Bombay High Court
Popat Laxman Tikhole vs The State Of Maharashtra on 14 December, 2017
Bench: T.V. Nalawade
Cri. Appeal Nos. 489, 591/02
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 489 OF 2002
Popat s/o. Laxman Tikhole,
Age 36 years, Occu. Agril.,
R/o. Gavanwadi, Tq. Shrigonda,
Dist. Ahmednagar. ....Appellant.
Versus
The State of Maharashtra
(Through P.S. Shrigonda
Dist. Ahmednagar) ....Respondent.
Mr. K.B. Khatke h/f. Mr. S.B. Talekar, Advocate for appellant.
Mr. S.J. Salgare, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 591 OF 2002
The State of Maharashtra
Through P.S. Shrigonda
Dist. Ahmednagar. ....Appellant.
Versus
Mangal w/o. Bapu Mote,
Age 25 years, Occu. Motewadi,
Tal. Shrigonda, Dist. Ahmednagar. ....Respondent.
Mr. S.J. Salgare, APP for appellant/State.
Mr. V.S. Bedre, Advocate for respondent.
CORAM : T.V. NALAWADE AND
ARUN M. DHAVALE, JJ.
RESERVED ON : 28/11/2017
PRONOUNCED ON : 14/12/2017
Cri. Appeal Nos. 489, 591/02
JUDGMENT : [PER T.V. NALAWADE, J.]
1) Both the appeals are filed against judgment and order of
Sessions Case No. 165/2001, which was pending in the Court of
learned 3rd Ad-hoc Additional Sessions Judge, Ahemadnagar. Accused
No. 1 is convicted and sentenced for the offences punishable under
sections 302 and 201 of Indian Penal Code (hereinafter referred to as
'IPC' for short) and he is sentenced to suffer imprisonment for life
and so, he has filed Criminal Appeal No. 489/2002. The respondent
from the Criminal Appeal No. 591/2002 was accused No. 2, but she is
acquitted of the aforesaid offences and so, the decision of acquittal is
challenged by the State. Both the sides are heard.
2) Deceased Bapu Mote was son of uncle of first informant
Bandu Mote. Accused No. 2 Mangal is the widow of deceased Bapu.
Accused No. 2 is daughter of maternal uncle of accused No. 1 Popat
and the deceased and the deceased was related to accused No. 1 as a
cousin from maternal side. Mother of the deceased and mother of
accused No. 1 were real sisters.
3) For about two years prior to the incident, accused No. 1
Popat had illicit relations with accused No. 2 Mangal. Popat used to
visit residential place of Bapu situated in village Motewadi frequently
and due to that there used to be quarrels between the deceased on
Cri. Appeal Nos. 489, 591/02
one side and accused on other. The deceased had disclosed to the
first informant (Bandu) and also to other brother (Bansi) that there
were quarrels on aforesaid count. He had also disclosed that Popat
had given threat to him when he had asked Popat to remain away
from his residential place. The deceased was having two issues at the
relevant time, but they were kids. Accused No. 1 Popat is resident of
village Gavhanwadi, Tahsil Shrigonda, District Ahmednagar.
4) On 8.8.2001 Bapu visited residential place of first
informant situated at the distance of 50 ft. from the house of Bapu
and there, he took dinner. He left for his house at about 9.00 p.m. At
about 11.30 p.m. on the night between 8th and 9th of August 2001
when first informant was sleeping in the courtyard of his house, he
heard shouts of Bapu coming from his house. The first informant
thought that probably thieves had entered the house of Bapu and so,
after informing his wife, he went towards the house of Bapu. When
he gave calls to Bapu from outside, initially nobody responded.
Another neighbour also came there by name Dina and both gave calls
to Bapu and then without opening door, accused No. 2 informed that
nothing had happened between her and the deceased and there was
no problem. Due to this, the first informant and Dina returned to their
respective houses. The first informant went to his other brother Bansi
to inform him about the incident, but Bansi also expressed that
Cri. Appeal Nos. 489, 591/02
quarrel between the deceased and accused No. 2 was not a new thing
and he should ignore it.
5) On 9.8.2001 at about 5.30 a.m. to 6.00 a.m. the first
informant again went to the house of Bapu. This time, he noticed that
the door of the house was open. When he inquired about Bapu,
accused No. 2 informed that Bapu had just left home after putting
clothes and nothing had happened between them on previous night.
6) The first informant then went to the field for work and in
the noon time, when he again visited the house of Bapu, he noticed
that Bapu was not at home. He learnt that accused No. 2 had gone to
village Andhalgaon to attend a function. As Bapu was not seen by him
for quite some time, he went to village Dhok Sangavi, to the house of
sister Kantabai to see as to whether Bapu had gone there, but Bapu
was not in Dhok Sangavi also.
7) On 10.8.2001 Kantabai, her husband and two brothers of
Bapu viz. Bandu and Bansi started searching for Bapu. They brought
accused No. 2 to Motewadi from Andhalgaon. They informed to Police
Patil of village Hingli that Bapu was missing. Police Patil advised to
give missing report to police and so, the two brothers of Bapu took
accused No. 2 to police for giving missing report and due to
Cri. Appeal Nos. 489, 591/02
insistence of the two brothers of Bapu, accused No. 2 gave report to
police. However, she informed that Bapu had probably gone to
Mumbai.
8) On 12.8.2001 during inquiry of missing report, police
called accused No. 1 to police station. The two brothers of Bapu also
went there. In the presence of panch witnesss and brothers of Bapu,
accused No. 1 admitted that on the night between 8th and 9th of
August 2001 at about 11.30 p.m., he and accused No. 2 had
murdered Bapu in the house of Bapu. He disclosed that he had
carried the dead body of Bapu after keeping it in a plastic bag and
gunny bag on his bicycle first to a field and from there he had shifted
the dead body on motorcycle of Gulab Pavade to the place situated
near village Nira and he had kept the dead body in a dilapidated
house.
9) Police, panchas and two brothers of deceased went with
accused No. 1 to the place where the dead body was kept by him. He
showed the Wada and then the dead body which was found to be
kept in plastic bag and then in a gunny bag. The first informant
identified the dead body. The dead body was in decomposed
condition. On 12.8.2001 itself Bandu gave report against accused
Nos. 1 and 2 and the crime at C.R. No. 164/01 came to be registered
Cri. Appeal Nos. 489, 591/02
in Shrigonda Police Station for the offences punishable under sections
302, 201 r/w. 34 of IPC.
10) During the course of investigation, police recorded
statements of witnesses, who include Bansi, brother of the deceased,
the person from whom motorcycle was collected by accused No. 1
and other persons. The panchanama of the spot where dead body
was found was prepared and panchanama of the house of Bapu was
also prepared. Blood was found in the house of Bapu on wall just
adjacent to the floor. One axe with handle which was having blood
stains was recovered and one Chaddar having blood stains was
recovered from the house of Bapu. These articles came to be sent to
C.A. office and blood was found on the articles taken over from the
house of Bandu. The death had taken place due to strangulation.
After completion of investigation, chargesheet came to be filed for
aforesaid offences against both the accused and the charge was
framed. The accused pleaded not guilty. They took the defence of
total denial. Prosecution examined in all nine witnesses. No defence
witness is examined. The Trial Court has believed the evidence given
as against accused No. 1, but the benefit of doubt is given to accused
No. 2.
Homicidal death :-
11) The record shows that the defence has not seriously
Cri. Appeal Nos. 489, 591/02
disputed that it is a case of homicide. The inquest panchanama on
the dead body was prepared in dilapidated Wada from where dead
body was recovered. Dr. Shantinath (PW 4), who conducted the P.M.
examination on the dead body is examined by prosecution to prove
the homicidal death. He found following injuries on the dead body.
(i) C.L.W. on left side of the head at the junction of
temporal parital and occipital region of size 4x3/4cm. x scalp
deep.
(ii) Groove mark on neck between chin and thyroid
cartilege around the neck 1cm. bteadth, circular.
According to Dr. Shantinath (PW 4), on internal examination, he
found following injuries.
(i) CLW on left side of the head at the Junction of
temporal parietal and occipital region of size 4x3/4 cm. x
scalp deep obilige. Brain liquified. Meningases patechical
haemorrhage present.
(ii) Larynx - congested.
(iii) Trachia rings broken and bronchi - congested
odematious, fluid of blood and congested foot (illegible
word). Right side heart full and left side empty.
Dr. Shantinath (PW 4) has given evidence that in addition to aforesaid
Cri. Appeal Nos. 489, 591/02
injuries, he found petachical haemorrhage in pleura. He found right
side of heart full of blood and left side empty and the bucal cavity nad
tongue prosteded. On the basis of aforesaid things noticed by him,
the doctor has given opinion that it is a case of homicide and the
death took place due to strangulation. The P.M. report prepared by
him is proved in his evidence as Exh. 41.
12) Dr. Shantinath (PW 4) has given evidence that the injuries
found on the head can be caused by stick. He has given evidence that
the injury found on the neck can be caused by rope and injury is of
such nature that two ends of rope must have been pulled by two
persons after circling of rope on the neck of the deceased. He has
deposed that in ordinary course of nature, the injury which was found
on the neck is sufficient to cause the death. Exh. 41 is consistent with
the oral evidence. Dr. Shantinath (PW 4) has, however, given
evidence that the death took place after six hours of the last meal.
Doctor has not given specific evidence as to how much hours or how
much days prior to P.M. examination the death had taken place. It is
already observed that the defence has not disputed that it is a case of
homicide and in the statement given under section 313 of Criminal
Procedure Code (hereinafter referred to as 'Cr.P.C.' for short) both the
accused have given answers like "I do not know" when the aforesaid
evidence was confronted to them. In view of these circumstances,
Cri. Appeal Nos. 489, 591/02
this Court holds that the prosecution has proved that Bapu died
homicidal death.
Other evidence :-
13) Bapu (PW 1) has given evidence on the relations between
the deceased, accused No. 1 and accused No. 2. The relation that the
mother of the deceased was real sister of mother of accused No. 1 is
not disputed. It is also not disputed that accused No. 2 is daughter of
maternal uncle of accused No. 1 and the deceased. The marriage
between the deceased and accused No. 2 had taken place 10 years
prior to the date of incident, but their issues were kids.
14) Bandu (PW 1) has given evidence that his house is
situated at the distance of 50 ft. from the house of deceased. He has
given evidence that there was illicit relation between accused Nos. 1
and accused No. 2 and due to that, there used to be quarrels
between the deceased and accused No. 2. He has given evidence that
deceased had warned accused No. 1, not to visit the residential place.
Bansi (PW 3), other brother of deceased has also given similar
evidence. It appears that his house is situated at longer distance, at
the distance of 100 ft. Thus, the evidence is given by these
witnesses, real brothers of deceased on motive.
15) The evidence of Bandu (PW 1) and Bansi (PW 3) and the
Cri. Appeal Nos. 489, 591/02
circumstances mentioned in the spot panchanama and also the cross
examination show that Bandu could have heard shouts of deceased, if
he was awake on the night between 8th and 9th of August 2001.
Further, it was possible atleast for Bandu (PW 1), first informant to
notice the incidents of quarrel which were taking place in the house of
Bapu as he was immediate neighbour of deceased. Further, the
defence itself has brought on the record that accused No. 1 used to
work in the field of deceased in the past, though he was working in
the fields of other farmers also from Motewadi.
16) Bandu (PW 1) has given evidence that on the day of
incident (Wednesday) at about 11.30 p.m. when he was at home, he
heard shouts and so, he woke up. He has deposed that he thought
that thieves had entered the house of Bapu and after informing his
wife that he was proceeding towards the house of Bapu, he went to
the house of Bapu. He has deposed that when he gave call to Bapu
from outside of house, initially no reply was given either by Bapu or
by accused No. 2. He has deposed that afterwards accused No. 2
informed to him that nothing had happened between them and she
asked him to return to his house. He has given evidence that another
neighbour Dina Mote had also come there and he had also given calls
to Bapu. His evidence shows that Bapu had not given response to
these calls. He has given evidence that he then went to the house of
Cri. Appeal Nos. 489, 591/02
Bansi situated at the distance of 100 ft. from his house and he
informed about the incident, but Bansi said that there used to be
quarrels between the deceased and his wife and so, he should not
pay attention to it.
17) Bandu (PW 1) has deposed that at 5.30 a.m. on the next
morning i.e. on 9th August 2001 he again went to the house of Bapu.
His evidence shows that on that occasion, the door of the house of
Bapu was in open condition and accused No. 2 faced him and
informed that Bapu had left the house after wearing shirt. He has
deposed that he then left the residential place for work. He has
deposed that at about 6.00 p.m. when he returned from the place of
work, he made inquiry about Bapu with his wife and the wife told that
she had not seen both Bapu and Mangal. He has given evidence that
he learnt from his wife that accused No. 2 had gone to Andhalgaon
for performing Pooja. His evidence shows that he could not see Bapu
from the night between 8th and 9th August 2001 and also on the
entire day of 9th.
18) Bandu (PW 1) has given evidence that on the next day, on
10th, Bansi and others brought accused No. 2 from Andhalgaon to
Motewadi and there, they made inquiry with her about Bapu. He has
deposed that accused No. 2 simply informed that he had left the
Cri. Appeal Nos. 489, 591/02
house after wearing shirt and so Police Patil was called and after
inquiry, Police Patil advised them to give missing report to police. He
has given evidence that due to this, accused No. 2 gave missing
report in police station. He has given evidence that Kantabai and her
husband Manik had also come there to make inquiry.
19) Bandu (PW 1) has given evidence that during inquiry
accused No. 2 informed them that her husband had gone to Mumbai
to one Rangnath Pandhare for collecting money. The evidence of
Bandu (PW 1) shows that on 10th, they had left accused No. 2 in the
police station. Bandu has given evidence that on Sunday when he
went to police station, accused Nos. 1 and 2 gave confession about
the crime. He has given evidence that they informed that they had
kept the dead body in gunny bag and they had left the dead body at
village Gulung. Though such evidence is given, he has given specific
evidence that it is accused No. 1 Popat only, who had taken the police
and brothers of Bapu to show the dead body.
20) Bandu (PW 1) has given evidence that accused No. 1 took
police and them to the place which was dilapidated Wada and there,
the dead body was found. He has given evidence that he then gave
report against the accused persons. The report is proved in his
evidence as Exh. 29. He has given evidence that he identified the
Cri. Appeal Nos. 489, 591/02
dead body.
21) In the cross examination, Bandu (PW 1) has admitted
that the deceased and accused No. 2 were happy in married life. It is
suggested to Bandu (PW 1) in the cross examination that accused No.
1 was helping this family by working in the field. Suggestions are
given to Bandu (PW 1) in the cross examination that the relations
between Bapu and his brothers were strained over sharing of water of
common well, but those suggestions are denied. Some suggestions
are given to create a probability that there were houses of other
villagers, nearer to the house of the deceased, than to the house of
Bandu (PW 1). But, those suggestions are not admitted directly.
Further, the documents like spot panchanama need to be considered
in that regard. The evidence of Bandu (PW 1) shows that he is
illiterate and does not understand the distance in feet and even in
respect of time, he has given evidence that he had collected
information that the time of incident of 11.30 p.m., after making
inquiry with others. It is brought on the record in his cross
examination that he gave statement to police that on 9th at 5.30
a.m. he had entered the house of Bapu to make inquiry about Bapu
with accused No. 2. This circumstance is not that relevant as in
ordinary course, he was not expected to see carefully the things
inside even if he had entered the house. He has fairly admitted that
Cri. Appeal Nos. 489, 591/02
on the next morning the door of the house of Bapu was open and
accused No. 2 faced her to give him information. In the cross
examination, he has admitted that the relatives of Bapu had asked
the deceased and then the deceased had given missing report. The
evidence as a whole of Bapu (PW 1) needs to be considered. Though
he has admitted that Bapu was happy in married life, there is specific
evidence about the illicit relations between accused Nos. 1 and 2 and
due to the isolated admission, this evidence given on motive cannot
be discarded.
22) In the cross examination of Bandu (PW 1), he has given
evidence that after giving of missing report, they had left accused No.
2 in the police station. It is brought on the record that on the next
day they had gone to police station with accused No. 1 and at that
time, they had noticed that accused No. 2 was in custody of police. It
is brought on the record that police made inquiry with accused No. 1
in his presence and he was in company of police for entire day when
accused No. 1 was showing the places to police. However, the witness
has admitted that accused No. 2 was not in their company when
dilapidated Wada was shown by accused No. 1.
23) Exh. 29, the F.I.R. given by Bandu (PW 1) is consistent on
material points with the substantive evidence given by Bandu (PW 1).
Cri. Appeal Nos. 489, 591/02
The substantive evidence and contents of Exh. 29 show that accused
No. 1 had given statement to police and then he had taken police and
others to the said house, dilapidated Wada where the dead body of
Bapu was found. The Wada was not in use.
24) The evidence of Bandu (PW 1) given as against accused
No. 2 is of the nature of last seen or the custodial death, if it is
considered along with the information supplied by accused No. 2 to
Bandu as per the version of Bandu (PW 1). In that regard, the
missing report given by accused No. 2 to police also need to be
considered.
25) In the missing report at Exh. 30 dated 10.8.2001 which is
admitted by the defence following things were informed by accused
No. 2.
(i) On 9.8.2001 at about 6.00 a.m. accused No. 2 had left
Motewadi for Andhalgaon, Tahsil Shirur, for function and at
that time, the deceased was at home in Motewadi.
(ii) The deceased had informed to accused No. 2 that he
wanted to go to Mumbai on that day i.e. 9th to collect
money from Rangnath Pandhare.
(iii) On 10.8.2001 persons from Motewadi had come to
accused No. 2 and they had insisted her to give missing
Cri. Appeal Nos. 489, 591/02
report to police.
(iv) Accused No. 2 had told to the persons including
brothers of the deceased that the deceased had gone to
Mumbai, but the persons from Motewadi were not convinced
and they had insisted her to give missing report to police,
and
(v) When the deceased left, he was having clothes like
black full open shirt, black pant and he had left Motewadi on
9.8.2001 at about 7 to 8 a.m. for Mumbai. However, she
contended that she had left for Andalgaon at about 6.00
a.m.
26) The contents of Exh. 30 show that the information
supplied by accused No. 2 is little bit different from the version given
by Bandu (PW 1). However, one thing needs to be kept in mind that
accused No. 2 admitted in the missing report given by her on 10th
that on the night between 8th and 9th the deceased was at home.
This report is relevant under section 8 of the Evidence Act.
27) The evidence of Bansi (PW 3), other brother of deceased
is similar to the evidence of Bandu (PW 1). Bansi has given evidence
that he was present in the police station when accused No. 2 gave
missing report. He has given evidence that he was present in the
Cri. Appeal Nos. 489, 591/02
police station when accused No. 1 gave statement to police (the
statement which can be used under section 27 of the Evidence Act).
The evidence of Bansi (PW 3) shows that accused No. 1 had informed
to police that he had kept the dead body of Bapu in Wada from village
Gulunj. He has deposed that it is accused No. 1 who had taken police
and others to aforesaid Wada and from there dead body of Bapu was
recovered which was found to be kept in gunny bag. He could give
description of said Wada. Thus, his evidence is on motive and also the
circumstances which are relevant under sections 8 and 27 of the
Evidence Act. He has given specific evidence that Bapu had informed
him about the illicit relations between accused Nos. 1 and 2 and this
evidence is admissible under section 32 of the Evidence Act. His
evidence remained ushattered in the extensive cross examination.
28) Bapu Sonalkar (PW 7) is the panch witness, who is
examined to prove the statement made by accused No. 1 to police
(under section 27 of the Evidence Act). He has deposed that on
12.8.2001 accused No. 1 gave statement to police in his presence
that he had kept the dead body of Bapu in a big house from Gulung.
After giving evidence on the statement, Bapu Sonalkar (PW 7) has
given evidence that accused No. 1 took police and panchas to village
Gulung. He has given evidence that the said house was not in use of
anybody and police and panchas followed the accused when he went
Cri. Appeal Nos. 489, 591/02
and the spot was discovered. He has given evidence that inside of the
dilapidated house, there was a tree and near the tree, there was
gunny bag containing dead body. He has given evidence on the
position of the dead body which was in tied condition. The
panchanama is proved as Exh.47 and in this document, there is not
only the statement of accused No.1, but there is also the incident of
seizure of the articles which were found with the dead body.
29) Exh. 47 contains the statement of accused No. 1 and it is
of following nature.
(i) The accused first narrated his illicit relations with
accused No.2.
(ii) The accused then narrated the incident of murder
committed in the house of deceased.
(iii) The accused then narrated the incident of shifting the
dead body on bicycle in a sack to the field and then to the
aforesaid Wada and
(iv) The accused specifically stated about the place as
follows :-
"The dead body was kept in Wada constructed in stones and
Wada is situated before village Nira and it is situated on
barren land, Malran and he was ready to show that spot."
Cri. Appeal Nos. 489, 591/02
In view of the object behind the provision of section 27 of the
evidence Act and limitations mentioned in it, the last mentioned para
viz. para (iv) from Exh. 47 can be used as a statement under section
27 of the Evidence Act. The challenges raised to this evidence are
being considered at later stage.
30) Gopinath (PW 8), PSI, to whom statement under section
27 of the Evidence Act was given has deposed that on 12.8.2001
accused No. 1 gave statement in the presence of panch witnesses
and he informed that he had kept the dead body at village Gulung
situated on Supa-Nira road. Gopinath (PW 8) has deposed that
accused No. 1 then took them towards Gulung and then to hilly area
where there was dilapidated house. He has deposed that in that
house accused pointed out a gunny bag containing the dead body.
Gopinath (PW 8) has given evidence that Bandu (PW 1) and Bansi
(PW 3) were present with him when accused showed the spot and
these brothers identified the dead body of Bapu.
31) In the present matter, there is the evidence of aforesaid
nature of Police Officer to whom the statement was made and also of
the panch witness in whose presence the statement was made.
Further, there is the evidence of two brothers of the deceased on the
statement given by accused No. 1 under section 27 of the Evidence
Cri. Appeal Nos. 489, 591/02
Act. In Exh. 47, the names of these two brothers are mentioned. The
record of the case shows that no probability is created by the defence
that the aforesaid place was known to police or any other person had
given this information prior to the information given by accused No.
1.
32) Panch witness Bapu Sonalkar (PW 7) has given evidence
that on 13.8.2001 he was again called by police, but this time to the
house of deceased Bapu from Motewadi. He has given evidence that
search of this house was taken on 13.8.2001 and it was noticed that
the house was cleaned recently by using cow dung. He has given
evidence that they noticed some blood stains on wall of the house in
inside portion and this portion was just touching the floor of the
house. He has given evidence that one axe with handle on which
there were blood stains was recovered and one bed-sheet was also
recovered from this house. These articles were taken over and earth
sample mixed with blood and also ordinary sample of earth from the
house was collected and they were closed and sealed in separate
packets. He has identified the articles like axe, Article No. 12 and
bed-sheet as Article No. 13 in the Court and in his evidence,
panchanama is proved as Exh. 48. The document is consistent with
oral evidence of Sonalkar (PW 7). There is also evidence of Gopinath
(PW 8), Investigating Officer on Exh. 48.
Cri. Appeal Nos. 489, 591/02
33) From the record, it can be said that accused No. 2 had
given incorrect information about the clothes of deceased. The
aforesaid record shows that on the dead body, there was white
baniyan and white Payajama.
34) Gopinath (PW 8), Investigating Officer has given evidence
that he arrested the accused on 12.8.2001 after the discovery of the
dead body. The F.I.R. was given by Bandu (PW 1) after discovery of
the dead body. The articles taken over by Investigating Officer were
sent to C.A. office on 5.9.2001 with covering letter at Exh. 59. The
C.A. reports at Exhs. 60 and 61 show that human blood was detected
in earth sample collected from the house of deceased, on axe and
also on Chaddar taken over from the house of deceased. It was
human blood, but the group of blood could not be determined.
35) Gulab Pavade (PW 6) is resident of village Gavhanwadi,
village of accused No. 1. He owns motorcycle bearing No. MH-17/E-
3483. He has given evidence that on Wednesday the accused had
requested him to allow to take his motorcycle as he wanted to bring
shoes for his son from Shirur and he had allowed him to take the
motorcycle at 5.00 to 5.30 p.m. and on Wednesday and at 6.00 p.m.
the motorcycle was returned by the accused. He has deposed that on
Cri. Appeal Nos. 489, 591/02
next day, his wife informed that accused No. 1 had again taken the
motorcycle and that was done at about 6.00 to 6.15 a.m. (on
9.8.2001). He has deposed that at about 1.00 p.m. his motorcycle
was found parked at his house. Thus, he has tried to say that
between 6.00 a.m. and 1.00 p.m. of 9.8.2001 the motorcycle was
with accused No. 1. His wife is not examined and as there was no
personal knowledge to Gulab (PW 6), his evidence that accused had
taken the motorcycle with him on 9th in the morning cannot be used
against accused No. 1. In the cross examination, it is suggested to
this witness that accused used to take his motorcycle frequently.
There is the evidence on seizure of motorcycle, but nothing
incriminating was found on the motorcycle.
36) Suryakant (PW 5), Revenue Circle Officer is examined by
the prosecution to prove the map of the house of accused showing
the location of the houses of witnesses. Exh. 44, the map shows that
from the house of deceased the house of Bandu (PW 1) is situated at
the distance of 40 ft. The houses of deceased and Bandu (PW 1) were
having country tiles and roof of wooden structure, having slope on
two sides. Though there was one more house of Sopan Mote in the
vicinity of the house of deceased, the house of Sopan was in R.C.C.
construction and so, there was little possibility of hearing of noise by
Sopan. Exh. 44 shows that there was road in front of houses of
Cri. Appeal Nos. 489, 591/02
deceased and Bandu (PW 1) and there was no other house in the
vicinity. Thus, Exh. 44 shows that if there was noise of shouting
coming from the house of deceased, Bandu (PW 1) could have heard
those shouts.
37) The evidence of spot panchanama prepared about the
house of deceased shows that human blood was found in this house
in the earth sample. Human blood was found on Chaddar and on the
handle of the axe. In ordinary course, these circumstances can be
used against accused No. 2, widow of deceased as admittedly she
was cohabiting with the deceased in that house. However, in view of
the other circumstances, it was necessary for prosecution to prove
that the murder had taken place in that house and at the time when
accused No. 2 was present in that house. Thus, fixing of time of
incident was necessary for prosecution and on that there is oral
evidence of Bandu (PW 1) of aforesaid nature.
38) Dr. Shantinath Kamate (PW 4), who conducted the P.M.
examination has given evidence in cross examination that the death
took place after 6 hours of the last meal. There is such mention in the
P.M. report at Exh. 41 also. Bandu (PW 1) has not given evidence on
the time when the deceased had taken last meal, though he was
expected to do so. In view of evidence of Bandu (PW 1) that on that
Cri. Appeal Nos. 489, 591/02
day at about 11.30 p.m. he was resting probably after taking dinner,
it can be said that his brother must have taken dinner between 8.00
and 10.00 p.m. on 8.8.2001. If the deceased had taken the last meal
between 8 and 10 p.m. of 8th, it does not look probable that he died
at about 11.30 p.m. in view of the opinion given by the doctor. Thus,
the time given by Dr. Shantinath (PW 4) does not match with the oral
evidence given by Bandu (PW 1) which can be used against accused
No. 2. Due to the evidence given by Dr. Shantinath (PW 4), the case
as against accused No. 2 has become week.
39) Admittedly, on 9.8.2001 accused No. 2 left for
Andhalgaon and that was done in the early morning. The prosecution
witnesses have admitted that accused No. 1 used to visit the house of
deceased and that too frequently. Accused No. 1 is the close relative
of deceased. The description of dead body given in inquest
panchanama and P.M. report shows that it was decomposed. P.M. was
conducted on 12.8.2001 at about 16.45 hours. It can be said that
apparently, the death had taken place more than 3 days prior to the
time of P.M. examination. The missing report was given on 10th and
it was informed by accused No. 2 to police that at 6.00 a.m. when
she left Motewadi, the deceased was alive. In view of these
circumstances and the opinion of the doctor, it has become difficult to
fix the time of death of Bapu. As accused No. 1 used to visit the
Cri. Appeal Nos. 489, 591/02
house of deceased, the circumstance of presence of human blood in
the house of Bapu cannot be called as convincing piece of evidence as
against accused No. 2. There is no other circumstantial check in
respect of the case as against accused No. 2 and even blood stained
clothes of accused No. 2 are not recovered.
40) The aforesaid evidence shows that there is the evidence
as against accused No. 1 of following nature.
(i) Motive and
(ii) Evidence of his statement which can be considered
under section 27 of the Evidence Act and also under section
8 of the Evidence Act.
41) For the State, reliance was placed on some reported cases
to show that the aforesaid evidence given as against accused No. 1
can be used to base conviction. The cases are as under :-
(i) (2006) 10 SCC 151 [Deepak Chandrakant
Patil Vs. State of Maharashtra],
(ii) (2009) 14 SCC 582 [Ningappa Yallappa
Hosamani and Ors. Vs. State of Karnataka and
Ors.].
In the second case cited supra, the Apex Court upheld the conviction
for the offences punishable under sections 302 and 201 of IPC when
the dead body was recovered on the basis of statement given under
Cri. Appeal Nos. 489, 591/02
section 27 of the Evidence Act. In the first case cited supra, there was
evidence on 'last seen' and the conviction given for the offence
punishable under section 32 of IPC was upheld. There was also
evidence under section 27 of the Evidence Act due to which there was
the discovery of dead body.
42) The learned counsel for the accused placed reliance on
some reported cases. In the case reported as 2014 CJ (SC) 976
[Sangili @ Sanganathan Vs. State of Tamil Nadu], there is
discussion and interpretation of section 27 of the Evidence Act. The
Apex Court has made observations with regard to the portion of
statement given by accused No. 1 which can be used under section
27 of the Evidence Act. In the case reported as 1998 CJ (SC) 537
[Manoranjan Singh Vs. State of Delhi], the Apex Court held that
the accused was not in custody, no offence was registered and so,
section 27 of the Evidence Act was not applicable. In the case
reported as 2011 CJ (SC) 1429 [Wakkar and Anr. Vs. The State
of U.P.], the Apex Court held that in the case which rests mainly on
circumstantial evidence, motive is relevant. There is no dispute over
these propositions. But, due to absence of motive, the other evidence
which is sufficient to bring home the guilt of the accused cannot be
discarded. In the case reported as (2014) 11 SCC 129 [Lalit
Kumar Yadav alias Kuri Vs. State of Uttar Pradesh], the scope
Cri. Appeal Nos. 489, 591/02
and ambit of provision of section 27 of the Evidence Act is discussed
by referring the previous cases. The observations are at para Nos. 29
and 31 :-
"29. In Anter Singh v. State of Rajasthan, this Court
noticed the scope and ambit of Section 27 of the
Evidence Act and observed: (SCC p. 665, para 16)
"16. The various requirements of the section can
be summed up as follows:
(1) The fact of which evidence is sought to be
given must be relevant to the issue. It must be
borne in mind that the provision has nothing
to do with the question of relevancy. The
relevancy of the fact discovered must be
established according to the prescriptions
relating to relevancy of other evidence
connecting it with the crime in order to make
the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in
consequence of some information received
from the accused and not by the accused's
own act.
(4) The person giving the information must be
accused of any offence.
(5) He must be in the custody of a police
officer.
(6) The discovery of a fact in consequence of
information received from an accused in
custody must be deposed to.
Cri. Appeal Nos. 489, 591/02
(7) Thereupon only that portion of the
information which relates distinctly or strictly
to the fact discovered can be proved. The rest
is inadmissible."
30. .......
31. In Bodhraj v. State of J & K, it was held that a
statement even by way of confession made in police
custody which distinctly relates to the facts discovered
is admissible in evidence against the accused. The
statement which is admissible under Section 27 is the
one which is the information leading to discovery. Thus
what is admissible being the information, same has to
be proved an not the opinion formed on it by the police
officer. The exact information given by the accused
while in custody which led to the recovery of the article
has to be proved; the exact information must be
adduced through evidence."
There is no dispute over the proposition made by the Apex Court in
the case cited supra.
43) The facts and circumstances of each and every case are
always different. It is the duty of the Court to first see the provisions
of the Act, the limitations given by the legislation and also the object
behind the provisions. Some limitations are given to use the
statement recorded under section 162 of Cr.P.C. and those limitations
are mentioned in section 162 of Cr.P.C. itself. However, in the same
Cri. Appeal Nos. 489, 591/02
provision, the statement made under section 27 of the Evidence Act
is excluded. The provision of section 162 (1) of Cr.P.C. is as under :-
"162. Statements to police not to be signed: use of
statements in evidence.- (1) No statement made by any
person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to
writing, be signed by the person making it; nor shall
any such statement or any record thereof, whether in a
police diary or otherwise, or any part of such
statements or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of
any offence under investigation at the time when such
statement was made."
The other provision excluding the provision of section 27 of the
evidence Act (sub-section (2) of section 162 of Cr.P.C.) from aforesaid
limitations runs as under :-
"(2) Nothing in this section shall be deemed to apply to
any statement falling within the provisions of clause (1)
of section 32 of the Indian Evidence Act, 1872 (1of
1872), or to affect the provisions of section 27 of that
Act."
44) The wording of provision of section 162 (1) of Cr.P.C.
shows that a separate record of statement is possible, but statement
can be found in 'any record'. There is no prohibition to mention the
statement in the panchanama. The panchanama is also prepared
when police want to create memorandum of statement. If in the
Cri. Appeal Nos. 489, 591/02
same document, the incident of seizure of articles is also mentioned,
that circumstance cannot come in the way of prosecution if the
prosecution wants to prove that the statement was recorded in the
panchanama. Thus, particular portion of seizure panchanama in
which there is statement of accused can be proved.
45) Ordinarily, Police Officer to whom statement is made is
expected to prepare memorandum of statement in some form like
mentioned above and if the memorandum is prepared in the presence
of panch witnesses, by examining panch witnesses the statement can
be proved by the prosecution. The statement can be proved by
examining Police Officer also to whom statement was made. What is
required in law is to prepare the record as mentioned in section 162
(1) of Cr.P.C. and that is done to see that no prejudice is caused to
the accused. Thus, the evidence of prosecution on the statement of
accused cannot be discarded only because the statement is
mentioned in the seizure panchanama.
46) The aforesaid provisions and the provision of section 27 of
the Evidence Act show that the signature of the accused is not
required to be obtained on the statement. But, if signature of accused
is obtained on the memorandum of the statement or on the
panchanama, the statement cannot be discarded. It can be said that
Cri. Appeal Nos. 489, 591/02
as provided in section 100 of Cr.P.C. signature of a person is obtained
on seizure panchanama/list if some articles are being taken over by
the police which probably belong to the said person and the signature
is obtained in token of having received such copy or list. Only
because there is no restriction to obtain signature on the statements
given under section 27 of the Evidence Act and to have some effect,
police obtain signature of accused on the memorandum of the
statement. But in that case also the absence of signature is not a
circumstance due to which the evidence given on the statement of
the accused can be discarded.
47) Section 27 of the Evidence Act runs as under :-
"27. How much of information received from
accused may be proved - Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered,
may be proved."
To ascertain as to whether the statement is admissible under section
27 of the Evidence Act, the Court is expected to ascertain the
following things.
(i) A person who made statement is accused of any
Cri. Appeal Nos. 489, 591/02
offence, and
(ii) He was in custody of Police Officer.
48) In the case reported as AIR 1960 SC 1125 [State of
Utter Pradesh Vs. Deoman Upadhyaya], the term 'person accused
of any offence' is considered by the Apex Court and it is held that the
term is only descriptive of the person against whom the statement is
provable. It is laid down that the term does not predicate a formal
accusation against the said person at the time of making statement
which is sought to be proved.
49) The relevant portion of provision of section 46 (1) of
Cr.P.C. runs as under :-
"46. Arrest how made. -(1) In making an arrest the
police officer or other person making the same shall
actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody
by word or action."
The aforesaid provision shows that there can be submission to the
custody of police by a person by word or action. In the case of
Deoman cited supra, it is laid down that when the person not in
custody of police approaches the police and gives statement, he may
be deemed to have surrendered himself to the custody of police and
may be deemed to be in custody of police. In the present matter, the
Cri. Appeal Nos. 489, 591/02
oral evidence already discussed shows that accused No. 1 was taken
to police station on 10.8.2001. It can be said that as soon as he gave
information regarding commission of the offence by him, he had
surrendered himself before police. Thus, in the present case, though
the crime was not registered against accused No. 1, when he gave
aforesaid statement to police, the provision of section 27 of the
Evidence Act became applicable against him.
50) The aforesaid discussion shows that only due to the
statement given by accused No. 1, the dead body of Bapu came to be
recovered and that circumstance was within the knowledge of
accused No. 1 only. In view of provision of section 27 of the Evidence
Act and also section 8 of the Evidence Act, this circumstance needs to
be considered against the accused. Further, there was motive for the
crime. Thus, there is legally admissible evidence as against accused
No. 1 and inference is easy on the basis of that evidence that it is the
accused No. 1, who committed murder of Bapu and it is accused No.
1, who had shifted the dead body from the place of murder to the
aforesaid dilapidated Wada. Due to the circumstances already
discussed, this Court holds that the benefit of doubt needs to be
given to accused No. 2, though she had also motive for the crime. It
can be said that the circumstances have created suspicion against
her, but due to aforesaid lacuna in the case of prosecution, she
Cri. Appeal Nos. 489, 591/02
cannot be convicted. This Court holds that it is not possible to
interfere in the decision of the Trial Court by which accused No. 1 is
convicted and by which accused No. 2 is acquitted. In the result, both
the appeals stand dismissed. The accused No. 1 - Popat s/o. Laxman
Tikhole is to surrender to his bail bonds for undergoing sentence.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
