S. C. Agrawal, J. - (1.)In this appeal by special leave, the appellant, Anant Bhujangrao Kulkarni, is assailing his conviction under S. 302 read with S. 34, I.P.C. under the judgment of the High Court of judicature at Bombay dated March 20, 1981 for the murder of one Digamber Rao Kulkarni.
(2.)The said murder of the deceased, Digamber Rao was committed on the night intervening October 13 and 14, 1975 at Beed in the State of Maharashtra. The case of the prosecution is that the deceased, who was about 70 years old, was staying alone at Beed while his son Dattatraya was residing at Palsingan situated at a distance of 25 miles from Beed. Two sons-in-law of the deceased, viz., Murlidhar (P.W. 4) and Shesharao Lalurikar were also residing at Beed. On October 13, 1975, the deceased as well as the appellant had gone to Hanuman temple at Beed for hearing Pothi. Waman Shete (P.W. 10), who was employed as a waterman with the deceased, had also gone to the temple for hearing Pothi. After Pothi was over, the deceased along with Waman Shete and the appellant left the temple at about 5.30 p.m. and when they came near the Masjid of Saraf Galli situate at Beed, the deceased told Waman to go to his house and that he (deceased) was gone to the house of the appellant and thereupon Waman left for his house whereas the deceased and the appellant went together to the house of the appellant. Nothing was heard of the deceased thereafter and he did not return to his own house. Waman went to the house of the deceased in the morning of October 14, 1975 but found it locked and thereupon he went to the house of Murlidhar (P.W. 4), to enquire whether the deceased had come there and Murlidhar had told him that the deceased had not come there. On the same day, at about 10 a.m., Waman met the appellant on Tilak Road at Beed and asked him about the whereabouts of the deceased and the appellant angrily retorted that he (Waman) had nothing to do with the deceased and that the appellant would tell the whereabouts of the deceased to Dattatraya, the son of the deceased. Waman conveyed this information to Murlidhar and thereafter Murlidhar went to Palsingan where Dattatraya was residing and enquired whether the deceased had come there and on finding that the deceased had not come there both Murlidhar and Dattatraya came to Beed at about 8.30 p.m. on the same day, i.e., October 14, 1975, and made enquiry from Shesharao, the other son-in-law of the deceased, but the same was fruitless and thereafter Dattatraya went to the Police Station at Beed and lodged a missing report (Ex. 29) to the effect that the deceased had been missing since the evening of October 13, 1975 On October 15, 1975, in the morning, Dattatraya and Murlidhar sent for the appellant to make enquiry from him if he knew the whereabouts of the deceased. The appellant came and met Dattatraya, Murlidhar and Shesharao and, after taking Dattatraya aside, the appellant told him in confidence that the deceased had been murdered by one Anant Manzarikar and that his dead body had been thrown by Anant Manzarikar in the Ladni (a raised platform with hollowness inside) which was situated in that part of the wada where the appellant was residing and it was buried there. After getting this information from the appellant, Dattatraya went to Police Station, Beed and lodged a report (Ex. 30) wherein the information about the murder of the deceased as given to him by the appellant has been narrated. On the basis of the said report, a case under S. 302/34, I.P.C. was registered and investigation was commenced. During the course of the investigation, the dead body of the deceased was recovered in a Ladni situated in Pargaonkar's Wada at Beed and the post-mortem examination of the dead body was conducted. A wrist watch, 'Camy' make, which was buried under an arch in the western wall of the Baithak in the wada when the appellant was residing, was got recovered by the appellant and the same was idenified by Dattatraya. Anant Manzarikar could not be arrested as he was absconding and the police filed a charge-sheet against the appellant and his son, Padmakar and they were tried on charge under S. 302 read with S. 34, I.P.C.
(3.)Both the accused pleaded not guilty. In his statement recorded under S. 313, Cr. P.C., the appellant stated that the deceased had come to his house at 6 p.m. on October 13, 1975, but he (deceased) left his house some time thereafter and that later at about 8.30 p.m. on the same day, he heard the deceased shouting, "Melo, Melo" from near the Ladni situated in front of his-house and on hearing the noise, the appellant came out of his, house and saw Anant Manzarikar standing with a sword in his hand and on seeing the appellant Anant Manzarikar asked him not to disclose anything to anybody and threatened the appellant that if he discloses the matter, he would give him the same treatment as he had given to the deceased. The appellant further stated that Anant Manzarikar was accompanied by his father and brothers at that time and that some time later, Anant Manzarikar and his father and brothers had tied the dead body of the deceased in a gunny bag and dropped it in a Ladni in the western side of his house. The appellant further pleaded that he was frightened by the threats given by Anant Manzarikar and he did not come out of his house for two days till he met Dattatraya on October 15, 1975 and informed him about the incident.