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2014 DIGILAW 24 (BOM)

Ram Apparao Belamkar v. State of Maharashtra

2014-01-07

A.S.GADKARI, P.V.HARDAS

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JUDGMENT P.V. HARDAS, J.:- The Appellant, who stands convicted for an offence punishable under Sections 364, 302 and 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.10,000/-, in default of which to undergo further RI for one year, imprisonment for life and to pay a fine of Rs.10,000/-, in default of which to undergo further RI for one year and RI for seven years and to pay a fine of Rs.10,000/-, in default of which to undergo further RI for six months, with a direction that substantive sentences shall run concurrently, by the Additional Sessions Judge, Brihan Mumbai, by Judgment dated 14/07/2000, in Sessions Case No. 600 of 1996, by this Appeal questions the correctness of his conviction and sentence. 2. The Appellant has been convicted by the Trial Court by Judgment dated 14.7.2000. After a delay of 13 years, the Appellant has filed the present Appeal. The delay was condoned by this Court and since the Appellant questioned his conviction which was recorded in the year 2000, this Court directed by order dated 24.10.2013 for listing of the Appeal for final hearing before the Court in the week commencing from 18.11.2013 by dispensing with the preparation of a formal paper-book. The record and proceedings have been called for and accordingly, we have heard the learned Counsel appointed for the Appellant and the learned APP. 3. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus:- PW-7 Mohd. Rashid, who in March 1996 was attached to the R.A.K. Marg Police Station as a P.I., recorded the missing report of PW-1 Rajashree regarding the missing of her son Santosh. The aforesaid report was recorded on 12.3.1996. On 14.3.1996, information was received about finding of a shirt at Wadala near the Railway track. The said shirt which was blood stained was accordingly seized under a seizure memorandum. The said shirt was identified by PW-1 Rajashree as the shirt of Santosh. On 15.3.1996, Rajashree lodged a report at Exhibit 5 regarding the kidnapping of her 4 years old son Santosh. On the basis of the report of PW-1 Rajashree, an offence vide Crime No.108 of 1996 was registered. Further statement of Rajashree was recorded in which she suspected the involvement of the appellant who was her brother-in-law. On 15.3.1996, Rajashree lodged a report at Exhibit 5 regarding the kidnapping of her 4 years old son Santosh. On the basis of the report of PW-1 Rajashree, an offence vide Crime No.108 of 1996 was registered. Further statement of Rajashree was recorded in which she suspected the involvement of the appellant who was her brother-in-law. The Appellant was accordingly arrested on 16.3.1996 and his clothes were seized under seizure memorandum at Exhibit 14. During custodial interrogation, the Appellant expressed his willingness to point out the place where the dead body of deceased Santosh and one blade was concealed. Accordingly, a memorandum was recorded at Exhibit 10 in the presence of PW-4 Mohd. Usman. The Appellant led the police and the panch to Ambedkar Maidan, Wadala and thereafter, led the police and the panch to a place in the bushes and pointed out the dead body of a boy. The dead body was a decomposed dead body which was identified by PW-1 Rajeshree as the dead body of her son Santosh. A blade was also pointed out by the Appellant which was found near the dead body. The blade was blood stained and accordingly, was seized under the panchnama at Exhibit 10-A. Samples of ordinary mud and blood stained mud were drawn and collected. The dead body was thereafter referred for postmortem. Statements of witnesses were recorded and the seized property was then referred to the Chemical Analyzer. Further to the completion of investigation, a charge-sheet against the Appellant was submitted. 4. Postmortem on the dead body of deceased Santosh was performed by PW-5 Dr. Umesh Patil, who noted the following injuries :- (i) Wound over the interior aspect of neck and size semi vertical and 6 cms horizontal extending from chin to suprasternal notel and laterally upto both sterno mastoid muscles. Trachea and oesophagus are holed upto vertical column. Dry maggots measure vessels of the neck are cut. (ii) Wound over the right thigh, scree lateral to the penis. Size was vertical and 6 cms transverse bone deep. Full of maggots and dry. (iii) Wound over the right iliac chest size 10 cms. x 8 cms. Irregular margins, dry and full of maggots. (iv) Two wounds side by side over the left buttock zone-apart from below the iliac chest measuring (both) 6 cms x 6.5 cms teaming with maggots and dry. Full of maggots and dry. (iii) Wound over the right iliac chest size 10 cms. x 8 cms. Irregular margins, dry and full of maggots. (iv) Two wounds side by side over the left buttock zone-apart from below the iliac chest measuring (both) 6 cms x 6.5 cms teaming with maggots and dry. (v) Wound of zeru and zeru over lateral aspect of left angle mandible joint. Dry. Irregular maggots dry. Teaming with maggots. The Medical Officer opined that cause of death was due to multiple injuries present over the body including the injury over the anterior of neck. The final cause of death was reserved till the receipt of the report of the Chemical Analyzer. The postmortem report is at Exhibit 12. 5. On the case being committed to the Court of Sessions, the Trial Court framed charge against the Appellant for offence punishable under Sections 364, 302 and 201 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. The Trial Court upon appreciating the evidence of the prosecution convicted and sentenced the Appellant as aforestated. 6. 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. 7. PW- 1 Rajashree, mother of deceased Santosh, deposed that she was residing with her mother, sister, her brother in law (the Appellant) and two children of Rajashree by name Aruna and Santosh. According to Rajashree, she had left for her work at about 10.00 a.m. and had returned for lunch at 2.30 p.m. and thereafter, had left the house for attending her duties at 3.00 p.m. The children of Rajashree were being looked after by her sister Madhumati. In respect of the incident she states that on 12.3.1996, she returned for lunch at 2.30 p.m. and had noticed that her children were at home. When she returned back again at 7.30 p.m. she found that her daughter Aruna was alone present in the house but Santosh was not present. She however did not inquire about the whereabouts of Santosh and made inquiries about him on the next day from her sister. The whereabouts of Santosh could not be traced and therefore, on 14.3.1996, she had lodged her complaint. She however did not inquire about the whereabouts of Santosh and made inquiries about him on the next day from her sister. The whereabouts of Santosh could not be traced and therefore, on 14.3.1996, she had lodged her complaint. On 15.3.1996, she was cal\ed to the Police Station and was shown a shirt which was found near the Wadala Railway Station. She identified the shirt as that of her son Santosh. Thereafter, she lodged her report at Exhibit 5. According to Rajashree, two days prior to the missing of her son, she had requested the Appellant to pay the electricity bill as she was finding it difficult to pay the said bill. The Appellant, however, did not pay the electricity bill. The dead body of Santosh was subsequently found on 16.3.1996 at about 8.00 a.m. According to Rajashree, she identified the dead body as the dead body of her son Santosh. 8. In cross-examination she has admitted that her husband had left the house as he had addicted to liquor. She has also admitted that she shared the expenses from out of the income which she earned. She has admitted that she was earning Rs.800/- p.m. and was paying her mother about Rs.500/- to Rs.600/- p.m. She has admitted that her husband used to assault her after consuming liquor. She has denied the suggestion that her husband some times used to take away her children. She has also denied the suggestion that she was falsely implicating the Appellant. 9. The prosecution has examined PW-2 Rahul, brother of PW-1 Rajashree. He too has deposed about missing of Santosh and about finding of the shirt as well as the dead body of deceased Santosh. Though PW-2 Rahul has been cross-examined, nothing of substance has been elicited in the cross-examination which would affect his credibility. 10. Prosecution has also examined PW-4 Mohd. Usman, the panch to the disclosure memorandum. PW-4 Mohd. Usman has deposed about the disclosure statement of the Appellant and the Appellant leading the police and the panch and pointing out the place where the dead body of Santosh was concealed. In cross-examination he has admitted that he was called from his residence by the police in the morning. He has admitted that he had made inquiries as to why he was called at the police station. He has admitted that the second panch was present in the police station. In cross-examination he has admitted that he was called from his residence by the police in the morning. He has admitted that he had made inquiries as to why he was called at the police station. He has admitted that the second panch was present in the police station. He has also admitted that the Appellant was not hand-cuffed. He has admitted that the memorandum was recorded by the police officer. The aforesaid disclosure memorandum made in the presence of PW-4 Mohd. Usman has been amply corroborated by the testimony of PW-7 P.I. Mohd. Rashid. Though both these witnesses have been cross-examined in respect of the disclosure memorandum, their testimony has remained unshaken. 11. The report of the Chemical Analyzer discloses that the shirt found at the Wadala Railway Station as well as the blood stains on the clothes of the Appellant were stained with blood of 'A' group. The blood group of the Appellant was determined as 'O' group. The Appellant has failed to explain as to how blood of group' A' was found on his clothes. 12. The learned Counsel for the Appellant has urged before us that no reliance can be placed on the disclosure memorandum relating to the discovery of the dead body as prosecution has not been able to establish motive for the Appellant to have committed the crime. The learned Counsel for the Appellant has also urged before us that the evidence in respect of the discovery of the dead body is extremely weak type of evidence and is insufficient for sustaining the conviction of the Appellant. The learned APP has supported the findings arrived at by the trial court. 13. The disclosure memorandum relating to the discovery of the dead body of Santosh which was hidden from the view as it was concealed in bushes has been proved by the prosecution by examining PW-4 Mohd. Usman. The evidence of the police officer stands amply corroborated by the disclosure memorandum as well as the evidence of the panch witnesses and the finding of the dead body at the behest of the Appellant. The Appellant has not explained as to how he had the information that the dead body of Santosh was concealed in the bushes. The only inference therefore is that the dead body had been concealed by the Appellant. The Appellant has not explained as to how he had the information that the dead body of Santosh was concealed in the bushes. The only inference therefore is that the dead body had been concealed by the Appellant. Clothes of the Appellant on his arrest were found stained with blood of 'A' group which matched the blood group of deceased Santosh. The blood group of the Appellant has been determined as 'O' group. The Appellant has also not explained as to how the blood stains of 'A' group were found on his clothes. The circumstances so proved by the prosecution completing the chain of circumstances which led to the only inference that it is the Appellant and the Appellant alone who has committed the crime. No other person had any motive for committing the crime. The prosecution has alleged that since PW-1 Rajashree had asked the Appellant to pay the electricity bill, the Appellant had kidnapped Santosh and had killed him. Even if the evidence in respect of motive is lacking, the other evidence is so strong that it excludes every hypothesis of the innocence of the accused and unerringly point to his guilt. We, thus, see no reasons whatsoever for taking a view different from the view taken by the Trial Court. 14. We, thus, see no merit in the present Appeal and the Appeal is, therefore, dismissed confirming the conviction and sentence of the Appellant. 15. Fees payable to Smt. N.S.K. Ayubi, learned Counsel appointed for the Appellant, quantified at Rs.5000/-. 16. Since the Appellant is in Jail, copy of this Judgment be sent to the Appellant. Appeal dismissed.