Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 119 (BOM)

Pankaj Abhimanyu Kamble v. State of Maharashtra

2014-01-20

A.S.GADKARI, P.V.HARDAS

body2014
JUDGMENT P.V. HARDAS, J.:- The Appellant, who, stands convicted for an offence punishable under Section 302 and under Section 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for six months and R.I. for three years and to pay fine of Rs.1,000-, in default of which to undergo further R.I. for six months, by the IInd Ad-hoc Additional Sessions Judge, Baramati, by Judgment dated 6.9.2005, in Sessions Case No.46 of 2003, by this Appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus. PW-8 Police Constable Avinath More, who, on 14.1.2003 was attached to the Daund Police Station, recorded the report submitted by the Appellant at Exhibit 30. On the basis of the report of the Appellant at Exhibit 30, Accidental Death No.2 of 2003 was registered under Section 174 of the Code of Criminal Procedure. Investigation of the said Accidental Death was then entrusted to PW-II Head Constable Dinkar Garud. PW-Il Head Constable Dinkar Garud, who was attached to the Kurkumbh Police Station Out Post, was entrusted with the investigation of A.D. No.2 of 2003. He accordingly proceeded to the scene of the incident and prepared the inquest panchnama of the dead body of deceased Gokula, in the presence of panchas at Exhibit 14. The dead body was then referred to the Rural Hospital, Daund for postmortem examination. PW-Il Head Constable Garud, thereafter, drew the scene of the incident panchnama in the presence of witnesses at Exhibit 35. From the scene of the incident, PW-11 Head Constable Garud seized one nylon rope and two clothes pieces stained with blood. The aforesaid articles were sealed in the presence of the panchas. Thereafter, the sketch of the scene of the incident was also drawn. The further investigation was then entrusted to PW-13 P.I. Ashok Survagandh. PW-13 P.I. Ashok Survagandh, who was attached to the Daund Police Station was entrusted with the investigation by PW-11 Head Constable Dinkar Garud. PW-1 Sandipan, father of deceased Gokula came to the Police Station and lodged his report at Exhibit 19. On the basis of the said report, an offence vide Crime No.8 of 2003 came to be registered under Sections 302 and 201 of the Indian Penal Code. PW-1 Sandipan, father of deceased Gokula came to the Police Station and lodged his report at Exhibit 19. On the basis of the said report, an offence vide Crime No.8 of 2003 came to be registered under Sections 302 and 201 of the Indian Penal Code. The investigation of the said crime was then carried out by PW-13 P.I. Survagandh. The Appellant came to be arrested under arrest panchnama at Exhibit 17 in the presence of the panch witnesses. The statements of witnesses were recorded. During custodial interrogation, on 16.1.2003, the Appellant expressed his willingness to point out the place where a nylon rope had been concealed by him. Accordingly, a memorandum of the Appellant was drawn at Exhibit 24 in the presence of PW - 5 Navnath. The Appellant led the Police and Panch and recovered a nylon rope Article 1 which came to be seized under seizure memorandum at Exhibit 25. On 19.1.2003, viscera was referred to the Chemical Analyzer under requisition at Exhibit 38. On 20.1.2003, the clothes of the Appellant were seized in the presence of PW12 Ajik Franciee under seizure memorandum at Exhibit 40. The seized property was, thereafter, referred to the Chemical Analyzer at Pune under requisition at Exhibit 41. The reports of the Chemical Analyzer are at Exhibits 42 and 43. Further to the completion of investigation, a charge-sheet against the Appellant was filed. Postmortem on the dead body of deceased Gokula was performed by PW-6 Dr. Udgirkar. PW-6 Dr. Udgirkar noticed two bluish black ligature marks 00 x 4 C.m. thick groove. There were injuries to the tongue on account of bite. An abrasion on the right index finger was also noticed. One ligature mark was faint in appearance than the other. The thyroid cartilage was fractured. The Medical Officer opined that the first ligature mark which was extending from right side to the left side extending up to posterior side of the neck facing upward was a postmortem ligature mark. PW6 Dr. Udgirkar, therefore, opined that cause of death of deceased was asphyxia due to throttling. Postmortem report is at Exhibit 27. 3. On committal of the case to Court of Sessions, Trial Court, vide Exhibit 7 framed charge against the Appellant for offence punishable under Sections 302 and 201 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Postmortem report is at Exhibit 27. 3. On committal of the case to Court of Sessions, Trial Court, vide Exhibit 7 framed charge against the Appellant for offence punishable under Sections 302 and 201 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. The defence of the Appellant as can be culled out from his statement under Section 313 of the Code of Criminal Procedure is that wife Gokula had committed suicide and the suicide note left by her was deliberately destroyed by the Investigating Officer i.e. PW-13 Ashok Survagandh. Prosecution in support of its case examined 13 witnesses. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellant as aforestated. 4. In order to effectively deal with the submissions advanced before us by the learned Counsel for the Appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 5. Prosecution has examined PW-1 Sandipan, father of deceased Gokula and PW-2 Suman, mother and PW-3 Santosh, brother of deceased Gokula. The evidence of these witnesses indicate that Gokula was married to the Appellant approximately one year prior to the incident. These witnesses have disclosed that the Appellant was suspecting the chastity of his wife Gokula. This suspicion was expressed by the Appellant. The evidence of these witnesses indicate that deceased Gokula was questioned and deceased Gokula refuted the allegations made by the Appellant. On 14.1.2003, a telephone call was received regarding the death of Gokula. According to PW-l Sandi pan, he accompanied by his wife and his children came at the village of the Appellant. There they were informed that the Appellant and Gokula were not there and therefore, they had gone to Kurukumbh. The Police at the Outpost Kurukumbh informed them that dead body of Gokula had been referred for postmortem examination. PW-1 Sandipan and the other relatives accordingly had seen the dead body of deceased Gokula and had noticed the ligature marks. After the postmortem on the dead body of Gokula was performed and the custody of the dead body was given to PW-1 Sandipan, he was informed at that time that Gokula had not committed a suicide by hanging but she was killed. Before performing the funeral of deceased Gokula, PW-1 Sandipan had, accordingly, gone to the Police Station and had lodged his report at Exhibit 19. Before performing the funeral of deceased Gokula, PW-1 Sandipan had, accordingly, gone to the Police Station and had lodged his report at Exhibit 19. These three witnesses have been cross-examined but the Appellant has been unsuccessful in making a dent in their evidence in respect of the alleged suspicion of the Appellant regarding the chastity of Go kula. 6. Prosecution has examined PW-5 Navnath in order to prove the memorandum of the Appellant at Exhibit 24. The prosecution has also examined the Police Officer, who had effected the discovery pursuant to the said memorandum. The evidence of PW-4 Navnath indicates that he had been called to the Police Station where the Appellant had expressed his desire to produce the rope. Accordingly, a memorandum at Exhibit 24 was recorded. The Appellant led the Police and the Panch and discovered a nylon rope at Article I which was seized under Seizure Memorandum at Exhibit 25. In cross-examination, PW-5 Navnath has admitted that the Police had informed them the place from where the rope was to be seized. This obviously had been done before recording the memorandum of the Appellant. In the light of the said admission therefore, according to us, no reliance can be placed on the discovery memorandum at Exhibit 24. The Police were equally aware that a rope was to be seized. Since the Police were aware about the place and the articles which were to be seized before the memorandum of the Appellant was recorded, according to us, the said information i.e. Exhibit 24 would not be admissible in evidence. A reference at this stage may usefully be made to the Judgment of the Supreme Court in Krishan Mohar Singh Dugal vis. State of Goa [(AIR) 1999 SC 3842J. According to us therefore, the aforesaid fact of discovery of the rope as a circumstance will have to be left out of consideration. 7. The prosecution has heavily relied upon the evidence of PW-6 Dr. Udgirkar. The evidence of PW-6 Dr. Udgirkar establishes that there were two ligature marks around the neck of deceased. The postmortem ligature mark was faint in appearance than the antemortem ligature mark. In the light of the postmortem ligature mark, the Medical Officer had concluded that deceased Gokula had died because of asphyxia due to throttling. Udgirkar. The evidence of PW-6 Dr. Udgirkar establishes that there were two ligature marks around the neck of deceased. The postmortem ligature mark was faint in appearance than the antemortem ligature mark. In the light of the postmortem ligature mark, the Medical Officer had concluded that deceased Gokula had died because of asphyxia due to throttling. In other words, the Medical Officer had clearly indicated the defence of the Appellant that deceased Gokula had committed suicide was a false defence. 8. Thus, from the circumstances proved by the prosecution, according to us, the prosecution has established that: (1) deceased Gokula had died a homicidal death; (2) the appellant was suspecting the chastity of deceased Gokula and thus, had a motive for committing the crime; (3) the presence of the Appellant is established in as much as the Appellant has admitted his presence in the house by virtue of his exculpatory report at Exhibit 30; and (4) the additional circumstance being that the Appellant had taken a false defence. 9. The learned Counsel for the Appellant has urged before us that the prosecution has been wholly unsuccessful in proving the motive for the Appellant to had committed the crime. According to the learned Counsel for the Appellant, no reliance could be placed on PW-1 Sandipan, PW-2 Suman and PW-3 Santosh, who are the relatives of deceased Gokula. The leamed APP has opposed the aforesaid submission. 10. The evidence of PW-1 Sandi pan, PW-2 Suman and PW-3 Santosh cannot be discarded on the sole ground that PW-1 Sandi pan, PW-2 Suman and PW-3 Santosh are relatives of deceased Gokula or that they are interested witnesses. These three witnesses have revealed that the Appellant was suspecting the chastity of his wife deceased Gokula. These witnesses have been cross-examined at length but nothing of substance has been elicited in the cross-examination which would impel us to jettison the evidence of these three witnesses. In any event, even if the evidence of these three witnesses is discarded, it makes no dent to the prosecution case against the Appellant. It is no doubt true that motive is an important circumstance. Failure to establish motive may, in certain cases, be fatal to the prosecution case. However, if the other evidence is overwhelmingly strong, failure of the prosecution to prove and establish motive would not by itself vitiate the conviction of the accused. It is no doubt true that motive is an important circumstance. Failure to establish motive may, in certain cases, be fatal to the prosecution case. However, if the other evidence is overwhelmingly strong, failure of the prosecution to prove and establish motive would not by itself vitiate the conviction of the accused. In the present case, we find that the prosecution has led overwhelming evidence. 11. The presence of the Appellant in the house has been established. Deceased had died a homicidal death i.e. deceased had died as a result of throttling. There were two ligature marks around the neck of deceased, one of which was a postmortem injury. The Appellant though was present in the house has not been able to offer any explanation in respect of the death of deceased Gokula. The defence of the Appellant that deceased Gokula committed suicide is a false defence. 12. In cases resting on circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of incriminating nature i.e. they should have a definite tendency of implicating the accused. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be capable of only one inference and i.e. that the accused and the accused alone has committed the offence. A reference may usefully be made to the Judgments of the Supreme Court in Hanmant Nadgudkar vis. State of Madhya Pradesh [(1952) SC 343] and Sharad Birdhichand Sarda vis. State of Maharashtra [(AIR) 1984 SC 1622] : [2009 ALL SCR (O.C.C.) 281]. 13. According to us, the prosecution has completed the chain of the circumstances and the circumstances so established exclude every hypothesis of the innocence of the accused and unerringly point to the accused as the assailant who has committed the crime. Since the Appellant was present in the house, it is not possible for any intruder to have entered in the house and killed deceased Gokula. The additional circumstance which we notice is that the Appellant has taken a false defence. 14. Since the Appellant was present in the house, it is not possible for any intruder to have entered in the house and killed deceased Gokula. The additional circumstance which we notice is that the Appellant has taken a false defence. 14. The learned Counsel for the Appellant has urged before us that PW-I Sandi pan has admitted that after the postmortem was conducted, he was while handing over the dead body of deceased Gokula, he was informed that deceased Gokula had not committed suicide but in fact she had been killed. The Medical Officer i.e. PW-6 Dr. Udgirkar has denied the suggestion that he had informed PW-1 Sandi pan about the homicidal death of deceased Gokula. The learned Counsel for the Appellant, therefore, has urged before us that the entire prosecution case should be jettisoned because of this variance. According to us, the aforesaid variance is an extremely minor variance which does not affect the core of the prosecution case. In any event, PW-1 Sandipan has admitted that the Medical officer had informed him and it would not necessarily man PW-6 Dr. Udgirkar but could include any other Medical Officer attached to the Hospital. As pointed out by us, the aforesaid variation is extremely minor and does not in any manner affect the core of the prosecution case. 15. The learned Counsel for the Appellant has placed reliance on the Judgment of the Supreme Court in Mohan Singh and Another vis. State of Madhya Pradesh [ (1999) 2 SCC 428 ]. Particularly, the observations of the Supreme Court at paragraph II of the Judgment, which are reproduced below : "11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. Under this sphere, we proceed now to test the submission of the learned counsel for the accused with reference to the blackening found by the doctor under the injuries in the postmortem report." The aforesaid observation of the Supreme Court had been made in the light of the variance which was found in the evidence of the two eye witnesses. The aforesaid is not the situation in the present case which would require us to separate the grain from the chaff The falsehood or the inconsistencies are so minor that they do not affect the core of the prosecution case. 16. The aforesaid is not the situation in the present case which would require us to separate the grain from the chaff The falsehood or the inconsistencies are so minor that they do not affect the core of the prosecution case. 16. After having considered the submissions advanced before us by the learned Counsel for the Appellant and the learned APP, according to us, the prosecution has proved the offence against the Appellant beyond reasonable doubt. No case for interference is made out and consequently, Criminal Appeal No.897 of 2005 is dismissed, confirming the conviction and sentence of the Appellant. Appeal dismissed.