trial is guilty of the crime with which he is
charged. Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence
by the yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis would
have to depend upon its own facts. Although the benefit of
every reasonable doubt should be given to the accused,
the courts should not at the same time reject evidence
which is ex facie trustworthy on grounds which are fanciful
or in the nature of conjectures."
8. This Court again in State of Himachal Pradesh v. Lekh
Raj & Sons [JT 1999 (9) SC 43] reiterated the position of
Cri.Appeal 475/2001
law and while reminding the criminal courts of their
obligations held:
"The criminal trial cannot be equated with a mock
scene from a stunt film. The legal trial is conducted to
ascertain the guilt or innocence of the accused arraigned.
In arriving at a conclusion about the truth, the Courts are
required to adopt rational approach and judge the evidence
by its intrinsic worth and the animus of the witnesses. The
hyper-technicalities or figment of imagination should not
be allowed to divest the court of its responsibility of sifting
and weighing the evidence to arrive at the conclusion
regarding the existence or otherwise of a particular
circumstances keeping in view the peculiar facts of each
case, the social position of the victim and the accused, the
larger interests of the society particularly the law and order
problem and degrading values of life inherent in the
prevalent system. The realities of life have to be kept in
mind while appreciating the evidence for arriving at the
truth. The courts are not obliged to make efforts either to
give latitude to the prosecution or loosely construe the law
in favour of the accused. The traditional dogmatic hyper-
technical approach has to be replaced by rational, realistic
and genuine approach for administering justice in a
criminal trial. Criminal jurisprudence cannot be considered
to be a Utopian thought but have to be considered as part
and parcel of the human civilization and the realities of life.
The courts cannot ignore the erosion in values of life which
are a common feature of the present system. Such
erosions cannot be given a bonus in favour of those who
are guilty of polluting society and the mankind."
9. Before appreciating the circumstantial evidence in
the case, we are at pain to place on record our displeasure
regarding the conduct of the investigation in the case. The
investigating officer appears to have left no stone unturned
Cri.Appeal 475/2001
to help the accused-respondents. It appears that the
valuable evidence, though available, was not collected
apparently for ulterior purposes. The conduct of the
investigating officer SI D.P. Tiwari (PW7) was even noticed
by the trial court. On 30th October, 1978 while recording
his statement, the trial court observed that "it appears that
the IO was negligent and an irresponsible investigating
officer". It was noticed that "the witness giving aforesaid
statement and it appears that he wants to damage the
prosecution case". It is not disputed that during
investigation it had come in evidence that respondent No.1
was possessed of a licensed gun which was stated to have
been used by him on 15.3.1977, the alleged day of
occurrence, yet no effort was made by the IO to seize the
gun or get it examined by an expert to ascertain whether
any shot was fired from its barrel. He also failed to have
taken into custody the letter written by the deceased for a
sufficiently long period though its mention was made by the
PW1 in the FIR itself. However, the defective investigation
cannot be made a basis for acquitting the accused if
despite such defects and failures of the investigation, a
case is made out against all the accused or anyone of
them. It is unfortunate that no action can be taken against
the IO at this stage who, in all probabilities, must have
retired by now.
18. In Trimukh Maroti Kirkin Vs. State of Maharashtra, (2006)
10 SCC 681 in case of custodial death of like nature, observations are
made in the light of custodial deaths of brides at matrimonial houses
which are applicable to certain extent in the present case as well. It is
observed that :
" These crimes are generally committed in complete
secrecy inside the house and it becomes very difficult for
Cri.Appeal 475/2001
the prosecution to lead evidence. No member of the family
even if he is a witness of the crime, would come forward to
depose against another family member. The neighbours,
whose evidence may be of some assistant, are generally
reluctant to depose in court as they have to keep aloof and
do not want to antagonise a neighbourhood family. The
parents of other family members of the bride being away
from the scene of commission of crime are not in a position
to give direct evidence which may inculpate the real
accused except regarding the demand of money or dowry
and harassment caused to the bride. But, it does not
mean that a crime committed in secrecy or inside the
house should go unpunished.
14. If an offence takes place inside the privacy of a
house and in such circumstances where the assailants
have all the opportunity to plan and commit the offence at
the time and in circumstances of their choice, it will be
extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted upon
by the courts. A judge does not preside over a criminal
trial merely to see that no innocent man is punished. A
judge also presides to see that a guilty man does not
escape. Both are public duties. (See Stirland v. Director of
Public Prosecutors quoted with approval by Arijit Pasayat, J.
in State of Punjab v. Karnail Singh.) The law does not
enjoin duty on the prosecution is to lead such evidence
which it is capable of leading, having regard to the facts
and circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
15. Where an offence like murder is committed in
secrecy inside a house, the initial burden to establish the
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case would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish
the charge cannot be of the same degree as is required in
other cases of circumstantial evidence. The burden would
be of a comparatively lighter character. In view of Section
106 of the Evidence Act there will be a corresponding
burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The
inmates of the house cannot get away by simply keeping
quiet and offering no explanation on the supposed premise
that the burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an accused to
offer any explanation."
After taking resume of the law on the subject, it is
observed :
22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of
crime they were seen together or the offence takes place
in the dwelling home where the husband also normally
resided, it has been consistently held that if the accused
does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false,
it is a strong circumstance which indicates that he is
responsible for commission of the crime. In Nika Ram v.
State of H.P. It was observed that the fact that the accused
alone was with his wife in the house when she was
murdered there with "Khukhri" and the fact that the
relations of the accused with her were strained would, in
the absence of any cogent explanation by him, point to his
guilt. In Ganeshlal v. State of Maharashtra the appellant
was prosecuted for the murder of his wife which took place
inside the house. It was observed that when the death had
occurred in his custody, the appellant is under an
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obligation to give a plausible explanation for the cause of
her death in his statement under Section 313 Cr.P.C. The
mere denial of the prosecution case coupled with absence
of any explanation was held to be inconsistent with the
innocence of the accused, but consistent with the
hypothesis that the appellant is a prime accused in the
commission of murder of his wife.
Here, it is material to note the word "normally resided"
The Supreme Court observed with approval of following
observations from State of West Bengal Vs Mir Mohammad Omar
& Ors (2000) 8 SCC 382:
"18. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be
taken as a fossilised doctrine as though it admits no
process of intelligent reasoning. The doctrine of
presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the
traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic coverage
the offenders in serious offences would be the major
beneficiaries, and the society would be the casualty ."
19. The learned Additional Sessions Judge held that it was not
proved that the occurrence had taken place inside the house as no
blood stained soil was seized and was sent for chemical analysis and
there were some contradictions in the evidence regarding the place,
where body was found. In this regard we find that as per evidence of
P.W.2 Gajendra on the call of police patil of village, he had gone to the
house of the accused. He deposed that the body of Trimbak was lying
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in the house. He has described in detail the nature of injuries found
by him on the body. In his presence, inquest panchnama (Exh.25)
was drawn. Unfortunately, the Investigating Officer did not draw the
spot panchnama simultaneously. It is because when initially P.W.3
Vyankat had gone to lodge the F.I.R., the Investigating Officer had not
recorded it. The police unnecessarily indulged in practice of
verification of the statement made by P.W.3 Vyankat and after
watching the dead body in the house, the F.I.R. came to be registered.
This practice of police is deprecated. The police have no choice but to
register F.I.R. if the facts disclose cognizable offence. This practice of
verification has resulted into two discrepancies (1) A scene is created
that there was delay in lodging the F.I.R., and (2) The spot panchnama
is drawn late. The spot panchnama was drawn in presence of P.W.2
Gajendra, but it was drawn on next day in the morning. It was inside
the house.
20. It was brought on record that there was no door to the house
towards the northern side, where there was open ground. The
learned trial Judge mistakenly assumed that the house was open from
the northern side. It is to be assumed that there was wall on northern
side. There was no door on northern side does not mean that a house
would have no wall on one side. The door of the house was to the
eastern side. The inquest panchnama shows that the police and the
panchas had entered from the eastern side door and found the dead
body in the varandah of the house. The spot panchnama also shows
that the dead body was found in the varandah. Therefore, the stray
statement of P.W.7 P.S.I. Jadhav that body was in the courtyard of the
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house is certainly wrong. The Investigating Officer has taken
photographs of the dead body and those are on record. Those also do
not support his stand that the body was found in the courtyard. It was
the duty of the prosecutor as well as the trial Judge to seek
explanation of the Investigating Officer as to how he was deposing
contrary to the panchnamas drawn by him.
21. If the body is found in the varandah kept on clothes, where
there are tiles, it was not possible to collect blood mixed soil and the
occurrence itself cannot be doubted on this ground. It is nobody's
case that deceased Trimbak was murdered somewhere else and his
body was brought into the house. It was almost impossible for any
third person to do so. The Investigating Officer has stated that the
blood was lying on the ground on the spot of the incident. However,
he has not collected the blood on the ground on the spot. It is the
case of faulty investigation and the benefit of faulty investigation
cannot be given to the accused at every time. In U.P. Vs. Hari
Mohan, (cited supra), the investigation was not only faulty but bias
carried out with an object to save the accused. Still, the evidence on
record when found reliable was held sufficient to hold the accused
guilty.
22. In the present case, the accused have nowhere stated that
deceased Trimbak had gone out at odd hours of night and later on his
body was brought in their house in the circumstance they could have
no knowledge about the said fact. We find that there is no possibility
that deceased Trimbak was killed somewhere outside and his body
was brought and kept in the house.
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23. In the light of these facts, it was bounden duty of accused nos.1
and 2 to explain the situation and to furnish plausible explanation
which could have shown their innocence, but the accused have given
no explanation whatsoever. They have kept silence and that silence is
fatal in the light of their duty to speak in view of Section 106 of
Evidence Act.
24. It is obvious that dead body of Trimbak was in the house for a
considerable time in injured condition. Accused nos.1 and 2 were
residing in the same house and in all probabilities they must be aware
about the death of Trimbak, but they did not report it to anybody.
They made no efforts to take steps for cremation of the dead body.
The evidence of Investigating Officer that both the accused were
arrested in the same town on the same night shows that it was a case
of custodial death. The conduct of th accused in not reporting the
death to anybody and not taking steps for cremation is additional
incriminating circumstance against them.
25. Additional evidence of last seen together: Apart from this
evidence of custodial death, there is also evidence of last seen
together and evidence of disputes between accused nos.1 and 2 and
the deceased Trimbak.
26. P.W.3 Vyankat has lodged the F.I.R. He is son of maternal
cousin of deceased Trimbak. The enmity was tried to be brought on
record in the form of F.I.R. lodged by P.W.3 Vyankat's father against
the deceased Trimbak and accused no.2 for committing murder of
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Subabai who was P.W.3 Vyakat's father's mother's sister but it was
way back in 1965. It was shown that father of P.W.3 Vyankat not
having good relations with deceased Trimbak. That time, P.W.3
Vyankat (aged 35 years) was either not born or just born. If he would
have enmity with Trimbak, in that case, P.W.3 Vyankat would not have
tried to find out who has committed murder of deceased Trimbak.
Evidence on record shows that P.W.3 Vyankat is neighbour of
deceased Trimbak. He had every opportunity to observe what was
going on in the house of deceased Trimbak. He has categorically
stated that accused nos.1 and 2 were not maintaining deceased
Trimbak and, therefore, he had left village Lohara (Kd.) and was
residing at Lohara (Bk.). Lohara (Bk.) is 4 kms. away from Lohara
(Kd.). He stated that all the accused on 28.4.2000 brought deceased
Trimbak from Lohara (Bk.) to Lohara (Kd.) in a jeep of Shivaji Jadhav.
He was taken in the house of the accused nos.1 and 2 and thereafter
he was not seen alive by him. Accused nos.1 to 4 were moving in and
out of the house. On 1.5.2000, he received message from uncle of
wife of accused no.1 Satish that Trimbak was dead. He reported the
matter to police patil and then to police and then his body was found
there. The evidence of P.W.3 Vyankat, P.W.5 Kisan and P.W.6 Allahh
Baksh shows that the accused nos.1, 2 and 3 quarreled with the
deceased Trimbak. The evidence of P.W.5 Kisan that the deceased
was residing at Lohara (Bk.) for two months before 28.4.2000 has not
been challenged.
27. The suggestions by the accused disclose that deceased was
having monetary transaction with P.W.6 Allahh Baksh and had
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executed some deed in his favour. Allahh Baksh stated that he had
advanced Rs.1,21,000/- to the deceased Trimbak and he had filed two
suits, one for partition and other for recovery of money against
deceased Trimbak and accused nos.1 and 2. The evidence shows that
he was not allowed to enter the agricultural land. The evidence of
P.W.6 Allahh Baksh that deceased Trimbak was residing at his house
at Lohara (Bk.) is not well supported by any other witness and his
statement was recorded quite late. Therefore, it cannot be believed,
however, there is consistent evidence of P.W.3 Vyankat, P.W.5 Kisan
and P.W.6 Allahh Baksh that accused nos.1 and 2 were having
differences with the deceased Trimbak and they were quarreling with
him and, therefore, Trimbak was residing at Lohara (Bk.) for two
months. It is brought on record that accused no.2 Indubai has
submitted application before P.S.I. Lohara police station against him,
Allahh Baksh and one Vasant that they were giving threats to
deceased Trimbak in respect of agricultural land. There is evidence
that there was partition and separate lands were provided to each
including the deceased Trimbak, but there is evidence that land of the
deceased Trimbak was in possession of accused nos. 1 and 2. It is
obvious that deceased Trimbak must have entered into some
transaction in respect of his agricultural land with Allah Baksh which
was not liked by the accused. This evidence shows that accused
nos.1 and 2 had motive to commit murder of deceased Trimbak.
28. P.W.3 Vyankat, P.W.5 Kisan and P.W.6 Allahh Baksh have
deposed that on 28.4.2000 accused nos.1 and 2 brought deceased
Trimbak from Lohara (Bk.) to Lohara (Kd.) in a jeep of Shivaji Jadhav.
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Their evidence is consistent. Once it is held that deceased was
residing at Lohara (Bk.) for two months and his body was found at
Lohara (Kd.), it is obvious that he must have come from Lohara (Bk.)
to Lohara (Kd.). This fact was reported by P.W.3 Vyankat to the police
patil - P.W.2. The fact that accused Satish and accused Indubai, son
and wife of deceased Trimbak brought deceased Trimbak from Lohara
(Bk.) to Lohara (Kd.) would not be so significant to make a report to
the police since that time subsequent events were unforeseen.
29. P.W.3 Vyankat was having enmity with accused no.3, as he has
made allegations against him about misappropriation of society funds,
but there is no enmity between him and accused nos.1 and 2 so as to
falsely implicate accused nos.1 and 2.
30. Learned Advocate Mr Ghute Patil for the respondents relied on:
(I) Ghurey Lal Vs. State of U.P., 2008 (10) SCC 450
(II) Chandrappa & Ors. Vs. State of Karnataka, 2007(4) SCC
(III) C. Chenga Reddy Vs. State of A.P., 1996 AIR (SC) 3390
31. In Ghurey Lal's case, it is observed that "When the trial Court
has found the substratum of the evidence as false and serious
infirmities in the prosecution case, the appellate Court should be slow
in reversing the judgment of acquittal as the trial Court has advantage
to watch the demeanour of the witnesses. The reversal is justified
only when the acquittal is totally perverse or wholly unsustainable. It
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is settled law that the view taken by the trial Court is reasonable and
probable, the Court should not interfere."
32. There cannot be any dispute about the proposition of law in this
regard but we find that in the present case, the circumstantial
evidence forms complete chain and there is no scope for any
hypothesis consistent with the innocence of the accused nos.1 and 2.
However, in the present case, we find that the trial Judge has not
considered the clinching incriminating circumstance of custodial death
and the burden on the accused as per Section 106 of Evidence Act.
The reason for disbelieving P.W.3 is also not proper. Hence we find
that the view taken by learned trial Judge is not reasonable and
probable view and needs interference.
33. Thus, the evidence of custodial death coupled with evidence of
last seen together and previous dispute giving rise to a motive provide
a complete chain of circumstances showing the complicity of accused
nos.1 and 2. They were bound to give explanation about the events
that took place in their house, but they have not done so. Therefore,
they will have to be held responsible for the homicidal death of
deceased Trimbak.
34. We find that there is no reliable evidence to show complicity of
accused nos.3 and 4 in the crime. There is no evidence against
accused no.4 whereas evidence against accused no.3 is not reliable.
Hence, the appeal against accused nos.3 and 4 deserves to be
dismissed. However, we hold accused nos.1 Satish and accused no.2
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Indubai guilty for the offence punishable under Section 302 read with
Sec. 34 of Indian Penal Code.
35. Considering all the facts, we find that this case cannot come in
the exceptional category of the rarest of rare case and, therefore, the
imprisonment for life will be the proper sentence to accused nos.1 and
2. Since we are awarding lowest sentence, it is not necessary to hear
the accused on the point of sentence. Hence, we pass the following
order:
- ORDER -
(I) The appeal is partly allowed.
(II) Acquittal of accused no.1 - Satish Trimbak Rasal and accused
no.2 Indubai Trimbak Rasal in Sessions Case No.12/2001 of
Osmanabad Court is hereby set aside. Both the accused are held
guilty for offence punishable under Section 302 read with Sec.34 of
Indian Penal Code and sentenced to suffer imprisonment for life and to
pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for
twenty days each. They shall be entitled to set off of undertrial
detention period as per the rules.
(III) The appeal against accused no.3 - Vishwanath Shantaram
Gadhave and accused no.4 - Kamlakar Sopan Rasal stands dismissed.
The bail bonds of accused nos.3 and 4 stand cancelled. Bail bonds of
accused nos.1 and 2 are forfeited.
(IV) Accused no.1 Satish Trimbak Rasal and accused no.2 - Indubai
Trimbak Rasal shall surrender before the learned trial Judge within a
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period of fifteen days to undergo the sentence; failing which the trial
Judge shall take necessary steps for execution of the sentence.
(V) Muddemal property shall be preserved till the appeal period is
over.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
