Bhaskar Reddy Subbareddy Methu vs The State Of Maharashtra
2017 Latest Caselaw 6828 Bom

                                      (1)                        Cri.Appeal No. 193/2001


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO. 193 OF 2001


 Bhaskarreddy s/o Subbareddy Methu
 Age : 38 years, occu.: agri.,
 R/o Achenpalli, Taluka Bodhan,
 District Nizamabad (Andhra Pradesh)                      ..  Appellant.
                                                    (original accused No.1)
          Versus

 The State of Maharashtra
 Through Police Station, Kundalwadi,
 Taluka Biloli, District Nanded                           ..  Respondent.
                                                    (original complainant)

                                   ***
 Mr. S.B. Bhapkar, Advocate for the appellant.
 Mr. R.V. Dasalkar, A.P.P. for the State.
                                   ***

                                            CORAM : T.V. NALAWADE &
                                                         SUNIL K. KOTWAL,JJ. 

                                       RESERVED ON :        02.08.2017
                                       PRONOUNCED ON :  06.09.2017


 JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This appeal is preferred by original accused No.1

against judgment and order dated 13.03.2001 passed by

Additional Sessions Judge, Biloli in Sessions Case No.46/1999

(2) Cri.Appeal No. 193/2001

convicting the accused under Sections 302 and 201 read with

Section 34 of the Indian Penal Code (hereinafter referred as

"I.P.C.").

2. Respondent is the State of Maharashtra.

3. Facts leading to institution of this appeal are that

accused Nos.1 and 2 were prosecuted for the offences

punishable under Sections 302, 201 read with Section 34 of

I.P.C. Shorn off the unnecessary details, the prosecution case, in

brief, is that M. Arunkumar @ Appi Reddy used to live at

Achanpalli alongwith his brothers M. Sundar Reddy and M.

Mallikarjun Reddy and their parents. At the relevant time of the

occurrence, Mallikarjun used to live at Hyderabad for his

occupation. Appi Reddy was in dairy business and his brother

Sundar Reddy was in private service. One month before the

incident, dispute arose in between Appi Reddy and his cousin

Bhaskay Reddy on account of T.V. Cable connection. That time

Bhaskar Reddy threatened to kill Appi Reddy. However, that

dispute was pacified and their relations became normal.

(3) Cri.Appeal No. 193/2001

4. On 30.04.1999 at about 4.30 p.m. Nirmalabai (PW-

15), who is the mother as well as Sundar (PW-1), who is the

brother of Appi Reddy, saw that Appi Reddy was going towards

Bodhan by Scooter alongwith accused No.1 Bhaskar Reddy.

Sundar Reddy (PW-1) also noticed that at short distance, the

Scooter was stopped and accused No.2 Narayan Reddy also

joined them as pillion rider and they proceeded towards

Bodhan. Thereafter Appi Reddy never returned to his residence.

On the next day morning Nirmalabai (PW-15) inquired with

accused Bhaskar Reddy about her son. However, he could not

furnish satisfactory explanation. Despite search for Appi Reddy,

he could not be located. Therefore, on 03.05.1999 a missing

report (Exh.29) was lodged to Police Station, Bodhan by Sundar

Reddy (PW-1). However, missing Appi Reddy was not found.

5. On 07.05.1999 Police Station, Kundalwadi was

informed by Police Patil Hashanna Totawar (PW-3) that a dead

body of an unknown person was lying in the forest area within

the jurisdiction of Kundalwadi Police Station. Therefore, P.S.I.

Angadh Sudake (PW-17) registered A.D. and visited the spot

(4) Cri.Appeal No. 193/2001

where dead body was lying. He prepared inquest panchnama

(Exh.64) of the dead body and drew spot panchnama (Exh.65).

As the dead body was decomposed and it was in partly burnt

condition, Dr. Sunanda Kavthale (PW-2) performed autopsy

examination of that dead body on the spot and by submitting

postmortem notes (Exh.36), opined that cause of death of the

said person cannot be given. Nobody claimed dead body within

reasonable time. Therefore, after obtaining its photographs and

after retaining the articles found on the dead body, P.S.I. Sudake

(PW-17) cremated the dead body through Chief Officer,

Municipality, Kundalwadi. The information was submitted to

nearby police stations about unidentified dead body and inquiry

was started in nearby villages.

6. The family members of missing Appi Reddy came to

know that one dead body was found by the police at

Kundalwadi in the Maharashtra State. Therefore, they

approached Kundalwadi Police Station. By that time dead body

was cremated. But the photographs of the dead body, clothes

and wrist watch found on the dead body were retained by

(5) Cri.Appeal No. 193/2001

police. After watching those photographs as well as cloth and

wrist watch, the family members of Appi Reddy identified that

the dead body found in the forest area of Kundalwadi was of

Appi Reddy. The dead body was exhumed on 14.05.1999 in

presence of the relatives of deceased. The identity of the

deceased was confirmed by the relatives. Therefore the dead

body was handed over to the relatives of deceased. On

14.05.1999 i.e. on the date of identification of the dead body,

Sundar Reddy lodged F.I.R. (Exh.27) against the accused

persons. In the result, offence was registered at Police Station,

Kundalwadi against accused persons bearing Crime No. 29/99,

under Sections 302 and 201 read with Section 34 of I.P.C.

7. During the course of investigation, P.S.I. (PW-17)

visited the spot, drew inquest panchnama (Exh.64) and spot

panchnama (Exh.65). He also recorded statements of

witnesses. Both the accused were arrested on 14.05.1999.

Clothes of accused were seized which they wore at the time of

commission of offence. On 25.05.1999 Chetak Scooter was

seized, which was used by accused persons at the time of

(6) Cri.Appeal No. 193/2001

commission of offence. Special Executive Magistrate Ramrao

Gaikwad (PW-6) held Test Identification Parade of accused

(Exh.46). As per the disclosure statement given by accused

No.1 Bhaskar Reddy, liquor bottle was seized near the spot of

incident. All seized muddemal was referred to Chemical

Analyzer, Aurangabad on 06.06.1999. Even specimen finger

prints of accused No.1 Bhaskar Reddy and seized liquor bottle

was referred to Finger Prints Expert. After completion of

investigation, charge-sheet was submitted in the Court of

Judicial Magistrate, First Class, Biloli.

8. Offence punishable under Section 302 of I.P.C. being

exclusively triable by the Court of Sessions, this case was

committed to Additional Sessions Judge, Biloli.

9. Charge (Exh. 11) was framed against accused Nos.1

and 2 for the offences punishable under Sections 302 and 201

read with Section 34 of I.P.C. They pleaded not guilty and

claimed trial.

(7) Cri.Appeal No. 193/2001

10. Defence of the accused is of total denial.

11. Prosecution examined total 17 witnesses. Defence

did not examine defence witness. Therefore, after considering

the evidence placed on record, the learned trial Court pleased to

convict both the accused for the offence punishable under

Section 302 read with Section 34 of I.P.C. and they were

sentenced to suffer imprisonment for life and to pay fine of Rs.

2000/- each. Accused were also convicted for the offence

punishable under Section 201 read with Section 34 of I.P.C. and

they were sentenced to suffer rigorous imprisonment for 5 years

and to pay fine of Rs. 1000/- each. Therefore this appeal

arises.

12. Mr. Bhapkar, Learned Counsel for the appellant has

submitted that the Medical Officer Dr. Sunanda Kavthale (PW-

2), who performed autopsy examination of the unknown dead

body, could not submit opinion regarding exact cause of death.

His next submission is that as the dead body was in highly

decomposed and in burnt condition, nobody can properly

(8) Cri.Appeal No. 193/2001

identify the dead body. Therefore, prosecution cannot establish

that the dead body found in the Kundalwadi forest was of Appi

Reddy.

13. In reply, learned A.P.P. for the State has drawn our

attention towards the testimony of Sunder Reddy (PW-1) as

well as Nirmalabai (PW-15) and submitted that the near

relatives have identified the dead body on the basis of the face

of exhumed dead body as well as on the basis of the

photographs and seized wrist watch and cloth, which were

found on the dead body.

14. After going through the evidence of Dr. Sunanda

(PW-2), who performed autopsy examination of the dead body

on the spot on 07.05.1999, it reveals that it was the dead body

of a male person having green piece of cloth on the waist and

grayish piece of shirt. Blackish burnt skin was present on the

arm and face of the dead body. This Medical Officer also found

that at abdomen no internal organ or part was present. At last,

she deposed that it was not possible for her to state about the

(9) Cri.Appeal No. 193/2001

cause of death. However, though the Medical Officer cannot

give specific opinion regarding the cause of death, on the basis

of the other circumstances on the spot, it can be ascertained

whether it was the case of homicidal death or not.

15. By examining panch Rajeshwar (PW-14) the

prosecution has proved the inquest panchnama (Exh.64) as well

as spot panchnama (Exh.65). After going through inquest

panchnama (Exh.64), it emerges that the dead body was lying

in supine condition and it was partly burnt. No doubt, the

lower part of the dead body was either eaten away by the

animals or destroyed for other reasons. However, one wrist

watch was found on the left hand of the dead body and the

facial portion of the dead body was partly intact. Thus, it

reveals that some culprits have tried to destroy the dead body

by burning it. This fact itself indicates that the deceased did not

die of natural death or suicidal death. This finding is also

supported by spot panchanama (Exh.65), which shows that one

plastic bottle was lying near the dead body and a piece of partly

burnt shirt was also found on the dead body with label, over

(10) Cri.Appeal No. 193/2001

which name "Ishwar" was printed. C.A. Report (Exh.89) shows

that kerosene residues were found in plastic bottle, glass bottle,

partly burnt piece of shirt, nylon rope as well as earth sample

seized from the spot of incident. This indicates that somebody

had tried to burn the dead body after pouring kerosene over it.

These circumstances on record are definitely sufficient to show

that though the cause of death of the deceased cannot be

ascertained by Medical Officer, it was the case of homicidal

death. Thus, our conclusion is that the deceased, whose dead

body was found in Kundalwadi forest, died of homicidal death.

16. Now the question to be determined is whether the

prosecution can establish the identity of the said dead body as

the body of deceased Appi Reddy @ Arunkumar.

17. Sunder Reddy (PW-1), who is the brother and

Nirmalabai (PW-15), who is the mother of deceased Appi Reddy

and one Vijaykumar (PW-4), have categorically deposed before

the Court that after knowing that unknown dead body was

found in Kundalwadi forest area, they went to Police Station,

(11) Cri.Appeal No. 193/2001

Kundalwadi and when they had seen the photograph of the

dead body as well as piece of cloth of shirt and wrist watch

found on the dead body, they identified that it was the dead

body of Appi Reddy. From their testimony it emerges that on

next day, the dead body was exhumed and the near relatives i.e.

Sunder Reddy (PW-1) and Nirmalabai (PW-15) identified the

dead body as of Appi Reddy. The testimony of these witnesses is

also corroborated by P.S.I. Sudake (PW-17). It cannot be

ignored that though the dead body was partly burnt, the near

relatives like brother Sundar Reddy (PW-1) and mother

Nirmalabai (PW-15) cannot make any mistake to identify Appi

Reddy, who was day-to-day under their observation.

18. In the case of Sudama Roy Versus State of West

Bengal, reported in [ 1998 Supreme Court Cases (Cri.) 391],

the Apex Court accepted the identification of dead body of

daughter by her mother even on the basis of skeleton of the

daughter.

19. Therefore, considering the principle that the mother

(12) Cri.Appeal No. 193/2001

cannot commit mistake in identifying the dead body of her

partly burnt son, we have no hesitation to hold that the

identification of the dead body of Appi Reddy by his brother

Sunder Reddy (PW-1) and mother Nirmalabai (PW-15) after

exhumation of the dead body and after identifying wrist watch,

cloth piece and photograph of the dead body, is absolutely

reliable and cannot be doubted. Even in the cross-examination

of Nirmalabai (PW-15) identification of the dead body of Appi

Reddy is not at all challenged by the accused. Thus, the

conclusion can be drawn that the prosecution has established

beyond reasonable doubt that Appi Reddy died of homicidal

death and his dead body was found in the forest area of

Kundalwadi.

20. Now, we have to examine whether the prosecution

can establish the link in between accused and homicidal death

of Appi Reddy. No eye witness is available who had seen

accused Nos.1 and 2 while committing murder of Appi Reddy.

The total prosecution case is based on circumstantial evidence.

(13) Cri.Appeal No. 193/2001

21. Mr. S.B. Bhapkar, learned counsel for the appellant

has submitted that the prosecution cannot establish motive

behind the murder of deceased, because the trifling quarrel on

account of cable connection cannot be a motive to kill the

deceased. He also pointed out that no other evidence is

available regarding illicit relations of deceased Appi Reddy with

the wife of accused No.1 Bhaskar Reddy. He has submitted that

when the case is based on substantial evidence, the motive plays

very important role. He has placed reliance on the case of

Dayanand Changdeo Zende and others Versus State of

Maharashtra reported in [2008 (1) Mh.L.J. (Cri.) 74],

wherein the Division Bench of this Court held that, "where the

prosecution case is entirely based on the circumstantial evidence,

the prosecution is obliged to establish chain of circumstances so

complete, that it unerringly establishes guilt of the accused and

does not leave any scope for an inference consistent with their

innocence. The circumstances relied upon by the prosecution must

be incompatible with any hypothesis consistent with the innocence

of the accused and should negate all possibilities of their

innocence".

(14) Cri.Appeal No. 193/2001

22. He also placed reliance on the case of Sharad

Biridhichand Sarda Versus State of Maharashtra, reported in

(AIR 1984 Supreme Court 1622), wherein the Apex Court

ruled that, "it is well settled that the prosecution must stand or

fall on its own legs and it cannot derive any strength from the

weakness of the defence. Where various links in a chain are

themselves complete, then a false plea or a false defence may be

called into aid only to lend assurance to the Court. In other words,

before using the additional link it must be proved that all the links

in the chain are complete and do not suffer from any infirmity. It

is not the law that where there is any infirmity or lacuna in the

prosecution case, the same could be cured or supplied by a false

defence or a plea which is not accepted by a Court".

23. In the case at hand, Sunder Reddy (PW-1) as well as

Nirmalabai (PW-15) have deposed regarding quarrel in between

Appi Reddy and accused No.1 Bhaskar Reddy on account of

cable connection prior to the occurrence of the incident.

However, from their evidence it also emerges that the quarrel

was pacified and again the relations in between Appi Reddy and

(15) Cri.Appeal No. 193/2001

accused No.1 Bhaskar Reddy became normal. Thus, obviously

such type of trifling quarrel cannot become motive for

commission of murder of deceased. In addition to this,

Vijaykumar (PW-4) has also tried to bring on record a quarrel in

between deceased and accused Bhaskar Reddy on account of

relation of deceased with the wife of accused Bhaskar Reddy.

However, from the examination-in-chief of Vijaykumar (PW-4) it

emerges that after that quarrel again the relations in between

deceased Appi Reddy and accused No.1 Bhaskar Reddy became

normal. In the circumstances, we have no hesitation to hold

that the prosecution cannot prove that accused had any motive

to kill the deceased. However, if the circumstantial evidence

available on record is free from all infirmities, then even in

absence of motive, accused can be convicted.

24. Mr. S.B. Bhapkar, Advocate for the appellant has

submitted that though Sunder Reddy (PW-1) claimed that he is

an eye witness who had seen deceased Appi Reddy while going

out alongwith accused Nos.1 and 2, in fact he is not eye witness

of this occurrence, because in missing report (Exh.74) it is

(16) Cri.Appeal No. 193/2001

specifically mentioned that he did not see deceased while going

out alongwith accused persons.

25. However, learned A.P.P. has rightly pointed out that

the document at Exh.74 cannot be a genuine missing report.

The original missing report is filed by the prosecution at Exh.29.

The document filed at Exh.74 was placed on record during the

cross-examination of Sunder Reddy (PW-1) and it is an ordinary

xerox copy of attested statement of Sunder Reddy (PW-1). This

document being xerox copy is a secondary evidence and it has

been not brought on record from the proper custody as well as

with permission of the trial Court. In fact, the learned trial

Court ought to have not accepted such xerox copy of the

statement and should not have permitted the defence Counsel

to cross-examine Sunder Reddy (PW-1) on the basis of such

doubtful document. Therefore, xerox copy of the statement

(Exh.74) deserves to be ignored in toto.

26. After going through the missing report (Exh.29)

filed by Sunder Reddy (PW-1) on 03.05.1999 at Police Station,

(17) Cri.Appeal No. 193/2001

Bodhan, it emerges that it is specifically mentioned in this

missing report that on 30.04.1999 at about 4.30 p.m. Appi

Reddy had gone alongwith Bhaskar Reddy on his Scooter from

the house of Sundar Reddy (PW-1) and thereafter he never

returned to his house. In this missing report it is also

mentioned that while leaving the house, Appi Reddy wore light

green Lungi and cement colour shirt and his height was 5 ft. 10

inches.

27. After identification of the dead body of Appi Reddy

immediately on 14.05.1999 Sunder Reddy (PW-1) lodged F.I.R.

(Exh.27). In F.I.R. the incident occurred on 30.04.1999 at

about 4.30 p.m. is specifically mentioned. Sunder Reddy (PW-

1) deposed before the Court that on 30.04.1999 when he was

proceeding from Bodhan to Achanpalli, that time he saw that

Appi Reddy was travelling as a pillion rider on the Scooter

driven by accused No.1 Bhaskar Reddy and they were

proceeding towards Bodhan. From the testimony of Sunder

Reddy (PW-1) it further emerges that after going little ahead,

Bhaskar Reddy allowed Narayan Reddy to sit on the same

(18) Cri.Appeal No. 193/2001

Scooter as additional pillion rider and thereafter those 3 persons

went away towards Bodhan. According to this witness, he

returned to his house at 9.00 p.m. and thereafter he informed

this occurrence to his mother Nirmalabai (PW-15). Nirmalabai

(PW-15), who was present at her house at Achanpalli, deposes

on oath that on 30th April when she was tethering buffaloes near

her house, that time she saw that accused No.1 Bhaskar Reddy

was taking away her son Appi Reddy on Scooter. She has also

made it clear that on the date of incident, Appi Reddy wore

cement colour shirt and green colour Lungi.

28. Learned Counsel for the appellant submitted that

these two witnesses are contradicting each other regarding the

presence of accused No.2 Narayan Reddy as a second pillion

rider. However, we do not find any substance in this objection

for the simple reason that Nirmalabai (PW-15) watched her son

going away alongwith accused No.1 Bhaskar Reddy from her

house at village Achanpalli. On the other hand, Sunder Reddy

(PW-1) had noticed accused No.1 Bhaskar Reddy and Appi

Reddy while travelling by Scooter from Bodhan to Achanpalli

(19) Cri.Appeal No. 193/2001

road when he was returning from Bodhan. According to Sunder

Reddy (PW-1), on that road accused No.1 gave lift to accused

No.2 Narayan Reddy. Therefore, it was natural that at the

residence of Nirmalabai (PW-15) she could not notice accused

No.2 Narayan Reddy because Narayan Reddy did not sit on the

Scooter at village Achanpalli, but he obtained lift at Bodhan

road.

29. Mr. Bhapkar, Advocate for appellant has also pointed

out that Sunder Reddy (PW-1) and Nirmalabai (PW-15) are

contradicting each other as to who informed the occurrence to

each other. However, it cannot be ignored that these both

witnesses have deposed before this Court in the year 2000 i.e.

after lapse of more than one year from the date of occurrence.

Therefore, such minor inconsistencies emerging in the evidence

of such rustic villagers deserve to be ignored.

30. Mr. Bhapkar, learned Counsel for the appellant has

also assailed the testimony of Sunder Reddy (PW-1) and

Nirmalabai (PW-15) on the ground that from the cross-

(20) Cri.Appeal No. 193/2001

examination of Nirmalabai (PW-15) it emerges that the working

hours of Sunder Reddy (PW-1) were 8.00 a.m. to 2.00 p.m. and

after recess period upto 9.00 p.m. According to Mr. Bhapkar,

when Nirmala (PW-15) admits in her cross-examination that

Sunder (PW-1) was attending his duty on the day when Appi

Reddy went alongwith Bhaskar Reddy on Scooter, it is

impossible that Sunder can watch Bhaskar Reddy and Appi

Reddy while passing by Bodhan road. However, we do not find

any substance in this objection for the reason that on this count

no questions have been asked to Sunder Reddy (PW-1) as to

how he was passing by the road from Bodhan towards

Achanpalli. Therefore, it is also probable that for office work

Sunder Reddy (PW-1) might have gone to Bodhan and while

returning towards Achanpalli he noticed Appi Reddy and

accused persons while travelling by one Scooter. Therefore, for

such trifling reason the testimony of Sunder Reddy (PW-1)

cannot be doubted.

31. No doubt, the testimony of Vijaykumar (PW-4) that

on 30.04.1999 he saw Bhaskar Reddy and Narayan Reddy

(21) Cri.Appeal No. 193/2001

proceeding from bye pass road to Bodhan on Scooter, is not

relevant as this witness did not speak regarding presence of

Appi Reddy as one of the pillion rider. Even the version of

Krishna Reddy (PW-5) that on 30.04.1999 when he was sitting

in the hotel, he saw Bhaskar Reddy, Appi Reddy and Narayan

Reddy while going towards Bodhan side by bye-pass road,

cannot be believed as the same is proved as material

improvement in his cross-examination.

32. However, it cannot be ignored that Sunder Reddy

(PW-1) and Nirmalabai (PW-15) have no personal envy against

both the accused persons to falsely implicate them in such

serious offence. On the other hand, both the accused are near

relatives of these witnesses and from the cross-examination of

these witnesses, it also emerges that the relation amongst these

both witnesses, deceased and the accused were cordial.

Therefore, false implication of the accused by these both

witnesses is out of question. In the result, we have no

hesitation to hold that on the basis of truthful testimony of

Sunder Reddy (PW-1) and Nirmalabai (PW-15) the prosecution

(22) Cri.Appeal No. 193/2001

has proved that on 30.04.1999 at about 4.00 to 4.30 p.m.

deceased Appi Reddy had gone towards Bodhan side by one

Scooter alongwith accused No.1 Bhaskar Reddy and accused

No.2 Narayan Reddy.

33. By examining Shaikh Mainuddin (PW-9) prosecution

has tried to bring on record additional evidence that on the date

of the incident accused persons and deceased were found near

forest area of Kundalwadi. However, Shaikh Mainuddin (PW-9)

has turned hostile and nothing helpful to the prosecution could

be elicited in his cross-examination. In cross-examination by

defence Counsel he has admitted that those three persons were

at a distance of 60 ft. from him and there was darkness due to

shadow of trees. Therefore, the identification of unknown

persons from the distance of 60 ft. in the darkness is highly

improbable. In further cross-examination he has totally washed

out the case of prosecution regarding identification of accused

persons by this witness in Test Identification Parade held by

Special Executive Magistrate Ramrao Gaikwad (PW-6).

(23) Cri.Appeal No. 193/2001

34. Even the testimony of Ramrao Gaikwad (PW-6),

Special Executive Magistrate, who claims that in his presence

Shaikh Bashir and Shaikh Mainuddin (PW-9) identified accused

Nos.1 and 2, is useless for the simple reason that these both

identifying witnesses have denied the identification of accused

Nos.1 and 2 in Test Identification Parade. Otherwise also,

identification by witness in Test Identification Parade is not a

substantive evidence. Therefore, the testimony of Ramrao

Gaikwad (PW-6) is nothing but a useless piece of evidence.

35. The next witness examined by the prosecution to

prove that the deceased and accused were last seen together, is

the Waiter Mohammad Mehboob (PW-7). Mohammad

Mehboob Sarwar (PW-7) categorically deposes on oath that

prior to 1 ½ year prior to date of recording of his evidence i.e.

approximately on the date of the incident at about 5.00 p.m.,

three persons came to his Dhaba styled as "Highway Hotel"

situated at bye-pass road, Bodhan and placed an order of

roasted Chana and half bottle of Brandy. From the testimony of

this witness it emerges that out of these three customers the

(24) Cri.Appeal No. 193/2001

person who was the tallest amongst them, consumed more

liquor than the others. This witness has also described the

clothes on the body of that taller customer as greenish Lungi

and gray colour shirt which resembles with the description of

the clothes of deceased. According to this witness, the other

two customers wore white Lungi and cream colour shirt and

black pant and white shirt respectively, which resembles with

the clothes on the person of accused No.2 and accused No.1

respectively. According to this witness, after consumption of

liquor, those three persons went away by one Scooter towards

Bodhan side. He has firmly identified accused Nos.1 and 2 as

the same customers who accompanied the above referred taller

customer. He has also identified that accused No.1 Bhaskar

Reddy was driving the Scooter. Thus, in brief, this witness has

proved that on the date of incident at about 5.00 p.m. onward

both accused persons and the deceased were found together

near Bodhan at "Highway Dhaba" situated at bye-pass road,

Bodhan.

36. Learned defence Counsel cross-examined this

(25) Cri.Appeal No. 193/2001

witness at length. However, except that this witness was

brought to the Court by some persons from the village

Achanpalli, nothing has been placed before the Court which is

sufficient to disbelieve the testimony of this witness. Even the

improvements brought on record regarding the clothes worn by

accused and deceased are not material to view the natural

testimony of this witness with suspicion. On the other hand,

this hotel-cum-dhaba is situate near the spot of the incident,

and therefore, the version of this witness regarding presence of

both accused alongwith deceased at his Dhaba for consumption

of liquor is most natural. On the other hand, through the Court

question it has been brought on record that this witness has

identified accused Nos.1 and 2 as companions of the deceased,

because the photograph of the deceased was shown to this

witness. Therefore, we have no hesitation to hold that if the

testimony of Sunder Reddy (PW-1), Nirmalabai (PW-15) and

Mohammad Mehboob Sarwar (PW-7) is considered together, the

prosecution has proved beyond reasonable doubt that on the

date of incident since 4.00 to 4.30 p.m. till the evening hours

both accused were in the company of deceased and no third

(26) Cri.Appeal No. 193/2001

person was in the company of deceased other than the accused.

37. From the testimony of Police Patil Hashanna

Totawar (PW-3), it emerges that the decomposed dead body of

the deceased was located for the first time on 07.05.1999.

Therefore, from the stage of decomposing of the dead body it

can be ascertained that the probable time of death of deceased

is on the date of the incident at late evening hours. From the

testimony of Sunder Reddy (PW-1) and Nirmalabai (PW-15) it

also becomes clear that on the next day of the incident accused

were present at village Achanpalli when Nirmalabai (PW-15)

inquired with accused Bhaskar Reddy regarding her missing

son. That time accused No.1 Bhaskar Reddy did not give

satisfactory explanation about missing of Appi Reddy. Thus,

with the aid of Section 106 of the Evidence Act, inference can

be drawn that on the date of incident after killing the deceased

in Kundalwadi forest, on next day morning accused persons

safely returned to village Achanpalli and had given false

explanation to Nirmalabai (PW-15) that the deceased was left

on road on the earlier day. It cannot be ignored that on

(27) Cri.Appeal No. 193/2001

30.04.1999 till evening the deceased was only with the

company of accused Nos.1 and 2 and thereafter only the

decomposed dead body of deceased was found after 7 days.

Therefore, considering the time gap in between finding of

accused with deceased together and the probable time of the

death of deceased, only one conclusion deserves to be drawn

that accused Nos.1 and 2 are the killers of deceased.

38. In the case of Mohamma Azad Versus State of

West Bengal, reported in (AIR 2009 SC 1307) the Apex Court

ruled that last seen theory requires possible link between the

time when the person was last seen alive and the fact of death

of deceased coming into light. There should be reasonable

proximity of time between those two events. In the case of

State of Goa Versus Sanjay Thakran, reported in [(2007) 3

SCC 755], the Apex Court ruled that there can be no fixed

straight jacket formula for the duration of time gap in this

regard and it would depend upon the evidence laid by

prosecution to remove the possibility of any other person

meeting the deceased in the intervention period. In all cases it

(28) Cri.Appeal No. 193/2001

cannot be said that the evidence of last seen together is to be

rejected merely because the time gap between accused persons

and the deceased last seen together and the crime coming to the

light is after considerable long duration.

39. In the case at hand also the accused and deceased

were last seen together at evening hours near Kundalwadi forest

where later on the dead body of deceased was found in

decomposed condition. Therefore, there was no possibility of

intrusion to that place by any third party. Therefore, relatively

wider time gap in between last seen together and finding dead

body would not affect the prosecution case.

40. Learned defence Counsel has raised objection

regarding delay in recording statement of Mohammad

Mehmood (PW-7). However, such objection is not acceptable

for the simple reason that in view of the case of Ranbir Versus

State of Punjab, reported in (AIR 1973 SC 1409), the defence

cannot gain any advantage therefrom. It cannot be laid down

as a rule of universal application that if there is any delay in

(29) Cri.Appeal No. 193/2001

examination of witnesses, the prosecution version become

suspect.

41. In the case at hand, considering the typical nature of

investigation of this matter, certainly the Investigating Officer

would required reasonable time to locate the related witnesses

who could have thrown light on the probable occurrence.

Therefore, though there is certain delay in recording statement

of Mohammad Mehmood (PW-7), on that count his testimony

cannot be discarded.

42. In addition to the above-referred substantial

evidence in the form of last seen together, the prosecution has

also examined Mohanrao Pande (PW-10), who claims that on

16.05.1999 in his presence white shirt and grey blackish colour

pant (Articles X-1, X-2) were seized from accused No.1 Bhaskar

Reddy under seizure memo (Exh.53) and one shirt and Lungi

(Articles X-3, X-4) were seized from accused No.2 Narayan

Reddy under panchnama (Exh.54). This witness has

categorically identified the clothes Articles X-1 & X-2 of accused

(30) Cri.Appeal No. 193/2001

No.1 Bhaskar and shirt and Lungi i.e. Articles X-3 & X-4 as the

clothes of accused No.2 Narayan. Despite sufficient cross-

examination, this witness stood constant. Nothing could be

elicited to disbelieve his version. Only because this witness does

not know the name of the tailor who stitched the clothes of the

accused and only because on the label fixed on the clothes name

of the person from whom those were seized are not mentioned,

the testimony of this witness cannot be discarded, when

otherwise it is free from doubt. Only because the house of this

witness is near Police Station, conclusion cannot be drawn that

he is a habitual police punch, when no substance has been

placed on record in the form of certified copies of depositions of

this witness recorded in other cases to prove that he is a

habitual police witness. Therefore, we have no hesitation to

hold that the testimony of Mohan Pande (PW-10) together with

the testimony of P.S.I. Sudake (PW-17) is sufficient to prove

beyond reasonable doubt the seizure of clothes (Articles X-1 &

X-2) from accused No.1 Bhaskar Reddy and clothes (Articles X-3

& X-4) from accused No.2 Narayan Reddy.

(31) Cri.Appeal No. 193/2001

43. From the testimony of P.S.I. Sudake (PW-17) and

Carrier Police Constable Mohan Modpate (PW-12) it emerges

that all the seized articles in this crime were referred to

Chemical Analyzer, Aurangabad on 06.06.1999 (Exh.60). C.A.

Report (Exh.88) of these articles shows that on the shirt of

accused No.1 human blood was found. So also, the human

blood was also found on the shirt piece found on the dead body

and nylon rope found near the dead body. Despite the

opportunity to the accused persons in their statement recorded

under Section 313 of the Code of Criminal Procedure, they have

not furnished any explanation regarding human blood found on

the shirt of accused No.1 Bhaskar Reddy. The detection of

human blood on the shirt of accused No.1 Bhaskar Reddy

without having any explanation for the same, together with the

above evidence of last seen together, is definitely sufficient to

connect accused No.1 Bhaskar Reddy with the homicidal death

of deceased Appi Reddy. Blood stains on nylon rope found near

the dead body of deceased Appi Reddy indicates that it was

used for killing the deceased Appi Reddy. Thus, a complete

chain of circumstantial evidence is available on record which

(32) Cri.Appeal No. 193/2001

indicates finger towards accused No.1 Bhaskar Reddy as a killer

of deceased Appi Reddy and ruled out every possibility of his

innocence.

44. Before parting with the judgment, we must point out

that the evidence placed on record in the form of recovery of

liquor bottle and detection of finger prints of accused No.1

Bhaskar Reddy on the same liquor bottle is useless piece of

evidence for the simple reason that from the testimony of panch

Mohan Shirgire (PW-16) it emerges that the said liquor bottle

was taken out by accused No.1 Bhaskar Reddy from the bushes

and that time certainly it was handled by accused No.1.

Therefore, finding a chance finger print of accused No.1

Bhaskar Reddy on the said liquor bottle is natural and this fact

is of no help to the prosecution to prove the presence of accused

No.1 Bhaskar Reddy near the spot.

45. However, as observed that the chain of

circumstantial evidence is fully established by prosecution,

which is sufficient to hold that on 30.04.1999 accused No.1

(33) Cri.Appeal No. 193/2001

Bhaskar Reddy with requisite intention committed murder of

deceased Appi Reddy. As accused No.1 Bhaskar Reddy partly

burnt the dead body by pouring kerosene on it, the prosecution

can also establish the charge under Section 201 of I.P.C. i.e.

causing disappearance of the evidence of murder with intention

of screening himself from legal punishment. In other words,

conviction of accused No.1 Bhaskar Reddy under Section 302

and 201 of I.P.C. and sentence of imprisonment for life and fine

of Rs. 2000/-, in default of payment of fine rigorous

imprisonment for one year for the offence punishable under

Section 302 read with Section 34 of I.P.C. and rigorous

imprisonment for five years and fine of Rs. 1000/-, in default of

payment of fine rigorous imprisonment for six months for the

offence punishable under Section 201 of I.P.C. is just and

reasonable and needs no interference.

46. Accused No.2 Narayan Reddy died during the

pendency of appeal and Criminal Appeal No.172/2001 filed by

him is also abated. This appeal being devoid of merit deserves

to be dismissed.

(34) Cri.Appeal No. 193/2001

47. Accordingly, we pass the following order.

ORDER

1. Criminal Appeal No. 193/2001 is dismissed.

2. The conviction of accused No.1 Bhaskarreddy s/o Subbareddy Methu for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code in Sessions Case No. 46/1999 passed by Additional Sessions Judge, Biloli is confirmed.

3. Set off be given under Section 428 of the Code of Criminal Procedure for the period already undergone by accused No.1 Bhaskarreddy s/o Subbareddy Methu

4. Accused No.1 Bhaskarreddy s/o Subbareddy Methu shall immediately surrender to his bail bonds before the trial Court to undergo the sentence.

5. At this stage, Mr. Bhapkar, learned Counsel for the appellant requested for granting time to surrender. It amounts to giving stay by the Appellate Court to the judgment and order of conviction and also sentence of life imprisonment. Therefore, the request is rejected.

          ( SUNIL K. KOTWAL)                          ( T.V. NALAWADE)
               JUDGE                                          JUDGE


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