Siddarth @ Siddya Sitaram Jadhav vs The State Of Maharashtra
2017 Latest Caselaw 7725 Bom

                                      1        Appeal 342 of 2001

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 342 of 2001


     Sidharth @ Siddya s/o Sitaram Jadhav
     Age 24 years, Occupation : Labour,
     R/o Warul, Taluka Mehkar,
     District Buldhana, at present
     Mill Chawl Amalner, Taluka Amalner,
     District Jalgaon.                    ..             Appellant.

             Versus

     The State of Maharashtra.                     .. Respondent.

                                     ----

     Shri. V.B. Garud, Advocate, appointed for appellant.

     Shri. R.V. Dasalkar, Additional Public Prosecutor, for
     respondent.

                                     ----

                                Coram: T.V. NALAWADE &
                                       S.M. GAVHANE, JJ.

            Judgment reserved on       :    15 SEPTEMBER 2017

           Judgment pronounced on :         03 OCTOBER 2017


     JUDGMENT (Per T.V. Nalawade, J.) :

1) The appeal is filed against the judgment and

order of Sessions Case No.35/1999 which was pending in

the Court of the learned Additional Sessions Judge,

2 Appeal 342 of 2001

Amalner, District Jalgaon. The appellant is convicted for

offence punishable under section 302 of the Indian Penal

Code and he is sentenced to suffer imprisonment for life.

Both the sides are heard.

2) In short, the facts leading to the institution of

the present proceeding can be stated as follows.

Deceased Prakash Patil was a brother of the first

informant. Prior to the date of incident, the deceased used

to sell drinking water in railways. He was living with his

brother and other relatives at village Bharwas, Tahsil

Amalner. One Shankarlal Thakur was doing business of

selling tea in railways. Present appellant Sidharth was

resident of Mill Chawl Amalner and he was working with

Shankarlal Thakur. He was appointed on daily wages and

he was selling tea supplied by Shankarlal Thakur in

railways everyday. He was expected to give account of the

tea sold and hand over the money collected by him by

selling the tea. As the appellant was not giving correct

account and Shankarlal Thakur was not happy with his

work, Shankarlal Thakur stopped giving him the work

from 20-4-1999. Due to that the appellant had no work.

                                             3       Appeal 342 of 2001

     3)               On       22-4-1999,   the   date     of     the     incident,

Shankarlal Thakur gave the aforesaid work to deceased

Prakash Patil. On 22-4-1999 Prakash collected the tea and

started selling the tea in railways by travelling in the

railway upto some distance. Due to employment of the

deceased by Shankarlal, the appellant became angry.

Further, the appellant had given hand loan of Rs.25 to the

deceased and so the appellant became more angry as he

was thinking that he had helped Prakash but due to

Prakash he had lost his job.

4) Rajendra @ Pintya, Rakesh Pardeshi and Vijay

Thakur are the common friends of the deceased and the

appellant.

5) On 22-4-1999 the appellant met Rajendra in

Amalner at Shivpratap Chowk and said that he wanted to

recover amount of Rs.25 given by him as hand loan from

Prakash and Rajendra should remain in his company.

Both, Rajendra and the appellant knew that Prakash was

to return to Amalner by Hawara Express after selling tea.

They kept waiting for the deceased near a garden situated

4 Appeal 342 of 2001

by the side of the railway station. The deceased arrived at

railway station but as he was carrying the tea pot, for

handing over the tea pot he went to Shankarlal Thakur.

From Shankarlal deceased returned to Rajendra and

present appellant. The appellant gave invitation to the

deceased for dinner and when they were proceeding

towards the residential locality, the appellant said that

they can collect contribution and consume liquor.

Deceased Prakash and the appellant purchased country

liquor in one shop and they consumed the liquor in the

shop itself. Rajendra was in their company.

6) After consuming liquor, the appellant said to

Prakash that he had credit account in a canteen situated

at railway station and so they can have dinner in that

canteen. He took the deceased and Rajendra through

open space of Tamboli Gin (Mill) by saying that they can

go to the canteen by that way. When they were present in

open space, the appellant picked up quarrel with Prakash

by questioning him as to why he had accepted the job of

Shankarlal when he was working with Shankarlal. Then he

asked Prakash to return Rs.25 which was given by the

5 Appeal 342 of 2001

appellant to him as hand loan. The deceased said that he

was not having that much amount with him and he would

return the amount within one or two days. Then all of a

sudden the appellant took out a knife from the pocket of

his pant and started giving blows on the person of

Prakash. He gave many blows on neck, chest and

abdomen. Rajendra tried to intervene but Rajendra

noticed that he was not in a position to control the

appellant and so out of fear he ran away. On the way to his

house there is a tailoring shop of his friend Rakesh

Pardeshi and he met Rakesh. He narrated the incident to

Rakesh. The incident took place at about 11.15 p.m. to

11.30 p.m. of 22-4-1999.

7) After learning about the incident, Rakesh

Pardeshi took Rajendra to their common friend Vijay who

was sleeping in his house. They narrated the incident to

Vijay. When they were having discussion over the incident

on road, the appellant reached there. He questioned

Rajendra by asking him as to why he had run away from

the place of incident. Then he told that he had finished

Prakash by assaulting him with knife and Prakash was

6 Appeal 342 of 2001

lying on the same spot. After learning about the entire

incident from the present appellant, Vijay left for his

house.

8) Rajendra, appellant and Rakesh Pardeshi then

went to tailoring shop of Rakesh Pardeshi. There the

appellant said to Rajendra that, Rajendra should come

with him on next morning and if he was not ready to come

then he would implicate Rajendra in the case of murder of

Prakash. He gave threats by saying that the punishment

provided for one murder or two murders is the same.

9) Due to the aforesaid threats given, Rajendra

remained in the company of the appellant and on the night

between 22-4-1999 and 23-4-1999 they stayed in the shop

of Rakesh Pardeshi. On 23-4-1999 by Bhusawal passenger

train the appellant took Rajendra to Bhusawal and then to

Shegaon, Mehkar etc. Rajendra remained in the company

of the appellant for 4 to 5 days. Due to fear, Rajendra did

not leave his company. On 4-5-1999 at about 8.00 a.m.

when appellant and Rajendra were present in the house of

Sidharth Jadhav in Warul, Tahsil Mehkar, Rajendra noticed

7 Appeal 342 of 2001

that the appellant was still sleeping and so he took the

chance and left the company of the appellant.

10) Rajendra went to Shegaon where his brother-

in-law Mohan Shivaji lives. He narrated the incident to

Mohan Shivaji. He told that he knew the place where the

appellant can be found. On 5-5-1999 Rajendra, one social

worker Kalabai and Mohan Shivaji went to Police Station

Shegaon at 9.30 a.m. and they narrated the incident to

Police Sub Inspector of that police station. The Police Sub

Inspector gave three constables and they were taken to

Warul by Rajendra to show where the appellant was

hiding. Police took Sidharth, appellant in their custody at

Warul. This information was given to concerned police

station, Amalner Police Station. On 6-5-1999 Amalner

police took the appellant in custody and they brought

Rajendra and the appellant to Amalner .

11) On 23-4-1999 in the morning time the dead

body of Prakash was noticed on the aforesaid spot and on

the same day brother of Prakash gave report that some

unknown person had committed murder of Prakash. On

8 Appeal 342 of 2001

23-4-1999 the investigation was started by Murlidhar Patil

(PW-14) and he took steps like preparing inquest

panchanama, spot panchanama in the presence of panch

witnesses and referring the dead body of Prakash for post

mortem examination. It transpired to him that Prakash

was working with Shankarlal Thakur and so he recorded

statement of Shankarlal Thakur on 23-4-1999 itself. On

23-4-1999 itself Shankarlal Thakur expressed suspicion

against present appellant and so the search was started

for tracing the appellant. He could not be traced as he

had left the station. On 6-5-1999, after receipt of

information from Shegaon police, a team of police

constables was sent to Shegaon police station by the

investigating officer and the accused was brought to

Amalner. On 7-5-1999 the clothes of the appellant were

taken over under panchanama. During the course of

investigation the appellant gave statement under section

27 of the Evidence Act and on that basis the weapon, knife

came to be recovered from one water tank.

12) During the course of investigation, statements

of other witnesses who include relatives of the deceased

9 Appeal 342 of 2001

and also Rakesh, Vijay and Rajendra came to be recorded.

Charge-sheet came to be filed for the aforesaid offence.

13) Charge was framed by the trial Court for

aforesaid offence. The prosecution examined in all 14

witnesses. The accused pleaded not guilty and took the

defence of total denial. The prosecution gave both, direct

and circumstantial evidence. The trial Court has believed

that evidence.

14) This Court is discussing the points which are

raised by the learned counsel of the appellant at

appropriate places. The appellant, accused did not dispute

that Prakash died homicidal death. For proving the

inquest panchanama, prosecution examined panch witness

Narendrasing Thakur (PW-3). Bleeding injuries were

found on the neck, chest, abdomen, mostly on front

portion of the dead body. The inquest panchanama is at

Exhibit 16. The tenor of the cross-examination of this

witness shows that the defence tried to test his veracity

but not much could be brought on record to create

probability that this witness had any adverse interest

against the accused.

                                              10            Appeal 342 of 2001

     15)              Dr.      Patil   (PW-8)   conducted            post        mortem

examination on the dead body on 23-4-1999 between 4.30

and 5.30 p.m. The dead body was brought to the

municipal hospital Amalner at about 4.15 pm by police.

The post mortem report is duly proved in the evidence of

Dr. Patil as Exhibit 29. Dr. Patil found following ante

mortem surface injuries on the dead body.

(1) Spindle shaped vertical incised wound on right side of neck near about 1" lateral to laryngeal prominence of size 1/2" x 1/4" x 1" cutting the muscles and vessels underneath.

(2) Spindle shaped oblique incised wound on right side neck 1" below injury No.1 of size about 1/2"x1/4"x1".

(3) Transverse spindle shaped incised wound on neck, just above upper end of sternum and on right side of size about 1/2" x 1/4" x 1/2".

(4) Oblique spindle shaped incised wound on left side of neck near and lateral to laryngeal prominence of size about 1/2"x1/4"x1/2".

(5) Stab wound on left side of chest near and below medial end of clavicle of size about 1/2" x 1/2" x going

11 Appeal 342 of 2001

deep in to chest cavity and cutting apicial lobe of left lung, below the external wound lung is cut of size about 1/2" x1/2 x 1".

(6) Stab wound on left side of chest about 4" below mid clavicular line between 3rd and 4th rib cutting partly forth rib at side of external wound and cutting pleura and lung of size about 1.1/4"x1" x deep in to upper lobe of left lung, lung is also seen cut through and through in the line of external injury of size about 1"x1"x through and through lung tissue.

(7) Spindle shaped incised stab wound on left side of chest in a line of anterior axillary fold about 2" laternal brest of size about 1/2"x1/4" deep in to lung tissue cutting pleura and left lung in a direction of external wound lung is seen cut about 1/2" x 1/4" x 1".

(8) Stab wound on right side of chest between 5 th and 6th rib 1/2" below mammary region of size about 1/2"x1/4"x going deep in to lung tissue, pleura and lung underneath is seen cut in a line of external wound of size about 1/2"x1/8" through and through lung tissue.

(9) Spindle shape oblique stab wound on right side of chest, below 9th rib 6" below mammary region of size about 3/4" x 1/4" x going oblique in to liver. Liver is seen cut in a line of external injury of size about 1/2"x1/8"x3/4".

12 Appeal 342 of 2001

(10) Stab wound on right side of chest 1/2" away from injury No.9 of size about 1/2"x1/4"x going obliquely in to liver tissue cutting partly rib below liver is also seen clean cut in a line of external injury of size about 1/2"x1/8"x1".

(11) Oblique stab wound on right side of chest 1" above castal margin and below and laternal to injury No.9 and 10th going oblique into liver of size about 1.1/4" x 1/4" x cutting the liver is same line of size about 3/4" x 1/8' x 1.1/2", rib underneath is also seen clear cut partly.

(12) Stab wound on right hypochondriac region of abdomen, below castal margin of size about 1"x1/2" x deep in to liver tissue cutting peronound of size about 3/4" in length on cut wound on liver of size about 1/2" x1/10"x3/4".

(13) Stab wound on right side of abdomen 2" below lower and of strenum and 1.1/2" away from mid line of size about 1"x1/4" going deep in to abdominal cavity, cutting pleura under neath for about 1/4" in length.

(14) Transverse stab wound on left side of abdomen on lateral end near costal margin of size about 1/2"x1/4" x going deep in to abdomen, cutting spleen underneath of size about 1/2"x1/10"x1/2".

13 Appeal 342 of 2001

All the aforesaid injuries show that there were

injuries over neck, chest and pleura was cut at many

places. Internal injuries show due to aforesaid surface

wounds, larynx and trachea were cut and trachea was

filled with blood and blood clots. The right lung had clear

cut at many places and on the left side clear cut injuries

at three places. There were three cuts on peritoneum.

Cavity was filled with blood and blood clots. Liver had

clean cut injuries at 4 places. Dr. Patil (PW 8) has given

opinion that the death took place due to shock and

haemorrhage caused by stab injuries to both lungs,

spleen and multiple stab injuries to the liver.

16) Dr. Patil (PW 8) has given evidence that

aforesaid injuries can be caused by hard and sharp

weapon like knife. Dr. Patil has given opinion that these

injuries are sufficient to cause death in ordinary course of

nature. Thus, there is sufficient evidence to prove that it is

homicide.

17) Rajendra (PW 2) is main witness of the

prosecution as he is the only eye witness. He has deposed

that the deceased was known to him and he knows the

14 Appeal 342 of 2001

accused also. He has deposed that he was selling tea in

railway between Amalner and Nandurbar after boarding

trains at Amalner. For some days due to illness he had not

left the station but he knew that on 22-4-1999 the

deceased had boarded the train for selling the tea.

18) Rajendra (PW 2) has deposed that at 8.00 p.m.

on 22-4-1999 the accused met him at Shivpratap Chowk,

Amalner which is situated at a distance of 200 feet from

Amalner Railway Station. He has deposed that accused

said to him that accused wanted to recover amount of

Rs.25/- which was due from the deceased Prakash to him.

He has deposed that on the request made by accused, he

went to railway station Amalner. He has deposed that at

about 9.00 p.m. a train arrived at Amalner and from that

train Prakash alighted and he came out of railway station.

He has deposed that from there first Prakash went to his

employer Shankarlal Thakur (PW 10) to give account of

the sale of tea of that day. He has deposed that at 9.30 pm

when he and the accused were present at Shivpratap

Chowk the deceased came there.

                                       15         Appeal 342 of 2001

     19)              Rajendra (PW 2) has deposed that the accused

gave offer of dinner to the deceased and it was accepted

by the deceased. He has deposed that he, accused and the

deceased then started towards town as the meal was to be

taken towards that side. He has deposed that when they

had crossed about half distance, the accused said to the

deceased that they would take liquor provided that the

deceased was ready to give his own contribution for

purchasing the liquor. Rajendra (PW 2) has deposed that

the deceased agreed to it and then they went to liquor

shop situated near Poonam hotel. He has deposed that

only the accused and deceased consumed liquor there and

then they left the said shop. He has deposed that

contribution for purchasing liquor was given by the

deceased.

20) Rajendra (PW 2) has deposed that the accused

then said that he had credit account in railway canteen

Amalner and so they can take dinner there. He has

deposed that by saying so he took the deceased and him

towards railway station and they started going through

open space situated behind the building of State Bank of

16 Appeal 342 of 2001

India. He has deposed that after reaching the open space

the accused started demanding amount of Rs.25/- which

was due to him from the deceased. He has deposed that

the deceased said that at that time he was not having the

amount and he would return the amount within 2 to 3

days. He has deposed that the accused then questioned

the deceased as to why he had accepted the work from

which he was removed (by Shankarlal Thakur). Rajendra

(PW 2) has deposed that the accused took knife from the

pocket of his pant and he started assaulting the deceased

with the knife. He has deposed that the blows were given

by knife on stomach (abdomen), chest and other parts. He

has deposed that to save the deceased he tried to control

the accused but he could not control the accused. He has

deposed that he got frightened and so he left the place.

According to him, the incident of assault took place

between 11.00 p.m. and 11.30 p.m. of 22-4-1999.

21) Rajendra (PW 2) has deposed that from the

place of the incident he went to the tailoring shop of his

friend Rakesh Pardeshi (PW 7). According to him, when he

disclosed the incident to Rakesh, Rakesh closed the shop

17 Appeal 342 of 2001

and then they went to their common friend Vijay Thakur

(PW 9). Rajendra (PW 2) has deposed that when he, Vijay

and Rakesh were discussing about the incident on road,

they expressed that the incident needs to be disclosed to

somebody, but the accused came there. It was at

Shivpratap Chowk and the time given is 00.00 hours of the

night.

22) Rajendra (PW 2) has deposed that the accused

said that they should not disclose the incident to anybody.

Rajendra (PW 2) has deposed that Vijay then left for his

house. He has deposed that, he, accused and Rakesh went

to the tailoring shop of Rakesh and there they stayed on

that night. He has deposed that in the tailoring shop

accused asked him to come with him to Bhusawal by

Bhusawal train. He has deposed that he initially declined

to give company to the accused but when the accused

gave threats that he will be implicated in the case of

murder of Prakash and when he said that punishment for

one or two murders is the same, he agreed to give

company to the accused.

                                        18         Appeal 342 of 2001

     23)              Rajendra (PW 2) has given evidence that due to

fear created in his mind by the accused he went along

with the accused first to Bhusawal and then to Shegaon,

Mehkar and then to Warul, Tahsil Mehkar, District

Buldhana. He has deposed that they stayed for 2 to 3 days

at Warul and then they went to Jalna. He has deposed that

then they again returned to Warul. He has deposed that in

Warul on 4-5-1999 in early morning when he noticed that

the accused was sleeping, he left the company of the

accused and from there he went to Shegaon. He has

deposed that at Shegaon he disclosed the incident to his

relative Mohan Shivaji and also maternal aunt Kalabai. He

has deposed that Mohan and Kalabai advised him to go to

police and disclose the incident and so all of them went to

Shegaon police on 5-5-1999. He has deposed that when he

disclosed the incident to police, three constables were

given with him and along with three constables he went to

Warul and he showed the accused to them. He has

deposed that police took accused in their custody at

Warul. He has deposed that on 6-5-1999 Amalner police

came to Shegaon police station and they took the accused

to Amalner police station. In the evidence he has

19 Appeal 342 of 2001

identified the accused and also the weapon. It is not

disputed that the accused was known to him from prior to

the date of the incident.

24) In the cross-examination of Rajendra (PW 2)

some omissions in the police statement in relation to the

evidence given in Court are brought on the record. Those

omissions are with regard to minute particulars and they

are not that material if the entire evidence as a whole is

considered. To challenge the evidence of Rajendra (PW

2), learned counsel for the appellant, accused argued on

the following grounds :

(i) From the date of the incident i.e. from 22-4-1999

till 5-5-1999 witness Rajendra did not disclose the

incident to police and he preferred to avoid police. He

avoided to go to the relatives of the deceased to

disclose the incident when the deceased was his friend.

(ii) In view of the nature of evidence, the disclosure

made by Rajendra and the circumstance that he

remained away from police till 5-5-1999, Rajendra

20 Appeal 342 of 2001

could have been made accused by using section 34 of

Indian Penal Code; and,

(iii) Shegaon police must have recorded the

information given by Rajendra but that record is not

produced.

Learned counsel submitted that due to these

circumstances, the evidence given by Rajendra cannot be

believed and it cannot be taken as a base for conviction in

such a serious case. It is true that there are aforesaid

circumstances. Due to these circumstances close scrutiny

of the evidence of Rajendra (PW 2) is necessary. His police

statement was recorded on 7-5-1999. Evidence of this

witness however shows that he had disclosed the incident

to his friends like Rakesh and Vijay immediately after the

incident. Let us see other evidence to ascertain whether

Rajendra (PW 2) can be believed or not.

25) Evidence of Bhalerao (PW 1), brother of the

deceased, who gave report, shows that on 23-4-1999 when

he gave FIR he had not mentioned the name of the

accused. However, in Exhibit 12 and in the evidence he

21 Appeal 342 of 2001

expressed suspicion that after seeing the dead body that

the incident had probably taken place due to some

business rivalry. Bhalerao gave report at about 11.05 a.m.

when he had seen the dead body at about 10.00 a.m.

26) Vijay Thakur (PW 9) has deposed that due to

business of sale of the tea in railways he knew the

deceased and he also knows the accused. He has given

evidence that he knows Rajendra (PW 2). He has deposed

that on 22-4-1999 at about 11.45 p.m. when he was

sleeping in his house, Rajendra (PW 2) and Rakesh

Pardeshi (PW 7) came to his house and they informed that

the accused had assaulted the deceased and by using

knife he had killed the deceased near Tamboli Gin (Mill).

He has deposed that the information about the incident

was given by Rajendra (PW 2) who had witnessed the

incident. He has deposed that when he was in the

company of PW 2 and PW 7 on the road, the accused came

there.

27) Vijay (PW 9) has deposed that he advised the

accused to disclose the incident to some respectable

22 Appeal 342 of 2001

persons but the accused said that they should not disclose

the incident to anybody. He has deposed that when he

asked the accused about the blood stains which must have

come on his clothes, the accused said that to hide the

stains, he had put his shirt within his pant. He has

deposed that the accused informed him that his hands

were stained with blood and he had washed it. He has

deposed that, after this conversation he returned to his

house and he went to bed. He has deposed that only on

the next day i.e. on 23-4-1999 when people were talking

that they had seen the dead body he went to the spot.

Some omissions in his police statement recorded on 24-4-

1999 in relation to the substantive evidence are pointed

out to this witness, but they are on minute details. If the

evidence of this witness is considered as a whole, it can be

said that those minute details are not sufficient to discard

his evidence.

28) Rakesh (PW 7) has deposed that when he was

in his tailoring shop at 11.30 p.m. Rajendra (PW 2) came

there. He has deposed that Rajendra disclosed to him that

the accused had murdered Prakash. He has deposed that

23 Appeal 342 of 2001

after learning about the incident he and Rajendra went to

Vijay (PW 9) and they informed Vijay about the incident.

He has deposed that when they were present on the road,

accused came there and the accused admitted that he had

committed murder of Prakash. He also has deposed that

the accused told them that they should not disclose the

incident to anybody. His evidence also shows that on the

night between 22-4-1999 and 23-4-1999 the accused,

Rajendra and he stayed in his shop. He has deposed that

after 5.30 a.m. on 23-4-1999 the accused and Rajendra

left his shop. One improvement is brought on the record.

In the police statement he had stated that first Rajendra

left and then the accused left the shop. He has also given

evidence that on 23-4-1999 he went to the spot to see the

dead body. His police statement was recorded on 24-4-

1999.

29) The evidence of PW 7 and PW 9 shows that they

learnt first time about the incident from PW 2 Rajendra.

Their evidence shows that the accused confessed about

the crime on the same night when these three witnesses

were standing on the road. The evidence on record is

24 Appeal 342 of 2001

sufficient to prove that they were friends of each other.

Due to these circumstances, their evidence that the

accused confessed the crime and the accused decided to

take with him Rajendra cannot be looked with doubt. The

circumstance that Rakesh (PW 7) gave police statement

on 24-4-1999 cannot make much in favour of the accused

as it can be said that only after recording statement of

Shankarlal (PW 10) the police realised that probably only

friends of the deceased had clue about the incident. The

circumstance that the accused had taken Rajendra (PW 2)

with him but prior to that the incident was disclosed by

Rajendra to PW 7 and PW 9, witnesses, need to be kept in

mind while considering the contention that the statements

were not given to police by Rajendra, PW 7 and PW 9

immediately after the incident.

30) To the aforesaid two witnesses like Vijay and

Rakesh it is suggested that there was some business

rivalry between them. The evidence shows that nobody

had taken licence from the railways to sell tea in the

railways. The witnesses have admitted that due to

business of selling tea some cases were filed against them

25 Appeal 342 of 2001

and some incidents had taken place. However, these

circumstances have not created reasonable doubt about

the evidence given by these witnesses. They had not given

reports against each other. These circumstances show

that they were friends of each other and prior to the date

of the incident there was no enmity between the deceased

and the accused. Thus, their versions are consistent with

each other and the disclosure made by Rajendra to

Rakesh and Vijay shows that his conduct was natural and

his evidence has general corroboration of the evidence of

these two witnesses.

31) Shankarlal (PW 10) is in the business of selling

tea in trains. He appoints persons like accused and the

deceased and on the basis of sale made, he makes

payment to them. Prior to 20-4-1999 the accused was

working for him. Evidence is given by Shankarlal that, as

accused was not giving correct and proper account of the

business, he had stopped giving him the work and that

was done 4 to 5 days prior to the date of the incident. He

has given evidence that he had then given the work to the

deceased and the deceased was in his company for selling

26 Appeal 342 of 2001

the tea on 22-4-1999.

32) Shankarlal (PW 10) has given evidence that on

the date of the incident i.e. on 22-4-1999 for some time

the deceased was in his company and he had asked to the

deceased to stay on railway and return by Ahmadabad -

Hawara Express. He has deposed that the deceased

returned by that train in the night and he had come to him

to give account of the business. His evidence shows that

after giving account and handing over the amount, the

deceased had left his residential place. The evidence of

this witness shows that on 23-4-1999 the deceased did not

come to him and he made inquiry to find him out for some

time but as deceased could not be traced he went for

selling the tea. His evidence shows that he returned in the

noon time and after that police approached him.

33) In the evidence of Shankarlal it is brought on

the record by defence that Vijay Thakur (PW 9) is son of

his brother and Vijay was also in the business of selling

tea in the train. This circumstance explains as to how this

witness suspected against the accused when he learnt

27 Appeal 342 of 2001

about the murder of Prakash. This evidence indicates as to

how police got the clue about the incident and against the

accused on 23-4-1999.

34) The case of the prosecution and the evidence of

the witnesses like Rakesh, Vijay and the investigating

officer show that police approached the witnesses like

Rakesh and Vijay on 24-4-1999 and then they learnt about

the entire incident and then search was made even for

Rajendra (PW 2). This evidence is certainly relevant under

section 6 of the Evidence Act as the inference is available

about the disclosure of the incident by Rajendra (PW 2) to

these witnesses at least on 22-4-1999 and the evidence

can be used as conduct of the witnesses and it can be

used under section 8 of the Evidence Act.

35) In the evidence of Narendrasing (PW 3) the

prosecution has proved the spot panchanama as Exhibit

15. The spot panchanama was prepared between 12.30

hours and 13.30 hours on 23-4-1999. The earth mixed

with human blood was collected from the spot. At the

distance of 10 feet from the spot there is foot path on one

28 Appeal 342 of 2001

side and the spot is situated at the corner of two walls of

the mill. No houses were situated in the vicinity of this

spot. Narendrasing lives in this ward though not in the

vicinity and so he knew this place. He had contested the

election to the local body from this ward. But due to these

circumstances the evidence of this witness cannot be

looked with doubt. Nothing is brought on the record to

create probability that he has enmity with the accused.

36) Narendrasing (PW 3) has given evidence also

on other circumstances like recovery of weapon on the

basis of statement given by accused under section 27 of

the Evidence Act. This circumstance is discussed in detail

at later place. The evidence on spot panchanama given by

him and the investigating officer shows that it is

consistent with the evidence given by PW 2, PW 7 and PW

9. It gives necessary corroboration to the evidence of PW

2.

37) Evidence of Narendrasing (PW 3) shows that on

8-5-1999 accused gave statement under section 27 of the

Evidence Act and he showed readiness to produce the

29 Appeal 342 of 2001

weapon which was concealed by him in a water tank.

Memorandum is at Exhibit 17. There is evidence of

investigating officer (PW 14) also on Exhibit 17. The

evidence of Narendrasing and the investigating officer

shows that the accused took them and the panch

witnesses to the water tank which was not in use and

from the water tank he produced a knife, Article 9, before

police. It can be said that after arrest of the accused,

discovery of the weapon was made immediately. Discovery

panchanama is also proved in the evidence of this witness.

38) Pandurang (PW 4) has given evidence to prove

the seizure of clothes of the accused taken from him on 7-

5-1999. According to him, one owner of laundry produced

a pant which was handed over by the accused.

Panchanama is at Exhibit 20 and it is consistent with the

oral evidence of the panch. Pandurang (PW 4) is also

examined to prove the seizure of the shirt of the accused.

On 7-5-1999 accused produced shirt and it came to be

seized under panchanama Exhibit 21.

                                           30          Appeal 342 of 2001

     39)                Narayan (PW 11), laundry owner, has given

evidence that early in the morning of 23-4-1999 the

accused had handed over a pant to him and he had

returned clothes of accused which were given by accused

in the past for washing and these clothes were used by the

accused when he removed the pant from his person.

40) Raju (PW 5) is examined to prove the

panchanama of seizure of clothes. The clothes were seized

on 23-4-1999. These are articles 4 to 6. This panchanama

Exhibit 23 is proved in the evidence of Raju (PW 5) and

the evidence of investigating officer (PW 14).

41) Prakash Sonar (PW 6) hotel owner has given

evidence that on 22-4-1999 at 10.00 p.m. the accused, the

deceased and Rajendra (PW 2) had came to his liquor

shop and he had seen these persons together. However in

the cross-examination he has deposed that prior to the

date of the incident and till the date of deposition he had

not seen the accused. In view of this admission there is no

need to discuss this evidence more. His evidence cannot

be used in support of the case of the prosecution.

                                        31         Appeal 342 of 2001

     42)              Similarly, there is no evidence from Rajendra

(PW 2) that before they proceeded to Bhusawal by train

the accused had handed over his clothes to the laundry

owner and he had changed the pant by accepting the pant

given by the laundry owner. Due to this circumstance, not

much importance can be given to the evidence of recovery

of pant of the accused. Due to other circumstance like

C.A. report the evidence on seizure of shirt of accused is

also of no use to prosecution.

43) Prithwiraj (PW 13), police constable, has given

evidence that with covering letters he handed over seven

articles to the CA Office on 19-5-1999. The covering

letters are at Exhibits 34 to 36.

44) Jagannath (PW 13), Surveyor, prepared the map

of the scene of the offence. The map is at Exhibit 44. The

map is consistent with the spot described in the spot

panchanama which is already discussed. In the map the

place where the human blood was found is shown. It can

be said that complete description of the spot upto the

open space and the foot path etc. is not there in the map.

32 Appeal 342 of 2001

However, from the spot shown in the spot panchanama

and in the map it can be said that in the night time no

other person could have witnessed the incident and only

Rajendra (PW 2) could have witnessed the incident.

45) Evidence of Murlidhar (PW 14) P.S.I. who made

investigation shows that he came to know about the

murder only after registration of F.I.R. (Exhibit 12) given

by the brother of the deceased. He has given evidence

that he prepared inquest panchanama (Exhibit 16) and he

made further investigation. He has deposed that he had

tried to trace the accused. According to this witness, the

accused had motive for the crime. Thus, the accused was

wanted according to him on 23-4-1999 but the accused

could not be traced till 6-5-1999. This circumstance can

be considered as a circumstance of abscondance which is

relevant under Section 8 of Evidence Act.

46) Evidence of Murlidhar (PW 14) shows that

after recording of the statement of Shankarlal (PW 10)

police realized that the accused had the motive as the

deceased had taken his place and the deceased was given

33 Appeal 342 of 2001

the work which the accused was doing in the past with

Shankarlal. There is evidence of PW 7 and PW 9 also on

motive which is relevant under section 8 of Evidence Act.

47) Murlidhar (PW 14) has given evidence on the

recovery of the clothes of the accused and also the

recovery of the weapon. This evidence has the

corroboration of independent evidence of panch

witnesses.

48) In the evidence of PW 14 the omissions in the

police statements of PW 2, PW 7 and PW 9 which were

pointed out to them during their cross-examination by

defence counsel are proved and already necessary

observations are made with regard to those

circumstances. These omissions cannot be called as

contradictions and they have not created reasonable

doubt against the case of the prosecution. Due to these

omissions the evidence of these three witnesses cannot be

discarded.

                                               34          Appeal 342 of 2001

     49)              CA Report at Exhibit 46 is in respect of clothes

of the deceased. Human blood was detected on these

clothes. CA Report at Exhibit 47 is in respect of earth

sample collected from the spot of offence. Human blood

was detected in the earth sample. CA report at Exhibit 48

is in respect of weapon knife and human blood was

detected on this weapon but the blood group could not be

determined. No blood was detected on the clothes of the

accused and necessary observations are made in that

regard already. The circumstance of discovery of weapon

on the basis of statement given by the accused under

section 27 of the Evidence Act is certainly an

incriminating circumstance and the accused has not

offered any explanation to this circumstance. The

evidence on the recovery and seizure of clothes of the

accused is however of no use to prosecution. That part

can be discarded.

50) The evidence discussed shows that even when

Rajendra (PW 2) was not available, the police had realised

that it is the accused who had murdered Prakash. This

circumstance is relevant under section 8 of the Evidence

35 Appeal 342 of 2001

Act and there is evidence of Shankarlal (PW 10) on the

doubt expressed by him against the accused. That must

have been done on the basis of disclosure made to him by

his relative Rakesh (PW 7). There is the circumstance

that the accused was absconding immediately after the

crime and he could be traced only on the basis of

information supplied by Rajendra. There is also evidence

of statement under section 27 of Evidence Act given by

the accused to police and recovery of the weapon having

blood. There is also the evidence in the nature of extra

judicial confession given by the accused to PW 7 and PW

9. The medical evidence is also consistent with the

evidence given by Rajendra (PW 2). Thus, the direct

evidence has corroboration of circumstantial evidence and

evidence is sufficient to prove the offence of murder

against the accused beyond all reasonable doubt. This

Court sees no reason to interfere in the decision of the

trial Court against the accused.

51) Record of information which Rajendra (PW 2)

must have supplied to Shegaon police is not produced. But

that circumstance cannot go to the root of the matter. The

36 Appeal 342 of 2001

circumstance that due to Rajendra, accused was traced

has removed the suspicion created by that circumstance.

52) Learned counsel for the appellant placed

reliance on the following reported cases in support of his

submissions :

(1) Jackaran Singh v. State of Punjab (AIR 1995 SC 2345);

(2) Haribhau Ganpati Bhalerao v. State of Maharashtra (2002 ALL MR (Cri) 305);

(3) Hari Deoram Mali v. State of Maharashtra (1999 ALL MR (Cri) 671;

(4) Tukaram Namdeo Yede v. The State of Maharashtra (2016 ALL MR (Cri) 4108);

(5) Nilkanth Govindrao Rahamatkar v. The State of Maharashtra (2017) ALL MR (Cri) 234);

(6) Vikram Babasaheb Jadhav v. State of Maharashtra (2012 ALL MR (Cri) 2548);

(7) Abdul Sattar Babu Shaikh v. The State of Maharashtra (1998) ALL MR (Cri) 460);

(8) Lahu Kamlakar Patil v. State of Maharashtra (2013 Cri. L.J. 603).

The aforesaid reported cases are on appreciation of

evidence and on the evidence given on recording of the

statement made under section 27 of the Evidence Act.

37 Appeal 342 of 2001

Some cases are in respect of proper procedure which

needs to be followed at the time of seizure of weapon and

sending the weapon to CA office etc. Some cases are on

appreciation of evidence of eye witnesses. Facts and

circumstances of each criminal case are always different.

In view of the nature of evidence brought on record in the

present matter this Court sees no reason to discard the

evidence which is mentioned above. In the present case

there is evidence of independent panch witnesses on the

statement given under section 27 of the Evidence Act and

in addition to that there is evidence of the investigating

officer (PW 14). Due to this evidence no doubt is there

about authenticity of the statement given by the accused

under section 27 of the Evidence Act. Though there is no

signature of the accused on the memorandum, in view of

the nature of the evidence, the evidence cannot be

discarded. Reliance is placed by the learned Additional

Public Prosecutor on the case reported as 2017 ALL MR

(Cri) 1316 (S.C.) (Kishore Bhadke v. State of

Maharashtra); and 2001 Cr.L.J. 4355 (Manohar Amrut

Satpudke vs. The State of Maharashtra) . The law laid

down shows that statement recorded under section 27 of

38 Appeal 342 of 2001

the accused does not require signature of the accused.

Provision of section 162(2) of the Criminal Procedure

Code also shows that signature of person giving statement

to police is not to be obtained.

53) The discussion made above shows that

satisfactory explanation is given in respect of delay caused

in recording of the police statement of Rajendra and the

circumstances which were argued as the ground of attack

against the evidence are explained in the evidence.

There is no reason to interfere in the decision given by the

trial Court. So, the appeal stands dismissed. The accused

to surrender to bail bonds for undergoing the sentence.

54) Learned counsel Shri. V.B. Garud was

appointed for the appellant. His fees is quantified at Rs.

5000/- (Rupees Five Thousand).

            Sd/-                                              Sd/-
     (S.M. GAVHANE, J.)                              (T.V. NALAWADE, J.)



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