Criminal Appeal No. 671 of 2009

7th April, 2011

Petitioner Counsel: Smt. SADHANA S. JADHAV
Respondent Counsel: Shri. D. V. TELE

Cases Cited:
Indrajeet Vs. State of Punjab, AIR 1991 1074 [Para 21]
Mohibur Rehman Vs. State of Assam, 2002 (6) SCC 715 [Para 22]

JUDGMENT

T. V. NALAVADE, J. :- This appeal is filed against the judgment and order of Sessions Case No. 92 of 2008 which was pending in the Court of Additional Sessions Judge, Nanded. By the decision dated 25/09/2009 the Additional Sessions Judge has convicted and sentenced the appellant for offence punishable Under Section 302 of Indian Penal Code.

The informant Balaji Jadhav is the father of accused Venkati. The accused is the only son born to first wife of Balaji. Deceased Tukaram was the only son born to second wife of Balaji. Age of the accused was around 19 years at the relevant time and age of his real sister Savita was about 15 years. Deceased was aged about 13 years and his real sister Rekha was aged about 11 years. As there was some dispute with the first wife, the first wife was living with her parents for more than 10 years prior to the date of incident. Accused and his sister Savita continued to live with Balaji in his village Kudla, Tahsil Umri, district Nanded.

2. The accused was working in the field and he was also grazing she-goats of the family. Few days prior to the incident in question the accused demanded partition from Balaji. Balaji called his relatives like Balu Pail , Damodhar, Nivrutti Jadhav and others to his house to convince the accused. These relatives tried to convince the accused by saying that it was not desirable to go with partition till the marriage of sister of accused was performed.

3. Tukaram was studying in 8th standard and he was living in Ashram Shala from Umri. Tukaram came to home on 20/03/2008 for celebration of holy festival. On 25/03/2008 at about 11.00 a.m. accused left with she goats and after him Tukaram also left for field where there was standing crop of ground-nut. Balaji left for weekly bazaar of Umri.

4. Balaji returned from Umri at about 5.00 to 5.30 p.m. The second wife of Balaji informed that accused and deceased were not seen from 1.00 to 1.30 p.m. and the she goats which were taken away by accused were seen moving freely in the field. She informed that she-goats were brought back to the house but these two boys had not returned to home.

5. Balaji left home at about 5.30 p.m. in search of the accused and the deceased. When he reached the field of Anusayabai Jadhav which is situated adjacent to the field of Balaji, Anusayabai informed that these two boys had come to her field at about 1.00 p.m. She also informed that he had advised them not to proceed towards the hilly side, but they had proceeded to that side. Balaji then went towards that side. After reaching the land of Namdeo Jahdav he found the dead body of Tukaram in the field of Namdeo. There were bleeding injuries on the neck, head, face and other parts of dead body and Balaji felt that these injuries were inflicted by accused with axe. He could not trace Venkati. Balaji informed to police that Venkati had murdered Tukaram as Balaji had not agreed to partition the land as per the demand made by Venkati.

6. Balaji approached Umri police station after mid-night and on the basis of report given by Balaji Crime No.I-27 of 2008 came to be registered in the police station at about 2.45 a.m. of 26/03/2008. Police Inspector Shaikh recorded the report given by Balaji and P.I. Tehare took over the investigation of the case. Tehare went to the spot where dead body was lying and he prepared inquest panchanama of the dead body in the presence of panch witness. He prepared the spot panchanama also. Articles like one axe, one sling, one metal neckless having pendal of Dnyaneshwar and one broken neckless of beads of Tulsi were found on the spot. At some distant from the dead body there was blood and between the dead body and blood there were marks of dragging the dead body. Balaji identified these articles and informed that the metal neckless belongs to the accused and the sling was in the use of the deceased. Tehare took over the articles under panchanama and he took over earth sample mixed with blood. Tehare referred the dead body for postmortem examination. Police searched for accused, but he was absconding.

7. Dr. Savita Kamble conducted postmortem examination on the dead body. There were incised wounds on the neck and shoulder. The death had taken place due to injury to major cervical blood vessels and the death took place due to haemorragic shock due to this injury.

8. Police recorded statements of some witness from the village of complainant for collecting evidence on motive. The statement of Anusayabai, who had seen deceased in the company of accused was recorded. The statement of Anusayabai came recorded Under Section 164 of Cr.P.C. Ultimately the accused came to be traced out at Daund and he came to arrested on 02/04/2008. While in police custody, on 03/04/2008, the accused gave statement to Tehare in the presence of panch witnessess that he had concealed his shirt in a field from Ijjatgaon. Memorandum of the statement of the accused came to be prepared. The accused then took police and panchas to the spot where the shirt was concealed and he produce the shirt which was in the heap of grass . There were blood stains on the shirt and there was big also blood stain on the right shoulder of the shirt. Shirt came to be seized under panchanama. On 05/04/2008 accused gave one more statement to Tehare about keeping of his pant at Daund and police prepared memorandum of the statement in the presence of panch witnesses. Accused took police to the hotel where he was working and from there he produced the pant having blood stains. The pant also came to be seized under panchanama. Tehare collected blood samples of the deceased and accused and along with the blood samples all the aforesaid articles taken over during the investigation came to be sent to the C.A. Office. C.A. Office gave opinion that there was blood of group B on the axe and blood of same group was found on shirt of accused. The blood group of deceased was B and blood group of accused is A. After completion of investigation Tehare filed chargesheet against the accused in the Court of Judicial Magistrate First Class, Bhokar. The Judicial Magistrate First class committed the case to the Court of Sessions, Nanded. Additional Sessions Judge framed the charge for the aforesaid offence and the plea of the accused came to be recorded. Accused pleaded not guilty. Prosecution examined in all 11 witnesses in the trial Court. The statement of the accused came to be recorded Under Section 313 of Cr.P.C. Accused took defence of total denial. He contended that the complainant and his step mother had caused the death of his real mother by putting her on railway track and he was living at Pune to give support of his mother. He stated that when he came from Pune, he came to be falsely implicated in the case. No defence evidence is given by the accused.

9. The trial Court has convicted the accused on the basis of circumstantial evidence which includes the evidence on the circumstance of " last-seen together ". The circumstance like presence of blood stains on the clothes of the accused and the circumstance like motive and the circumstance like absconding of the accused are also considered. In the appeal both the sides are heard. It was submitted for the accused that circumstances are not fully established and no explanation regarding delay caused in giving report by Balaji is given. It was submitted that the evidence of I.O. does not show that he had recorded the statement of Anuyasabai and the statement of Anusayabia recorded Under Section 164 of Cr.P.C. is not produced and so the evidence of Anusayabai cannot be used against the accused. The APP advanced arguments in support of the decision given by the trial Court.

10. The defence has not disputed that Tukaram died homicidal death. There is no dispute about the spot of offence shown in spot panchanama. The other contents of spot panchanama are disputed by the defence. By considering evidence of doctor who conducted postmortem examination, the nature of weapon used can be ascertained and so that evidence can be considered first. Doctor Savita (P.W.5) has given evidence that she conducted postmortem examination on the dead body of Tukaram on 26/03/2008 between 1.00 p.m. and 2.30 p.m. She found incised wounds on the dead body. Most of the incised wounds were on neck both on front and back side. There were incised wounds on right arm, right shoulder and left shoulder. There were few abrasion over right scapular region. All the injuries are said to be ante-mortem. Doctor has given evidence that the injuries on the neck had caused injury to major cervical blood vessels and due to that there was haemorragic shock. The post-mortem report at Exh.35 is consistent with this oral evidence. The evidence of doctor shows that the weapon, axe seized by police in this case was shown to the witness and witness has admitted that injury nos.1 to 5, incised wounds can be caused by such weapon. She has deposed that the injury no.6 abrasion can be caused if a person is dragged when he is lying on the back. On the basis of the contents of the stomuch she has deposed that time of death is six to eight hours after the last meal. Most of the cross examination of the doctor is made on the food found in the stomuch and on clotting of blood after the death. Nothing is brought on record to create doubt about the evidence which fixed the time of death as six to eight hours after last meals. For defence some arguments was advanced that there is a possibility that the death took place after 6.00 p.m. and this argument was advance on the basis of circumstance like late filing of report by Balaji, father of the deceased. This evidence is sufficient to prove that the injuries which were inflicted on the neck of deceased caused the death. It is also proved that weapon like axe can cause such injuries.

11. In the evidence of Devidas (P.W.1) the prosecution has proved the spot panchanama at Exh.15. The evidence shows that dead body was lying in the land of Namdeo. The land of Namdeo is situated after long barren strip of land which lies after the land of witness Anuyasabai (P.W.4) . In the evidnece of some witness the inquest panchanama is prove at Exh.11, but there is no necessity of discussing this evidence.

12. Devidas ( P.W.1) has given the evidence that articles like one sling, one chain of tulsi beads, one metal chain having pendal of Dnyaneshwar and one axe were lying on the spot. He has deposed that there was blood on the axe. He has deposed that at the distance of 15 feet from the dead body there was blood and there were marks creating probability that the dead body was dragged from the place where blood was lying upto the place where the dead body was found. He has identified the articles which were seized under panchanama. In cross examination of this witness it is brought on the record that the south side of the field of Namdeo, there is strip of plain land upto the village Izzatgaon. This evidence needs to be kept in mind as the discovery of blood stained shirt of the accused is shown to be made from a field from Izzatgaon.

13. In Exh.15 there is mention that Balaji was present on the spot when spot panchanama was drawn. Evidence of panch witness, Balaji and othter witnesses shows that Balaji was present on the spot. Two panchnamas were prepared by the police in presence of Devidas. The dead body and the articles lying near the dead body were identified by Balaji. The evidence of I.O. Tehare (Exh.10) shows that aforesaid articles were found near the dead body in the land of Namedo. Photographes of the incident of preparation of spot panchanama and inquest panchanama were taken by police and witness Digamber (Exh.7) who was working as police constable has proved these photographes. Photographes are consistent with the evidence given by panch witness and the I.O. with regard to the said articles which were lying on the spot of offence.

14. Balaji ( P.W.2) the father of the deceased has given evidence on the aforesaid articles. When he gave the report to police he informed that his son Tukaram was murdered by using axe. In Exh.20 Balaji had expressed suspicion and similar version is given in the Court by Balaji. He has given evidence that police recovered article like axe, sling, chain of tulsi beads ( belonging to deceased ) and one chain belonging to the accused. He has deposed that the sling was given by him to the deceased and axe was given by him to the accused. In spot panchanama there is mention of such identification of articles by Balaji but no supplementary statement was recorded by police. The fact that Balaji has given the evidence against his elder son needs to be keep in mind while appreciating the evidence of Balaji. The aforesaid evidence is sufficient to prove that aforesaid articles were lying on spot of offence and when the spot panchanama was drawn Balaji identified at least metal chain having pendal of Dnyaneshwar as the chain belonging to the accused. This circumstance ought to have been explained by the accused.

15. In the evidence of panch witness Devidas (P.W.1) it is brought on record that the distance between field of Namdeo and village Kudala, Tehsil Umri is around 2 to 3 kms. In the cross examination of Balaji it is brought on record that Izzatgaon is situated at the distance of 1/2 km from the field of Balaji. It is also brought on the record that the spot of offence situated at 1/2 km from the field of Balaji. Balaji has given evidence that he required around five minutes to reach the field of Namdeo after starting from his own field and two fields of five acre area each are situated between land of Namdeo and land of Anusayabai. The land of Balaji is situated adjascent to the land of Anusayabai. It is brought on the record that beyond the land of Anusayabai there was hilly barren land which was not used for grazing cattle.

16. Balaji ( P.W.2) has given evidence that the mother of the accused was living separate from him for about 10 to 15 years. He has deposed that the accused and his sister Savita were living with him and he married second wife, the mother of the deceased when accused was aged about 4 to 5 years. He has deposed that the accused was demanding partition of the family land from him. He has deposed that to give understanding to the accused he had called his relatives like Damodhar, Nivrutti, Nilkanth, Govind etc and they had tried to convince the accused that it was not desirable to go for such partition. Prosecution has examined more witnesses to give evidence on motive. Nilkanth ( P.W.6) has given evidence that accused Venkati was demanding his share by partition in the property from Balaji and eight days prior to the incident in question an attempt to convince Venkati that he should not demand the partition was made. He has given evidence that even when he and other persons like Damodhar, Govind and Suryakant tried to convince, Venkati was not convinced. Damodhar ( PW.8) has given similar evidence. In the F.I.R. which was given immediately by Balaji ( P.W.2) there is the mention about the demand of partition made by accused and attempt made by aforesaid persons to convince him to wait for sometime. The statement given by accused Under Section 313 of Cr.P.C. shows that the accused wanted to support his mother and for that he had worked at Pune for sometime. Balaji had only two sons and it can be said that as Balaji lost one son in the incident in question, by giving report against accused, Balaji was to loose the second son also. Inspite of these circumstance Balaji gave report against the accused. Due to all these circumstances it is not possible to discard the evidence of Balaji and witnesses only because they are relatives. Thus there was motive for the crime.

17. Balaji ( P.W.2) has given evidence that on 25/03/2008, the day of the incident at about 11.00 a.m. he sent accused to graze the she-goats. He has deposed that the deceased was sent by him to the field with sling for guarding the crop as there was crop of groundnut in his field. He has deposed that he returned from village Umri on that day at about 5.00 to 5.30 p.m. and at that time he learnt that both his sons had not returned to home. He has deposed that he also learnt that shegoats which were taken for grazing by accused were seen freely moving in the field and they were brought back by his wife. He has deposed that usually his sons used to return from field at about 5.00 to 5.30 p.m. He has deposed that as these two sons had not returned, he left home to search the two sons. He has given evidence that he met Anuyasabai ( P.W.4) in her field and he learnt from her that the deceased and accused had come to her at about 1.00 p.m. He has deposed that he also learnt that they had proceeded towards forest side, towards the side field of Namdeo even when Anusayabai had advised them not to go towards that side. He has deposed that in view of the direction shown by Anusayabai he went towards the field of Namdeo and then found dead body of Tukaram in the field of Namdeo. Upon considering the distance between the field of Balaji the village and the field of Namdeo, it can be said that he must have been reached the field of Namdeo at about 6.00 p.m..

18. Anusayabai ( P.W.4) has given evidence that on the day of the incident, she had gone to her field at about 8.00 to 9.00 a.m. She has deposed that in the noon time accused and deceased who were known to her had come to her field for taking drinking water and from there they proceeded towards the hilly side. Thus in the noon time the deceased was "last seen alive" with the accused by Anusayabai. Anusayabai has not given evidence that she told about the incident to Balaji. The statement of Anusayabai was recorded immediately after registration of the crime. It can be said that by examining the second wife of Balaji, the prosecution could have made the case more strong. The circumstance that the second wife of Balaji is not examined has however not gone to the root of the case as after the evidence of Balaji ( P.W.2) there is evidence of Anusayabai ( P.W.4) to connect the circumstances. It is not the case of prosecution and nothing is brought on record to create probability that the second wife of Baljai had also seen these two boys in the field.

19. Much was argued by the advocate of the appellant on the circumstance that investigating officer Tehare ( P.W.10) has not stated in the evidence that he had recorded the statement of Anusayabai. It is the matter of record that the statement of Anusayabai was recorded on 26/03/2008 itself by this witness. The evidence of P.W.10 shows that the trial Court had taken care to see the case diary. It appears that Tehare had arranged for recording the statement of Anusayabai Under Section 164 of Cr.P.C. also but that statement was not brought on the record by prosecution. The defence has not come with the case that the statement would have helped the accused . No attempt was made by the defence to bring that statement on record.

20. The evidence of Anusayabai (P.W.4) shows that she is an independent witness. The cross examination shows that both Venkati and Tukaram used come to her field for drinking water and there is no reason whatsoever for Anusayabai to give false evidence against Venkati or do favour to Balaji. This lady is aged about 50 years and the trial Court has also believed this lady.

21. The prosecution has mainly relied on the circumstance of "last seen together". On this point one case reported in AIR 1991 page 1074 Indrajeet V/s State of Punjab was cited. In this case when there was no circumstance like motive and when there was no other circumstantial evidence, it was observed that the sole circumstance that deceased was "last seen" in the company of accused was not sufficient to prove the offence of murder. The facts of this reported case were also altogether different. Even the close relatives of the deceased were searching for the deceased as they had no clue about whereabouts of the deceased. The facts of the present case are altogether different. In addition to aforesaid circumstance of " last seen together" there are more circumstances in the present case.

22. In the present case the time gap between the point of time when the accused and deceased were seen last alive and when Balaji found deceased is small. It can be said that within five hours of the incident of "last seen alive" the dead body was found in the vicinity of the field of Anusayabai. In view of this circumstance it was necessary for the accused to explain how and when the victim suffered injuries or when he had left the company of deceased ( relied on the observations made by the Apex Court reported as Mohibur Rehman V/s State of Assam 2002 (6) SCC page 715.)

23. The prosecution has examined Digamber Bharkad ( P.W.3) to prove the discovery of blood stained shirt of the accused. Witness Devidas Birhade ( P .W.11 ) has given evidence that the accused came to be arrested on 02/04/2008. It is not disputed that accused was found at Daund and he was working there. Bharkad ( P.W.3) has given evidence that on 03/04/2008 he acted as a panch witness when accused gave statement to police. He has deposed that accused disclosed that he had kept clothes beneth heap of grass and he will produce the same. Memorandum statement is at ( Exh.31). He has given evidence that the accused took police and panchas to Jamgaon. It appears that the village Jamgaon is noted by mistake as the place Izzatgaon is situated on Jamgaon road. The place of seizure is shown as a field from Izzatgaon. The witness has deposed that accused produced one shirt which was in a heap of grass and were blood stains on the shirt. Colour of the shirt is described by the witness and panchanama Exh.31 is proved in the evidence of Bharkad. Bharkad has not supported the prosecution on seizure of pant of accused from one Hotel at Daund.

24. I.O. Tehare ( P.W.10 ) has given similar evidence. He has also given evidence that after registration of crimes search was made to find the accused and accused was absconding till the date of his arrest. The article shirt is identified by the panch witness and the I.O and the seizure is duly proved. Investigating Officer has given evidence on the seizure of pant of the accused from Hotel Sahyadri of Daund. There is no independent corroboration to the evidence of I.O. in this regard and it does not look probable that after arresting the accused at Daund no inquiry was made with him or his articles from Daund and they were not taken over by police. In ordinary course if there are many blood stains on the shirt a man like accused will try to get rid of shirt but he will try to keep pant if he wants to go long distance. The evidence on the discovery of the pant of the accused cannot be considered against the accused in this case for want of independent corroboration. The distance between the village Izzatgaon and the spot of offence is not much as mentioned in earlier part of this Judgment. It was submitted that owner of field from where the shirt was recovered is not examined. But due to absence of such evidence, the evidence with regard to discovery of shirt of the accused cannot be discarded.

25. The prosecution has examined carrier constable Shivaji to prove that the articles which were taken over from the spot of offence and the shirt of the accused were sent to C.A. office. The office copy of covering letter is at Exh.43. The property was forwarded on 05/04/2008 when the shirt was recovered on 03/04/2008. There is also the evidence of photographer in respect of discovery of shirt at the instance of the accused. It appears that the blood samples of deceased and accused were also taken during the course of investigation and they were forwarded to C.A. office. Thus almost immediately the shirt was sent to C.A. office. C.A. reports at Exh. 8 to 10 show that the seals of the property were in-tact. The aforesaid evidence shows that there were blood stains on the shirt of the accused. The C.A. report at Exh.10 shows that on the shirt of the accused article no.4, blood of group B was found and group of blood of accused is A. Here only it is mention that blood of group B was found on the axe which was taken over from the spot of offence. These are certainly incriminating circumstances against the accused.

26. Balaji and investigating officer have given evidence that they had searched for accused, but accused could not be traced out till 2nd of April. Deceased was step brother of accused and it is not disputed by the accused that he was living with Balaji. The sister of accused still lives with Balaji. There is some evidence of I.O. to show that after few months dead body of real mother of accused was found on the railway track. I.O. has given evidence that the mother had informed that the accused was not in touch with her when they had approached the mother to trace the accused. In view of these circumstance it was necessary for accused to explain as to why he had not returned to home on that day or subsequently after learning about the death of Tukaram. This evidence is sufficient to prove that the accused was absconding till his arrest. This is again incriminating circumstance. All these circumstances and the conduct of absconding, support the case of prosecution that deceased was killed by the accused.

27. It was submitted for the accused that considerable delay was caused by Balaji in giving report to police. Though it is true that the dead body was found at about 6.00 p.m. and the crime was registered at about 2.45 a.m. on 26/03/2008, the circumstance like deceased was a son of Balaji and accused is also son of Balaji and he has no more son need to be kept in mind. The dead body was found at the distance of more than 2 kms from village and Balaji has given evidence that he stayed near the dead body, searched for accused and then left of aproaching police. Balaji owns only 1 and 1/2 acres of land and there is no need to say that the poor persons like Balaji are not attended immediately by police. The evidence does not show that any vehicle was taken to the spot where dead body was lying. I.O preferred to go there in the morning. In view of these circumstances so called delay caused in registration of the crime cannot go to the root of the case.

28. To Balaji it is suggested that the accused was in touch with one Shankar Patil and accused had called this Patil on his mobile phone on 25/03/2008. Mobile number of Shankar Patil is given. This suggestion is admitted. However Balaji has not admitted that accused was having a mobile hand set and his number was 9822325927. Shankar is a nephew of Balaji. The evidence of investigating officer does not show that the mobile number of accused was known. It was submitted that police could have made investigation on the basis of this mobile number of the accused. The arrest panchanama and police papers do not show that any mobile hand set was recovered from the possession of accused. In view of these circumstances there is no force in the defence taken by the accused that police could have easily traced accused.

29. Surprisingly during cross examination of Balaji suggestions are given to the effect that the accused had dispute on other grounds with Balaji. It is suggested that some amount was given by the accused to Balaji for safe custody and Balaji was not ready to return the amount. Suggestion is also given that there was dispute as accused had sold she-goats of the family without taking prior permission of Balaji. It si also suggested that the 2nd wife of Balaji was harashing the accused. The explanation given by the accused in statement given under Section 313 of Cr.P.C. shows that he has an anger against Balaji and his family from his second wife.

30. The aforesaid discussion shows that the prosecution has established the circumstance like there was dispute between accused and Balaji as Balaji was not ready to partition the family property. The mother of the accused was living separate from Balaji. Due to this circumstance and as Balaji has no more son, the evidence on motive needs to be accepted. There is the evidence on circumstance of "last seen together" and this circumstance is in proximaty to the time and situation. The article of accused like metal neckless with pendal was found near the dead body. The accused was absconding from the date of incident and he did not return to home even after the death of Tukaram. Blood stains were found on the shirt of the accused which was discovered on the basis of statement given by accused immediately after his arrest. The accused has not given any explanation with regard to aforesaid circumstances. The trial Court has considered all these circumstances. This Court has also no hesitation to hold that the circumstances are fully established and they are consistent with the hypothesis of guilt of the accused. In view of the evidence on record that to that side other persons of the village were not going as it was barren strip of land and as there is nothing on the record to create probability that any other person had reason to murder Tukaram, the evidence needs to be believed. Thus there is no reason to interfere in the decision of the trial Court and the appeal stands dismissed.

Appeal dismissed.