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2012 DIGILAW 1474 (BOM)

Dilip Shivaji Bansode v. State of Maharashtra

2012-08-06

A.S.OKA, SHRIHARI P.DAVARE

body2012
Judgment: DAVARE, J.: Heard learned counsel for the appellant and the learned APP for the respondent State. 2. The challenge in this appeal is to the judgment and order dated 7th April, 2001 rendered by the Second Additional Sessions Judge, Satara in Sessions Case No.156 of 1999 thereby convicting the respondent i.e. the original accused (hereinafter referred to as per his original status as "the accused"), for the offence punishable under Section 302 of Indian Penal code and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/- and in default to suffer rigorous imprisonment for four months and also convicting him for the offence punishable under Section 201 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.300/-, in default to suffer rigorous imprisonment for three months. 3. Brief facts of the prosecution case which gave rise to the present appeal are as follows: (i) The victim Survarna Dilip Bansode who was the daughter of PW-7 Thaku Vishnu Trimbake. She had married with one Khandare, but he deserted her. Thereafter Suvarna got married with the accused. However, the accused also was not treating her well. PW-7 Thaku used to meet her daughter every month. Accordingly, on the fateful day, she went to the house of the accused to meet her daughter but found that her house was locked, hence, she searched for her daughter but did not find her. Therefore, she went to Dahivadi Police Station and lodged the missing complaint, where PW-12 PI Shivaji Bhosale was on duty who recorded her missing complaint on 1st June, 1999 (Exh.42). Moreover, PW-9 Namdeo Tukaram Katkar, Police Patil of village Naravane had gone to Satwai locality where some children informed him that a suspicious bundle was floating in a brooklet called 'Guravaki', and hence, he proceeded to the said spot and found a bundle floating in the water and emitting foul smell. Therefore he went to the Dahivadi Police Station on 2nd June, 1999 and gave report to that effect (Exh.31). Accordingly, PW-12 PSI Bhosale went to the said place of incident and retrieved the bungle floating near percolation tank in presence of panchas. On opening the said bundle found to contain fleshy parts of body and those parts were decomposed. Hence, same was sent to the Medical Officer. Accordingly, PW-12 PSI Bhosale went to the said place of incident and retrieved the bungle floating near percolation tank in presence of panchas. On opening the said bundle found to contain fleshy parts of body and those parts were decomposed. Hence, same was sent to the Medical Officer. The police personnel also tried to scoop out water from the well to find out any other part but did not find anything. They found oily sand and seized the same and also seized dry sand along with one stone under the panchanama (Exh.37) on 3rd June, 1999. Thereafter on 4th June, 1999, the police personnel received the medical report. It was found that the body parts which were received, were of human body, hence PW-12 lodged a complaint which was registered under C.R. No.45 of 1999 under Section 302 and 201 of Indian Penal Code and accordingly, criminal law was set into motion. (ii) It is also the case of the prosecution that the police personnel started making enquiries and during the course of the enquiry, it was revealed that the accused used to assault his wife Suvarna, hence the accused was arrested. The accused while in custody made voluntary disclosure statement that he would show the place where he had kept parts of the body of his wife and led the panchas and police personnel to his house and then to percolation tank at Guravki and produced a sharp stone from under the bush which was seized. He also took them to a well and he got down in the well and removed a stone and took out a bundle containing fleshy parts which were recovered under the recovery panchanama. Thereafter he took them to the area called Ralrashi and excavated part of trunk which was brought near the other parts. PW-4 the Medical Officer Dr. Deepali Tatkare was called and she examined the parts. Moreover, PW-7 Thaku i.e. mother of Suvarna was also called and she identified the parts of human body as the parts of the body of Suvarna. Moreover, the medical officer also opined that the said parts were of human body and that too of a female. During investigation, it was also revealed that the accused had made extra-judicial confession to some of the witnesses, hence, their statements were recorded. Moreover, the medical officer also opined that the said parts were of human body and that too of a female. During investigation, it was also revealed that the accused had made extra-judicial confession to some of the witnesses, hence, their statements were recorded. Moreover, the accused while in the custody of the police, again made statement that he would show the place where he had kept the axe and slipper and same was recorded in the memorandum panchanama and thereafter he led the panchas and police personnel to his house and produced an axe and slipper which were seized under the recovery panchanama. (iii) Besides, PW-4 Dr. Deepali who was working as the Medical Officer on the Dahivadi Primary Health Centre, performed postmortem on two human legs which were produced before her, and accordingly, she took the measurement thereof and issued a certificate (Exh.17). She also examined the parts of human body found before the percolation tank which were excavated by the police personnel and also the parts of the body which were in the water, such as, ribs, skull with two vertebra, hands, part of vertebra and pelvic bone and found that the parts of the human body of adult female of 25 to 30 years, and issued the postmortem report Exh.18 and also issued the advance medical certificate (Exh.19). Thereafter, the PW-12 recorded the statements of the witnesses during the course of the investigation. Moreover, PW-12 prepared the panchanama of the entire events (Exh.25) and also prepared the spot panchanama and seized blood stained soil and plain soil and oily ash from the hearth and one pant thereunder Exh.26. Thereafter, he sent the seized articles to the Chemical Analyezer's office for examination purpose along with the forwarding letter (Exh.45). Moreover, he sent PW-6 Sanjay Sonawane and others for recording their statements to the Magistrate. Thereafter, he also recorded the statements of witnesses. Accordingly, after completion of investigation, he filed the chargesheet before the J.M.F.C. Dahivadi against the accused. However, since the offence registered against the accused was exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to the Court of Sessions at Dahivadi, Satara on 29th September, 1999. 4. Accordingly, the learned Additional Sessions Judge, Satara framed the charge against the accused on 31st May, 2000 for the offence punishable under Section 302 and 201 of Indian Penal Code under Exh.7. 4. Accordingly, the learned Additional Sessions Judge, Satara framed the charge against the accused on 31st May, 2000 for the offence punishable under Section 302 and 201 of Indian Penal Code under Exh.7. However, the accused pleaded not guilty to the said charges levelled against him and claimed to be tried. 5. To substantiate the charges levelled against the accused, the prosecution has examined as many as 12 witnesses as mentioned below: (1) PW-l Mohan Sadashiv Bhosale panch to the identification panchanarna of saree. (2) PW-2 Mahesh Sadashiv Kharat panch to the seizure of saree and Jodvi. (3) PW-3 Yashoda Laxman Chavan, before whom the accused allegedly made the extra-judicial confession - Trial Court discarded the said evidence. (4) PW-4 Dr.Deepali B. Titkare - who examined the human body parts and carried out the postmortem thereon. (5) PW-5 Laxman Nana Sonwalkar panch for inquest panchanama and seizure panchanama of sharp stone/bundle containing body parts, axe, footwear, etc. (6) PW-6 Sanjay Vishnu Sonawane - cab driver before whom the accused allegedly gave extra-judicial confession - Trial Court discarded the said evidence. (7) PW-7 Thakubai Vishnu Trambake mother of victim Suvarna. (8) PW-8 Avinash Shivaji Bansode chance witness, who saw the accused soon after the incident armed with blood stained axe. (9) PW-9 Namdev Tukaram Katkar, Police Patil of village naravane, who saw the bundle near percolation tank. (10) PW-10 Ashok Kashinath Katkar bycycle repairing show owner, before whom the accused allegedly gave extrajudicial confession, however, the Trial Court discarded the said evidence. (11) PW-11 Mohan Mansingh Katkar Investigating Officer - 1, who carried out the investigation. (12) PW-12 Shivaji J. Bhosale, PSI, who filed the complaint and Investigating Officer - 2. The defence of the accused is of total denial contending that a false case is filed against him by the police and implicating him thereunder, and therefore, claimed to be innocent. However, the accused neither examined himself on oath nor examined any defence witness in support of his defence. After considering the oral, documentary and medical evidence on record, the learned Trial Court convicted and sentenced the accused as mentioned herein above. Being aggrieved and dissatisfied by the said conviction and sentence, the appellant accused challenged the same in the present appeal and prayed for quashment thereof and consequently prayed for his acquittal for the offences with which he was charged. 6. Being aggrieved and dissatisfied by the said conviction and sentence, the appellant accused challenged the same in the present appeal and prayed for quashment thereof and consequently prayed for his acquittal for the offences with which he was charged. 6. The learned counsel appearing for the appellant accused submitted that there is no direct evidence against the accused and the entire case of the prosecution is based on the circumstantial evidence and the prosecution has failed to prove and establish each and every circumstance against the accused firmly and unerringly excluding every hypothesis except the hypothesis pointing out towards the guilt of the accused. He also submitted that the learned Trial Court has rightly disbelieved the evidence of the alleged extra-judicial confession made by the accused before the witnesses PW-3 Yashoda Laxman Chavan, PW-6 Sanjay Vishnu Sonawane and PW-10 Ashok Kashinath Katkar He also submitted that PW-8 Avinash Bansode is a chance witness who is the young student and it is curious to note that he did not disclose to near family members and police that he saw the accused having blood stained clothes and armed with axe soon after the incident and such conduct is not digestible, and hence, the said witness is not reliable. He further submitted that the alleged confessional statement of the accused in custody was not recorded before the Magistrate. According to him, the mutilated parts of the impugned body were found and their identity could not be established. He further submitted that the evidence of mother of victim i.e. PW -7 Thaku is tutored by the police personnel and there is absolutely no record to show the progress of the missing complaint filed by her. It is further submitted by him that although the seizure of the article was effected on 4th June, 1999, the said articles were sent to the Chemical Analyzer's office for examination purpose more than after two months i.e. on 20th August, 1999, and therefore, there is inordinate delay in sending the articles to the Chemical Analyzer's office for examination purpose and even the said C.A. report is inconclusive. Moreover, it is submitted that even there is no mention of blood group of the victim thereunder. Moreover, it is submitted that even there is no mention of blood group of the victim thereunder. He also pointed out that most of the panchnamas in the present case are made on the same day i.e. on 4th June, 1999 and it is submitted that, according to the case of the prosecution, the accused was arrested at 1.30 p.m. on 4th June, 1999 and he immediately made disclosure at 1.45 p.m. on the same day i.e. within 15 minutes and thereafter most of the panchanamas were drawn on the same day which is unbelievable. According to him, since there is unreliable circumstantial evidence led by the prosecution, the motive plays pivotal role but the prosecution has failed to establish the motive behind the crime. It is further submitted that the accused is in jail for 13 and half years, and therefore, he urged that the appeal be allowed and the accused be acquitted. 7. To substantiate the contentions, the learned counsel for the appellant relied upon the three judicial pronouncements. Firstly, he placed reliance in the case of Gambhir vs State of Maharashtra (1982) 2 SCC 351 ): [2011 ALL SCR 2662], wherein, the Apex Court has observed thus : "When a case rests upon circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the present case, the above three conditions have not been fulfilled. There may be suspicion against the accused but the suspicion cannot take the place of evidence. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the present case, the above three conditions have not been fulfilled. There may be suspicion against the accused but the suspicion cannot take the place of evidence. The evidence on the record falls short of proving the guilt of the accused beyond all reasonable doubt." Moreover, he also placed reliance on the case of Mustkeem alias Sirajudeen Vs State of Rajasthan (A.I.R. 2011 SC 2769), in which the Apex Court has held thus "25. It is too well settled in law that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which has been well settled by law by this Court. 26. In a most celebrated case of this Court reported in 1984 (4) SCC 116 : ( AIR 1984 SC 1622 : 1984 Cri. L.J. 1738) Sharad Birdhichand Sarda v. State of Maharashtra in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under (para 152 of Cri.LJ): (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 27. (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 28. If the recovery memos were prepared at the Police Station itself, then the same would lose its sanctity as held by this court in Varun Chaudhary v. State of Rajasthan, reported in AIR 2011 SC 72 : (2010 AIR SCW 6794 : 2011 Cri.LJ 675). 29. The scope and ambit of Section 27 were also illuminatingly stated in AIR 1947 PC 67 Pulukuri Kotayya & ors. v. Emperor, reproduced herein below: "........ it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to this knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. It leads to the discovery of the fact that a knife is concealed in the house of the informant to this knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." The learned counsel for the appellant also placed reliance in the case of Balwinder Singh vs State of Punjab (1995 Supp. (4) SCC 259), wherein the Apex Court has observed thus "4. In a case based on circumstantial evidence, it is now well-settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. It is in the context of the above-settled principles, that we shall analyze the evidence led by the prosecution." 8. Per contra, the learned APP has opposed the present appeal vehemently and submitted that, admittedly, the prosecution case hinges upon the circumstantial evidence and the prosecution has proved and established the each and every incriminating circumstance against the accused firmly and unerringly and formed the link thereof pointing out towards the guilt against the accused. He also submitted that it is pertinent to note that although the victim Suvarna was wife of the accused, he did not file any missing complaint in respect of her, though she was not found and in the natural course of events being husband, he should have filed the missing complaint since Suvarna was not found but so did not happen. He also submitted that the evidence of PW-8 Avinash Bansode alleged to be the chance witness, who saw the accused soon after the incident armed with blood stained axe, has been believed by the learned Trial Court and his testimony connects the accused with the crime. He further submitted that there are discoveries/recoveries of the articles i.e. body parts of the victim and the weapons and the said human body parts of the victim were identified by her mother PW-7 Thaku and the said evidence is incriminating against the accused. Moreover, he also submitted that the medical evidence produced by the prosecution through PW-4 Dr. Deepali and postmortem report and advance medical certificate are in tune with the ocular evidence against the accused and the allegation made against the accused and the same also forms incriminating evidence against the accused. Besides, he submitted that keeping in view the aforesaid evidence against the accused, it is material to note that the victim Suvarna was wife of the accused and was in custody of the accused, and hence, it was expected from him to give the explanation about the death of the victim since it was under his special knowledge but he failed to give any such explanation, and hence, provision of Section 106 of the Evidence Act is required to be invoked against the accused connecting him with the crime. Accordingly, the learned APP submitted that the learned Trial Court has scrutinized and analyzed the evidence in proper perspective and thereafter convicted and sentenced the accused and, as such, there is no glaring mistake therein, and therefore, submitted that no interference therein required in the present appeal, and accordingly, urged that present appeal be dismissed. 9. We have perused the oral, documentary and medical evidence and also the evidence of Forensic Science Laboratory and also perused the impugned judgment and order dated 7th April, 2001 and heard the submissions advanced by learned counsel for the parties anxiously and perused the judicial pronouncements cited by the learned counsel for the appellant/accused carefully. 10. 9. We have perused the oral, documentary and medical evidence and also the evidence of Forensic Science Laboratory and also perused the impugned judgment and order dated 7th April, 2001 and heard the submissions advanced by learned counsel for the parties anxiously and perused the judicial pronouncements cited by the learned counsel for the appellant/accused carefully. 10. In order to deal with the submissions advanced by learned counsel for the parties, it is necessary to deal with the material evidence adduced/produced by the prosecution and in the said context, at the outset, coming to the deposition of PW-9 Namdeo Katkar who was the Police Patil of Village Naravane at the relevant time, stated that he knows the accused and on 2nd June, 1999 he visited the locality where the accused was residing since construction of one temple was in progress. It was the land known as Guravaki. At this juncture, some boys complained foul smell of dead body, and hence, he went to see near percolation tank and there was one brooklet near percolation tank and he found one bundle floating in water of brooklet. It contained some fleshy material emitting foul smell, hence he went to Dehivadi Police Station and gave information and lodged the report. (Exh.31). Moreover, he brought police personnel to the place where the bundle was floating. Accordingly, the police personnel prepared the panchanama of the said bundle. In cross-examination, he stated that the percolation tank was constructed about a year before the date of incident and it was constructed to store rain water to be used by the agriculturists. He also stated that he did not report the police that part of human body was floating. He also stated that police used to visit and interrogate people from 2nd June, 1999 and villagers also used to gather near the percolation tank after 2nd of June, 1999. He further stated that he came to know about the death of wife of accused by cutting her, before 2nd June, 1999 but he did not go to the place where the body was found. He also admitted that he did not see Dinkar Pandurang Solaunade and Sanjay Vishnu Sonavane near the percolation tank. He further stated that he came to know about the death of wife of accused by cutting her, before 2nd June, 1999 but he did not go to the place where the body was found. He also admitted that he did not see Dinkar Pandurang Solaunade and Sanjay Vishnu Sonavane near the percolation tank. Accordingly, the testimony of PW-9 Namdeo Police Patil of village Naravane reflects that he spotted suspicious bundle containing body parts in the brooklet floating near the percolation tank in first point of time and who allegedly reported to the police personnel and brought them to the place of the incident who prepared the panchanama of the said bundle. 11. Coming to the testimony of PW-l Mohan S Bhosale, who is a panch witness, stated that on 3rd June, 1999 he had gone to Dahivadi Police Station since he was called by a Head Constable Dhane and he was shown two pieces of saree which were kept on table and they were oily and greenish white colour and the seizure panchanama of those pieces was prepared and he signed thereon. It is marked as Exh.12. In cross-examination, he stated that he had come to the police station to see his friend i.e. Ravi Doiphode who was a constable who occasionally meets him. He also stated that when he came to the police station, pieces of saree were already kept on the table. He did not see whether there were stains of mud on those pieces nor he found the said pieces wet. He stated that he was in the police station for about 15 to 20 minutes. He also did not find the pieces wet. A suggestion was given to him that he signed the panchanama at the instance of his friend Ravi but the same was denied by him. Accordingly, the testimony of the said witness is in respect of seizure of two pieces of saree under panchanama Exh.12 on 30th June, 1999, but his testimony is silent in respect of sealing of the said saree during its seizure under the said panchanama. 12. Accordingly, the testimony of the said witness is in respect of seizure of two pieces of saree under panchanama Exh.12 on 30th June, 1999, but his testimony is silent in respect of sealing of the said saree during its seizure under the said panchanama. 12. That takes us to the testimony of PW-2 Mahesh Kharat, who also is a panch witness, who stated that on 5th June, 1999 he had gone to Tahsildar Office and he was called to the Dahivadi Police Station by police personnel and a piece of saree and two feet finger rings (Jodvi) were kept on the table and he saw the same and the said articles were packed and were seized under the panchanama Exh.14 and he identified the said piece of saree as Article No.5 and pair of Jodvi i.e. Article No.12. In cross-examination, he stated that a cloth was of green colour but he does not remember whether it was stained with soil. He saw the said cloth from the distance of about 2-3 feet. He also stated that police asked him to sign panchanama and he signed it. He further stated that he was in police station for about 10 to 15 minutes. Accordingly, the testimony of PW-2 - panch witness Mahesh is in respect of seizure of piece of saree and Jodvi under the seizure panchanama (Exh.14) and he identified the said articles in the Court and Articles 5 and 12 respectively. 13. Coming to the deposition of PW-5 Laxman Nana Sonvalkar - the panch witness, who stated that he was working in P.W.D. at the relevant time and Dahivadi police station was situated near his office and on 4th June, 1999 he was in the office when two police personnel came to his office and requested his superior officer to provide two employees for panchanama and accordingly he and one Mr. Devkule were asked to accompany with them by his superior officer. Thereafter, both of them went to the Dahivadi Police Station and PSI told them that one person in custody desires to make voluntary statement. Accordingly, the said person i.e. accused, namely, Dilip Shivaji Bansode stated that he would show the pieces of body of his wife and the place where they were kept. Thereafter, both of them went to the Dahivadi Police Station and PSI told them that one person in custody desires to make voluntary statement. Accordingly, the said person i.e. accused, namely, Dilip Shivaji Bansode stated that he would show the pieces of body of his wife and the place where they were kept. Accordingly, the memorandum panchanama (Exh.21) of the said disclosure statement was prepared in presence of panchas, and thereafter the said accused led the said panchas and police personnel who proceeded by jeep and went near his house and further went to a Mahananda tree and he removed one sharp stone from below the said tree i.e. Karari (Art. 5) stone and same was seized under the panchanama after labelling the same. Thereafter the accused led them to a nearby well which contained about waist-height water which was situated near the percolation tank and the accused went inside the well and removed one bundle which was wrapped in cloth of saree and brought out the same out of the well and untied and it found to contain pieces of legs, two hands and head. Thereafter the accused further led them to a hill known as Ralrashi and removed stones from 'bandh' and took out part of the trunk and produced which was brought near the well where trunk's parts were found. Moreover, PW-4 Dr. Deepali Titkare also accompanied with them and she identified the said parts as the parts of the human body. So also, the police personnel called PW-7 Thaku i.e. the mother of the victim who identified the parts of the said body as the parts of her daughter's body and the panchanama of the entire events was prepared which is marked as Exh.22. Moreover, panchanama of entire parts was prepared which is at Exh.23. 14. The testimony of the said witness also discloses that on 5th June, 1999 again he was asked to act as a panch and he went to the police station and accused was also present there who expressed his willingness to produce the axe and footwear concealed by him and the said disclosure statement was recorded under the memorandum of panchanama Exh.24. Thereafter, the accused led panchas and police personnel by jeep to village Naravane viz. Thereafter, the accused led panchas and police personnel by jeep to village Naravane viz. Gondavle and showed a dilapidated house and he went inside the said house by climbing the wall and removed an axe and footwear from below a stone and produced the same (Articles 10 and 11 respectively and same were seized under the recovery panchanama (Exh.25) after labelling and sealing the same. Thereafter, the accused further led them to his house and showed the blood stains on the wall and sample of the said blood stained soil and plain soil were taken. He also produced a pant and ash from the hearth and the same were seized under the panchanama (Exh.26). 15. In the cross-examination, he stated that the accused told them on the first day that he would produce the parts of the body of his wife, axe, clothes and footwear. He also stated that on 4th he went to the police station at about 1.00 p.m. to 1.30 p.m. and they must have spent about half an hour while preparing the memorandum of panchanama. He also gave the distance that Naravane is about 10 to 12 kms. away from Dahivadi and the well was about 2 kms. from the village. It took about one hour to reach to the well from the police station and also about ½ to ¾ hour to reach to hill from the well. In all six pieces were found which were seized and they were handed over to the Medical officer which she carried. He further stated that a sharp stone which was underneath the tree was seized and it was the only stone which was seized and it was blackish in colour. He also stated that they made enquires about the ownership of the house and came to know that it belonged to one of Bansode. He further stated that he was not introduced with mother of the deceased. He also stated that the tree from where the sharp stone was seized, was situated about 200-300 feet away from the well. He also identified the cloth of saree (Art. 1) which was recovered under the above referred panchanama. 16. He further stated that he was not introduced with mother of the deceased. He also stated that the tree from where the sharp stone was seized, was situated about 200-300 feet away from the well. He also identified the cloth of saree (Art. 1) which was recovered under the above referred panchanama. 16. In the said context, it was canvassed that, according to the record, the accused was apprehended and arrested at 1.30 p.m. on 4th June, 1999 and the memorandum of panchanama/recovery panchanama discloses that the said panchanama was started at 14.45 hours and was completed at 17.45 hours, and therefore, it is unbelievable that immediately within short time from the arrest the accused made the disclosure statement, and therefore, the consequent recovery allegedly made at the instance of the accused is doubtful. However, there is no dispute that the accused was apprehended and arrested at about 1.30 p.m. on 4th June, 1999 and the panchanama (Exh.22) discloses that it was commenced at 14.45 hours and completed at about 17.45 hours on 4th June, 1999, and therefore, it is apparently clear that the said panchanama was started about one hour fifteen minutes from the time of the arrest of the accused and there is nothing wrong in that and no suspicion is created in respect of the timing of the said panchanama. Admittedly, various references were made during the aforesaid panchanamas as mentioned herein above, and therefore, substantial period till 17.45 hours was consumed therein and same also appears to be natural and probable. Hence, there is no substance in the argument canvassed by the learned counsel for the appellant in that respect. 17. That takes us to the testimony o PW-4 Dr. Deepali Titkare who was attached to Primary Health Centre, Dahivadi as a Medical Officer at the relevant time and on 3rd June, 1999 she received two legs for postmortem and it was from thighs to knee which were brought by PST Dahivadi Police Station. She stated that they were human legs and were just bone and flesh. She took measurement of those parts and part of sacrum was also available. Accordingly, she prepared the certificate, which is produced at Exh.17. She also stated that, on 4th June, 1999 police requested her to come to the spot where other parts of the body were found and she was requested to examine the same. She took measurement of those parts and part of sacrum was also available. Accordingly, she prepared the certificate, which is produced at Exh.17. She also stated that, on 4th June, 1999 police requested her to come to the spot where other parts of the body were found and she was requested to examine the same. She was taken to percolation tank by police on 4th June, 1999 and the parts of the body were excavated by the police personnel and some parts were in water. She examined the said parts which consisted of ribs, entire skull with two vertebra, hands, part of vertebra and pelvic bone. She found that said parts were of human body and were of female. They were the parts of one body of adult female about 25 to 30 years of age. She came to the conclusion from the skull and pelvic bone that they were the parts of the female body. Moreover, from the measurement she could find that they were the parts of one body. The said parts were wrapped in a piece of saree. Four rings i.e. Jodvi were also found. She further stated that the said parts were found cut by semi-blunt object and it was possible by axe and big sharp stone. She found a strophy in the right hand which suggested of Polio or some traumatic accident to a right hand of the victim. She also stated that some hair were present and jaw was open and skull was identifiable. She replied the queries put by the police which is marked as Exh.18. She further stated that she prepared the postmortem report which is produced at Exh.19. She also stated that the body could have been cut by the axe and muddemal stone. Moreover, she also issued advance medical certificate on 5th June, 1999. She further stated that she wrote the name of the deceased at the instance of the husband of the deceased. She was present at the time of excavating the parts. 18. The said doctor was cross-examined by the defence counsel and she stated that she reached the spot where the parts were kept around 5.30 p.m. and it took about one hour to examine the parts. She was present at the time of excavating the parts. 18. The said doctor was cross-examined by the defence counsel and she stated that she reached the spot where the parts were kept around 5.30 p.m. and it took about one hour to examine the parts. She also stated that she preserved those parts in Primary Health Center for confirmation of details on 3rd June, 1999 and she also admitted that for identification of parts of human body, one has to resort to Precipitation test but she did not carry out the said test. She also admitted that the skin of the said parts was peeled off and decomposition was so advanced that one could not know the nature of injury or otherwise and she was confronted with the portion commencing from 'Mutilation of dead body-village or town' on page No.84 in the Book of Medical Jurisprudence by Dr. Modi, 21st Edition and she agreed with the same. She stated that, if the body is in water, its parts are likely to be eaten by aquatic animals causing dis-figuration of the body. She has admitted that process of decomposition is faster in summer than winter. She further stated that the said parts were emitting foul smell. She further stated that she did not make an attempt to join the parts since it was not possible because of decomposition. She admitted that she did not mention in the postmortem report that she viewed the entire pelvic bone and viscera was not available. She also admitted that because of decomposition, it was difficult to conclude about the time of death. She also stated that there is likelihood of fracture of skull if head is pushed against a hard surface like wall. She also admitted that she was unable to come to the conclusion of cause of death because of advance decomposition. She further admitted that, foot, thighs and hands were decomposed and no identification mark was visible on feet or on hands. 19. The medical evidence of PW4 Dr. She also admitted that she was unable to come to the conclusion of cause of death because of advance decomposition. She further admitted that, foot, thighs and hands were decomposed and no identification mark was visible on feet or on hands. 19. The medical evidence of PW4 Dr. Deepali is self explicit and it is in consonance with the contents of postmortem notes (Exh.37); Accordingly, she identified the said parts of the body which were retrieved near the percolation tank as the parts of the human body that too of one body of female, aged about 25 to 30 years and the said parts were wrapped in a saree as well as four rings i.e. Jodvi were found and also a strophy was found in the right hand which was suggestive of polio to the right hand of the said victim. She categorically stated that she wrote the name of the deceased at the instance of the husband of the deceased i.e. the accused herein who was present at the time of excavating the parts. Moreover, the said testimony of PW-4 also reflects that the said body parts were at the stage of advance decomposition, and therefore, no identification mark was visible from the feet or on the hands of the said human body parts. Moreover, the postmortem notes Exh.37 discloses that those were mutilated body parts in decomposed condition pertaining to a female of 30 years and description thereof is mentioned in Col.No.17 thereof. However, Col.No.19 thereof discloses that there was no fracture of the skull and the cause of death was given as mutilation of the body parts, all parts were decomposed and the said medical evidence is self-explanatory, which is in consonance with the other evidence. 20. Turning to the deposition of PW-7 Thaku Vishnu Trimbake i.e. mother of deceased Suvarna, who stated that Suvarna was her daughter and wife of the accused but the accused used to assault her. She used to meet her daughter Suvarna once in a month and once when she went to her house, she found that her house was locked, hence, she went to Dahivadi in search of her daughter. She further stated that she was called near the percolation tank and she was shown pieces of body and saree. She further stated that her daughter was handicapped by right hand. She further stated that she was called near the percolation tank and she was shown pieces of body and saree. She further stated that her daughter was handicapped by right hand. She also stated that she was shown Jodvi which she identified. She also identified the pieces of body parts because of hands, skull and Jodvis and saree which was given by her to victim Suvarna. The said witness was also cross-examined at length, wherein she stated that she informed the police that her daughter was missing. She also admitted that police stated to her that dead body of her daughter was found and she was taken to percolation tank and police showed pieces of body and she identified the same. In all, she saw 11 pieces of body. She further admitted that accused had sent a notice to Suvarna but copy of the said notice was not produced on record. Omission was taken out in respect of alleged assault by accused upon Suvarna, amounting to an improvement in her testimony. Further omission was taken out in respect of saree which was given by her to Suvarna was identified by her amounting to improvement in her testimony. She also admitted that her vision is affected since she is more than 60 years of age. 21. Considering the totality of testimony of PW-7 Thaku, although her age of above 60 years and although her vision was affected, it has come in the cross-examination that she does not use spectacles, and therefore, identification of saree which was given by her to Suvarna and Jodvi of her daughter Suvarna cannot be doubted. True it is that police personnel had told her that dead body of her daughter was found and she was taken near the percolation tank, and thereafter she was shown the pieces of body which she identified, reflects that she had the prior knowledge of death of her daughter and thereafter she was called upon to identify the parts of the body. However, she identified the right hand of her daughter since it was handicapped and the said identification of the hand of her daughter Suvarna cannot be viewed with suspicion. However, she identified the right hand of her daughter since it was handicapped and the said identification of the hand of her daughter Suvarna cannot be viewed with suspicion. In substance, the testimony of PW-7 Thaku i.e. mother of victim Suvarna, supports the case of the prosecution in respect of identification of saree and Jodvi of Suvarna and also body parts i.e. right hand of victim Suvarna which was handicapped due to polio. 22. That takes us to the deposition of PW-8 Avinash Bansode, who stated in his deposition that he is a student of 12th Standard and knew the accused whose house was situated near his house and Suvarna was the wife of the accused and although it was love marriage he used to beat Suvarna by suspecting her character and even he assaulted her in his presence. He also stated that, on 26th May, 1997 he had gone to answer nature's call at Kumbhar Oghal situated at eastern side of the village and found that accused coming from the direction of percolation tank and it was about 6.00 a.m. and the accused was armed with axe and his clothes were blood stained and he was frightened and he was proceeding towards his house. He also identified the axe. He stated that he saw the accused at the distance of about 10 feet but he did not see him thereafter. He further stated that he was afraid since thereafter there was discussion in the village. He further stated that he did not speak anybody about the same and the accused then absconded with his children. In cross-examination, he stated that although police were visiting his village since 2nd June, 1999, he neither met the police personnel nor disclosed them what he had seen. He also admitted that he did not disclose the incident to his father. As regards the quarrel between the victim and accused, he stated that he never intervened therein. He further stated that Suvarna used to leave the house of the accused often but did not know whether she had any affair in the village. 23. He also admitted that he did not disclose the incident to his father. As regards the quarrel between the victim and accused, he stated that he never intervened therein. He further stated that Suvarna used to leave the house of the accused often but did not know whether she had any affair in the village. 23. Insofar as the testimony of PW-8 Avinash is concerned, the learned counsel for the appellant canvassed that he is a chance witness who is a student studying in 12th Standard and even he did not disclose before his father and family members that he saw the accused having blood stained clothes and armed with axe soon after the incident, and hence, it is submitted that such testimony cannot be believed. However, the learned Trial Court has believed the testimony of PW-8 Avinash and although he is the student of 12th Standard, he was well aware that accused used to assault deceased Suvarna suspecting her character. He also stated that the marriage of accused and Suvarna was love marriage, hence, although he was a student of 12th Standard, he is aware about the love marriage and suspicion about the character, and therefore, he appears to be well matured person. Moreover, the reason he gave to non-disclosure of the occurrence of incident is that he was frightened which is probable. Hence, the alleged non-disclosure of what he saw soon after the incident even to near relatives and father and also to the police personnel, would not diminish the credence of his testimony in view of the foregoing reasons and he cannot be termed as a chance witness. In fact, he saw the accused coming from the direction of percolation tank at about 6.00 a.m. on 26th May, 1999 and he was armed with an axe and his clothes were stained with blood, and in close proximity, the death of victim Suvarna took place, and therefore, the said testimony deserves to be construed as the evidence of witness who saw the accused soon after the incident and cannot be discarded and the learned Trial Court rightly believed the same. 24. 24. Moreover, it is curious to note that, although the victim Suvarna was the wife of the accused and although she was missing from 26th May, 1999, the accused did not lodge any complaint in respect of her non-availability for the substantial period even till 4th June, 1999 i.e. till the date of his arrest and the said inaction on the part of the accused also speaks volume for itself. Besides, in view of the foregoing discussion, there is no dispute that there is incriminating evidence against the accused and keeping in mind of the said fact, admittedly, the victim Suvarna was the wife of the accused and her death occurred while she was in the custody of the accused, and hence, provision of Section 106 of the Indian Evidence Act deserves to be invoked since the death of victim was within the special knowledge of the accused, but the accused failed to give any explanation in that respect, and therefore, it is apparent that there is complicity of the accused in the crime. 25. There is no dispute about the ratio laid down and the observations made in the judicial pronouncements cited by the learned counsel for the accused, but considering the totality of the circumstantial incriminating evidence which forms chain against the accused firmly and unerringly excluding other hypotheses except the hypothesis pointing out towards the guilt against the accused, the facts and circumstances in the present case and the facts and circumstances in the cases of judicial pronouncements differ from each other, and therefore, same cannot be of any aid and assistance to the case of the accused herein. 26. In the circumstances, having comprehensive view of the matter and also considering the ocular, documentary and medical evidence on record, as well as considering the impugned judgment and order, we are of the considered opinion that the learned Trial Court has scrutinized and appreciated the evidence in proper perspective and there is no glaring mistake while convicting and sentencing the accused by the impugned judgment and order dated 7th April, 2001, and hence, no interference therein is called for in the present appeal, and therefore, the appeal deserves to be rejected. 27. 27. In the result, the present appeal stands dismissed and the convictions and sentence recorded against the accused by the judgment and order dated 7th April, 2001 rendered by the learned II Additional Sessions Judge, Satara, stands upheld and confirmed. Appeal dismissed.