Shri Sitaram Shankar Rode and Others vs The State of Maharashtra

A.P. Shah, J.—This criminal appeal is directed against the judgment and order dated 25th July, 1984 passed by the learned Additional Sessions Judge, Satara in Sessions Case No. 31 of 1984 whereby the appellants have been convicted for an offence u/s 302 read with Section 34 of I.P.C. and are sentenced to suffer life imprisonment and also convicted u/s 201 read with Section 34 of I.P.C. and are sentenced to RI for two years. The substantive sentences were, however, directed to run concurrently.

Briefly stated, the prosecution case as it turns out from the evidence on record is that appellant No. 1 Sitaram and appellant No. 2 Hirabai are brother and sister. The appellant No. 1 was working as a peon in the United Commercial Bank at Ahmednagar, The appellant No. 2 was working as a sweeper in Pune Camp branch of Bank of Baroda and she was residing along with her sister Leelabai and daughter Kalavati in Kasewadi slum situate at Bhavani Peth, Pune. Deceased Narhari was also residing in Kasewadi slum with his brother Sharad (P.W. 10). Narhari was working as a watchman. Hirabai had developed illicit relations with Narhari and since three years prior to the date of occurrence, Narhari started living with Hirabai. Narhari had no permanent service and used to work as and when he got work. He used to handover his earnings to Hirabai. It is alleged that there used to be quarrels between Narhari and Hirabai since Narhari was unable to give any money to Hirabai. It is also alleged by the prosecution that Narhari had evil eye on Hirabai''s sister Leelabai and daughter Kalavati and he tried to seduce them.

On 12th December, 1983 appellants Nos. 1 and 2 along with deceased Narhari went to Mandhardeo to visit the temple of Kalubai. At about 8.30 a. m. the appellants with deceased Narhari were seen going by a foot track towards the temple of Goddess Kalubai. On the same day, at about 2.00 or 2.30 p. m. they were seen sitting near the Jambulne tank. At about 4.30 p. m. P.W.7 Namdeo and one Eknath saw appellants Nos. 1 and 2 near the precipice known as Jambulne Kada. The appellant No. 2 was seen lifting a stone over her head and dropping it over the precipice into the ditch. Namdeo and Eknath became suspicious and asked the appellants to stop and enquired as to who they are and why they had come to that place. Instead of stopping, the appellants started going away. Namdeo and Eknath then looked down from the precipice and saw a blood stained white shirt hanging on a cactus tree. When they looked further down, they saw the dead body of a man lying in the ditch. By that time the appellants had moved away and started going in the direction of Kalubai temple, Namdeo and Eknath then called Ashok Mandhare (P.W.3) who was working in his land near the foot track leading towards the temple. They asked Ashok to stop the appellants who were climbing on the slope towards the temple. Ashok saw that the appellants were running away by the foot track and he stopped them. When asked who were they, the appellants told him that they were brother and sister and they had come for darshan of Goddess Kalubai. Then Ashok asked them from where they had come. The appellant No, 1 gave evasive answers saying that they were from Pune and again saying that they were from Bombay. By that time Namdeo and Eknath came there and told Ashok that the appellants had killed one man near the edge of precipice and had thrown the body over the precipice. Namdeo, Eknath and Ashok then caught hold of the appellants and took them to the village and detained them in the school room. The Kotwal of the village was informed about the incident who went to the police station Wai and gave information about the murder and detention of appellants Nos. 1 and 2. This complaint was recorded and an offence was registered at C.R. No. 103 of 1983 u/s 302 read with Section 34 of I.P.C.

PSI Ghadge carried the investigation. He immediately proceeded to village Mandhardeo. By the time he reached the village, it was dark. He was unable to remove the body from the ditch and, therefore, he made arrangement for guarding the dead body. He arrested the appellants. The blood stained clothes on the person of the appellants were seized vide panchanama Ex. 14. In the morning, the body was removed from the ditch and after carrying inquest panchanama vide Ex. 16, the body was sent for autopsy to Municipal Hospital, Wai. On 15th December, 1983 Head Constable Madane, who was in charge of the investigation on that day, interrogated the appellants and appellant No. 1 made disclosure statement vide Ex. 25 stating that he had hidden a knife in Tur and Pavata crop by the side of the foot track leading to Kalubai temple. The appellant No. 1 then led the police party to the place mentioned by him and got recovered the medical knife (article 17). The knife had blood stains on the blade and the handle. After the investigation was completed, PSI Ghadge submitted the charge-sheet in the Court of Judicial Magistrate, First Class, Wai,

Going backwards, the autopsy on the dead body of Narhari was conducted by Dr. Garud (P.W. 16). According to Dr. Garud, there were as many as 12 injuries on the body, out of which 10 were incised wounds. Dr. Garud found that all the injuries were anti-mortem and were caused by a sharp and cutting instrument. On internal examination, haemorrhage was found in lung chest cavity on both sides. The right lung middle part had anterior wound one inch long and half inch deep. There was a tear on the left lung middle part one inch x one inch. There was also haemorrhage in the abdominal cavity on the right side. The liver was pale and there was haemorrhage surrounding the liver. Two tears were detected on the lateral side near each side, each 3/4" x 1/2" deep. In the opinion of the doctor, the death was due to syncope, resulting from shock, due to injury to the vital organs like liver, right and left lung and haemorrhage in the thoracic and abdominal cavity, resulting from the external injury on the chest and abdomen.

The case was committed to the Sessions Court in the usual manner and after conclusion of the prosecution evidence, in their statements recorded u/s 313 of Cr. P.C. the appellants pleaded false implication and denied the prosecution allegation against them. The defence of the appellants was that on the morning of 12th December, 1983 they had started to Mandhardeo for taking a vow. Narhari said that he would also accompany them. So they took Narhari with them. All three went to Mandhardeo. They took meals at 11.30 a.m. and went to Kalubai temple. They were there till 3.30 p.m. and then they slept there. Between 3.30 p.m. and 4.00 p.m. Narhari woke up the appellant No. 1 and told him that he was going out to answer the call of nature. Narhari did not return for nearly half an hour and, therefore, the appellants started looking for him. While searching for him, the appellants came near Jambulne tank. One white shirt was lying there. On seeing the shirt the appellant No. 1 went near the edge of the precipice and saw the dead body of Narhari lying in the ditch. The appellants became afraid on seeing the body. They started crying. They called two persons from the nearby field for help who came running towards the appellants. The appellant No. 1 told them that the dead body of his brother-in-law was lying in the ditch and he sought their help to take it out. Those persons suspected that the appellants must have killed Narhari and, therefore, they took the appellants into the village and locked them in a school room. Thus, according to the appellants, they have not committed any offence and they are involved merely on suspicion.

Since there are no eye-witnesses to the actual murder of Narhari, the prosecution has relied upon the following pieces of circumstantial evidence to connect the appellants with the criminal conspiracy and the murder of Narhari. The circumstances relied upon by the prosecution both before the Sessions Court and before us, in short are :

(a) Appellants were last seen together with the deceased ;

(b) Conduct of appellants Nos. 1 and 2, as deposed by the prosecution witnesses Namdeo and Ashok ;

(c) Seizure of blood stained clothes of the appellants;

(d) Discovery of blood stained knife at the behest of appellant No, 1 ; and

(e) Deceased had quarrels with appellant No. 2 Hirabai, he tried to seduce the sister and the daughter of Hirabai.

The learned trial Judge, after recording the evidence, found all the circumstances established and opined as follows :

Thus, it is seen that accused Nos. 1 and 2 are proved to have gone with the deceased to Mandhardeo on the fateful day. It is established that they were seen together near the Jambulne tank and the Jambulne precipice. Accused Nos. 1 and 2 were also seen near the edge of the precipice on the slope of which the body of the deceased was found. The interval between the discovery of the body and the time when the three were seen together is so short that the only conclusion possible is that the accused must have put the body there. The accused are proved to have stains of the same blood on their clothes as found over the precipice. Accused No. 2 was actually seen with a stone raised over her head which she dropped over the precipice on noticing the presence of witnesses Namdeo and his neighbour Eknath. Immediately thereafter, accused Nos. 1 and 2 started going away from that place and did not stop when asked by Namdeo and Eknath. When Namdeo and Eknath looked over the precipice a dead body was found. Later, accused No. 1 actually made a statement which led to the discovery of a blood stained knife. It is in evidence that the injuries found on the body could be caused with the use of that knife. It is also seen that both the accused had a strong motive to cause the death of the deceased. All these circumstances are clearly established by the prosecution with clear and cogent evidence. All these circumstances are clearly of an incriminating character. Further it is seen that all the circumstances are clearly sufficient to make a complete chain of evidence and they clearly prove the guilt of the accused. As already discussed the said circumstances also exclude any hypothesis consistent with the innocence of the accused.

In view of the abovesaid finding the learned trial Judge convicted the appellants under Sections 302 and 201 read with Section 34 of I.P.C. and sentenced them in the manner indicated above.

Mr. Patil, learned Counsel appearing for appellant No. 2 submitted before us that none of the five circumstances relied upon by the prosecution had been established and that even otherwise all the alleged circumstances could not be said to be not compatible with the innocence of the accused and consistent only with the hypothesis of their guilt. It was submitted that the mere fact that the appellants were last seen together with the deceased could not necessarily be an incriminating circumstance. It was submitted that deceased Marhari was with the appellants till about 3.30 p.m. He went out to answer the call of nature and did not return back for a long time and when the appellants started looking for Narhari, they found his body near the precipice. It was submitted that the villagers wrongly suspected that the appellants were the perpetrators of the crime and, therefore, detained them. Mr. Patil argued that the evidence relating to the conduct of the appellants does not bear scrutiny and in any event, the testimony of P.W. 17 Namdeo and P.W. 13 Ashok does not implicate the appellants. He further argued that the appellants have been implicated on misguided suspicion and in any event the prosecution has failed to prove the circumstances mentioned above. It was next submitted that the appellants got blood stains on their clothes at the time of removal of the body of Narhari from the precipice when they threw themselves on the body. It was submitted that the discovery panchanama is bogus and, therefore, cannot be relied upon. It was also submitted that the prosecution has not established any motive for committing the murder of Narhari.

Ms. Kantharia Learned Addl. P. P. appearing for the State, in reply, submitted that the circumstances relied upon by the prosecution were consistent only with the hypothesis of the guilt of the appellants and that each of the circumstances had been positively established by the prosecution and all the circumstances taken together unmistakably establish that it were the appellants and the appellants alone who had committed the crime. It was submitted that the evidence of the villagers and particularly Namdeo and Ashok implicitly establish the guilt of the appellants. It was emphasised that there is no infirmity in the discovery panchanama and the seizure of the blood stained knife. It was also argued that the evidence of P.W. 11 Geeta shows that the appellants had a strong motive for committing the murder of Narhari.

We have given our anxious consideration to the submissions made at the bar and have gone through the evidence with the assistance of learned Counsel for the parties.

There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of the Apex Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. To quote a few decisions of the Apex Court, a reference may be readily made to the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, , and Laxman Naik Vs. State of Orissa, .

Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence, we shall now examine the various circumstances said to be appearing against the appellants and at the same time examine the contentions advanced by the learned Counsel for the appellants referred to above.

Evidence of last seen :

It is an admitted fact that on the day of occurrence the appellants along with Narhari had gone to Mandhardeo. P.W.6 Prakash stated in his evidence that on that day he saw three persons coming from the direction of Ambade by the foot track leading towards Kalubai temple at about 8,30 a.m. He also stated that he saw them near Jambulne tank. According to him, the appellants and the deceased were the said three persons. Witness Kashid (P.W.4) stated that at about 2.30 p.m, he had gone near Jambulne tank and had seen the two men and a woman sitting there. He has identified appellants Nos. 1 and 2 as the two of the said three persons seen by him near Jambulne tank. He has also stated that on the next morning he saw the dead body and it was the body of the third person whom he had seen with appellants Nos. 1 and 2. This evidence of the prosecution is not even disputed by the defence. In fact the appellants admitted that they were near the precipice at about 4.30 p.m. where the body of Narhari was found.

P.W.7 Namdeo has deposed that he was working in his land on the day of the incident. At about 4.30 p.m. some monkeys entered in his land and, therefore, he called Eknath, who was working in the neighbouring land, to help him to drive away the monkeys. Namdeo''s testimony shows that he and Eknath went towards north in the direction of the precipice while driving away the monkeys. It was at that time Namdeo saw the appellants near the edge of the precipice. According to Namdeo, appellant No. 2 had lifted a stone in her hands and when she saw Namdeo and Eknath, she threw the stone over the precipice and thereafter both the appellants started going away. Namdeo and Eknath obviously became suspicious by the conduct of the appellants and they approached the edge of the precipice and looked down and found that a shirt stained with blood was hanging in a cactus tree and a dead body of man was lying at the depth of about 20 feet from the precipice. Thus, the evidence of Namdeo clearly proves that appellants Nos. 1 and 2 were actually seen at the spot where the body of Narhari was dumped. It is pertinent to note that this part of the prosecution story is not disputed by the defence. In the cross-examination of witness Namdeo, it was suggested that appellants had called him and Eknath. It was suggested that appellant No. 2 told them that someone had killed her husband and thrown him over the precipice and the body was to be taken out. This evidence amply proves that appellants Nos. 1 and 2 were seen together with the deceased and were actually seen at the spot where the dead body of Narhari was lying.

Conduct of the appellants as deposed by P.Ws. 7 & 3 Namdeo and Ashok :

It is pertinent to note that the defence has not disputed the presence of P.Ws 7 & 3. Namdeo and Ashok at the spot of occurrence. According to the appellants, Narhari was with them till about 3,30 p.m. He then went to answer the call of nature. Further according to the appellants, they waited for him for about half an hour and thereafter started looking for him and when they came near the Jambulne tank they saw one white shirt lying there. On seeing the shirt appellant No. 1 went near the edge of the precipice and saw the dead body of Narhari. According to the appellants, when they saw the dead body they got afraid and called out persons from the neighbouring field for help. However, the villagers who came there mistakenly assumed that the appellants had committed the murder. On a close scrutiny of the evidence of Namdeo, it is seen that Namdeo has not stated that he heard cries from the appellants. On the other hand, the evidence of Namdeo shows that appellant No. 2 had lifted a stone in her hands which she had raised over her head. His evidence further shows that when appellant No, 2 saw him and Eknath, she threw the stone over the precipice and thereafter both the appellants started going away from the place. The evidence of Namdeo also shows that although he and Eknath asked the appellants to stop and also asked them as to who they were and what they were doing there, the appellants avoided to give any reply and started going away from the place. In fact the evidence of Ashok, who accosted the appellants shows that the appellants were trying to run away from the scene of offence. The conduct of the appellants is totally inconsistent with their innocence. If the accused were really innocent, as claimed by them, and they were looking for the body of Narhari, there was no reason for them to flee from the scene of occurrence when the witnesses came to the spot. The evidence of Ashok shows that the appellants were giving evasive replies. First they said that they were from Pune then they said that they were from Bombay. In our opinion, this is highly incriminating circumstance which clearly connects the appellants with the crime.

Finding of blood stained clothes on the person of the accused:

It is seen from the record that human blood was found on the pant of appellant No. 1 while the blood of D group, which is the blood group of the deceased, was found on the saree and blouse of appellant No. 2. The fact that there were blood stains on the clothes of the appellants is not even disputed by them. The appellants explanation is that when the dead body was taken out of the ditch, they had fallen on the body due to grief and they started weeping and thus their clothes came to be stained with blood of the deceased. The explanation offered by the defence is totally unacceptable. It is seen from the evidence that the accused were not present when the body was removed from the ditch in the morning after the police came. In any event, we find ourselves unable to accept the story that blood stains were due to the fact that they fell on the dead body of the deceased. Finding of blood stains on the clothes of the appellants is again a very strong circumstance pointing out their involvement in the murder of Narhari.

Discovery and seizure of knife:

It has come in the evidence of Head Constable Madane that during interrogation on 15th December, 1983, a statement came to be made by appellant No, 1 in the presence of panchas that he had hidden the knife in the field near the foot track leading to Kalubai temple. The evidence also shows that appellant No. 1 led Head Constable Madane and the panchas to the field by the side of the foot track and produced the medical knife hidden under pavata crop. Mr. Patil strenuously argued that the discovery panchanama suffers from serious infirmities. Firstly, he argued that the knife was recovered from an open field which was accessible to all and, therefore, the so called discovery should not have been accepted. Mr. Patil contended that it is highly improbable that the weapon of murder has been hidden in an open field. We are unable to accept the submission of the learned Counsel. In our opinion, there is nothing unnatural or improbable on the part of the appellants in hiding the knife underneath the standing crop. We have carefully gone through the evidence of the panch witnesses and Head Constable Madane and we are satisfied that the knife was recovered at the instance of the accused. Mr. Patil then tried to assail the discovery on the ground that the discovery statement was allegedly made by appellant No. 1 between 2.35 to 2.40 p. m. and the panchanama of seizure is shown to have been made during 2.45 to 3.20 p. m. Mr. Patil strenuously argued that the spot of discovery was nearly one-and-half kilometer away from the village and it is impossible for the police party to reach the spot within five minutes and commence recording of panchanama. It is true that there is some discrepancy as far as timings noted in the memorandum and the panchanama are concerned. How-ever, in our opinion, approximate time must have been mentioned in these documents and, therefore, the alleged discrepancy is not sufficient to discard the evidence relating to the discovery of knife. Mr. Patil argued that the panch witness was unable to remember the description and the colour of the clothes on the person of appellant No. 1 and the colour of the tempo which took the panchas and appellant No, 1 to the spot where the knife was hidden. The argument is required to be stated only to be rejected. It is impossible for an ordinary villager to remember such details and that too after a lapse of nearly two years. In our opinion, the prosecution has satisfactorily established the discovery of the blood stained knife.

Motive :

The prosecution has led the evidence of Sharad (P.W. 10) and Geeta (P.W. 11) to establish the motive. Sharad is the brother of deceased Narhari. He has deposed that there were quarrels between Hirabai and the deceased. Sometimes the deceased used to beat Hirabai. According to Sharad, the quarrels were due to inability of Narhari to seek any permanent job and for not giving his earning to his mistress Hirabai. Geeta is the wife of Narhari''s brother Keshav. She has stated in her evidence that Narhari was trying to seduce the daughter and sister of Hirabai. The witness has stated that Hirabai herself complained to her about the advances made by the deceased towards the sister and daughter of Hirabai. Mr. Patil argued that the daughter of Hirabai was examined by the prosecution and she has not supported the prosecution. It was also argued by him that even the alleged motive is not sufficiently strong for committing Narhari''s murder. We are unable to accept the submission of Mr. Patil. The evidence shows that there were frequent quarrels between appellant No. 1 and the deceased. Besides Geeta''s evidence shows that the deceased was trying to seduce Hirabai''s daughter and sister. The learned Judge has rightly observed that no mother would tolerate such conduct in respect of her own daughter and sister. In our view there was sufficient motive for the appellant to do away with the deceased and the trip to Mandhardeo was planned in order to get rid of Narhari.

The above circumstances are highly incriminating circumstances and those circumstances have not only been successfully established by the prosecution but they also connect definitely and positively the appellants with the crime. Each one of these circumstances which has been established by the prosecution against the appellants has been successfully proved. The chain of circumstances against the appellants is so complete that it excludes the possibility of any hypothesis other than the one which is consistent only with the guilt of the appellants and inconsistent with their innocence. All the circumstances from which the inferences have been drawn by us have been firmly established by the prosecution. All the circumstances relied upon by the prosecution definitely and unerringly point towards the guilt of the appellants and taken cumulatively form a chain so complete that there is no escape from the conclusion that the crime was committed by the appellants and none else.

As a result of the above discussion, the appeal filed by the appellants is dismissed. The appellants shall surrender to the police within four weeks.

Certified copy expedited.