Bombay High Court
Tukaram Dattarao Sontakke, C.No. ... vs The State Of Maharashtra on 25 January, 2018
Bench: S.S. Shinde
(1) cri appeal 306
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 306 OF 2013
Tukaram Dattarao Sontakke
Age: 30 Years, Occ.: Labour,
R/o Kaudgaon, Taluka - Basmat,
District - Hingoli. ... Appellant
Versus
The State of Maharashtra,
Through Police Station _ Hatta,
Taluka - Basmat, Dist.- Hingoli ... Respondent
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Mr. S.H.Jagiasi, Advocate (appointed) for the Appellant.
Mrs. P.V.Diggikar, APP for respondent-state.
WITH
CRIMINAL APPEAL NO. 91 OF 2014
The State of Maharashtra,
Through Police Station - Hatta,
Taluka - Basmat, Dist.- Hingoli
... Appellant
Versus
Tukaram Dattarao Sontakke
Age: 29 Years, Occ.: Labourer,
R/o Kaudgaon, Taluka - Basmat,
District - Hingoli. ... Respondent
::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 02:26:29 :::
(2) cri appeal 306
-----
Mrs. P.V.Diggikar, APP for Appellant-State.
Mr. S.H.Jagiasi, Advocate (appointed) for the Respondent.
-----
CORAM : S.S. SHINDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 09.11.2017
PRONOUNCED ON : 25.01.2018
...
JUDGMENT: (Per Mangesh S. Patil, J.)
. Criminal Appeal No. 306 of 2013 is an appeal by the accused
under Section 374 (2) of the Code of Criminal Procedure against his
conviction in Sessions Trial No. 16 of 2012 from the file of the learned
Additional Sessions Judge, Basmathnagar, District Hingoli for the offence
punishable under Section 302 of the Indian Penal Code and sentence of R.I.
for life and fine of Rs. 1,000/- and in default of payment of fine R.I. for six
months, for each of the two murders.
2] The State has preferred Criminal Appeal No. 91 of 2014 under
Section 377 (1) of the Code of Criminal Procedure for enhancement of the
sentence. Therefore we are disposing of both these Criminal Appeals by this
common judgment.
(3) cri appeal 306
3] Shorn of unnecessary details, the prosecution case as can be
made out from the charge-sheet and the evidence laid before the learned
Additional Sessions Judge can be summarised as under:
Deceased Janardhan is the brother of the informant Chagan (PW-1).
They are the residents of the village Kaudgaon, Tq. Basmath. Their parents
also stay with them. They have agricultural land at village Kaudgaon. Some
of which is irrigated. They had constructed couple of rooms in the field for
storing agricultural instruments and fertilizers. There is a swing tied to a
mango tree near these two rooms. This entire premises is described by the
prosecution witnesses as 'Akhada'. The appellant was working as an
agricultural labourer with these brothers couple of years prior to the incident.
Even his wife was working as an agricultural labourer in the field of these
brothers. It has also come on record that even on the eventful day she was
working in the field of these brothers. It is alleged that the appellant was
suspecting that deceased Janardhan was having illicit relations with his wife.
4] On 11.10.2011 Janardhan, Chagan (PW-1) and the deceased son
of Janardhan by name Shrinivas @ Sahil @ Bablu aged five years had come to
the Akhada in the morning. They had their tiffin at about 10.00 a.m. Uttam
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(PW-2) was engaged as an agricultural labourer by these two brothers on
yearly wage basis. He also came to the field and each one of them were
engaged in agricultural operations. Uttam (PW-2) had gone for tethering
bullocks under a mango tree. Chagan (PW-1) went to the side where the crop
of cotton was sown. Some lady labourers were also working in the nearby
field. Dnyaneshwar (PW-4) is the cousin of Janardhan and Chagan (PW-1),
Vaishali (PW-3) is wife of Dnyaneshwar (PW-4). The couple has also
agricultural land adjacent to the land of these two brothers. They were
present in their field. Deceased Janardhan and deceased Shrinivas were
present in the Akhada. Janardhan was sitting on the swing and the appellant
was also present nearby. His wife was also working in the field of these two
brothers.
5] At about 01.00 p.m., Uttam (PW-2) heard a hue and cry from the
side of Akhada therefore he rushed towards it and saw that the appellant was
assaulting Janardhan with a chopper and inflicted several blows on his head.
Uttam (PW-2) saw that the appellant was assaulting Janardhan with the
chopper on his head. Uttam (PW-2) tried to intervene however, the appellant
threatened him therefore he started running and even Shrinivas also starting
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running after him. After hearing the hue and cry Vaishali (PW-3) and
Dnyaneshwar (PW-4) also rushed towards the Akhada. Simultaneously, even
Chagan (PW-1) also rushed towards the spot. However, at a short distance the
appellant allegedly caught hold Shrinivas, when Vaishali (PW-3) and
Dnyaneshwar (PW-4) tried to intervene the appellant threatened him and
assaulted Shrinivas with the chopper on his head. The appellant then fled
from the spot. Janardhan was found lying in the pool of blood and had died
on the spot. Since Shrinivas was still alive Uttam (PW-2) and Dnyaneshwar
(PW-4) carried him to the Government Hospital at Basmathnagar on a motor-
cycle but even he was declared dead on arrival.
6] The incident was reported to the Hatta Police Station. Police
rushed to the spot. P.S.I. Waghmare (PW-12) recorded the statement of
Chagan (PW-1) and sent it to the Hatta Police Station where Police Naik
Hatkar (PW-7) registered it as F.I.R. and registered it as Crime No. 129 of
2011 for the offence punishable under Section 302 of the Indian Penal Code.
7] P.S.I. Waghmare (PW-12) then carried out the investigation. He
conducted panchanama of the scene of the offence. Inquest was conducted in
respect of both the dead bodies in presence of panch Rangnath (PW-5) and
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panch Bhanudas (PW-6). Clothes on the person of both the deceased were
seized under another panchanama (Exhibit-35) in presence of panch Anurath
(PW-9). Dr. Salunke (PW-10) conducted autopsies as per postmortem notes
(Exhibit-41 and 42). After noticing several injuries Dr. Salunke (PW-10)
opined that Janardhan had died due to hemorrhagic shock, neurogenic shock
and multiple fractures of scull bone at various sides. She also opined that the
injuries sustained by Janardhan were difficult to describe since all the face
was crushed. It was also opined that all the injuries were ante mortem. In
respect of Shrinivas Dr. Salunke (PW-10) gave exactly the same opinion as to
the cause of death.
8] The appellant was arrested from Shani Shingnapur on
13.10.2011. He allegedly made the statement and agreed to discover the
chopper. His statement was recorded in presence of panch Sandeep (PW-11).
The appellant then discovered chopper which was also seized under
panchnama (Exhibit-43). It is further alleged that the clothes on the person of
the appellant were also stained with blood and those were also seized. All
these Muddemal Articles were then sent for Chemical Analysis and in due
course of time the appellant was chargesheeted.
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9] The defence of the appellant is of total denial. During the cross-
examination of some of the prosecution witnesses an attempt was made to
suggest that Chagan (PW-1) had committed the murders since Janardhan was
having ill-eye on the formers wife. However, the witnesses have denied the
suggestions and there has been no other evidence to substantiate it.
10] After conducting the trial, the learned Additional Sessions Judge
by the impugned judgment and order has convicted the appellant as
mentioned herein-above. However, simultaneously the learned Additional
Sessions Judge has also concluded that the offence does not fall into the
category of rarest of rare case. There was no premeditation and instead of
giving capital punishment he awarded the life terms. Hence these appeals, one
against conviction and the other for enhancement of the sentence.
11] We have heard the learned Advocate Mr. S.H. Jagiasi at length.
According to the learned Advocate, the learned Additional Sessions Judge has
not appreciated the evidence in the proper perspective. There are material
inconsistencies in the evidence of the prosecution witnesses who are cited as
eye-witnesses. The evidence of the prosecution witnesses does not inspire
confidence. All the eye-witnesses are interested witnesses and still their
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evidence has not been properly considered. The medical evidence is
inconsistent with the ocular version of the witnesses. The prosecution has
failed to establish the motive. The panch witnesses are also not reliable. The
same person Mr. Anurath (PW-9) has acted as panch in respect of panchnamas
on three different dates. No reason is forthcoming as to why independent
persons were not made panchas. The learned Advocate also pointed out that
it is improbable that the appellant could have roamed freely with blood
stained clothes on his person for couple of days. In all human probabilities he
would have immediately disposed of his clothes. Therefore, even that piece of
evidence of matching of blood stains on his clothes with the blood group of
the deceased persons is not reliable. The learned Advocate further pointed
out that the prosecution witnesses have not been substantiating the
allegations of the prosecution regarding the motive. Thus, in sum and
substance, the submission of the learned Advocate is that the evidence of the
prosecution witnesses is not trustworthy and reliable. There are several
inconsistencies. The motive has not been established. The discovery of the
weapon and seizure of the blood stained clothes of the appellant is equally
doubtful and the appellant deserves to be given benefit.
(9) cri appeal 306
12] The learned Advocate for the appellant also submitted that the
case does not fall in the category of rarest of rare cases and there is no
sufficient basis to enhance the sentence.
13] The learned A.P.P. submitted that since the incident had taken
place in the field, it is but natural that the eye-witnesses are either relatives or
the employees of the informant Chagan (PW-1). Therefore, merely because
they are related to him in this manner one cannot ipso facto discard their
testimonies. The learned A.P.P. also submitted that minor contradictions and
inconsistencies in the deposition of these eye-witnesses inter se only
strengthen the fact that they were not tutored. The contradictions are minor
and irrelevant. They have corroborated each other in material particulars.
Their presence at the spot is natural. Since the prosecution has been relying
upon the direct account of the incident, the motive becomes irrelevant.
Failure of the prosecution to establish the motive is therefore inconsequential.
The learned A.P.P. thus submitted that the learned Additional Sessions Judge
has correctly appreciated the evidence and has reached to the correct
conclusion.
14] The learned A.P.P. then submitted that considering the fact that
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the appellant has committed double murder and the fact that the assault was
with the chopper on the head of the deceased persons to the extent that even
the injuries could not be described since the faces/heads were smashed
brutally. The brutality alone makes the case rarest of rare. The appellant has
not spared the child aged five years and has committed his brutal murder with
the deadly weapon like chopper and therefore he deserves capital
punishment.
15] As is apparent, the prosecution has been simultaneously relying
upon the ocular version of eye-witnesses in the form of Chagan (PW-1), Uttam
(PW-2), Vaishali (PW-3) and Dnyaneshwar (PW-4) and has also attempted to
prove the circumstance to corroborate its version, like discovery of chopper at
the instance of the appellant and matching of blood stains found on his
clothes with the blood group of the deceased persons.
16] To begin with, it is necessary to refer to the version of Dr. Salunke
(PW-10) who has performed the autopsies and has certified in respect of both
the deaths that the cause of death was due to hemorrhagic shock, neurogenic
shock multiple fractures of scull bone with brain injury with large vessels
injuries due to multiple lacerated wounds. Since no other version as to how
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both these deceased could have sustained these injuries, merely on the basis
of this opinion one can safely uphold the conclusion drawn by the learned
Additional Sessions Judge that Janardhan and Shrinivas both have died
homicidal death.
17] Only some bold suggestions have been put to Dr. Salunke (PW-
10) that the injuries were possible by falling from the height on stony surface,
which suggestions she has denied. She has also stated that the injuries were
possible by chopper. In view of such state of affairs, we find no hesitation in
subscribing to the conclusion of the learned Additional Sessions Judge that
Janardhan and Shrinivas both have died homicidal death.
18] This takes us to the ocular version of the witnesses who have
been stated to have described the incident by giving direct account. We shall
begin with the testimonies of Uttam (PW-2) who has stated to have rushed to
the spot at the first instance after hearing hue and cry. He has stated that he
was serving as an agricultural labourer on yearly basis in the field of Chagan
(PW-1) and Janardhan. He also stated that he knew the accused. He was
frequently coming to the land of Janardhan. As regards the incident he has
stated that he had come to the filed in the morning. After taking tiffin at
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about 10.00 a.m. he operated Tractor along with Chagan (PW-1) and
Janardhan. Thereafter, the Tractor was parked at the Akhada. Chagan (PW-
1) went to the land to supervise the work. He himself took bullocks to water
and tethered them under a mango tree. At that time Janardhan was lying on
the swing, whereas, Shrinivas was playing nearby. The appellant was also
lying on the country cot. He then went for cutting grass to the bundh and
after completing that work he started shaving by the side of the Akhada. He
heard sound from the side of swing and rushed towards it. He saw that the
appellant was giving blows of chopper on the head and face of Janardhan. He
tried to question the appellant but the latter rushed towards him and
threatened him. He therefore raised shouts and ran towards mango tree and
the Akhada in the field of Dnyaneshwar (PW-4). Shrinivas also ran after him
and stopped near the mango tree. He then met Dnyaneshwar (PW-4) and
Vaishali (PW-3) and narrated the incident to them. He has then stated that
when Vaishali (PW-3) tried to intervene and asked the appellant not to assault
Shrinivas, he threatened Vaishali (PW-3) and inflicted blows of chopper on
Shrinivas. He has then stated that he and Dnyaneshwar (PW-4) also tried to
rush towards the appellant but he threatened them. After hearing alarm
Chagan (PW-1) also came to the spot and tried to accost the appellant but the
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latter fled away with the blood stained chopper in his hand. He has then
stated that he along with Dnyaneshwar (PW-4) took Shrinivas to Government
Hospital at Basmathnagar on a motor-cycle but doctor declared him dead. He
then identified the chopper (Muddemal Article No. 16) to be the same.
19] During his searching cross-examination various information was
solicited but absolutely nothing could be extracted, firstly to describe his
version as unbelievable or to refute his version as improbable. Only one
attempt has been made to attribute the blame to Chagan (PW-1). Suggestions
have been put to the effect that Janardhan had attempted to molest wife of
Chagan (PW-1) and that Chagan (PW-1) has committed the murders.
Obviously he has denied these suggestions. Considering the fact that Uttam
(PW-2) is rather an independent witness and happens to be present at the
scene only because of his employment as a labourer in the field of the
deceased Janardhan and Chagan (PW-1), his presence at the spot is but
natural. He has no axe to grind in the matter. Even no suggestion has been
put to him attributing any ulterior motive on his part to implicate the
appellant. The fact that he did not try to prevent the appellant is also equally
natural. Considering the fact that the appellant was carrying deadly weapon
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like a chopper and had already assaulted Janardhan, it was but natural for
Uttam (PW-2) not to have dared to physically accost the appellant. The
learned Additional Sessions Judge has rightly appreciated these facts and has
accepted the testimony of Uttam (PW-2) at its face value.
20] As regards the testimony of Vaishali (PW-3) and her husband
Dnyaneshwar (PW-4), since they are cousins of Chagan (PW-1) and deceased
Janardhan, the law requires their testimonies to be scanned carefully to
obviate any improvisation with an ulterior motive. It is but natural for them
to have rushed to the spot since they were also having agricultural land
adjacent to the land of Chagan (PW-1) and were present there in their own
Akhada. They have stated that they were performing agricultural operations
in their field. Uttam (PW-2) came running towards them in frightened
condition and told them that Janardhan was assaulted. They have then stated
that when they were rushing to the spot they saw the accused/appellant
assaulting Shrinivas with a chopper and when they tried to intervene he
threatened them. They have then stated about having been the appellant
assaulting Shrinivas and running away with the chopper. They have then
stated that Uttam (PW-2) and Dnyaneshwar (PW-4) then ran after the
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appellant and tried to accost him but he threatened them. They have then
stated that Chagan (PW-1) tried to apprehend the appellant but he got himself
released and ran away.
21] It is elucidated from Vaishali (PW-3) during her cross-examination
that firstly they heard the shouts of Uttam (PW-2) who came running from
Akhada in the field of Chagan (PW-1). He was frightened and then he
accompanied her and her husband to the spot. She has admitted that her
husband Dnyaneshwar (PW-4) and Uttam (PW-2) did not try to apprehend the
accused/appellant. She admitted that Chagan (PW-1) also did not try to
apprehend the appellant. Simultaneously, Dnyaneshwar (PW-4) has also have
been cross-examined on the same lines and an attempt was made to elucidate
information regarding description of the spot. However, conspicuously nothing
could be extracted during the cross-examination of Vaishali (PW-3) and
Dnyaneshwar (PW-4) firstly disbelieve their version of having seen the part of
the incident at least, wherein the appellant allegedly assaulted Shrinivas.
Even there has been no suggestion as to why these witnesses were falsely
implicating the appellant. We have carefully gone through the
testimonies of these two witnesses and has been rightly concluded by the
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learned Additional Sessions Judge, we find no reason to discard their version.
Their presence at the spot is natural and so is their oral account of the
incident.
22] Coming to the testimony of Chagan (PW-1), in consonance with
the version of Uttam (PW-2), Vaishali (PW-3) and Dnyaneshwar (PW-4) he has
stated about having rushed to the spot after hearing hue and cry. He has
stated that he heard the shouts of his brother Janardhan and also that of
Shrinivas. He then heard hue and cry of Vaishali (PW-3) and rushed to the
spot. Vaishali (PW-3) and Dnyaneshwar (PW-4) were also present there. The
appellant had caught hold of Shrinivas and assaulted him with chopper.
Vaishali (PW-3) tried to save Shrinivas but the appellant threatened her.
When he himself tried to catch hold the appellant latter released himself and
threatened him. Again, a careful reading of his cross-examination reveals that
no material could be extracted firstly to discard his testimony outrightly and
secondly to attribute any ulterior reason for him to falsely involve the
appellant.
23] It is to be borne in mind while appreciating the evidence of all
these eye-witnesses that they were knowing the appellant since he was
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working in the field of Chagan (PW-1) and Janardhan. Even on the date of
the incident, his wife was working as an agricultural labourer in the field.
Therefore, there cannot be any dispute as regards identity of the appellant as
the assailant. Even suggestions has been put to Chagan (PW-1) that the
appellant had come to the spot after hearing hue and cry to help the victims.
It is true that the ladies who were working in the field have not been
examined by the prosecution including the wife of the appellant. However, in
our considered view, no importance needs to be attached to this circumstance.
Unless the ladies had an occasion to see the incident there was no reason for
the Investigating Officer to have recorded their statements and for the
prosecution to call them as witnesses. Therefore, in the absence of any
material to show that these lady labourers had seen the incident, no adverse
interference can be drawn for their non-examination.
24] True it is that there are some inconsistencies in the testimonies of
these eye-witnesses inter se. But in our considered view these inconsistencies
are minor and do not relate to material particulars. Such minor
inconsistencies are bound to occur when there are several eye-witnesses. On
the contrary, it is trite that such minor inconsistencies on the contrary
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strengthen the interference that the witnesses are not tutored. Chagan (PW-1)
has not stated about any talk between Janardhan and the appellant having
taken place, whereas, Uttam (PW-2) has stated that these two persons had
talked for about ten to twenty minutes. Chagan (PW-1) has stated about
having heard shouts of Janardhan and then Shriniwas. Whereas Uttam
(PW-2) has not stated about having heard the shouts of Janardhan or
Shriniwas but has stated about having heard the sound of swing, whereas,
Vaishali (PW-3) and Dnyaneshwar (PW-4) have not stated about having heard
any hue and cry and merely stated about Uttam (PW-2) having rushed to
them. Again, Chagan (PW-1) has stated that Uttam (PW-2) tried to rescue
Shriniwas but the appellant threatened him but Uttam (PW-2) does not
support this version. Chagan (PW-1) has then stated the he tried to caught
hold the appellant but he threatened him and by releasing himself he ran
away. He has further stated that Uttam (PW-2) and Dnyaneshwar (PW-4) did
not try to accost the accused/appellant. Whereas, Uttam (PW-2) has stated
that he did not see appellant/accused threatening Chagan (PW-1). Having
considered these contradictions, by no stretch of imagination, can it be said
that these are material enough to outrightly discard the testimonies of these
witnesses. In our considered view there are only minor inconsistencies which
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fortify the conclusion drawn by the learned Additional Sessions Judge that the
version of these witnesses is natural and not tainted with any oblique
intention. We therefore find no hesitation in subscribing to the conclusion
drawn by the learned Additional Sessions Judge when the ocular version of
these witnesses is reliable and cogent enough to attribute the appellant with
both the murders.
25] The learned Advocate for the appellant vehemently submitted
that the spot panchnama depicts that the two spots of occurrences are located
about 500 ft. apart. If the version of the prosecution witnesses and
particularly Uttam (PW-2) and Vaishali (PW-3) and her husband Dnyaneshwar
(PW-4) are to be accepted, it is highly improbable that they could have seen
the deceased being assaulted by the appellant. Panch Bhanudas (PW-6) has
proved this panchnama of the scene of the offence. The first objection to his
testimony that has been raised by the learned Advocate for the appellant is to
the effect that the very same person has acted as panch on the inquest
panchnama of Janardhan (Exhibit-27) as well as the panchnama of the scene
of the offence (Exhibit-28). It is not made clear by the Investigating Officer as
to why services of the very same person were requisitioned for these two
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things which have taken place with interval of about one hour between the
two. He also pointed out that when several other persons which according to
this witness about 25 in number were already present at the scene of the
offence when he reached there and equal number of persons had gathered
thereafter, he was picked up to act as panch. Thus, according to the learned
Advocate such conduct of the Investigating Officer selecting a particular
person to act as panch is enough to discard the testimony of this witness.
26] Certainly it is a matter of fact that this witness has acted as panch
on the inquest panchnama (Exhibit-27) as well as panchnama of the scene of
the offence (Exhibit-28). It is equally a matter of fact that many other persons
were already present at the spot and many other had gathered thereafter his
arrival. However, in our considered view unless there is any material to
indicate that the witness has either come with testimony which is inherently
improbable or has acted with some prejudice, one cannot discard it. During
his cross-examination the only suggestion that has been put to him is to the
effect that he was not present at the spot or scene of the offence at all and the
panchnama (Exhibit-28) was prepared in the police station. He has flatly
denied this suggestion and conspicuously no suggestion has been put to him
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at all to reveal that he has any prejudice against the accused or has any
relation with the family of the deceased. Therefore, in our considered view
one cannot discard his testimony merely because he has acted as panch at
inquest panchnama (Exhibit-26) as well as the panchnama of the scene of
offence (Exhibit-28). The submission of the learned Advocate for the
appellant, on this count, therefore deserves to be discarded.
27] Coming to the other argument of the learned Advocate that the
two incidents have taken place 500 ft. apart, going by the version of Uttam
(PW-2), Vaishali (PW-3) and Dnyaneshwar (PW-4) they must not have actually
witnessed the incident of the appellant assaulting deceased Janardhan. A
careful perusal of the testimony of these three eye-witnesses would reveal that
none of them has deposed about having seen the appellant assaulting
Janardhan. Their version is that after hearing hue and cry they all had rushed
towards the spot. Chagan (PW-1) has stated that when he rushed to the spot
Vaishali (PW-3) and Dnyaneshwar (PW-4) were present there. Vaishali (PW-3)
was shouting not to assault the boy deceased Shrinivas and still the appellant
started assaulting him with the chopper on face, neck, rib and finger.
However, Uttam (PW-2) has stated that he was shaving by the side of the
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Akhada, he heard the sound from the side of swing and when he rushed
towards it he saw that the appellant was assaulting Janardhan with a chopper.
When he tried to intervene the appellant threatened him and therefore he
rushed towards mango tree of the Akhada of Dnyaneshwar (PW-4). More
importantly he has stated that even Shrinivas ran after him. If we see the
version of this witness Uttam (PW-2) it clearly explains as to how there is a
distance of about 500 ft. between the two scene of offences as depicted in the
panchnama of the scene of the offence (Exhibit-28). It cannot be said to be
improbable that the appellant having first started assaulting Janardhan and
when the alarm was raised Uttam (PW-2) must have rushed to the spot and
seen the assault was apparently going on. As is mentioned earlier deceased
Shrinivas was also playing around the same place and in all probabilities must
have seen the assault. When Uttam (PW-2) tried to intervene the appellant
allegedly threatened him and therefore he started running from the spot and
even the boy Shrinivas started running. When the alarm was raised the other
three eye-witnesses also came running towards the direction from where the
hue and cry was heard and in all probabilities, before they reached the spot
the appellant must have succeeded in nabbing the boy Shrinivas at some
distance apart. In view of such state of affairs, we do not see that this fact
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that two scenes of offences are 500 ft. apart in anyway gives a jolt to the
prosecution story.
28] To sum up, in our considered view, the testimonies of these four
eye-witnesses are quite cogent, reliable and trustworthy. The learned
Additional Sessions Judge has elaborately scanned their testimonies and has
reached a correct conclusion which in our view deserves to be accepted.
29] In view of our such conclusion, right in the teeth of trustworthy
ocular version of both the murders, the other peripheral circumstances
become academic. The prosecution has been relying upon such circumstances
which can be described as follows:
[1] Discovery of blood stained chopper by the
accused/appellant pursuant to his statement and the
recovery panchnama (Exhibit-44) and (Exhibit-45).
[2] Seizure of the blood stained clothes of Janardhan
(Exhibit-37) and Sahil (Exhibit-36).
[3] Seizure of the clothes of the appellant (Exhibit-38).
[4] The reports of the Chemical Analysis (Exhibit-52) and
(Exhibit-55) opining that the blood group of the deceased
tallies with the blood found on the chopper and the blood
found on the clothes of the appellant.
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[5] Seizure of footwear from the spot belonging to the
accused.
30] The learned Advocate for the appellant vehemently submitted
that panchanamas of all these seizure of the clothes of the deceased, clothes of
the appellant and the alleged discovery of the chopper have been conducted
on three successive days and still only one person Anurath (PW-9) has acted
as a panch on all these panchanamas and this would clearly suggest that there
is fabrication. No plausible explanation is attempted to be given by the
Investigating Officer P.S.I. Waghmare (PW-12) or can be gathered from the
evidence of the prosecution.
31] It is a matter of fact that Anurath (PW-9) has acted as a panch on
the panchnama of the seizure of the clothes of Shrinivas (Exhibit-36) which
has taken place on 11.10.2011, seizure panchnama of the clothes of the
deceased Janardhan (Exhibit-37) which was conducted on 12.10.2011 and
panchanama of seizure of the clothes of the appellant (Exhibit-38) on
13.10.2011. It is indeed surprising as to why his services were requisitioned
by the Investigating Officer on three successive days. Even according to the
version of this witness all these three panchnamas have taken place in the
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police station. Taking into account the fact that the inquest panchnamas
(Exhibit-25 and Exhibit-27) of the deceased Janardhan and Shrinivas were
conducted on 11.10.2011 and the clothes on the person of the deceased
Shrinivas were also seized during the same period, it is not clear as to why the
panchnama of the seizure of the clothes of the deceased Janardhan
(Exhibit-37) was conducted on the next date i.e. 12.10.2011. Further it also
does not seem to be sheer coincidence that even on the very next day i.e.
13.10.2011 the very same person Anurath (PW-9) was present that too at odd
hours when the clothes on the person of the accused were seized between
23.00 hours to 23.30 hours. It is not clear as to why when the other panchas
of all these panchnamas were different, the testimony of Anurath (PW-9)
alone was recorded to prove these panchnamas. In our considered view,
presence of such witness on three different days for conducting three different
panchnamas creates a serious doubt about his veracity.
32] There is one surprising fact that it is quite believable that
considering the brutality with which the persons are killed with the chopper,
the clothes of the assailant would get smeared with the blood stains and
which is but obvious. However we could not comprehend the situation where
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the appellant has already committed murders on 11.10.2011 and could have
freely roamed around wearing the blood stained clothes for two and half days
before he was nabbed on 13.10.2011 at 23.00 hours in a distant place like
Shani Shingnapur. Even in this respect the prosecution has not been coming
with any plausible explanation. It is equally surprising that though the
Investigating Officer P.S.I. Waghmare (PW-12) has stated that he arrested the
accused from Shani Shingnapur, the panchnama of his arrest was prepared at
the police station (Exhibit-50). If at all the accused had gone to Shani
Shingnapur which comes in Ahmednagar district after committing murders at
Basmath which is in Hingoli district. It is equally surprising and therefore
unbelievable as to how he could have gone to such place wearing blood
stained clothes. It is not the prosecution version that the appellant was hiding
somewhere in and around Basmath in some secluded place and therefore
making it probable that he could have been wearing the blood stained clothes.
Therefore, as has been rightly submitted by the learned Advocate for the
appellant, all these aspects create serious doubt about the genuineness of the
seizure of the blood stained clothes on the person of the appellant.
33] In somewhat similar circumstance obtaining before the Division
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Bench of this Court in the case of Mohan @ Bapu s/o Khushal Pendam V/s.
State of Maharashtra; 2017 (1) BOM. C.R. (CRI) 546, the accused were
arrested more than 24 hours after the incident and their clothes were seized
19 to 20 hours after their arrest, about 66 hours after the incident. It was
held that the seizure of the clothes from the accused was faulty and doubtful.
For the reasons discussed herein-above, we find no hesitation in reaching a
similar conclusion.
34] As a logical and legal corollary to the above conclusion the fact
that the Chemical Analysis reports disclose that the blood stains found on the
clothes of the accused/appellant tally with the blood group of the deceased,
becomes irrelevant and inconsequential.
35] Now coming to the other circumstances regarding discovery of
the chopper as per the statement of the appellant (Exhibit-44) and its seizure
(Exhibit-45), panch Sandeep (PW-11) has been examined. He has stated that
on 16.10.2011 he was called to the Basmath Police Station where the
appellant was present and shown his willingness to produce the chopper. The
statement was recorded in his presence (Exhibit-44). Therefore he along with
other panch, police party and the appellant went to the border of village
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Kaudgaon and Konatha. The appellant then took them near the bushes and
discovered the chopper from the bushes which was seized under the
panchnama (Exhibit-45). During his cross-examination, it has been elucidated
that he has never acted as a panch earlier. He was called to the Police Station
when he was sitting in Sachin General Stores situated nearby the Police
Station. It has been then elucidated that he and deceased belong to same
caste apparently to show his proximity to favour the prosecution. However,
he flatly denied that he is son of maternal uncle of deceased Janardhan and
that the statement of the appellant was not recorded in his presence nor had
he discovered the chopper. In our considered view, there are apparently no
reasons at all to discard the testimony of this witness. We therefore find no
hesitation in conforming to the observations and the conclusions of the
learned Additional Sessions Judge accepting this piece of evidence. True it is
that Chagan (PW-1) and Uttam (PW-2) have apparently identified this
chopper when it was shown to them during recording of their depositions.
However, such objective identification of the chopper in our view cannot carry
much weight. The fact remains that the recording of memorandum statement
and discovery of the chopper has been duly established/proved by the
evidence of independent panch Sandeep (PW-11).
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36] Once it is found that such discovery of chopper at the instance of
the appellant is reliable, the report of the Chemical Analysis (Exhibit-52)
certifying that the blood stains on the chopper was of blood group 'A' and the
blood group of the deceased Janardhan was also of the same group, is a
strong and clinching circumstance which can safely be relied upon and
establishes authorship of the crime to the appellant/accused.
37] In view of direct ocular account of the incident in the form of
testimonies of eye-witnesses Chagan (PW-1), Uttam (PW-2), Vaishali (PW-3)
and Dnyaneshwar (PW-4) coupled with the discovery of the weapon chopper
admissible under Section 27 of the Indian Evidence Act seals the case for the
prosecution. The conclusion drawn by the learned Additional Sessions Judge
in our considered view convicting the accused for both the murders is on
correct appreciation of the prosecution evidence and we uphold it.
38] This takes us to the appeal by the State for enhancement of the
punishment. The learned Additional Sessions Judge has sentenced the
appellant to imprisonment for life for each of the murders and has also put
rider that the appellant shall at least undergo imprisonment for minimum 21
years. While considering the aspect of punishment in case of murder, the law
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has been laid down in the case of Bachan Singh vs. State of Punjab; AIR
1980 SC 898. The aspect has also been considered in the recent time by the
Supreme Court in the case of Ramnaresh vs. State of Chhattisgarh; AIR
2012 SC 1357. It has been specifically observed in the case of Ramnaresh
that the Court has to record reasons for awarding death sentences after
considering the nature of the offence, the circumstance in which and the
manner in which it is committed, aspect of brutalness, motive, provocating
and aggravating circumstances, possibility of reformation, adequacy of life
imprisonment and these are some of the circumstances which need to be
borne in mind. Simultaneously, the Court should borne in mind the mitigating
circumstances like if the offence is committed under the influence of extreme
mental or emotional condition, probability of the accused not committing
similar offences and the probability of reformation. It is then observed that
the Court therefore has to consider both aggravating and mitigating
circumstances and has to strike a balance between the two while deciding
punishment.
39] Bearing in mind these guidelines if one examines the matter
before hand, apparently it is a case of double murder committed in immediate
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succession. It is also apparent that the murders have been committed with a
weapon like chopper inflicting blows mainly on head of both the deceased.
The head of Janardhan has been smashed in such a manner that the injuries
could not be described as stated by Dr. Salunke (PW-10). However,
simultaneously, it is also important to note that even according to the
prosecution, the motive in commission of murders was that the deceased
Janardhan was having illicit relations with the wife of the appellant or he was
entertaining such suspicion. In the absence of any evidence about any
criminal antecedent, in our considered view this alleged motive must have
played vital part and in all probabilities has provoked the incident. In our
considered view, taking into account the aggravating as well as mitigating
circumstances, the case does not fit into the formula of rarest of rare cases.
The learned Additional Sessions Judge has also carefully considered all these
aspects and the law laid down by the apex Court and has reached the correct
conclusion. We find no hesitation in subscribing to it.
40] Resultantly, both the Criminal Appeals fail and are dismissed.
41] Since Mr. S.H. Jagiasi, learned Advocate is appointed to
prosecute the cases of the appellant/accused in both the appeals his fees and
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expenses are quantified at Rs. 7500/- (Rupees Seven Thousand Five
Hundred).
[MANGESH S. PATIL, J.] [S. S. SHINDE, J.]
KAKADE
