S.S. Shinde, J.
1. The present appeal is filed by the appellant-State of Maharashtra, challenging the judgment and order dated 11.6.1990, rendered by the learned Sessions Judge, Beed in Sessions Case No. 53 of 1989, thereby acquitting the respondents of the charges for offences punishable under Sections 302, 201 r.w. 34 of I.P.C.
2. Brief facts of the case are as under:
Deceased Janabai was real sister of complainant P.W.7 Machindra Haral and P.W.5 Subhash Kisan Haral and the daughter of Kisan Ram (P.W.2) of village Bramhagaon, Tq. Ashti. Deceased Janabai was married to accused No. 1 Bhausaheb in the year 1985. The accused is resident of same village. The distance between the house of the complainant and the house of the accused Bhausaheb is about 25 ft. The complainant Machindra at the relevant time was serving in Army. After marriage, deceased Janabai was residing in the house of her husband i.e. accused Bhausaheb. It is further case of the prosecution that accused Bhausaheb used to beat and ill-treat her saying that he did not like her. When this fact was known to the parents and brothers of deceased Janabai, they had tried to convince the accused not to behave improperly and not to give such ill-treatment or beating to deceased Janabai. In spite of the efforts of the parents and brothers, the ill-treatment to deceased at the hands of husband Bhausaheb did not stop.
It is further prosecution case that accused No. 3 Kusum, who is real sister of accused No. 1 Bhausaheb is married to one Shridhar Pathade. However, after marriage, she deserted husband and started residing in the house of her brother, accused Bhausaheb. It is further case of the prosecution that accused No. 2 Uttam Ajbe, is also resident of village Bramhagaon and his land is situated just adjacent to the land of accused Bhausaheb. He is also close friend of accused Bhausaheb and he used to visit the house of accused Bhausaheb frequently and in the course of time he developed illicit relations with accused No. 3 Kusum.
It is further case of the prosecution that accused Kusum was pregnant and thereafter there was abortion and this fact was known to deceased Janabai. It is further case of the prosecution that all accused were afraid that deceased Janabai would disclose the illicit relations between accused Kusum and accused Uttam so also the fact in respect of abortion of Kusum, to the villagers and it would bring down the reputation of their family and therefore, they hatched a plan of killing deceased Janabai.
It is further case of the prosecution that on 1.12.1988, the complainant Machindra had come to his village on leave and stayed with parents. During the visit of the complainant to village, deceased Janabai narrated him about ill-treatment and beating to her at the hands of accused Bhausaheb. On 23.12.1988 the complainant went to the house of deceased Janabai to meet her, as he was going to resume his duties. He noticed that Janabai was not at her house. The complainant enquired with accused Kusum as to where his sister Janabai had gone. Accused Kusum told the complainant that Janabai had left the house on previous night and had not returned home. The complainant thereafter, went to the field of accused Bhausaheb alongwith his brother Subhash and asked accused Bhausaheb whereabouts of Janabai. Accused Bhausaheb told him that Janabai had not come to the field. Thereafter, they searched for Janabai but she was not found.
The complainant Machindra suspected foul play, rushed to the police station Ashti on 23.12.1988 and narrated the incident to P.S.I. Mohan Jadhav, P.W.8, who reduced the narration of the complainant in writing at Exh.27. On the basis of the complaint, P.S.I. Jadhav registered a crime and rushed to village Bramhagaon on 23.12.1988. Accused Bhausaheb came to be arrested on the same day. He then interrogated accused Bhausaheb in presence of panchas Laxman Jagtap, P.W.1 and one Mahadeo Lahanu. Accused Bhausaheb told them that he killed his wife Janabai in Kotha situated in his land on the night of 22.12.1988 with the help of accused Uttam and then buried the dead body of Janabai in his land and he would show the spot, where the dead body of Janabai was buried. P.S.I. then recorded memorandum of panchanama of his statement at Exh.13. Accused Bhausaheb then took P.S.I. and the panchas to his land and after going there he showed the spot under a Neem tree, where he had buried the dead body of Janabai covered in Chaddar and then it was taken out from ditch. The dead body was then attached under panchanama Exh. 13/A. P.S.I. Jadhav then drew inquest panchanama at Exh.10 in respect of dead body of Janabai in presence of panchas Laxman Jagtap, P.W.1, Mahadeo Lahanu and one Anusayabai. He then drew spot panchanama at Exh.14 in presence of Laxman Jagtap and Mahadeo Lahanu. Dead body of deceased Janabai was referred to Civil Dispensary, Ashti. Dr. Yadav Bansod, P.W.3 conducted the post mortem on 24.12.1988 in between 10.00 a.m. to 1.00 p.m. He found external and internal injuries on the dead body and came to the conclusion that cause of death was shock due to intra cranial haemorrhage with laceration of brain, lungs and liver. Thereafter, he issued the post mortem report at Exh.19. P.S.I. Jadhav then attached the blood stained clothes of deceased Janabai by panchanama Exh.11 and then recorded the statement of witness and sent the attached articles to Chemical Analyzer at Aurangabad. His letter is at Exh.24. After getting the report from Chemical Analyzer at Exh.29, he filed charge sheet against accused for the offences punishable under Section 302, 201 r.w. 34 of I.P.C.
3. Charges for offences punishable under Sections 302 r.w. 34 of I.P.C. and under Section 201 were framed against the accused, who pleaded not guilty by contending their innocence.
4. The prosecution has examined as many as eight witnesses in support of their case. The complainant Machindra P.W.7, his father Kisan P.W.2, his brother Subhash P.W.5, stated that deceased Janabai was married to accused Bhausaheb and after her marriage, she resided at the house of her husband at Bramhagaon itself, which is also their native place. The prosecution has examined Medical Officer, Dr. Yadav Bansod, (P.W.3), of the Primary Health Centre, Ashti, who has conducted the post mortem over the dead body of Janabai. P.W.4 is the prosecution witness viz. Jijabai. She was examined by the prosecution on the point of last seen together. P.W.6 is one Arun Ankush Dongre, who was on duty in police station, Ashti on 19.2.1989 and to whom articles were handed over for taking to Chemical Analyzer. P.W.8 Mohan Vitthal Jadhav, P.S.I. Ashti police station carried out the investigation. P.W.1 is panch witness to memorandum and panchanama under Section 27 of Evidence Act.
5. The trial court after recording the evidence and hearing the respective parties, acquitted the respondents-accused from all charges, for which they were charged. Hence, this appeal.
6. We have heard the respective counsel. The learned A.P.P. appearing for the appellant-State has submitted that incident in question took place on the night between 22nd and 23rd December, 1988. He further submitted that deceased was last seen together in the company of accused No. 1 Bhausaheb, who was taking her to agricultural land, which is witnessed by P.W.4 Jijabai, an old lady and thereafter Janabai did not return from the field. It is further submitted that when the complainant went to the field of accused Bhausaheb and enquired about Janabai, the accused Bhausaheb told that Janabai did not come to the field. It is further submitted that since deceased was last seen in the company of accused Bhausaheb by P.W.4, the burden was on the accused Bhausaheb to explain whereabouts of deceased Janabai. P.W.4, who is an old lady has stated in her deposition that she had seen accused No. 1 and his wife Janabai going to field one after another (______________). Learned A.P.P.further submitted that the conduct of accused was suspicious, when the complainant visited the accused in his field and enquired about whereabouts of Janabai, accused Bhausaheb gave evasive answers and told the complainant that Janabai had not come to the field. He further submitted that it is not that only deceased was last seen in the company of the accused, but dead body of the deceased was recovered at the instance of the accused. He submitted that if following four circumstances are taken into account i.e. (i) There was ill-treatment to the deceased by husband Bhausaheb, (ii) deceased was last seen together in the company of accused, (iii) when complainant went to the field of accused to know about Janabai, he gave evasive answers and (iv) disclosure statement of accused No. 1 and discovery of dead body of Janabai, pursuant to the said statement those are sufficient to convict the accused No. 1 Bhausaheb.
Learned A.P.P. further submitted that so far as other two accused are concerned, there was motive to kill deceased, since she was knowing about the illicit relationship between accused Kusum and Uttam. Accused persons were afraid that deceased since knowing the fact of abortion by Kusum, may disclose the same to the others and that may bring down the reputation of the families of accused persons.
Learned A.P.P. vehemently submitted that there was ill-treatment to deceased, the deceased was last seen in the company of accused No. 1 and the dead body was recovered at the instance of accused Bhausaheb, the chain of circumstances is complete. There was motive to kill deceased and therefore, all accused may be convicted for which they were charged by the prosecution.
7. On the other hand, learned Counsel appearing for the defence submitted that the trial court has properly appreciated the evidence on record. The evidence of witnesses was rightly disbelieved by the trial court. P.W.4 is an interested witness being related to the complainant as well as deceased. He further submitted that no independent witness has been examined on the point of prosecution story that deceased was last seen in the company of accused. It is further submitted that accused was never arrested and without his arrest his disclosure statement was recorded by the investigating officer. At the time of memorandum panchanama of statement of accused, he was not in police custody. It was further submitted that discovery panchanama on the basis of statement of accused under Section 27 of the Indian Evidence Act lost significance, because the persons from the village had already reached to the spot. The sum and substance of the argument of the learned Counsel appearing for the respondents was that the trial court has correctly appreciated the evidence on record by disbelieving the evidence of P.W.4 Jijabai, as well as other prosecution witnesses. He further submitted that the prosecution has failed to establish the motive of the accused behind alleged offence. He further submitted that since entire case is based on circumstantial evidence, there is presumption in favour of the accused persons that they are innocent and secondly since the judgment and order of the trial court of acquittal is also in their favour, therefore, this Court may not interfere in the findings of acquittal recorded by the trial court. The learned Counsel further submitted that in so far as accused Nos. 2 and 3 are concerned, absolutely, there is no evidence brought on record save and except the allegations made against them regarding their motive to kill deceased. The learned Counsel in support of his contentions placed reliance on the decisions of the Supreme Court in the cases of Malleshappa v. State of Karnataka 2008 ALL M.R (Cri.) 280 (S.C.) and Sharad Birdhichand Sarda v. State of Maharashtra : 1984CriLJ1738 .
8. On the basis of the submissions advanced by the learned A.P.P. and the learned Counsel appearing for the respondents, we have proceeded to examine the entire evidence on record. We are alive to the situation that in case of circumstantial evidence, there is total presumption in favour of the accused. Firstly, presumption of innocence available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. While examining the case on the basis of circumstantial evidence, we are guided by the judgments of the Apex Court in Sharad Sarda (supra) and in the case of Chandrappa and Ors. v. State of Karnataka 2007 (2) Crimes 103.
We are also aware that in case of circumstantial evidence, the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused, who committed the crime, but there must be something more establishing the connectivity between the accused and the crime.
9. At this juncture, we may usefully refer to the general principles laid down by the Hon'ble Apex Court in para 35 in the case of Chandrappa (supra), which read thus:
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
10. In the light of evidence on record, the judgment of the trial court, submissions advanced by counsel of respective parties and keeping in mind the law laid down by the Hon'ble Apex Court while dealing with the case, which is based upon the circumstantial evidence, as in hand, we proceed to examine the case as under:
According to us, there are four important circumstances, which certainly lead to the definite and only one conclusion that accused No. 1 had committed murder of deceased Janabai. The first circumstance is that the marriage of accused Bhausaheb with deceased Janabai took place in 1985, thereafter victim was ill-treated by the accused, which is supported by the statement of prosecution witnesses. The second circumstance is that deceased was last seen in the company of accused No. 1. This circumstance finds support from the statement of P.W.4 Jijabai. Third circumstance is that the complainant did not find deceased Janabai in her house and therefore, he went to the field of the accused to enquire about Janabai and the accused told the complainant that Janabai did not come to the field. Accused gave evasive answers to the complainant. Fourthly, the statement of the accused under Section 27 of Indian Evidence Act, which led to the discovery of the fact that the accused committed murder of victim Jijabai and her dead body was buried in his land. In pursuant to his statement, the dead body was recovered at his instance.
11. In order to examine the first circumstance, as stated herein-above, it would be relevant to refer to the deposition of P.W.2 before the trial court. P.W.2 Kisan is the father of deceased. The complainant Machindra is a son of P.W.2 Kisan. P.W.2 has deposed in his statement that accused Bhausaheb used to say the deceased that he did not like her. Accused Bhausaheb and accused Kusum used to harass Janabai. P.W. 2 further deposed that as Janabai was residing near his house, she used to come to his house and tell about harassment to her at the hands of accused Bhausaheb. It is further stated by P.W.2 that about 5 to 6 days prior to the incident, his son i.e. complainant-Machindra had come to house on leave. On Friday morning, he had gone to meet his sister Janabai. He went to the house of accused Bhausaheb, he asked accused Kusum, who was present in the house, as to where is Janabai. Kusum said that Janabai had left the house and had gone to the land at night. Machindra, therefore, went to land of accused Bhausaheb who gave evasive replies about Janabai. Therefore, Machindra suspected about whereabouts of Janabai and then he alongwith his brother went for search of Janabai. Since, Janabai was not found after search, the complainant Machindra had gone to the police station Ashti and lodged his complaint. P.W.2 further stated that all accused were afraid of Janabai, as they thought that she would disclose illicit relationship between Uttam and Kusum and abortion of accused Kusum, to others and therefore, accused thought it fit to kill her.
In his cross examination, he stated that he had told the father of accused Bhausaheb one month prior to the incident that they are harassing Janabai and therefore, he may think not to send Janabai to their house. He further stated that though he stated to the father of Bhausaheb that he will not send Janabai to their house, however, he sent Janabai to her husband's house. He denied the suggestion that on the day of incident, Janabai was at his house.
12. Another witness P.W.5 Subhash, who is another brother of deceased Janabai and complainant Machindra, deposed before the court that after marriage of Janabai with accused Bhausaheb, accused Bhausaheb and Kusum were harassing Janabai, they were beating and they were not behaving properly with her. He further stated that on Friday, he himself and the complainant Machindra came to the village and asked accused Kusum whereabouts of Janabai. Accused Kusum then told them that Janabai had gone to the land with Chaddar at night. He further stated that he alongwith Machindra then went to land of Bhausaheb and asked accused Bhausaheb as to where Janabai had gone. Bhausaheb told them that she had not come there and thereafter they searched for Janabai. He has further deposed that accused Uttam was having illicit relations with accused Kusum and he came to know this fact 15 days prior to the incident.
13. P.W.7 Machindra, who is complainant, has deposed before the court that deceased Janabai is his real sister. The marriage between deceased Janabai and accused Bhausaheb took place in the year 1985. Distance between the house of the accused Bhausaheb and his house is about 25 feet. He further deposed that he is serving in Army and during that period, in which the incident took place, he was on leave.
He further stated that whenever Janabai used to come to his house, she used to tell about ill-treatment and beating by the husband Bhausaheb. She further used to say that accused Bhausaheb does not like her. He further stated that accused Kusum married but she was not residing with her husband and was residing at the house of accused Bhausaheb. During the period in which he was on leave Janabai met him and told about beating by her husband.
P.W.7 complainant Machindra further stated that on 23.12.1988 in the morning he had gone to meet deceased Janabai but she was not at her house. He further stated that Janabai was seen in her house till 8.00 p.m. on the previous day. On 23.12.1988 accused Kusum was at the house of her brother and on visit of complainant to the house of Bhausaheb, Kusum told him that Janabai left at night and she did not return. Therefore, he went to the land of accused alongwith his brother in search of his sister. He met accused Bhausaheb in his land. He asked him whether Janabai had come to the land. In reply, Bhausaheb told that Janabai had not come to his land. Then he went to search Janabai. Complainant then went to the police station Ashti and lodged the complaint against accused.
If the evidence of these three witnesses including the complainant is taken into account, there is consistency in their statements that there was ill-treatment and beating to deceased Janabai from her husband accused Bhausaheb. Further it has also been deposed by them that Janabai told them the accused Bhausaheb did not like her. Therefore, it has to be held that there was ill-treatment and beating to Janabai and Bhausaheb did not like his wife. There is nothing in the cross examination which is brought on record to disbelieve all these three witnesses on account of ill-treatment and beating by the accused Bhausaheb to deceased Janabai and moreover, the fact narrated by witnesses that Bhausaheb did not like Janabai as it was told them by Janabai.
14. The second circumstance i.e. that the deceased was last seen in the company of the accused finds support from the statement of P.W. 4 Jijabai. She stated in para 2 of her deposition before the trial court, which is reproduced as under:
About a year ago the incident in question took place. That day in the evening, I was sitting in front of my house. Our house is situated at a distance of about 25 cubits from the house of accused Bhaurao. When I was sitting in front of our house, I found the deceased Janabai and her husband going one after another. They went by the road leading towards their land. I sat in the courtyard for about an hour and then slept inside the house. On the next day people were saying that Janabai was not at the house.
In her cross examination, she stated that police did not come to her to record her statement. She further stated that when Machindra was searching Janabai on the next day, she told him that she had seen Janabai going with her husband on previous evening. She further stated that police never interrogated her. She further stated that Janabai had gone to the field alongwith her husband on that day only.
15. In our considered opinion, the evidence of P.W.4 Jijabai cannot be discarded merely on the ground that she is interested witness. In our opinion, the reasons given by the trial court to disbelieve the evidence of P.W.4 are totally unacceptable. There was no reason for the trial court to disbelieve the evidence of P.W.4 The trial court has recorded in the judgment that she had admitted in her cross examination that even the police had come to her village, she did not go to the police and tell them about her seeing deceased Janabai going with her husband Bhausaheb by the road leading to their lands on the evening of previous day. In fact, perusal of the statement of P.W.4 in cross examination, would show that the police had not come to their village a day prior to cremation of Janabai. She did not meet the police or police did not come to her. When Machindra was searching Janabai on the morning of next day, P.W.4 told Machindra that she had seen Janabai going with her husband in the evening of previous day.
Mere perusal of the cross examination of P.W.4 would show that the police had not come to their village prior to cremation of Janabai. The findings recorded by the trial court, as quoted above, that the police had come to her village and she in her cross examination stated that even though the police had come to her village she did not go to the police, is contrary to the evidence on record and therefore, the trial court was not correct in recording the finding that P.W.4 has admitted in her cross examination that even though the police had come to her village, she did not go to police and told them about her seeing deceased Janabai going with her husband Bhausaheb by road.
Coming to the second reason, which is given by the trial court in disbelieving the evidence of P.W.4 that she did not tell about her seeing accused going with Janabai to the field one day prior to the incident, was not told to her son or grand son, is not correct. Janabai in her cross examination stated that Machindra was searching Janabai on the next day morning. She told him that 'I had seen Janabai going with her husband on previous evening'. Merely because something has not been stated before the police and stated before the court would not be sufficient to disbelieve the evidence of P.W.4.
In our considered opinion, the trial court has discarded the evidence of P.W.4 on flimsy grounds. In fact P.W.4, is an old lady. She had deposed correctly before the Court. Her evidence even in cross examination has not been shaken. There is no reason to disbelieve the evidence of P.W.4. Her presence at the place where she was sitting was natural. As per the prosecution story, the distance between the house of the accused and the house of parents of deceased is only about 25 ft. There was no reason for her to ask anything either to accused Bhausaheb or Janabai about their going to the field in routine course.
Once the evidence of P.W.4 is believed, the accused alone was responsible to explain the whereabouts of deceased Janabai. Provision of Section 106 of Evidence Act would cast burden upon accused Bhausaheb to explain the fact which was specially within his knowledge and burden of proving the fact was upon him. Therefore, the accused No. 1, who was last seen together in the company of deceased, as noticed by P.W.4, was responsible to explain the whereabouts of his wife Janabai. Therefore, the trial court was not correct in disbelieving the evidence of P.W.4. The accused No. 1 was responsible to discharge the burden of proving the fact, which was specially within his knowledge.
16. P.W.8 is an Investigating Officer, attached to the Ashti police station as P.S.I. has stated that on 23.12.1988 he received a complaint from Machindra and on the basis of that complaint, he registered crime under Section 302 of I.P.C. on that day itself. After registering the crime, he went to village Bramhagaon and arrested accused Bhausaheb and in presence of panchas interrogated him, recorded memorandum of his statement, which is at Exh.13. According to P.W.8, accused Bhausaheb took them to the spot where he had buried the dead body of his wife Janabai and he then produced that dead body from that spot and same then was attached under panchnama at Exh. 13/A.
17. P.W.1 who is panch witnesses to the panchanama has deposed that on 23.12.1988 he himself and other panch Mahadeo Lahanu were called by the police in Gram Panchayat office of Bramhagaon for panchnama. He further states that accused Bhausaheb and Uttam who are before the court, were seen in the custody of the police. Accused Bhausaheb told that he would produce dead body of his wife Janabai, which he had buried in his land at Chatumba. The police then recorded the memorandum panchanama of accused Bhausaheb and read over to him and then obtained his thumb impressions on it.
He further deposed that P.S.I. and police had gone in the jeep of police up to Kotha of one Deelip Haral and from there they went to the land of accused by walk. Accused Bhausaheb then showed the spot where he had buried the dead body of his wife and thereafter he showed the another spot at a distance of 20 to 30 feet where he had killed his wife. He further narrated that accused Bhausaheb then removed the stones and earth and thereafter the leaves of Neem tree. Thereafter they found a Chadder and under that Chadder there was dead body of Janabai. He further deposed that spot panchanama and inquest panchanama was drawn by the Investigating Officer. He has narrated injuries on the dead body.
18. P.W.3 is Doctor Yadav Bansod, who was attached at the relevant time to Primary Health Centre, Ashti as Medical officer. He stated in his deposition that he alongwith his colleague Dr. Tekale conducted the post mortem over the dead body of deceased from 10.a.m. to 1.00 p.m. on 24.12.1988. In his deposition he stated that as many as 17 external injuries were noticed on the dead body of Janabai. He further stated that on internal examination he found blood clots and dark blood seen under scalp on front temporal region and on both sides. Skull was depressed, communated and fracture of right frontal and temporal bone. Brain coverings were lacerated on right side and brain matter lacerated on right side. He in his deposition stated that external injury given in post mortem report corresponding with internal injuries are sufficient to cause death of person in ordinary course of nature. He further deposed that external injuries, which were noticed can be caused by stones.
The story of the prosecution that death was homicidal has been accepted by the trial court. There is no challenge by the accused that death is homicidal.
19. The learned Counsel appearing for the respondents submitted that the trial court has rightly disbelieved the memorandum panchanama. According to him, the people from village already reached to the spot before drawing the memorandum panchanama of statement of accused, therefore, the said panchanama and subsequent recovery under Section 27 has no meaning. According to him, there are number of other persons who are residing nearby the road, which approached to the field, therefore, it is beyond imagination that accused Bhausaheb committed murder of his wife and nobody has seen it. He further submitted that when memorandum panchanama of statement of accused at Exh.13 was carried out at that relevant time, accused No. 1 was not arrested by the Investigating Officer.
20. After careful perusal of the depositions given by Investigating Officer as well as the P.W.1, there is no substance in the contentions of the learned Counsel appearing for the accused, as the evidence on record indicates that accused No. 1 Bhausaheb was arrested by the Investigating officer on 23.12.1988, before drawing the memorandum panchanama and therefore, the contention of the advocate appearing for the respondents that the memorandum panchanama of the statement of the accused, which was recorded, was without arresting him, requires to be rejected.
The contention of the advocate for the respondents that many villagers had already reached to the spot before memorandum panchanama of statement of accused Bhausaheb was recorded, does not find any support from the evidence available on record. In fact, accused Bhausaheb went along with police in jeep and asked the police officer to stop the jeep near 'Kotha' of one Shri Deelip Baburao Haral and then he took the police and panchas by walk for a distance of about one and half kilometres on Pangul Ghavan road. After travelling the said distance, accused turned to the left side of the road towards his field, called as 'Chatumba'. After reaching in the field, accused pointed out the spot, where deceased was killed and thereafter, he took the police and panchas about 35 feet away, to show the place, where the dead body was buried. He removed the dead body covered by Chaddar from that place.
The distance of one and half kilometres between Kotha and the spot of incident was travelled by the accused alongwith panch and police by walking. The manner in which the disclosure statement was made by the accused and subsequently the dead body was recovered at his instance, certainly leads to the only conclusion that accused No. 1 Bhausaheb killed his wife and for causing disappearance, the dead body was concealed in a ditch and covered by Chadder and other things.
According to the learned Counsel appearing for the respondents, the evidence of P.W.1 and P.W.8 is not reliable. According to him, in cross examination, P.W.1 has stated that some villagers had reached to the land prior to him and therefore, there is no meaning to the recovery under Section 27 of Evidence Act. As we have stated in foregoing paragraphs, the distance between Kotha, where the villagers alleged to have reached and the spot where the dead body was concealed is one and half kilometres and accused alongwith Investigating Officer and panchas went to spot by walking and thereafter accused showed the spot where deceased was killed and buried and then removed the dead body, would show that at the instance of accused alone, dead body was recovered.
21. Taking over all view of the matter, the four circumstances, which are narrated herein-above viz.
i) The marriage of accused Bhausaheb with deceased Janabai took place in 1985, thereafter victim was ill-treated by the accused, finds support from the statement of prosecution witnesses.
ii) Deceased was last seen in the company of accused Bhausaheb by P.W.4 Jijabai and thereafter, deceased Janabai did not return from the field.
iii) When the complainant went to the field of accused to enquire about whereabouts of Janabai alongwith his brother, accused Bhausaheb gave evasive answers and told the complainant that victim has not come to the field.
iv) The dead body of the deceased was recovered at the instance of accused Bhausaheb, discovery panchanama was duly proved by P.W.8 and P.W.1, therefore, the chain of circumstances is complete, which leads only to one conclusion that accused Bhausaheb committed murder of his wife and to cause disappearance of the dead body, he covered that dead body in Chadder and concealed near hillock in his field and at his instance the dead body was recovered.
22. As regards the alleged illicit relations between accused Kusum and accused Uttam, there is no evidence on record except hearsay version of father and brother of deceased Janabai. There is nothing on record to show that there was any illicit relations between accused Kusum and accused Uttam and about her abortion. On the contrary, complainant Machindra has stated that he does not know about illicit relations of accused Kusum. Moreover, Subhash, P.W.5 has also stated that he did not go to the house of Uttam and he did not contact him.
As stated above, there was no evidence on record to convict the accused Uttam and accused Kusum. The trial court has rightly acquitted accused Uttam and Kusum and we do not find any reason to upset the finding of the trial court qua accused Uttam and Kusum.
23. The judgment and order passed by the learned Sessions Judge, Beed in Sessions Case No. 53 of 1989, dated 11.6.1990, qua accused Bhausaheb Eknath Pawar is set aside. The accused No. 1 Bhausaheb Pawar is found guilty for the offence punishable under Section 302 and 201 of I.P. Code.
The said judgment and order qua accused Nos. 2 Uttam Sitaram Ajbe and Kusum w/o Shridhar Pathade is confirmed. Their acquittal in the said case is confirmed.
24. The appeal of the State is partly allowed. Respondent No. 1 Bhausaheb Eknath Pawar is found guilty for the offences punishable under Sections 302 and 201 of I.P.C. and by using powers under Section 386(a) of Code of Criminal Procedure 1973, he is sentenced to imprisonment for life and fine Rs. 1000/- i/d R.I. for one year. Set off of under trial detention period, if any, shall be given to him (which period shall be calculated by Registrar (Judicial) from record of the trial court).
Respondent No. 1 Bhausaheb shall immediately surrender before Registrar (Judicial), who shall issue an appropriate conviction warrant mentioning also a period of set off with accuracy and consign respondent No. 1 to prison for undergoing the sentence.
A certified copy of this judgment be furnished to respondent No. 1 free of cost.