Bombay High Court
Gajendra Babu Gorad And Another vs The State Of Maharashtra on 17 July, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.276 OF 2013
1) Gajendra s/o Babu Gorad,
Age-32 years,
2) Sau Padmini w/o Gajendra Gorad,
Age-25 years,
Both R/o-Arali (Dahyachi),
Tq-Akkalkot, Dist-Solapur,
At present: R/o-Gorad Vasti-
Village, Nilgaon Shivar,
Tq-Tuljapur, Dist-Osmanabad
...APPELLANTS
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.V.R. Dhorde Advocate for Appellants.
Mr.K.S. Patil, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 11TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 17TH JULY, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
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Judgment and order dated 20th June, 2013, passed
by the Sessions Judge, Osmanabad in Sessions Case
No.55 of 2012 thereby convicting accused No.1/
Appellant No.1 - Gajendra Babu Gorad and accused
No.2/Appellant No.2 - Sou. Padminbai Gajendra
Gorad for the offence punishable under Section 302
read with 34 of the Indian Penal Code (for short
"I.P. Code") and sentencing them to suffer
imprisonment for life and to pay fine of
Rs.25000/- each, and in default, to suffer further
rigorous imprisonment for five years each.
2. The prosecution case, in brief, is as
under:-
A) It is the case of the prosecution that,
during intervening night of 26th December, 2011 to
27th December, 2011, accused persons in
furtherance of their common intention,
intentionally caused death of Santosh Nagnath
Gorad.
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B) Informant is the father of the deceased
Santosh Gorad. Deceased Santosh met with homicidal
death. He died due to shock due to hemorrhagic
shock and throat cut injury. He sustained two of
such fatal injuries, one on head, the vital part,
causing hemorrhage and another grievous injury on
neck. Both the injuries are sufficient in ordinary
course of nature to cause death.
C) The family of the deceased consisting of
his wife and children, parents, brother and wife
of brother, resides in habitant, called "Gorad
Vasti". Inter-se, both accused are husband and
wife. They reside nearby and in the Gorad Vasti.
The dead body of the deceased Santosh was found in
the first room, after entrance on right hand side
of house of accused lying in a pool of blood on a
blanket. The accused persons and informant know
each other not only because they are neighbourers
but because they are close relatives. Accused No.1
is cousin of deceased. PW-1 Nagnath is father,
PW-2 Vithabai is wife and PW-3 Anil is the brother
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of the deceased.
D) It is the prosecution case that, there
were illicit relations in between Santosh and
Padminbai since 1 and 1/2 years prior to the
incident. It is the case of the prosecution that
the deceased was called by accused for dinner on
earlier night. The deceased went to attend the
dinner in the house of accused persons. Therefore,
PW-1 Nagnath, PW-2 Vithabai and PW-3 Anil all
state that the deceased was last seen in the
company of accused persons.
E) It is further the case of the prosecution
that on the day of incident, at about 1.00
O'clock, between intervening night of 26th
December, 2011 to 27th December, 2011, PW-3 Anil
woke up for the purpose of starting electric pump
installed from inside the well, so as to fetch the
water and give it to the field. While returning
back from the well, PW-3 Anil saw both accused
hurriedly going by a path way leading to village
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Nilegaon at about 2 O'clock in that night, and he
asked them about Santosh who was with them during
night for a dinner, but they did not pay heed to
Anil and went away speedily on the path-way.
F) It is the case of the prosecution that
thereafter PW-3 Anil went to the house of Gajendra
and peeped through the window and found that dead
body of Santosh was lying in the house of
Gajendra. After hearing shouts of Anil, PW-1
Nagnath and PW-2 Vithabai also came there and saw
the dead body of Santosh lying in the house of
accused.
G) On receiving the information about the
incident, Police Station Officer directed the
PW-10 Baburao Wakodkar, P.S.I. to visit the spot.
He visited the spot of incident. PW-1 Nagnath
informed him about the incident. Thereafter
Nagnath reached to the police station and as per
the information given by Nagnath, PW-10 Baburao
Wakodkar registered the First Information Report
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bearing Crime No.182 of 2011 under Section 302
read with 34 of the I.P. Code and handed over
investigation to PW-11 API Shetkar. After arrests
being made, accused allegedly made voluntary
disclosure in respect of place where their clothes
and weapons used for offence, were kept in lonely
place of their knowledge.
H) From in front of their house from the
fodder, an axe, stone roller and clothes put on by
both accused on their person at the time of
committing of murder as per their memorandum have
been produced during the course of investigation.
All the clothes were stained with human blood.
I) The investigating Officer conducted spot
panchnama, inquest panchnama and sent the dead
body for post-mortem for knowing the exact cause
of death. The Investigating Officer contacted the
persons acquainted with the facts of the case and
reduced their statements into writing, sent the
muddemal for chemical analysis with carrier PW-9.
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After completion of investigation, the
Investigating Officer submitted charge-sheet in
the Court of J.M.F.C., Tuljapur. In due course the
J.M.F.C., Tuljapur committed the case to the
Sessions Court.
J) A charge for an offence punishable under
Section 302 read with Section 34 of the I.P. Code
was framed against both the accused and the same
was explained to them. The accused pleaded not
guilty and claimed to be tried, with the defence
of denial and raising plea of alibi. According to
the accused, door of their house was shut from
outside without lock, when they were out station
and some one must have killed the deceased and
thrown him in their house and they are innocent.
3. After recording the evidence and
conducting full fledged trial, the trial Court
convicted both the accused/ Appellants for the
offence punishable under Section 302 read with 34
of the I.P. Code and sentenced them to suffer life
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imprisonment and to pay fine, as afore-stated.
Hence this Appeal is preferred by the original
accused challenging the conviction and sentence.
4. Mr. V.R. Dhorde, learned counsel
appearing for the Appellants, referring to the
grounds taken in the Appeal, submitted that the
prosecution has not brought on record to show that
the Appellants were in the house on the
intervening night of 26th December, 2011 and 27th
December, 2011 and that the Appellants have caused
death of Santosh. He further submits that the
learned Sessions Judge has observed that, there is
no explanation as to how the dead body of the
deceased was found in the house of the accused
persons, and convicted the Appellants on surmises
and conjectures, when admittedly there is no eye
witness and the evidence is only circumstantial.
The prosecution has miserably failed to prove that
the alleged incident took place in the house of
the Appellants. The learned Sessions Judge erred
in holding that the Appellants had called Santosh
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for dinner and they were present in the house,
when the evidence of PW-1 Nagnath is hear-say. The
evidence of PW-1 Nagnath, PW-2 Vithabai and PW-3
Anil that deceased Santosh was taken for dinner by
the Appellants, is false and incorrect. He further
submits that the testimony of PW-1, PW-2 and PW-3
clearly indicates that there is no evidence of
illicit relation between deceased Santosh and
Appellant No.2. The evidence of PW-3 Anil is
exaggerated and there are serious omissions and
contradictions in his evidence and the same is not
trustworthy. The oral testimony of prosecution
witnesses PW-1, PW-2 and PW-3 that they have seen
the dead body at 2.00 a.m. from the window is
unbelievable, as the prosecution has not adduced
any evidence to show that there was any source of
light in the said room. The First Information
Report (in short "FIR") registered at the behest
of PW-1 Nagnath, father of deceased, is also an
afterthought. The evidence of panch witness PW-4
Nagnath Dombale cannot be believed as he is a got
up witness and he is not resident of the said
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village. Panch witness PW-5 Dattatraya cannot be
relied upon as admittedly he is a habitual police
witness.
. Learned counsel appearing for the
Appellants further submits that even though there
are villagers residing in houses in the said
locality, nobody has seen Santosh at his home at
9.00 p.m. on 26th December, 2011 and that he was
called by the Appellants and in fact he had gone
to the house of the Appellants. Therefore, the
theory of 'last seen together' is not at all
proved as per the submission of learned counsel.
He further submits that the clothes were seized on
27th December, 2011 and those were sent for
chemical analysis on 2nd January, 2011, and there
is no explanation as to why the Muddemal articles
were kept in the police station till 2nd January,
2011 without any seal after seizure of said
articles. There are various omissions and
contradictions in the evidence of PW-11 Suresh and
the same cannot be relied upon.
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. Learned counsel further submits that in
the FIR PW-1 Nagnath has not stated that PW-3 Anil
stated him that he woke up at 1.30 to 2.00 so as
to start the electric pump for watering the crop
and at that time he saw the Appellants walking
fast on the path way to Nilegaon. He submits that
in the FIR the informant has not stated the
material facts about the incident. He further
submits that it was incumbent on the part of the
informant to state all the material facts while
lodging the First Information Report. In support
of his submissions, the counsel placed reliance on
the case of Ram Kumar Pande vs. the State of M.P. 1
The learned counsel further submits that
admittedly in the present case there is no eye
witness to the incident and the entire case is
based on circumstantial evidence. He submits that
when the case is based on circumstantial evidence,
all circumstances proved must be consistent only
with hypothesis of guilt of the accused. In
1 A.I.R. 1975 S.C. 1026(1)
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support of his said submission, the learned
counsel placed reliance on the case of Sujit
Biswas vs. State of Assam2, and the case of
Vikramjit Singh alias Vicky vs. State of Punjab 3.
In support of his submissions, the learned counsel
also placed reliance on the case of Sunil Kundu
and another vs. State of Jharkhand4. Therefore he
submits that the Appeal may be allowed.
5. As against this, the learned A.P.P.
appearing for the State submitted that though the
case of the prosecution is based on the
circumstantial evidence, the chain of
circumstances on which reliance was placed by the
prosecution has been established beyond reasonable
doubt by the prosecution. He further invites our
attention to the evidence of PW-1 Nagnath, PW-2
Vithabai and PW-3 Anil and submits that all these
prosecution witnesses have categorically stated
that they have seen the dead body of Santosh lying
2 2013 Cri. L.J. 3140
3 2007 Cri. l.j. 1000
4 (2013) 4 S.C.C. 422
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in the house of the accused. The deceased was last
seen in the company of the accused. The weapons
which were used in the commission of offence were
recovered at the instance of the
Appellants/accused from the place which was
exclusively in the knowledge of the Appellants.
The witnesses have stated that there were illicit
relations between deceased Santosh and Appellant
No.2 and hence there was motive to commit murder
of Santosh. He further submits that after
considering the entire evidence on record the
trial Court has convicted both the accused and the
findings recorded by the trial Court are in
consonance with the evidence brought on record.
He, therefore submits that the Appeal may be
dismissed.
6. We have carefully considered the
submissions of the learned counsel appearing for
the Appellants and learned A.P.P. appearing for
the State. With their able assistance, we have
carefully perused the entire notes of evidence so
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as to find out whether the findings recorded by
the trial Court are in consonance with the
evidence brought on record or otherwise.
7. The prosecution examined PW-7 Dr.
Chandrakant Vithal Kshirsagar. He deposed that in
December, 2011 he was attached to Primary Health
Center, Andoor as Medical Officer. On 27th
December, 2011, dead body of Santosh Nagnath Gorad
was referred to him for post-mortem by Naldurg
police station. He carried out the post-mortem in
between 8.40 a.m. to 9.40 a.m. The clothes on the
person of dead body were stained with blood. Body
was well nourished and cold. Rigor mortis had
partially developed in both upper and lower limbs.
There was evidence of seminal ejculation. There
was (1) contusion on forehead right side 6 cm. X 4
cm. (2) CLW on left side of neck 12 cm. X 3 cm. X
4 cm. This injury was increasing from mid line to
left side with cut trachea partially and great
vessels cut. (3) CLW on right side of neck in
supradicular area 10 cm. X 2 cm. X 4 cm. with
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cutting of underlying great vessels and nerves,
muscles. All the injuries were ante-mortem.
Evidence of hemorrhage under scalp tissue in right
frontal area. Injury No.19(1) corresponds to
external injury No.1 in Column No.17. Larynx was
pale with blood in larynx and left side laterally
trachea cut. Left side interval juglar when cut,
carotid artillery vessels cut. Stomach contained
partially digested food. Cause of death was
hemorrhage shock and cut throat. He further
deposed that injuries in Column No.17 in ordinary
course of time are sufficient to cause death.
Injury in Column No.17(1) is possible with Article
No.10 - stone roller. Injury Nos.2 and 3 in column
No.17 are possible with muddemal axe i.e. Article
No.8. Injury in column No.20(c) is also possible
with muddemal axe. At the time when the body was
sent for post-mortem, as per the say of police he
took out sample of blood of deceased for C.A.
report, sealed the same and given the same to
police.
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. During the course of cross-examination,
PW-7 Dr. Chandrakant stated that neck is vital
part of the body. He admitted that injury on the
neck is grievous if underlying vessels are cut. He
denied all the suggestions put to him by the
defence counsel.
. Thus from the perusal of the evidence of
PW-7 Dr. Chandrakant, it is clear that death of
Santosh was homicidal. He further stated that
stomach of Santosh contained partially digested
food.
8. At this juncture, it would be apt to
discuss the evidence of PW-3 Anil Nagnath Gorad.
He deposed that Santosh was his brother, who was
murdered before 15 months from the date of
recording his evidence. At the time of incident,
he was staying with his wife, brother, wife of his
brother and his parents. Houses of Babu Gorad,
Shivaji Gorad, Gajendra Gorad (accused No.1) are
near his house. Padminbai (accused No.2) is wife
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of Gajendra. His brother had illicit relations
with Padminbai for one year before the incident.
He further deposed that on the day of incident at
about 9.00 p.m. Gajendra and Padminbai called his
brother Santosh for dinner and they took him with
them. Santosh (deceased) used to consume liquor.
He further deposed that they had food and slept.
At 1.30 to 2.00 O'clock he woke up because
electricity supply starts at that time and he had
to water his field. After starting electric motor,
he proceeded towards his house by walking on path-
way. When he was coming back, he saw Gajendra and
Padminbai walking fast on the path-way to
Nilegaon. He called them and asked where was
Santosh. Without giving any reply, both the
accused went speedily on Itkal-Nilegaon road. He
went to the house of Gajendra and peeped through
the window and found that Santosh was murdered.
Blood was oozing. He raised shouts, people from
the nearby houses gathered. When he raised shouts,
his mother, father and wife of Santosh woke up. He
shouted that Santosh was murdered.
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. During the course of cross-examination,
PW-3 Anil stated that he did not see whether his
brother returned after having food. He stated that
he had seen Gajendra and Padminbai from a distance
of 50 feet and he asked them from the same place.
He admitted that he had stated before police that
when he shouted, his parents, his wife, wife of
his brother got up and started crying. He was
unable to assign any reason why the same is not
mentioned in his statement. He denied that there
were no lights on the street. He denied the
suggestion that on the day of incident because
Padminbai's father was sick, Gajendra and
Padminbai had been to Yeoti to see father of
Padminbai. He denied the suggestion that some one
killed Santosh and put the dead body in Gajendra's
house.
. Thus from careful perusal of the evidence
of PW-3 Anil, it is clear that he categorically
stated that accused No.2 Padminbai had illicit
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relations with deceased Santosh, in the concerned
night at about 9.00 p.m. Santosh was called by
both the accused persons for dinner and Santosh
was last seen in the company of both the accused.
During the intervening night at about 1.30 to 2.00
O'clock when he was returning home after starting
the electric motor, he had seen both the accused
walking fast on the path-way to Nilegaon and when
he asked them whereabouts of Santosh who was with
them, both the accused said nothing and went fast
on the path-way to Nilegaon, he immediately rushed
to the house of accused No.1 Gajendra and seen the
dead body of Santosh lying in the house of
Gajendra.
9. PW-1 Nagnath Govind Gorad, who is
informant in this case, deposed about his family.
He further deposed that Babu Govind Gorad is his
brother and accused No.1 Gajendra is son of Babu
Govind. Padminbai, accused No.2 is wife of
Gajendra. He further deposed that one year before
death, Santosh had illicit relations with
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Padminbai and they used to be together. He further
deposed that in the night of incident at about
9.00 p.m. Padminbai and Gajendra came to call to
Santosh for food. Santosh went with them. Santosh
used to consume liquor. He further deposed that at
1.30 to 2.00 O'clock his son Anil woke up and went
to start the electric motor. Anil shouted and
therefore he woke up and came out of his house.
His other family members also woke up and came out
of the house. Anil said that Santosh was murdered.
They all went to the house of Gajendra and peeped
through the window. His son Santosh had bleeding.
Santosh had got a blow on his neck and sustained
injuries on his head. Police from Naldurg police
station came and took him to Naldurg. He narrated
the FIR which was written down and the same was
read over to him. Then his thumb impression was
obtained on the same. He further deposed that from
Naldurg police took him to Gorad Vasti. Police
opened the house of Gajendra with key. Dead body
of Santosh was taken out and sent the same for
post-mortem. He further deposed that Gajendra and
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Padminbai killed his son Santosh because he had
developed illicit relations with Padminbai.
. During the course of his cross-
examination, various suggestions were put to him
regarding the past life of Santosh and about his
illicit relations with other two women in the
village, but this witness had denied all those
suggestions put to him by the defence. He further
denied the suggestion put to him that his son
Santosh had quarrels with other villagers. He
denied that Santosh had enmity with many
villagers. He further denied that Santosh used to
harass the family members under the influence of
liquor.
. Thus from the perusal of the evidence of
PW-1 Nagnath Gorad, it is clear that he had stated
that there were illicit relations between accused
No.2 Padminbai and Santosh, on the concerned night
at about 9.00 p.m. Santosh was called for dinner
by both the accused and thus he was last seen in
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the company of the accused. He saw the dead body
of Santosh in the house of the Appellants/accused
and immediately the incident was informed to the
police and promptly the FIR was lodged.
10. The evidence of PW-1 Nagnath Gorad is
criticized by the learned counsel for the
Appellants on the ground that it suffers from
serious improvements. He submits that PW-1 Nagnath
in his FIR/complaint has not stated that PW-3 Anil
stated him that he woke up at 1.30 to 2.00 O'clock
so as to start the electric motor for watering the
field and at that time Anil saw Gajendra and
Padminbai walking fast on the path-way to Nilegaon
when he was coming to home and further that Anil
asked the accused persons regarding whereabouts of
Santosh however without giving any reply they went
speedily on the path-way to Nilegaon. According to
the counsel appearing for the Appellants there is
only evidence of PW-3 Anil stating that he saw
Gajendra and Padminbai walking fast from the path-
way to Nilegaon and there is no corroboration to
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his evidence, since in the FIR the aforesaid
version of PW-3 Anil is not stated by PW-1
Nagnath. In respect of the aforesaid contentions
of the counsel, it can be said that the FIR is not
an encyclopedia and it is not expected that the
entire prosecution case should reflect in the FIR.
The Supreme Court in the case of Mukesh and
another vs. State of NCT of Delhi and others5, has
taken a view that, FIR is not an encyclopedia
which is expected to contain all details of
prosecution case; it may be sufficient if broad
facts of prosecution case alone appear. The
evidence on record reveals that evidence of PW-1
Nagnath is corroborated by the evidence of PW-2
Vithabai, PW-3 Anil and PW-4 Nagnath Dombale.
11. The prosecution examined PW-2 Vithabai
w/o Santosh Gorad, wife of deceased Santosh. She
deposed that she was staying in Gorad Vasti with
her husband, in-laws, brother-in-law and children.
Her husband Santosh is no more. He was murdered.
5 A.I.R. 2017 S.C. 2161
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She further deposed that houses of Babu, Shivaji,
Gajendra are near their farm house. Padminbai is
the wife of Gajendra. One year before the
incident, her husband Santosh and Padminbai had
illicit relations. She further deposed that in the
concerned night, at about 9.00 p.m. Gajendra Gorad
and Padminbai came to her house and called her
husband for dinner and took Santosh with them. She
further deposed that her husband sometime consumes
liquor. At about 1.30 to 2.00 a.m. her younger
brother-in-law raised shouts and they woke up. She
went to Gajendra's house and peeped through the
window. She saw that her husband was killed.
Entire body of her husband was full with blood.
When Anil raised shouts, he was near Gajendra's
house. Anil told her that before some time, he saw
Gajendra and Padminbai walking on the path-way to
Nilegaon, he called them but they did not look at
him and ran away.
. During the course of her cross-
examination, PW-2 Vithabai admitted that she had
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stated before the police that her husband some
time consumes liquor. She was unable to assign any
reason why the same is not mentioned in her
statement. She further stated that, she had not
stated before police that Anil told her that
before some time Gajendra and Padminbai were
walking to Nilegaon path-way and when he called
them, they did not look at him and ran away. She
admitted that she stated before the Court for the
first time that her husband had illicit relations
with Padminbai, they called him and took him for
dinner.
. Thus, it is clear from the evidence of
PW-2 Vithabai that, Padminbai had illicit
relations with Santosh, in the concerned night,
both the accused came to her house and took
Santosh with them for dinner and Santosh was last
seen in the company of the accused and that soon
after the incident she noticed dead body of
Santosh lying in the house of the accused.
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12. The evidence of PW-2 Vithabai is
criticized by the counsel appearing for the
Appellants on the ground that she first time
stated before the Court that her husband had
illicit relations with Padminbai and that accused
Nos.1 and 2 called her husband at the relevant
night and took him for dinner. Even if we accept
the contentions of the counsel for the Appellants
that PW-2 Vithabai deposed for the first time
before the Court and stated that her husband
Santosh was called for dinner at 9.00 p.m. by the
Appellants, still there is evidence of PW-1
Nagnath and PW-3 Anil, and also sufficient
circumstantial evidence is brought on record by
the prosecution, which clearly suggest that dead
body of Santosh was seen in the house of the
Appellants/ accused by PW-3 Anil between 1.30 to
2.00 O'clock and thereafter the same was seen by
the other witnesses and after police arrived at
scene of offence, they opened the house of
Gajendra with key.
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13. The prosecution examined PW-4 Nagnath
Ambadas Dombale. He is resident of Handge Vasti.
He deposed that Gorad Vasti is at half kilometer
away from Handge Vasti. He deposed that he heard
that there were illicit relations between Santosh
and Padminbai. When Santosh killed, after dinner
he was sleeping in his house. He heard shouts
at 2.00 O'clock. He ran to Gajendra's house
where people had gathered. He saw that Santosh was
lying dead in Gajendra's house. Santosh had
injuries on his neck and on head there was
bleeding. Anil, Nagnath and other family members
of Santosh were present. Anil told him that at
9.00 p.m. Gajendra and Padminbai called Santosh
for dinner and they took him with them. Anil also
told that at 2.00 O'clock he asked them to stop
but they ran away. He further deposed that on
27th December, 2011 Naldurg police called him in
police station at 12.00 noon for drawing panchnama
of the clothes of Santosh. Arun Palve was the
other panch. He deposed that constable had brought
the said clothes. Those were white pant, yellow
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shirt, banyan with sleeves, underwear and saffron
colour cloth. The clothes were stained with blood.
Police seized the clothes and sealed them.
Panchnama of seizure of clothes was drawn.
Panchnama Exhibit-20 bears his signature. This
witness was extensively cross-examined by the
defence, but nothing contrary was brought on
record.
14. The prosecution examined PW-5 Dattatraya
Shrimantrao Mote. He deposed that on 29th
December, 2011 API Shetkar had called him in
Naldurg police station. He was called to draw
panchnama. Chandrakant Gawali was the other panch.
API Shetkar took them near the lock-up and said
that they should listen to what accused says.
Accused Gajendra said that the axe used for
killing was kept in the heap of fodder in front of
his house along with his own clothes and he will
produce the same. Police prepared panchnama
Exhibit-22. He further deposed that, then they
were taken to ladies lock-up by the guard.
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Padminbai was present there and she said that she
would produce the stone roller used for assault
and her clothes i.e. sari and petticoat which were
hidden in the heap of fodder in front of her
house. Police prepared panchnama Exhibit-23.
. PW-5 Dattatraya further deposed that
along with Gajendra and Padminbai and other police
personnel, they went to Gorad Vasti as per the say
of Gajendra. In front of the house there was heap
of fodder. Gajendra took out the axe and the
clothes from the heap of fodder. Axe had a handle
and there were blood stains on the axe. Clothes
were white shirt and pant, which were blood
stained. The articles were seized, packed and
panchnama Exhibit-24 was drawn. He further deposed
that Padminbai was called near the heap of fodder.
She produced the stone roller, sari and petticoat
from the heap of fodder. The roller was made up of
stone. It was stained with blood. Sari was yellow
and petticoat was reddish in colour. Police
prepared panchnama Exhibit-25. He identified the
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muddemal Article Nos.8 to 12.
. During the course of cross-examination,
PW-5 Dattatraya deposed that his house is at 50
feet from Naldurg police station and he has
deposed 2-3 times as a panch for Naldurg police.
He denied the suggestion that because he is
habitual panch, on the say of police he deposed
falsely.
. Thus, it is clear from the evidence of
PW-5 Dattatraya that in his presence both the
Appellants produced the weapons used in the
commission of offence and the clothes which were
on their person at the time of commission of
offence, which were kept hidden at the place which
was in the exclusive knowledge of the Appellants.
The place was heap of fodder and the same was not
open place accessible to all.
15. The prosecution examined PW-6 Gopal Anna
Dombale. He deposed that on 27th December, 2011 he
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was called by the police of Naldurg police
station. He was called in Gajendra Gorade's house,
for drawing panchnama. Dayanand Ambadas Dombale
was the other panch. Nagnath Gorad shown the spot
of incident. House of Gajendra is situated in
Gorad Vasti in Nilegaon area facing to North. He
entered the house which was three rooms and a
veranda. They went in the first room. They saw
that Santosh Gorad was murdered. The dead body was
on a blanket. He saw blood in the house. He
further deposed about the details regarding the
house of accused and the household articles in the
house. He further deposed that spot panchnama
Exhibit-28 was drawn and thereafter inquest
panchnama Exhibit-29 was also drawn. He further
deposed that there was injury on the neck of
deceased and there was bleeding, deceased had
injury to the head. There was blood below the head
of deceased.
. During the course of his cross-
examination, PW-6 Gopal denied that the first door
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of the house of Gajendra does not have any window.
The window of the room is in the front side wall.
The window was open. It does not have any door.
16. Relying on the deposition of this witness
PW-6 Gopal, learned counsel for the Appellants
submits that there was no door to the window. But
the same does not mean that the window was without
grills and it was all along open.
17. The prosecution examined PW-8 Limbaji
Rama Kadam. He deposed that on 27th December, 2011
from 8.00 a.m. to 2.00 p.m. he was P.S.O. Naldurg
police station. Police Naik Bondar gave report
that he is producing clothes of deceased Santosh
Gorad in the Crime No.182 of 2011 registered in
police station Naldurg under Section 302 read with
34 of the I.P. Code, after post-mortem. Then he
called two panchas by name Arun Palve and Nagnath
Dombale. He asked them to draw panchnama of
seizure of clothes of deceased after post-mortem.
Panchnama was drawn, clothes were seized after
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panchnama. Labels with his signature and
signatures of panchas were affixed to the clothes.
Clothes were white pant, yellowish shirt with
three buttons and white banyan with sleeves,
bluish underwear and saffron Gamja. It was stained
with blood. He proved panchnama Exhibit-20.
18. PW-9 Bhimsen Vasantbuwa Bharti, police
naik is a carrier of the muddemal to C.A.
Aurangabad. He deposed that on 2nd January, 2012
API Shetkar asked him to submit the muddemal in
Crime No.182 of 2011 to C.A. Aurangabad. He
collected muddemal and a letter. Muddemal was
sealed. He submitted the muddemal on 3rd January,
2012 and got acknowledgement. Muddemal was given
to C.A. Aurangabad in sealed condition.
19. The prosecution examined PW-10 Baburao
Vishwanath Wakodkar. He deposed that in December,
2011, he was P.S.I. in Naldurg police station. On
27th December, 2011 at 1.30 a.m. the P.S.O. told
him that there was some incident of assault in
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Gorad Vasti at Nilegaon. He went there with three
staff members. A dead body was seen through the
window of a closed house in pool of blood. Father
and relatives of the deceased were waiting
outside. Nagnath Gorad, father of deceased told
that it was a case of murder. He took Nagnath to
the police station. FIR was recorded, it was read
over to Nagnath, who confirmed it to be correct.
Nagnath put his thumb impression on it. He deposed
that FIR Exhibit-16 bears his signature also. He
registered Crime No.182 of 2011 under Section 302
read with 34 of the I.P. Code and gave the
investigation to API Shri Shetkar.
. During the course of cross-examination,
PW-10 Baburao admitted that thumb impression on
FIR does not mention that it is of Nagnath Gorad.
It is not mentioned in the FIR that Anil, son of
Nagnath had gone to start the electric motor at
1.30 a.m. to 2.00 a.m. It is also not mentioned in
the FIR that Anil raised shouts and they woke up,
and that Anil shouted that Santosh was assaulted.
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He stated that Nagnath has not stated that he saw
through the window and found that Santosh was
dead. It is not mentioned in the FIR that when
Nagnath saw through window, he found that Santosh
had a head injury and mark of blow on his neck. As
already observed, the FIR is not an encyclopedia
and it is not expected that the entire prosecution
case should reflect in the FIR.
. Thus, from the evidence of PW-10 Baburao,
it is clear that soon after the incident, this
witness visited the spot of incident in the night
and immediately thereafter at 4.30 a.m. itself the
crime was registered.
20. PW-11 Suresh Shivajirao Shetkar, is an
investigating officer. He deposed about the manner
in which he has carried out the investigation of
the crime. He deposed that P.S.I. Wakodkar
registered the crime and handed over investigation
to him on 27th December, 2011 at 4.30 a.m. He went
to the spot and prepared the spot panchnama. Spot
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of incident is house of accused. Dead body was
lying in pool of blood. It was the dead body of
Santosh. Samples of blood stained soil and dry
soil were obtained from the spot. They were sealed
and seized in presence of panchas. The panchnama
Exhibit-28 was drawn during 5.20 a.m. to 5.50 a.m.
Inquest panchnama Exhibit-29 was drawn. Dead body
was sent for post-mortem. He had asked the officer
to take sample of blood of the deceased and to
preserve his clothes. He recorded statement of
eight witnesses. He arrested the accused. He
further deposed that, at first accused Gajendra
made a statement before the panchas Dattatraya
Mote and Chandrakant Gawali that he would produce
the axe and clothes which he was wearing at the
time of offence, and which were hidden under the
heap of fodder and he would produce the same. Then
Padminbai made a statement that she would produce
the stone roller, her sari and petticoat which she
was wearing at the time of offence, and which were
hidden under the heap of fodder. He further
deposed that, then the accused, panchas, he
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himself and the staff members went to the place as
directed by the accused. They went to Gorad Vasti.
Accused asked them to stop. They walked to the
heap of fodder. Gajendra produced the axe and the
clothes which were hidden on the North side of the
heap of fodder. The clothes and axe were sealed in
presence of panchas and panchnama of seizure was
drawn. He further deposed that Padminbai produced
the stone roller, sari and petticoat from the heap
of fodder. the same were seized in presence of
panchas. Panchnama Exhibit-25 was drawn. He
further deposed that on 2nd January, 2012 he sent
the muddemal articles for chemical analysis. He
collected post-mortem notes, map of the spot drawn
by the circle inspector. Blood groups of the
accused were checked and the doctor informed the
blood groups of the accused. He further deposed
that after completing the investigation, charge-
sheet was filed.
. During the course of cross-examination,
PW-11 Suresh stated that dead body was seen on the
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blanket, on the floor of the house of accused. He
stated that he recorded statement of PW-2
Vithabai. In her statement, she has not stated
that some time her husband consumes liquor. He
admitted that Vithabai has not told that she
peeped through window of Gajendra's house. He
further stated that Anil has not stated that when
he raised shout, his parents, his wife and wife of
his brother woke up and started crying.
. Thus from the perusal of the evidence of
PW-11 Suresh, it is clear that after getting
knowledge about the incident, in the concerned
night itself, he immediately visited the spot of
incident. The spot panchnama Exhibit-28 was drawn
during 5.20 a.m. to 5.50 a.m. The weapons used in
the offence and clothes wore by the accused at the
relevant time of incident were recovered at the
instance of the accused persons. It is argued by
the counsel appearing for the Appellants that
blanket by which dead body of Santosh, was covered
was not sent for C.A. When as many as 11 Articles
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were sent to C.A. and on all those Articles blood
of group "B" i.e. blood group of deceased was
found, hardly there is any substance in the said
argument.
21. It is submitted by the counsel appearing
for the Appellants that illicit relations of
accused No.2 Padminbai with deceased Santosh are
not proved by the prosecution. However after
careful perusal of the evidence on record, it is
clear that PW-1 Nagnath, PW-2 Vithabai and PW-3
Anil have categorically stated that deceased
Santosh had illicit relations with Appellant No.2
Padminbai. PW-4 Nagnath Dombale also stated that
he had heard that deceased Santosh had illicit
relations with Padminbai. Thus, the prosecution
has brought on record through these witnesses,
that there were illicit relations between deceased
Santosh and Appellant No.2 Padminbai.
22. PW-3 Anil has stated that, at the
relevant time the Appellants have left the house
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and they were proceeding fast on the path-way to
Nilegaon and soon thereafter the prosecution
witnesses saw the dead body of Santosh in the
house of the Appellants. Therefore, it was
obligatory on the part of the Appellants to
discharge the onus to explain how the said dead
body came in their house. Their defence appears to
be of a simple denial and that they were not in
the house at the relevant time. However the
prosecution has brought on record sufficient
evidence which unequivocally indicates that there
was no possibility of throwing or keeping the dead
body in the house of the Appellants by some other
person. There is prompt lodging of the FIR. The
police immediately visited the spot and saw that
the dead body of Santosh was lying in the house of
the Appellants and immediately further steps were
taken. It is clear from the evidence of PW-1
Nagnath that after arrival at the spot of
incident, police opened the house of Gajendra with
key. Therefore, the possibility of concoction is
ruled out.
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23. PW-3 Anil stated in his evidence that
during the relevant night at 1.30 to 2.00 O'clock
he woke up because electricity supply starts at
that time and he had to water his field and after
starting electric motor, he proceeded towards his
house by walking on path-way and at that time he
saw Gajendra and Padminbai walking fast on the
path-way to Nilegaon. Thus, the evidence of PW-3
appears to be natural and he has no reason to
falsely implicate the accused persons. The
prosecution has brought on record so many
incriminating circumstances against the accused.
The weapons which were used for the commission of
offence were concealed in the heap of fodder. The
perusal of the C.A. report discloses that the
blood appearing on the Article Nos.1 to 11, was of
group "B", which was the blood group of deceased
i.e. group "B". It is submitted by the counsel
appearing for the Appellants that the blood
samples of the Appellants were not sent for
determination of blood group and therefore C.A.
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report deserves no consideration, has no any
substance. It is not the case of the Appellants
that they sustained some injuries and their own
blood was spread on their clothes.
24. Learned counsel appearing for the
Appellants submitted that the reliance cannot be
placed on the oral testimony of the prosecution
witnesses PW-1 Nangnath, father of deceased, PW-2
Vithabai, wife of deceased Santosh and PW-3 Anil,
brother of deceased, as they are the interested
witnesses. Merely because the witnesses are
interested or partisan, is no ground to discard
the evidence. Only the Court has to scrutinize
their evidence carefully. The Supreme Court in the
case of Maslati and others vs. The State of Uttar
Pradesh6, held that the evidence of partisan and
interested witnesses needs to be carefully
scrutinized and considered, and same cannot be
rejected merely on the ground that witnesses are
interested, partisan or in relation of victim.
6 A.I.R. 1965 S.C. 202
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25. In the given facts and circumstances, and
the evidence brought on record by the prosecution,
the only possible view was guilt of the accused.
Though there is no eye witness to the incident and
the prosecution case is based on circumstantial
evidence, the chain of circumstances has been
established beyond reasonable doubt by the
prosecution, and all the facts established are so
consistent with only hypothesis of the guilt of
the accused.
26. The trial Court has considered all the
evidence brought on record in its proper
perspective and recorded the findings which are in
consonance with the evidence on record and
convicted the Appellants/ accused. The conclusions
reached by the trial Court are in consonance with
the evidence brought on record by the prosecution.
There is no perversity as such.
27. In the light of discussion herein above,
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we are of the opinion that there is no merit in
the Appeal. The Criminal Appeal stands dismissed.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
