1999 ALL MR (Cri) 1765
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND R.P. DESAI, JJ.

Mahadeo Kondiba Jagdale Vs. The State Of Maharashtra & Anr.,

Cri. Appeal No. 289 of 1995

4th May, 1999

Petitioner Counsel: Miss. P. S. CARDOZO
Respondent Counsel: Mr. I. S. THAKUR, Addl. Public Prosecutor

Penal Code (1860), S.302 - Offence under - Proof by circumstantial evidence - Immediately after murder accused was seen running away from house of deceased - Same night he was arrested and blood stained nicker with blood of 'O' group which was blood group of deceased was seized and at his instance axe with blood stains of 'O' group was recovered - Motive was also established - Held accused was rightly convicted and must undergo remaining portion of life imprisonment. (Paras 13, 14)

JUDGMENT

VISHNU SAHAI, J.:- Through this appeal, the appellant challenges the Judgment and order dated 12-5-1995 passed by the Additional Sessions Judge, Sangli, in Sessions Case No. 217 of 1994 convicting and sentencing him to undergo life imprisonment and to pay a fine of Rs. 5000/- in default to undergo R.I. for one year, for the offence under section 302 IPC.

2. In short, the prosecution case runs as under :-

The appellant was the son of Ambubai, the real sister of the deceased Sampat. The informant Nanda PW 4 and Dhondiram PW 5 are the wife and real brother respectively of the deceased. The deceased and Dhondiram lived in separate portions of the same building. It is alleged that the appellant used to live in the courtyard of a school situated near the house of the deceased and was a person of a lazy disposition. When the deceased used to ask him to work, he used to feel annoyed. On 21-10-1994, the deceased asked the appellant to collect dried plants of cotton but, he refused and on that the deceased abused him. Thereafter, the deceased collected dried plants and returned home.

The same night at about 10.15 p.m. after having their dinner, the deceased and Nanda were lying in their house within the limits of village Tadvale. At that time, Nanda heard the sound of feet and running away of a man from outside the door frame. She came out and noticed the appellant running away from the spot. She raised cries on which the appellant turned his face towards her enabling her to identify him in street light. In the meantime, Dhondiram PW 5, Dattatray Gidde PW 2 and others rushed to the spot. Dhondiram also saw the appellant running away. Both Nanda and Dhondiram found a bleeding injury on the neck of Sampat.

3. Narayan Jagdale brought a jeep and in the same, Sampat was taken to Atpadi Hospital where the doctor pronounced him dead. Thereafter, Nanda proceeded to police station Atapadi, where she lodged her FIR the same night at 10.45 p.m. which was recorded by PSO Chandrakant Mane PW8 who registered a case under section 302 IPC on its basis.

4. The same night, at 11.10 p.m. investigation was taken over by PSI Maruti Raskar PW 7. That very night, in the presence of public panch Dattatraya Gidde PW 2, he arrested the appellant from his house near the S.T. stand of village Ramnagar and recovered under a panchanama a blood - stained nicker which the appellant was wearing.

Thereafter, pursuant to interrogation, the same night, the appellant informed Dattatraya PW 2 and PSI Raskar that he could get the axe recovered. Consequently, the appellant in a jeep, led them to S.T. stand where the jeep was stopped by appellant. Thereafter, he led them to about 300 ft. towards east and from the bushes, took out a blood - stained axe which was recovered under a panchanama.

After completing the investigation, on 28-11-1994, the appellant was charge sheeted.

5. Going backwards, the autopsy on the corpse of the deceased Sampat was conducted on 22-10-1994 by Dr. Uttam Chandanshive PW 6 who found on it, a massive incised wound on the neck which involved thyroid cartilage, hyoid bone, upper end of oesophagus and left carotid artery being cut. In his statement, Dr. Chandanshive stated that the said injury was possible by the axe shown to him (article no. 2) and was sufficient in the ordinary course of nature to cause death.

6. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged for an offence punishable under section 302 IPC to which he pleaded not guilty and claimed to be tried.

During trial, in all, the prosecution examined eight witnesses. We may straight away mention that there is no eye- witness of the incident and case rests on circumstantial evidence. The learned trial Judge found that the circumstantial evidence adduced by the prosecution irrestibly led to the inference of appellant's guilt and accordingly, convicted and sentenced him in the manner stated above.

Hence, this appeal.

7. We have heard learned counsel for the parties and perused the entire material on record. We are constrained to observe that we do not find any merit in this appeal.

8. We are alive to the fact that conviction in a case resting on circumstantial evidence can only take place if :-

a) That the circumstances are firmly established against the accused ;

b) They irrestibly lead to the inference of the guilt of the accused ;

c) They are wholly incompatible with the inference of the innocence of the accused ; and

d) They are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused.

9. In the instant case, the circumstances on which conviction of the appellant is founded are :-

a) immediately after the murder, the appellant was found running away from the house of the deceased ;

b) the same night, he was arrested and was found putting on a blood - stained nicker which was seized under a panchanama ;

c) the same night, on his pointing out, under a panchanama, a blood - stained axe was recovered ; and

d) motive.

To establish circumstance (a), the prosecution examined Nanda PW 4 and Dhondiram PW 5, the wife and real brother respectively of the deceased.

Evidence of Nanda is that on the date of the incident, at about 10.15 p.m. she was lying inside the house and the deceased was sleeping outside the door. At that time, the door was open. At that time, she heard the sound of the feet of a person and when she got up, she found the appellant running away. She identified him in the light of electrical pole situated nearby.

Evidence of Dhondiram PW 5 is that he lived in a different portion of the same house in which the deceased lived. He was woken up on the cries of Nanda and saw the appellant running away.

Both Nanda and Dhondiram stated that immediately thereafter, they found Sampat dead in a pool of blood.

It is significant to point out that Nanda and Dhondiram being the real maternal aunt and real maternal uncle, respectively of the appellant, would not have falsely implicated him unless they had seen him running away from the place of the incident. Although, both of them were subjected to some cross-examination but, nothing could be extracted therefrom which would render their evidence doubtful.

In our view, this circumstance has been firmly established.

10. To establish circumstance (b) the prosecution examined Dattatray PW 2 and PSI Raskar PW 8. Their evidence is that on the night of the incident, from his house near S.T. stand, the appellant was arrested. At that time, he was putting on a blood - stained nicker which was seized under a panchanama. It is pertinent to point out that although, both of them were cross - examined but, nothing could be elicited therefrom which would impair their credibility.

It is significant to point out that the nicker seized was sent to the Chemical Analyst who found on it, blood of 'O' group, namely the blood group of the deceased. It is also pertinent to mention that the blood of the appellant was sent to the Chemical Analyst and the same was found to be of 'B' group. In our view, this circumstance has also been established.

11. To prove circumstance (c) the prosecution examined Dattatraya PW 2 and PSI Raskar PW 8. Their evidence shows that immediately after his arrest, during interrogation, the appellant informed that he could have the weapon of assault namely the blood - stained axe recovered. Consequently, on a jeep, they proceeded along with the appellant. When the jeep reached near the S.T. stand, the appellant directed that it be stopped. Thereafter, he led them to a distance of about 300 ft. and from the bushes, took out a blood - stained axe, which was seized under a panchanama. The said axe was sent to the Chemical Analyst who found on it blood of 'O' group which was the blood group of the deceased. As mentioned in connection with circumstance (b), the blood group of the appellant was 'B'. Although, in respect of recovery of blood - stained axe both Dattatraya and PSI Raskar were cross - examined but nothing gainful could be elicited from the same.

In our view, this circumstance is also established.

It is pertinent to point out that an incised wound attributable to axe was found on the corpse of the deceased by the Autopsy Surgeon.

12. So far as circumstance (d) is concerned, to prove it, the prosecution examined Nanda PW 4 the wife of the deceased. Her evidence shows that the appellant was a lazy disposition; used to do no work, and when her husband used to ask him to work, he used to feel annoyed. Her evidence further shows that on the date of the incident, the deceased asked the appellant to pick up the dried cotton plants but, he refused and on this, the deceased had abused him. We have gone through the evidence of Nanda and we are constrained to observe that she could not be discredited, in any manner. In our view, the motive alleged by the prosecution stands established.

13. After utmost circumspection, we are of the Judgment that circumstances (a) to (d) which have been conclusively established by the prosecution, irrestibly lead to the guilt of the appellant; are wholly incompatible with his innocence and are incompatible of being explained on any other hypothesis excepting his guilt. On the basis of the said circumstances, in our view, the learned trial Judge was wholly justified in convicting the appellant for an offence punishable under section 302 IPC.

14. For the said reasons, we confirm the conviction and sentence of the appellant for the offence punishable under section 302 IPC and dismiss this appeal. The appellant is in jail and shall be detained therein till he serves out his sentence.

Appeal dismissed