drp {1} Cri. Appeal No.188/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.188 OF 2010 Bhagwan s/o Shivaji Pandhare APPELLANT Age-42 years, Occ-Agri, R/o Dhondrai, Tq-Georai, Dist-Beed VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for appellant Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 4 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, by this appeal, impugns the judgment and order dated 15.04.2010, rendered by Additional Sessions Judge-3, in Sessions Case No.72/2009, thereby convicting the appellant for an offence punishable u/s 302 of the Indian Penal Code and sentencing him imprisonment for life. drp {2} Cri. Appeal No.188/2010 2. Prosecution case, as unfolded during the trial, may briefly be stated thus - a) PW-11, Jameer Patel, Station Duty Officer attached to Georai Police station, had registered an offence at Crime No. 91/2009 on 24.04.2009, against the appellant u/s 302 of the Indian Penal Code, on the basis of complaint (Exhibit-30) lodged by PW-8 Chanda Pandhare. Initially, investigation of the said crime was entrusted to (PW-12) PSI Shaikh Shahanoor, who, after visiting the Sub District Hospital, Georai, had prepared Inquest Panchanama (Exhibit-19) on the dead body of Pralhad Pandhare. After conducting the Inquest Panchanama, the dead body was referred for postmortem examination. Clothes of the deceased, (Articles-1, 2 and 4) came to be seized vide Panchanama at Exhibit-35. PW-5 Dr.Jyoti Giri, performed the postmortem and had noticed the following external injuries on the person of the deceased. 1. Stab Injury near medial side of left nipple, 4th inter costal space, size 5x2x7 cm. 2. Stab injury in 7th inter costal space, lateral to left border of sternum size 5 x 2 x 8 cm 3. Stab injury on 8th inter costal space along mid axillary line size 5 x x 8 cm. drp {3} Cri. Appeal No.188/2010 According to the medical officer, all the injuries noticed by her were grievous in nature and were caused by long and sharp weapon. Age of the injuries, according to the medical officer, was within 24 hours. On internal examination, the medical officer had noticed that there was stab wound over lower left lung, 4th and 6th ribs were fractured and there was a small size wound on left ventricle of heart. It was opined by the medical officer that the cause of death was shock due to stab injuries on lung and heart. Accordingly, Postmortem report (Exhibit-23) came to be issued. According to the medical officer, the injuries noticed on the person of the deceased can be possible by dagger (Article-10). b) PW-12 PSI Shaikh had visited the scene of the offence and drew the spot Panchanama (Exhibit-28). From the scene of offence, a mobile hand set (Article-8), big size handkerchief (Gamcha) Article-6, one cap (Article-7) and spectacle came to be seized. Blood lying on the floor, was collected with the cotton swab. One dagger stained with blood, (Article-10), which was found lying outside the house, also came to be seized. Thereafter, statements of some witnesses came to be recorded. c) On 27.04.2009, the appellant came to be arrested. On 28.04.2009, statements of some more witnesses, including drp {4} Cri. Appeal No.188/2010 close relatives of the deceased, came to be recorded. Thereafter, the motorcycle, used by the appellant, also came to be seized under Panchanama (Exhibit-17). Clothes on the person of the appellant were also seized from his house under Panchanama (Exhibit-38). Thereafter, the articles seized during the investigation were sent to the Chemical Analyzer. PW-13 API Shivaji Doiphode carried out the further investigation. On receipt of the CA reports (Exhibit-44 to 46), Postmortem report (Exhibit-23) and further to the completion of the investigation, charge sheet was filed against the appellant, before the Judicial Magistrate, First Class, Georai. d) On being committal of the case to the Court of Sessions, trial court framed charge (Exhibit-6) against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. Prosecution, in support of its case, had examined in all 13 witnesses including 3 police personnel, 1 eye witness, 1 medical expert, 4 Panch witnesses and 4 witnesses to establish motive and prelude to the incident, coupled with the medical and expert evidence in the form of PM report and CA reports. 3. The appellant, in his defence, has examined himself on oath, after his statement was recorded u/s 313 of the Criminal drp {5} Cri. Appeal No.188/2010 Procedure Code. According to the appellant he had obtained loan of Rs.10,000/- from the deceased prior to 6 months of the incident and the deceased was frequently demanding the same. As per the appellant, on the day of the incident, he, along with his mentally retarded son, was passing from the house of the deceased and when the deceased saw him, he stopped the appellant and asked to pay the due amount immediately. Thereafter, the deceased dragged him inside the house of the deceased where the deceased took out a knife and attempted to assault the appellant and while he tried to save himself, the deceased sustained injuries on his person with the knife in his own hands. Thereafter, the appellant came out of the house of the deceased and informed Chanda (Complainant), who was present there, about deceased sustaining injuries at his own. He had shown the knife to Chanda (Complainant) and threw the same in the open space and left the spot. The appellant alleged that as the witnesses are relatives of each other, they, in consultation of each other, had implicated the appellant falsely. 4. Trial Court, after appreciation of the evidence, discarded the defence of the appellant and upheld the prosecution case and convicted and sentenced the appellant, as aforestated. 5. In order to effectively deal with the submissions advanced before us, it may be useful to advert to the evidence of material witnesses examined before the trial court. drp {6} Cri. Appeal No.188/2010 6. It transpired from the evidence of PW-4, Narayan, PW-6 Gokul, PW-9 Sopan and PW-10 Shantabai, all close relatives of the deceased, that the deceased had sold cotton to the appellant and the appellant had not paid all the payment towards the same to the deceased and an amount of Rs.14,000/- was due to the deceased by the appellant. As per PW-10 Shantabai, wife of the deceased, the deceased and she herself were frequently demanding the amount due from the appellant, however, he used to avoid to pay the same. It further transpired from the evidence of these witnesses that Urmila, daughter in law of the deceased, was close relative of the appellant and she was residing with her parents at Beed. The appellant used to ask the deceased to bring Urmila back and as the deceased did not bring her back, there was dispute between the appellant and the deceased on this count also. 7. PW-8 Chanda, complainant, also states about the previous transaction of selling of cotton by the deceased to the appellant and about the balance payment due from the appellant. She also states about the strained relations of the appellant with deceased over Urmila. About the incident, she states that as the wife of the deceased was not present as she had gone to attend funeral of some close relative, PW-8 Chanda had gone to call the deceased, at 8.00 p.m. to have a meal with her husband PW-9 Sopan. While she was proceeding towards the house of the deceased, she noticed that the deceased and the appellant were drp {7} Cri. Appeal No.188/2010 talking in front of the house of the deceased. She further states that deceased was demanding money from the appellant while the appellant was asking the deceased that unless the deceased brings Urmila back for cohabitation, he would not pay the balance amount to him. Thereafter, the appellant dragged the deceased in the house of the deceased. She heard shouts of the deceased from inside the house. Within a very short time she saw the appellant came out of the house at that time the appellant was holding a knife, which was stained with blood. Clothes on the person of the appellant were also stained with blood. The appellant ran away from the spot on a motorcycle. Thereafter she shouted for help and on hearing her cries, her husband Sopan (PW-9) came there and both of them entered in the house where she noticed that deceased was lying on the floor and he had sustained bleeding injuries on chest and abdomen. The deceased was taken to Sub District Hospital, Georai where on examination, he was declared dead. Thereafter, she lodged the complaint (Exhibit-35) against the appellant. She also identified the knife Article 10 so also the mobile of the appellant, which were seized from the spot. Certain omissions are proved in her cross examination as she had not stated in her complaint that the deceased was demanding balance amount from the appellant, the appellant had refused to pay the amount unless the deceased brings his daughter in law back and that the appellant had came out of the house within a spur of moment. drp {8} Cri. Appeal No.188/2010 8. Learned counsel for the appellant draw our attention to the omissions brought on record in the evidence of PW-8 Chanda, which are further proved from the evidence of PW-11 Jameer Patel. In our view, considering the defence taken by the appellant, the above said omissions would not affect the prosecution case as the appellant himself has came with a case that when he came out of the house of the deceased, PW-8 Chanda was present there and at that time he was holding knife. According to his own version, the appellant thereafter threw the knife in the court yard of the deceased. Thus, from the evidence of the appellant, it is clearly established that at the time of the incident, the appellant and the deceased were the only persons, who were present at the spot and hence it was only within the exclusive knowledge of the appellant and no one else, as to what had happened inside the room. It is further established that when the appellant came outside the house of the deceased, he was holding knife, by which the deceased had sustained injuries, which he had thrown outside the house. Thus, presence of the appellant at the spot at the relevant time, is clearly established by the appellant himself coupled with the fact that he was holding knife at that time. Admittedly, the deceased, the appellant and PW-8 Chanda are residents of close vicinity. It is further admitted by the appellant in his cross examination that relations between himself and other witnesses were cordial prior to the incident. This fact indicates that the witnesses have no reason to falsely implicate the appellant in the offence. Admittedly, the appellant was present at drp {9} Cri. Appeal No.188/2010 the spot for a very short time and he had also not lodged any complaint in respect of the alleged attempt of assault by the deceased. Moreover, the defence of the appellant that he had borrowed Rs.10,000/- from the deceased was not confronted to PW-4, PW-6, PW-8, PW-9 and PW-10 in their respective cross examinations. However, for the first time such defence is taken by the appellant in his examination in chief. The appellant has categorically admitted that the deceased was 30 years older than him meaning thereby the deceased was aged about 72 years whereas the appellant is aged about 42 years. 9. In the light of the above discussion, the evidence on record requires to be considered, as the appellant has not denied his presence at the spot at the relevant time so also the fact that at the relevant time he and the deceased only were present inside the room. The defence of the appellant is that he was dragged by the deceased inside his house, who is aged about 71 years of age, and tried to assault him with knife by overpowering the appellant and in that process the deceased himself had sustained the injuries, which resulted into his death. As per the CA report (Exhibit-45) blood group of the deceased was “B” whereas blood group of the appellant is “O”. Furthermore the CA report (Exhibit-44) indicates that blood found on the clothes of the deceased, on the knife so also on the articles recovered from the spot and on the shirt of the appellant was of “B” group. i.e. blood group of the deceased. Thus, considering the age of the deceased and the fact that not a single drp {10} Cri. Appeal No.188/2010 injury was found on the person of the appellant coupled with the fact that the injuries noticed by PW-4 Dr.Jyoti on the person of the deceased and the force behind the stab injury as there was cut to the heart and lung due to the said injury and 4th and 6th ribs were fractured, we are of the considered view that the injuries sustained by the deceased were neither accidental nor self inflicted, however it can safely be inferred that the same were inflicted by the appellant. Though the learned counsel for the appellant vehemently urged that the deceased is the victim of the self inflicted injuries, yet this submission cannot be accepted in the light of the evidence, which we have discussed above. No doubt, the incident of assault is not witnessed by any independent witness, yet what had happened inside the room during the incident, was within the exclusive knowledge of the appellant only, as he has admitted his presence at the place of incident at the relevant time and further admitted that no one else except himself and the deceased was present at the spot. Therefore, it was for the appellant to probablize his defence. In the light of the above discussion, we are of the considered view that the explanation offered by the appellant on oath, in his evidence, is not probable to exempt him from the charge of murder. In the premise and in the light of the evidence discussed above, the only inference can be drawn that the appellant and appellant only is the author of the injuries sustained by the deceased, which has resulted in his death. We do not notice any perversity in the impugned judgment of conviction. Therefore, the impugned judgment of conviction does drp {11} Cri. Appeal No.188/2010 not warrant any interference. 10. Resultantly, the appeal, being sans merits, stands dismissed confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel188-10