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Judgment
M.G. Giratkar, J
The appellant has assailed the judgment of conviction, dated 06th May, 2017 passed by the Additional Sessions Judge, Nagpur in Sessions Trial No.
255 of 2013, by which, the appellant is convicted and sentenced as under:Â
(i) Accused/appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for
life and to pay a fine of Rs.10,000/Â, in default, further RI for six months.
(ii) Accused/appellant is convicted for the offence punishable under Section 364 of the Indian Penal Code and sentenced to suffer imprisonment for
life and to pay a fine of Rs.10,000/Â, in default, further RI for six months.
(iii) Accused/appellant is convicted for the offence punishable under Section 201 of the Indian Penal Code and sentenced to suffer RI for seven years
and to pay a fine of Rs.5,000/Â, in default, further RI for three months.
The case of the prosecution against the appellant (hereinafter referred to as accused), in short, is as under: Â
The accused is the sonÂinÂlaw of complainant Mahananda (PW1). The daughter of complainant namely Rani married with the accused in the year
2009. Since the marriage, accused was ill-treating his wife. He used to beat her suspecting her character. Rani cohabited with the accused for
about two years. Rani delivered a female child. Accused continued his ill treatment and beating. Rani (PWÂ7) lodged report against the
accused. Offence punishable under Sections 498ÂA and 323 of the Indian Penal Code was registered against the accused. Since the time of
lodging report, Rani was residing with her mother (PWÂ1).
Accused used to talk with PWÂ1 on phone. He used to say her that he would treat Rani properly and will leave his habit of drinking liquor.
PWÂ1 used to give understanding to him that he should improve his behaviour. On 17.02.2013, at about 04:00 p.m., accused talked with PWÂ1 on
mobile. Accused told her that he was going to Umrer to take medicine from one Baba for leaving the habit of liquor and to improve his behaviour.
Accused requested PWÂ1 to send her son Atul (deceased) to Zullar Phata, saying that he would be late while coming back from Umrer.Â
At about 06:00 p.m., again accused talked with PWÂ1 and asked her to send Atul to Zullar Phata. He told her that he would reach to Zullar
Phata on his motor cycle. Complainant sent her son Atul at Zullar Phata. At about 08:00 p.m., she talked with accused and asked him whether he
along with her son reached to Umrer. Accused told her that they reached Umrer and Atul was with him. At about 10:00 p.m., she talked with
her son Atul. He told her that he was sitting in one shop at Umrer and accused had gone somewhere. When he was talking with her, accused
came there and snatched mobile from the hands of Atul and talked with her. Accused told her that they would reach at her house in late hours in
the night.Â
After 10:00 p.m., complainant repeatedly tried to talk her son and accused, but, their phones were not reachable. She contacted from her Mobile
No. 9767942659 to the Mobile number of her son of which last digits were 190. She also tried to contact accused on his mobile of which last digits
were 860.Â
In the night at about 01:00 a.m., accused alone came to her house. Her daughter Rani and son Anurag were sleeping. She asked accused as to
where was his son. Accused told her that he had gone to the house of contractor to take rest. Accused had given her one lemon and asked her
to move the said lemon on the person of Rani and hand it over to him. Accordingly, she did so. After some time, accused demanded her match box
and camphor. Accused took her to vacant room and asked her to burn the camphor. Accused asked her to sit there and say by closing her eyes
that her daughter Rani should come with him. When she was closing her eyes, accused came from behind and gagged her mouth by one hand and
put knife on her neck by other hand. She caught hold the hands of accused and started scuffling with him. In the said process, she received
bleeding injury of knife to her neck and left hand. She raised shouts. Her children and neighbours rushed to help her. During the scuffle, she
had pulled the fullpant of accused due to which it was torn. Accused ran away from her house. Her neighbours chased and tried to catch hold but
they could not succeed.Â
In the night itself, she went to Police Station, Mouda and lodged a report against the accused. She did not mention in the said report that accused
had taken her son Atul with him to Umrer. The said report is at Exh.31. Police told her to search her son first and if not found then she may
lodge report in that respect.Â
Complainant took search of her son on 18.02.2013 to 22.02.2013.
She went to the house of contractor at Umrer and other places. But her son was not found. Therefore, on 22.02.2013, she went to the Police
Station, Mouda and lodged report against accused in respect of abduction of her son. The said report is at Exh.33.
Crime was registered against the accused. Police Inspector Shri Kherde investigated the crime. Accused was absconding. On 02.03.2013,
he received information that accused was concealing himself at village Keshori, district Gondia. He, along with staff, went to Keshori Police
Station. After necessary information, he arrested the accused vide arrest panchnama (Exh.152).
After the arrest of accused, he shown his willingness to show the dead body. Accordingly, statement vide Exh.126 was recorded in presence of
panchas. Thereafter accused shown the dead body, which was thrown in the well, as per discovery panchnama (Exh.127). On the spot, inquest
panchnama was conducted. The dead body was identified by the relatives. He sent the dead body to Mayo Hospital, Nagpur for postmortem.Â
The statements of witnesses were recorded. After completing the investigation, he filed chargeÂsheet before Judicial Magistrate, First Class,
Mouda, who, in turn, committed the same to the Court of Session.Â
The trial Court framed charge against the accused at Exh.2 for the offence punishable under Sections 302, 364 and 201 of the Indian Penal
Code. The prosecution has examined 17 witnesses. The statement of accused under Section 313 of the Code of Criminal Procedure was
recorded. After hearing the prosecution and defence, learned trial Court convicted the accused as stated above.
Heard Shri Mahesh Rai, learned Counsel appearing on behalf of the appellant/accused. He has submitted that the evidence adduced by the
prosecution is doubtful. Complainant not lodged report against the accused in respect of missing or abduction of her son. Learned Counsel has
submitted that there is material defect in the prosecution case. Blood group of deceased was not determined by the Chemical Analyser. Blood
group found on the weapon and clothes was not of the deceased. Complainant lodged false report against the accused because his wife was not
residing with him. She was residing at the house of her mother. At last, submitted that the prosecution has failed to prove the guilt of accused.Â
Therefore, appeal be allowed.
Heard Shri S.J. Kadu, learned Additional Public Prosecutor appearing on behalf of the respondent/State. He has submitted that the evidence of
PWÂ1 is well corroborated by the evidence of other witnesses. The case of the prosecution is based on circumstantial evidence. The prosecution
has proved material circumstances against the accused. All the circumstances proved against the accused are of conclusive nature. All those
circumstances proved by the prosecution only point out towards the accused and none else. Learned APP has submitted that the trial Court has
rightly convicted the accused. Hence, the appeal is liable to be dismissed.
The case of the prosecution is based on circumstantial evidence. The Hon'ble Apex Court in the case of Sharad Birdichand Sarda .v. State of
Maharashtra (reported in 1984 AIR 1622) has given five (panchsheel) guidelines in case of circumstantial evidence.
The Court has to see whether the circumstances proved against the accused are proved and are of conclusive nature which only point out a guilt
towards the accused and none else. Whether the chain of circumstance against accused is complete and not left any reasonable ground for the
conclusion consisting with the innocence of the accused and shown that in all human probability the act must have been done by the accused.
The prosecution has proved following material circumstances :Â
(i) Strained relation of accused with his wife;
(ii) Deceased was lastly seen with the accused;
(iii) Motive of the accused;
(iv) Assault on the complainant by the accused after the incident;
(v) Blood stained clothes and blood stained iron rod were seized at the instance of the accused. As per CA Report (Exhs.16 and 17), human blood
was found on the clothes of accused and iron rod;
(vi) Accused shown the dead body of deceased which was in the exclusive knowledge of the accused; and
(vii) Conduct of the accused after the incident.
Â
Relation of deceased with his wife:
The evidence of PWÂ1 and PWÂ7 show that accused married with PWÂ7. Since her marriage, he was not treating her properly. Accused was
suspecting her character and beating her under the influence of liquor. Accused used to drive her out of the house. Due to ill treatment of accused,
she had started residing with her mother and brothers along with her daughter. She had lodged report in Police Station, Mouda vide FIR (Exh. 92).
PWÂ1 has stated that after lodging of report by Rani (PWÂ7), she started residing with her. Accused used to talk with PWÂ1 and requesting
her to send his wife Rani for cohabitation. PWÂ1 was always saying him to improve his behaviour. The evidence of PW Nos. 1 and 7 show that
accused had no good relations with his wife Rani and her mother, brothers etc. Accused came to the house of PWÂ1 in the night at about 01:00
a.m. He made some drama of lemon and camphor etc. Accused tried to kill PWÂ1. He tried to kill her by knife. PWÂ1 scuffled with him
and shouted to save her. Accused ran away from the spot of incident. Accused inflicted injury on her neck. This itself shows that accused tried
to kill PWÂ1 also. Evidence of PWÂ1 is well supported by the judgment of JMFC, Mouda in Criminal Case No. 25 of 2013. PWÂ1 immediately
lodged a report in the night itself. On her report, accused was tried and convicted for the offence punishable under Sections 324, 448 of the Indian
Penal Code. Copy of the judgment is at Exh.29. All these evidence show that accused had decided to kill family members of his wife.Â
Deceased was lastly seen with the accused :
On the day of incident i.e. 17.02.2013, accused talked with his motherÂinÂlaw (PWÂ1) requested her to send deceased Atul to Zullar Phata. He told
her that he was going to Umrer for taking some medicine from one Baba for leaving the bad habit of liquor. PWÂ1 told him to improve his
behaviour. On the request of accused, PWÂ1 sent her son Atul to Zullar Phata. Accused was taken deceased along with him at Umrer.Â
PWÂ5 (Anurag) has stated in his evidence that on 17.02.2013 at about 02:00 to 03:00 p.m., accused made phone call to his mother saying that he
wanted to go to Umrer for getting medicine from one Baba and he would be late in the night, therefore, requested to send Atul to his company.Â
When PWÂ5 was in Bhaskar Colony, at about 06:00 p.m., he saw that Atul was going on motor cycle of accused along with him.
PWÂ8 has stated in his evidence that on 17.02.2013 at about 07:30 p.m., accused had come to his hotel for some snacks along with a boy, aged
about 17 to 18 years. After getting snacks, both went towards Umrer by motor cycle. On 19.02.2013, there was a missing news in respect of
that boy in the newspaper. After some days, police brought accused to his hotel. He told police that accused had come along with that boy to his
hotel.Â
PWÂ9 has stated in his evidence that on 17.02.2013, at about 08:30 p.m. at Umrer when he was in his mobile repairing shop, accused, along with
a boy, came to his shop for charging his mobile. Accused requested him to allow him to charge his mobile. He allowed the accused to charge his
mobile. Accused put his mobile on charging and went away. That boy was sitting in his shop. Accused did not return. Therefore, that boy
asked him whether his brotherÂinÂlaw would return or not. At about 10:15 p.m., accused returned to his shop and he took his mobile phone and
went away along with that boy on his motor cycle.Â
Evidence of PW Nos.1, 5, 8 and 9 clearly show that in the night of incident, deceased was in the company of accused. PWÂ1 has stated that
she had talked with the accused and deceased in the night till 10:00 p.m., but after 10:00 p.m., mobile phones of accused and deceased were not
responding. This particular evidence is well corroborated by the evidence of PW Nos.12 and 13. Both the officers of mobile company have
proved CDR and SDR vide Exhs. 123, 123ÂA, 124, 137, 138 and 139. From the perusal of their evidence and CDR, it is clear that accused and
deceased were in Umrer area till 10:00 p.m. Thus record also shows that PWÂ1 had talked with the deceased and accused when they were at
Umrer. All this evidence shows that accused had taken deceased to Umrer. Deceased was in the company of accused till 10:00 p.m. Accused
not explained as to what happened thereafter. Nothing is on record to show that deceased parted the company of accused after 10:00 p.m. on
17.02.2013.
Motive of the accused:
Evidence of PW Nos.1, 5 and 7 show that he had motive to kill the deceased because accused wanted to take revenge as his wife (PWÂ7) Rani
lodged a report against him. Therefore, crime was registered against him for the offence punishable under Sections 498ÂA and 323 of the Indian
Penal Code. His wife was not residing with him at the time of incident. She was residing with her mother and brothers. Accused also
attempted to kill his motherÂinÂlaw (PWÂ1). This it self shows that he had motive to kill the family members of his wife.
Assault on the complainant by the accused after the incident:
Evidence of PWÂ1 is well corroborated by the judgment of JMFC in Criminal Case No. 25 of 2013 by which JMFC, Mouda has convicted the
accused for the offence punishable under Sections 324 and 448 of the Indian Penal Code. This fact is not disputed by the accused. Evidence of
PWÂ1 shows that in the night at about 01:00 p.m., accused alone came to her house. When she asked her about her son Atul, then he told that the
deceased was taking rest at the house of Contractor at Umrer. Accused asked her to take one lemon in her hand and move from the person of
Rani who was sleeping at that time. PWÂ1 moved lemon and given to the accused. Thereafter he asked her to burn camphor and close her
eyes. That time accused came from her backside and put knife on her throat. She scuffled with him and shouted for her help.  PW Nos.5
and 7 woke up and neighbours were also woke up. Accused ran away. She sustained injury, immediately she went to Police Station, Mouda and
lodged report. On the said report, Criminal Case No. 25 of 2013 was instituted against the accused, in which JMFC, Mouda convicted the accused
for the said offence. All this evidence shows that accused assaulted the deceased with an intention to kill her.Â
Blood stained clothes and blood stained iron rod were seized at the instance of the accused. As per CA Report (Exhs.16 and 17), human blood
was found on the clothes of accused and iron rod:
Accused was absconding from the day of incident. He was arrested by Investigating Officer (PWÂ17) at Keshori, district Gondia. After the
arrest, his clothes were seized as per his statement. Accused also shown willingness to show the iron rod and match box. As per the statement
of accused in presence of panchas, he shown iron rod and clothes. Those articles were sent to Chemical Analyser. CA reports are at Exhs.16
and 17. CA reports show that the clothes of accused and iron rod were stained with blood group “Oâ€. Blood Group of deceased could not be
determined. Dead body was discovered at the instance of accused after 15 days. Blood Group of accused is “Oâ€. There is no evidence
that accused had any injury on his person. He has not explained as to how human blood was found on his clothes and iron rod.
Accused shown the dead body of deceased which was in the exclusive knowledge of the accused:
Accused was absconding from the time of incident i.e. from 17.02.2013. PWÂ1 searched for the deceased till 22.02.2013. She could not find her
son, therefore, she lodged report against the accused. PWÂ17 got information that accused was hiding himself at village Keshori, district
Gondia.  He went to Police Station, Keshori and he arrested accused at Keshori as per arrest panchnama (Exh.152). He brought him to the
Police Station, Mouda and shown his arrest at Mouda. After the arrest of accused, he shown willingness to show the dead body. His statement
was recorded in presence of panchas vide Exh.126. Thereafter, accused taken him and panchas to the spot (well) where dead body was thrown.Â
Accused shown the well. Dead body was fished out from the well water. Accordingly, discovery panchnama (Exh.127) was prepared by the
Investigating Officer (PWÂ17).Â
PWÂ13 has stated in his evidence that in his presence, accused stated before him to show the dead body thrown in the well. Accordingly, his
statement vide Exh.126 was recorded. Thereafter both the panchas, police and accused went to the said well which was situated in Umri Shivar.Â
There was a teak tree near the well. After reaching there, accused told them that he thrown the dead body of his brotherÂinÂlaw in the said
well. There were blood stains near the well. They saw in the well. Dead body was floating in the well. Dead body was fished out from the
well. Accordingly, panchnama (Exh.127) was prepared. Â
Evidence of PW Nos.13 and 17 show that accused shown the dead body, which was thrown in the well. Accused only was having knowledge
where the dead body was. Therefore, this is a material incriminating circumstance against him. He has not given any explanation in his statement
under Section 313 of the Code of Criminal Procedure. He has only denied the same.Â
Conduct of the accused after the incident :
Accused was absconding from 17.02.2013 till his arrest i.e. up to 02.03.2013. He has not given any explanation about the same in his statement
under Section 313 of the Code of Criminal Procedure. Accused was concealing himself. PWÂ2 (Vinayak) has stated in his evidence that in the
night of 18.02.2013 at about 03:15 a.m., accused came to his house and knocked the door. His mother Kamalabai opened the door. He came out
of the house. Accused was standing in his courtyard. He enquired from the accused as to from where he came in the night. Accused told him
that he came from the house of his motherÂinÂlaw. He requested PWÂ2 to allow him to sleep in his house. This witness refused to allow him to
sleep in his house. Accused demanded him drinking water. He provided the same. After careful observation, he saw that accused was not
wearing chappal. He suspected accused that he has done some illegal act, so he refused to allow him to stay in his house. Accused requested
him that he should not tell anyone that he had come to his house. He requested him that he should hide him for 2Â3 days, he will pay him
Rs.50,000/Â. This witness refused to entertain the accused. Thereafter, accused went away. This evidence shows the conduct of accused.Â
PWÂ3 (Sheela) has stated in her evidence that on 18.02.2013 at about 04:00 a.m., accused came to her field. She woke up for preparing tiffin
of her son. She heard noise near the water tank. She had seen accused while washing his legs near the water tank. She gave call asking him
as to who he was. Whereupon, accused replied saying that he was Bhimrao Bankar and told her that he had committed a serious crime and
requested her to give him a quilt to sleep there. One cot was lying in her courtyard. Accused slept on the said cot till 10:00 a.m. Thereafter, he
was sitting under the mango tree for whole day. Accused demanded thread and needle to stitch his fullÂpant. She provided the same.Â
Accused stitched his fullÂpant. In the evening, he left that place.Â
PWÂ4 has stated in his evidence that before 2Â3 years back, he was alighting from YavatmalÂGondia bus at about 08:30 p.m. at Mouda, at that
time he saw the accused in the same bus. Accused tried to hide himself from his sight. Evidence of PW Nos.2, 3 and 4 show that accused was
hiding himself from the known persons after committing the crime. This conduct of the accused shows that he was a guilty person. Therefore,
concealing his presence. Accused not explained as to why he was concealing his presence from the known people.
Accused was absconding from 17.02.2013. He was found at Keshori, district Gondia which is naxalite area. After the receipt of information,
PWÂ17 Investigating Officer Shri Kherde went to Keshori. He visited to the Police Station, Keshori. After necessary information to Police
Station, Keshori, he apprehended accused at Keshori and brought to Mouda. Accused has not given any explanation about the same in his statement
under Section 313 of the Code of Criminal Procedure.
The prosecution has proved material circumstances against the accused. All this chain of circumstances only points out guilt towards the
accused and none else. As per the guidelines given by the Hon'ble Apex Court in the case of Sharad Birdichand Sards .v. State of Maharashtra
(cited supra), all the material circumstances established by the prosecution proved the guilt of accused. All the chain of circumstances only show
that accused and none other person killed the deceased. Learned trial Court rightly recorded its finding. There is no perversity or illegality in the
impugned judgment. Impugned judgment is well reasoned, perfectly legal and correct. Hence, we are of the opinion that the appeal is without merit
and the same is liable to be dismissed.
In the result, the appeal is dismissed. R and P be sent back.