2008 ALL MR (Cri) 3025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.P. DESAI AND D.Y. CHANDRACHUD, JJ.

Basavaraj @ Basavannappa Parmeshwar Bangargir Vs. State Of Maharashtra

Criminal Appeal No.180 of 2005,Criminal Appeal No.1036 of 2005

25th September, 2008

Petitioner Counsel: Mr. I. M. KHAIRDI
Respondent Counsel: Mrs. M. M. DESHMUKH

(A) Penal Code (1860), S.302 r/w. S.34 - Evidence Act (1872), S.3 - Appreciation of evidence - Circumstantial evidence - Murder case - Case of the prosecution resting on circumstantial evidence - Held, the prosecution must establish all the links in the case which connect the accused to the crime beyond reasonable doubt - Moreover, all the circumstances which have been established by the prosecution must be consistent only with one hypothesis; that of the guilt of the accused. (Para 6)

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Motive - Held, Court must weigh in balance the trite position in law that motive is a double edged weapon - A motive may furnish a reason for the crime but may also constitute a reason for a person to depose falsely. (2005)7 SCC 714 & 2008 ALL SCR 847 - Ref. to. (Para 15)

Cases Cited:
A. N. Venkatesh Vs. State of Karnataka, (2005)7 SCC 714 [Para 15]
Animireddy Venkata Ramana Vs. Public Prosecutor, High Court of Andhra Pradesh, 2008 ALL SCR 847 : (2008)5 SCC 368 [Para 16]


JUDGMENT

Dr. D. Y. CHANDRACHUD, J.:- The Appellants have been convicted of offences under Section 302 read with Section 34 of the Penal Code. Both have been sentenced to suffer rigorous imprisonment for life; each to a fine of Rs.500/- and, in default, to suffer simple imprisonment for one month.

2. Parmeshwar, the deceased, resided at Wagdari in the Taluka of Akkalkot, in the District of Solapur. The deceased owned certain agricultural land. Basavaraj, and the complainant, Ratanchand (P.W.2), were sons of the deceased. The deceased had another son by the name of Shrimant. Basavaraj who was arraigned as accused No.1 was according to the prosecution addicted to liquor and gambling. A vehicle obtained on loan installments was looked after by Basavaraj. According to the prosecution, he was unable to repay the installments due to his unseemly habits upon which the finance company repossessed the vehicle. There were, according to the prosecution, quarrels between Basavaraj and his father, since the deceased refused to give a share in the agricultural land to Basavaraj. The incident which led to the death of Parmeshwar is alleged to have taken place on the night of 1st December, 2003. Parmeshwar also conducted a shop which dealt in utensils and was present at his shop. The complainant came to the shop on his six seater vehicle when Parmeshwar requested him to carry certain passengers to Bhimpur. At about 9.00 p.m. Basavaraj is alleged to have proceeded to the agricultural field. The complainant, on a request made by Basavaraj, handed over a torch light to Basavaraj. The next morning Parmeshwar's mother Sharanava informed the complainant that Parmeshwar had not returned back from the agricultural field. On a search, the dead body of Parmeshwar was recovered. The deceased had sustained serious injuries on his face, head and throat. The First Information Report was lodged on 2nd December, 2003 by P.W.2, Ratanchand at 10.15 a.m. Basavaraj, accused No.1 (the Appellant in Criminal Appeal No.180 of 2005) was named in the First Information Report. The second accused Nagappa (the Appellant in Criminal Appeal No.1036 of 2005) was not named in the First Information Report. According to the prosecution Basavaraj was absconding after the incident and was arrested on 17th March, 2004. At the instance of Basavaraj, the second accused Nagappa was arrested on 18th March, 2004. According to the prosecution, a recovery was made of an axe and of bloodstained clothes on information supplied by accused No.2. Similarly, on information furnished by accused Basavaraj a recovery of bloodstained clothes belonging to the said accused was made. The bloodstained clothes belonging to Basavaraj were recovered from Someshwar Milk Dairy belonging to Mahadeo Pailwan (P.W. 6) who was a friend of Basavaraj. The post-mortem was conducted by P.W.3 Dr. S. M. Vaidya of the Rural Hospital at Akkalkot. The cause of death was found to be Cardio-respiratory arrest due to obligenic and Neurogenic shock due to multiple, deep incised wounds over the scalp, face and neck.

3. Basavaraj and Nagappa were committed to trial and were charged with the commission of the murder of Parmeshwar; the charge being under Section 302 read with Section 34 of the Penal Code. The prosecution examined twelve witnesses. By a judgment dated 18th January, 2005 the Learned Additional Sessions Judge at Solapur convicted the two Appellants of the offences for which they were charged and sentenced them to suffer imprisonment for life in the terms which have already been noted earlier.

4. On behalf of the Appellants the judgment of conviction rendered by the Additional Sessions Judge has been assailed on the following grounds :

i) Firstly, it has been urged that the motive for the crime which has been suggested is not in existence since a document of partition was executed; the signatures of the executants thereto were admitted and accused No.1 was in possession of a certain portion of the land. The evidence, it was urged, will show that the aforesaid accused was under medical treatment for which he was being funded by his father; this being a circumstance which would show that the relations between the accused and his father were not strained;

ii) There are significant omissions in the statements of P.Ws.1, 2 and 10 under Section 164 of the Code of Criminal Procedure, 1973 with which the witnesses were confronted in the course of their cross examination;

iii) There is no material to indicate that accused No.1 Basavaraj was absconding until 17th March, 2004. No panchanama was brought on record to establish that the Investigating Officer had visited the house of accused No.1 and had found him to be absent. The arrest panchanama was not brought on the record. There is no evidence to establish that accused No.1 had knowledge of the allegations against him and that he had intentionally avoided the process of law. No question was put to him when his statement under Section 313 was recorded as regards his having absconded after the incident. Insofar as accused No.2 Nagappa is concerned, there was no question of his having absconded at all since he was arrested on 18th March, 2004 at the instance of the first accused Basavaraj who was arrested on 17th March, 2004;

iv) The recovery of the axe and the bloodstained clothes allegedly on the information supplied by the accused loses its significance because the reports of the Chemical Analyser (Exhibits 40, 41 and 42) show that no blood was detected on the axe and the blood group of the bloodstains noticed on the clothes worn by the accused could not be determined and was inconclusive;

v) No reliance can be placed on the extra judicial confession allegedly made by accused No.1 Basavaraj to P.W.6, Mahadeo Pailwan. P.W.6 was a hostile witness who has contradicted himself. The evidence of the witness does not pass the test of a reliable record of a confession. The incident took place on 1st December, 2003 while the statement of P.W.6 was recorded on 20th March, 2004. There was an unexplained failure on the part of P.W.6 to disclose for nearly three months that accused No.1 had told him of his having committed the murder of the deceased;

vi) P.W. 3, Dr. Vaidya who had conducted the post-mortem was not shown the muddemal axe by the prosecution during the course of his examination nor was his opinion obtained.

5. The aforesaid submissions were urged before the Court on behalf of the second accused, Nagappa by the counsel. These submissions were also adopted by counsel for the first accused. In addition, counsel submitted that (i) The recoveries were not proved; (ii) The recoveries are not connected with the accused and (iii) There was nothing to indicate that the first accused had absconded after the incident.

6. While considering the merits of the rival submissions, a reference to the evidence of the principal witnesses upon which the case of the prosecution rests, would be in order. The case of the prosecution rests on circumstantial evidence. The prosecution must establish all the links in the case which connect the accused to the crime beyond reasonable doubt. Moreover, all the circumstances which have been established by the prosecution must be consistent only with one hypothesis; that of the guilt of the accused. The deceased Parmeshwar had three sons - Basavaraj - accused No.1, the complainant Ratanchand (P.W.2) and Shrimant. The revenue record, Exhibit 45 shows that the agricultural land at Wagdari stood in the name of the deceased. The land was bagayat land. The complainant, P.W.2 deposed that accused Basavaraj had quarreled with his father. The father had given a vehicle which had been obtained against a loan for carrying on some business to Basavaraj. Basavaraj, according to P.W.2 was addicted to liquor and gambling and was unable to pay the loan installments as a result of which the finance company had taken back possession of the vehicle. Basavaraj had demanded a share in the land from the father which was refused.

7. P.W.2 deposed that on the night of 1st December, 2003 the deceased was present at his shop. P.W.2 came to the shop on a six seater vehicle when the father instructed him to carry certain passengers to Bhimpur and to return early in the morning. According to P.W.2 when he was speaking to his father accused Basavaraj and Prakash (P.W.1) were present. P.W.2 deposed that he thereafter stopped in front of the shop of one Yamaji when Basavaraj came there and asked for a torch light since he wished to visit the agricultural field. P.W.2 deposed that he had handed over a torch to Basavaraj and when he asked him why he was visiting the field alone, Basavaraj stated that he was proceeding to the field together with the second accused, Nagappa. On the next morning when P.W.2 returned to the house, he was informed by his grandmother that the deceased had not returned back from the field and that both the accused had gone towards the field together with an axe in their hand. P.W.1 was asked to proceed to the field and upon his return informed P.W.2 that the dead body of Parmeshwar was lying in the field. During the course of his cross-examination P.W.2 admitted that there was a family arrangement on 14th February, 1994 between him, his brothers and his father in respect of the agricultural land which was signed and executed by the parties. P.W.2, however, denied the suggestion that the whole of the land was in the possession of accused Basavaraj and it was his contention that it was only a part of the land consisting of a grape garden which was in his possession. During the course of the cross-examination, the defence brought on the record the circumstance that a criminal case under Section 376 of the Penal Code was registered against P.W.2 in 2001.

8. The two other witnesses material to the case of the prosecution are P.W.1 Prakash and P.W.10 Laxmibai. P.W.1 Prakash is a child witness who was fifteen years of age. P.W.1 was the son of Nagamma, the daughter of the deceased. P.W.1 deposed to the quarrels which had taken place between Basavaraj and the deceased; to Basavaraj having been addicted to liquor and gambling. According to P.W.1 on 1st December, 2003 he was sitting in a shop of a person at Wagdari at about 9.00 p.m. His grandfather (the deceased) proceeded to the agricultural field and after some time accused Basavaraj followed him with a torch and an axe in his hand. P.W.1 deposed that he was informed on the next morning by the complainant that the deceased had not returned back from the agricultural field. P.W.1 thereupon proceeded to the field where he noticed the dead body of his grandfather. P.W.1 is a child witness. The Court must evaluate the evidence of such a witness with the caution that a child is capable of being tutored to toe a particular line during the course of his deposition. The attention of P.W.1 was drawn to certain omissions in his statement under Section 164. P.W.1 had not stated before the police that on the date of the incident he was sitting in the shop of another person nor had he stated before the police that he had seen his grandfather proceeding from the shop. P.W.1 stated that he had not asked the accused where he was proceeding along with an axe and a 'battery'. The witness admitted that he had not stated to anybody that the accused had an axe and a torch in his hand. P.W.1 admitted that he had no knowledge where the deceased had proceeded on that day. In the face of these admissions, elicited during the cross examination it would not be safe to rely upon the evidence of the child witness in the present case.

9. P.W.10 Laxmibai is the wife of the complainant - Ratanchand. According to her, on the date of the incident accused Basavaraj had come to the house under the influence of liquor; there was an axe and torch in his hand and he had informed the mother of the deceased that he was going to kill Parmeshwar. P.W.10 was confronted with the omission in her statement under Section 164 of a reference to Basavaraj having been under the influence of liquor. A suggestion was made to the witness that Basavaraj had in fact not visited the house on the date of the incident which was denied by the witness.

10. The incident took place on 1st December, 2003. According to the prosecution, accused Basavaraj was absconding since the date of the incident until he came to be arrested on 17th March, 2004. Counsel appearing for the accused submitted that there was no material to show that Basavaraj was absconding and there was no foundation in the evidence to that effect. In fact, learned counsel went as far as to urge that the case that Basavaraj was absconding between the date of the incident and the date of his arrest was not put to him when his statement under Section 313 was recorded.

11. The submission which is urged on behalf of the Appellants is factually incorrect and is contrary to the evidence on the record. P.W.2 Ratanchand who was the complainant stated during the course of his evidence that Basavaraj was absconding after the incident and was found on 17th March, 2004. P.W.10 Laxmibai deposed that Basavaraj was not seen after he had come home on 1st December, 2003 and had threatened the mother of the deceased that he was going to kill him. The Investigating Officer, P.W.11 deposed to the circumstance that he had made a search of the accused and that Basavaraj was arrested on 17th March, 2004. The fact that Basavaraj was absconding after the incident took place on 1st December, 2003 until his arrest on 17th March, 2004 is thus clearly established on the basis of the evidence on the record. We have already recorded that it was submitted before the Court by the learned counsel that no suggestion was made to Basavaraj during the course of the recording of his statement under Section 313 that he was absconding after the incident. This is factually incorrect. Question No. 35 puts the case of the prosecution that accused Basavaraj was absconding after the incident until his whereabouts were traced on 17th April, 2004. Basavaraj denied this fact. But it is evident from the record that the case of the prosecution was put to Basavaraj and learned counsel was not correct in contending to the contrary.

12. A recovery of bloodstained clothes was made upon the information supplied by accused Basavaraj from the premises of Someshwar Milk Dairy. The statement of Basavaraj that he had concealed the clothes at the premises of Someshwar Milk Dairy was marked in evidence as Exhibit 25. The Investigating Officer, P.W.11, deposed that Basavaraj had produced the clothes in the presence of two panch witnesses and a panchanama (marked in evidence as Exhibit 26) was prepared. The shirt had bloodstains. Similarly, after his arrest the second accused Nagappa had furnished information which led to the recovery of an axe and his bloodstained clothes. The axe was concealed in the agricultural field of Danure, while the clothes were recovered from the house of Nagappa. Exhibits 40, 41 and 42 are the reports of the Chemical Analyser. Exhibit 40 shows that the blood group of the blood sample of accused Nagappa and of his bloodstained clothes could not be determined. Exhibit 41 shows that the blood group in the blood sample of accused Basavaraj and on the bloodstained clothes of the said accused could not be determined. Exhibit 42 shows that no blood was detected on the axe.

13. The prosecution examined P.W.6 Mahadeo Pailwan in order to establish an extra judicial confession alleged to have been made by accused Basavaraj of the commission of the murder of the deceased to him. P.W.6 was declared hostile. In our view, it would be unsafe to rely upon the testimony of P.W.6 in regard to the extra judicial confession. P.W.6 stated during the course of his cross-examination by the APP that Basavaraj had disclosed that he had committed the murder of his father and that he had run away. He deposed that Basavaraj was his friend and as a result he had not informed the police. Subsequently during the course of cross-examination by the advocate for Basavaraj, P.W.6 stated that no talk had taken place between him and Basavaraj nor had Basavaraj disclosed that he had committed the murder of his father. P.W.6 evidently is not a witness of truth and no reliance can be placed on his testimony.

14. The next witness to which it would be necessary to make a reference is P.W.8 Sanjaykumar who was a neighbouring land owner. P.W.8 was declared hostile. In view of the well settled position in law it would be open to the prosecution to place reliance on the admissions elicited in the course of the cross examination of the witness. The evidence of P.W.8 shows that he had identified both the accused at a point in time proximate to the incident. According to P.W.8 there were axes in the hands of both the accused whom he had identified. During the course of cross-examination by the advocate for the first accused the witness denied the suggestion that he did not understand who had visited on the date of the incident or that he had not seen the weapons in the hands of those persons. The witness denied the suggestion that he had deposed falsely that the two accused had come to his field. The evidence of P.W.8 can justifiably be relied upon as an additional piece of corroborative evidence to establish the presence of the accused at the agricultural field on the date of and proximate to the time of the incident.

15. The case of the prosecution is founded on circumstantial evidence. Insofar as accused Basavaraj is concerned, the prosecution has established all the links that will establish the guilt of Basavaraj beyond reasonable doubt. Firstly, P.W.2, the complainant who is the brother of the first accused and a son of the deceased deposed to the first accused being addicted to liquor and of being given to the vice of gambling and to the quarrel which he had with the deceased over a share in the agricultural land. Exhibit 45 which is the revenue record shows that the whole land stood in the name of the deceased. Even if, as submitted by the defence, there was a family arrangement, evidently effect was not given thereto. There was therefore a motive for the crime. The Court must weigh in balance the trite position in law that motive is a double edged weapon. A motive may furnish a reason for the crime but may also constitute a reason for a person to depose falsely. Secondly, the evidence of P.W.2 shows that on the night of the incident Basavaraj had proceeded to the agricultural field of the deceased with a torch light. There is no reason to discredit the testimony of P.W.2, the son of the deceased. The evidence of P.W.2 finds corroboration in the admissions elicited during the cross examination of P.W.8 who had identified the accused near the field. Thirdly, the bloodstained clothes of Basavaraj were recovered from Someshwar Milk Dairy in pursuance of the information supplied by Basavaraj. The place from which the recovery was made and where the clothes were concealed was within the special knowledge of Basavaraj. The report of the Chemical Analyser at Exhibit 41 shows that the blood group on the bloodstains found on the shirt of Basavaraj and on his blood sample could not be conclusively established. The recovery of the bloodstained clothes was put to Basavaraj when his statement under Section 313 was recorded (vide Question 100). There was a bald denial. It was not the case of accused Basavaraj that the bloodstains were sustained by him in the course of a scuffle nor was any cogent explanation forthcoming for the presence of the bloodstains. The evidence of the circumstance that Basavaraj pointed out to the Investigating Officer the place where the bloodstained clothes were concealed would be admissible as conduct under Section 8 of the Evidence Act, quite apart from the admissibility of the disclosure statement under Section 27. As the Supreme Court observed in A. N. Venkatesh Vs. State of Karnataka ((2005)7 SCC 714) :

"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (Delhi Admn.) [(1979)3 SCC 90]. Even if we hold that the disclosure statement made by the accused-appellants (Exts.P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8."

Fourthly, the evidence clearly demonstrates that accused Basavaraj was absconding between 1st December, 2003 which is the date of the incident until he was arrested on 17th March, 2004. That Basavaraj was absconding has been established on the basis of the evidence of P.W.2, P.W.10 and P.W.11 and is a circumstance which was put to the accused in the course of his statement under Section 313.

16. On behalf of the accused an effort was made to discredit the evidence of P.W.2 on the basis of certain omissions in the First Information Report. Now insofar as this aspect is concerned, it has been held in the recent judgment of the Supreme Court in Animireddy Venkata Ramana Vs. Public Prosecutor, High Court of Andhra Pradesh ((2008)5 SCC 368 : [2008 ALL SCR 847]) that "a first information report is not meant to be encyclopedic" (para 13 page 375). The Supreme Court has observed as follows :

"In the first information report all the accused persons were named and overt acts on their part were also stated at some length. Each and every detail of the incident was not necessary to be stated. A first information report is not meant to be encyclopedic. While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well known principles of caution."

17. Accused Basavaraj has been named in the First Information Report. The omissions to which a reference has been made are not of such a nature as would affect the credibility of the P.W.2 insofar as the presence of accused Basavaraj is concerned. For the aforesaid reasons we are of the view that the prosecution has established the guilt of accused Basavaraj beyond reasonable doubt by proving all the necessary links which connect that accused to the crime. The circumstantial evidence is consistent only with the hypothesis of the guilt of accused Basavaraj.

18. Insofar as the second accused Nagappa is concerned, (the Appellant in Criminal Appeal No.1036 of 2005) we are inclined to give the benefit of doubt to him. Firstly, the First Information Report which was lodged on 2nd December, 2003 by P.W.2 did not name Nagappa. Secondly, the evidence of the Investigating Officer, P.W.11, will show that Nagappa was arrested on 18th March, 2004 on the basis of the information furnished by accused Basavaraj. Therefore the circumstance that the first accused, Basavaraj had been absconding from the date of the incident would not apply as regards the second accused, Nagappa. The account of the witnesses, insofar as Nagappa is concerned, is not consistent. For these reasons, though there has been a recovery of bloodstained clothes on the basis of information supplied by Nagappa, we have on the balance come to the conclusion that accused Nagappa would be entitled to the benefit of doubt.

19. For the aforesaid reasons Criminal Appeal 180 of 2005 filed by the first accused (Basavaraj @ Basavannappa Parmeshwar Bangargir) shall stand dismissed. Criminal Appeal 1036 of 2005 filed by the second accused (Nagappa Sharanappa Bangargir) shall stand allowed. The Appellant in Criminal Appeal 1036 of 2005 (Nagappa Sharanappa Bangargir) shall be released unless he is required in any other case.

Ordered accordingly.