HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 5 OF 2006 CRIMINAL APPEAL NO. 5 OF 2006 CRIMINAL APPEAL NO. 5 OF 2006 Barkya @ Balu Yadav Khalge, Aged about 27 years, Occ. Business, R/at Annabhau Sathe Vasahat, Room No. 182, Nigdi, Pune .... Appellant Versus State of Maharashtra .... Respondent Mr. A.B. Vagyani for the Appellant. Ms. S.D. Shinde, A.G.P. for State. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATED: APRIL 02, 2008 DATED: APRIL 02, 2008 DATED: APRIL 02, 2008 ORAL JUDGMENT (PER F.I. REBELLO,J.) : ORAL JUDGMENT (PER F.I. REBELLO,J.) : ORAL JUDGMENT (PER F.I. REBELLO,J.) : . The appellant was charged amongst others for the offence punishable under Section 302 of the Indian Penal Code for having caused death of one Vikram Kashinath Kamble on 29.4.2003 at about 10.20.20 p.m. The learned Second Ad Hoc Additional Sessions Judge, Pune by his judgment dated 4.2.2005 convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Rs.2,000/- and in default to undergo R.I. for one year. The appellant was acquitted of the offences punishable under Section 37() read with Section 135 of the Bombay Police Act as also acquitted for the offences punishable under Section 4 read with Section 25 of the Indian Arms Act. 2. In this appeal on behalf of the appellant, the 2 learned counsel has contended that there are serious lacunaes in the prosecution case. It is pointed out that there was delay in launching the F.I.R. There are serious discrepancies in the evidence of P.W. No. 7. P.W. No. 7 though claims to have been injured in the incident, did not disclose the same either to his wife or to the Doctor from whom he received the medical treatment. Though the clothes of P.W. No. 7 had blood stains, they were not seized. It is also submitted that the knife which is alleged to have been used in the incident was found in the nalla where there was flowing water therein and consequently it is impossible to find blood stains on the said knife. The knife, it is pointed out was also not forwarded to the Chemical Analyzer for his report. There are also serious discrepancies about the time of the incident considering the versions given by the eye witnesses. For all the aforesaid reasons, it is submitted that this will be a fit case where there is serious doubts in the prosecution case. The learned Judge while convicting the appellant, it is submitted, did not address himself to this issue and consequently the appeal ought to be allowed by giving appellant the benefit of doubt. 3. The evidence of P.W. No. 9 Dr. Prakash Dnyanoba Rokade who conducted the post mortem of the 3 deceased, discloses that there were altogether 47 injuries on the person of the deceased. All the injuries were ante mortem injuries. The cause of death is given due to traumatic and haemorrhagic shock due to multiple stab injuries to vital organs. He further deposed that the penetrating injuries mentioned above along with corresponding internal injuries can cause the death of the person in the ordinary course. He identified the injuries Nos. 1 to 6, 11, 14, 16 to 19, 21, 25, 29, 31 to 44 as caused by sharp cutting object/weapon. Similarly Injury Nos. 15, 23, 24, 28 and 30 as caused by sharp and long cutting object. The injury Nos. 10, 20, 45, 46 and 47, 7 to 9, 27, 27 as caused by hard and blunt object. It is further deposed that injuries caused by sharp cutting object can be caused by sharp edge of Article No.6 Rambo knife. Similarly injury Nos. 15, 23, 24, 28 and 30 can be caused by Article No. 6. The witness was not cross examined on these aspects. It is therefore, clear that the prosecution have been able to establish that the death was homicidal. 4. There are three eye witnesses to the incident. One Nagnath Kamble, P.W. No. 5 was working in the country liquor shop and was on duty on 29.3.2003. According to this witness, there was hue and cry on or about 8.30 to 9.00 p.m. on that day in front of 4 the shop near the bridge. When he came out of the shop to see the incident, he noticed Vikram Kamble and Barkya Khalge i.e. the accused while sitting near the bridge. He noticed Barkya while assaulting Vikram with the help of the knife on the chest and head of Vikram Kamble. The appellant then threw the knife in Nalah and ran way from the spot. He identified article No. 6 as the knife used in the assault. In the cross examination, it has come on record that there was a light pole (street pole) at the distance of one and a half foot from the liquor shop. There was some dispute as to whether the date of incident was 29.3.2003 or 29.4.2003. In Re-examination, he explained that the incident took place on 29th day of the month but he doe snot remember in which month. He was examined on 10.01.2005. . P.W. No. 6 Indrajit Kashinath Kamble is the brother of the deceased. According to him, while returning to the house, when he reached near the liquor shop, at about 10 to 10.15 p.m. he noticed the appellant giving blows with Rambo knife on the neck, on stomach, on face and on chest of his brother Vikram. He ran to the house and narrated the incident to his brothers, his mother and sister. Thereafter all family members returned to the spot. He noticed the accused while throwing the weapon in 5 the nalah and running away towards market. He noticed his brother while lying in injured condition o the spot. They shifted the deceased to the hospital where he was declared dead. There is nothing in cross examination, which would result in impeaching the credibility of this witness. . P.W. No. 7 Sachin Ramesh Mhetre was eye witness who on that fateful day was sitting with the deceased Vikram on the plat form of the bridge. The accused according to this witness, was sitting on the platform at some distance from them. A scuffle ensued between the appellant and the deceased. The appellant took out Rambo knife and started assaulting the deceased on his neck, stomach and chest. The witness tried to save the deceased but in doing so received injuries on his hand (palms) as also little finger of right hand. As he was frightened, he went away to his house. Even after he has received injuries the accused continued his assault on the deceased. As he received injuries, he came by the side of them and the accused started giving the blows to deceased. When he reached to his house, his wife asked him how he received the injury on his palm. He told his wife that he received the injury due to tin sheet while working. On the next day he had been to Y.C.M. Hospital, Nigdi. He informed the Doctor that he received the 6 injury due to iron sheet while working, on his palm. The doctor stitched the injury on his little finger. The witness deposed that he told his wife and doctor that he received the injury while working as he was frightened. He identified Article 6 Rambo knife. . The evidence of this witness was sought to be impeached on the ground that this witness did not disclose that he had not informed about the injuries on account of the assault by the appellant to his wife and or to his Doctor. The clothes of the witness were also not attached. In our opinion, considering the fact that the appellant had been attacked by the knife and he left the scene of the offence when the assault was still continuing on the deceased, the explanation of the witness that he did not disclose the incident to his wife and Doctor as he was frightened, has to be accepted. 5. P.W. No. 1 Ravi Kamble is the complainant He is also brother of the deceased. In his evidence, he has stated that on 29.4.2003 his younger brother came to the house running and in a frightened condition and informed of the quarrel between the appellant and then deceased brother in front of the liquor shop. He along with other family members rushed to the spot and saw his brother lying near the bridge and he noticed the appellant going with 7 Rambo knife and blood stains on his clothes. Then he shifted his brother by rickshaw to the hospital where he was declared dead. He identified the cloths worn by the appellant and which were attached. He also identified the Rambo knife. A suggestion was put to him that the appellant was running his business at his stall till 11.00 p.m. That was denied. 6. A submission was made on behalf of the counsel for the appellant that the knife was not sent to the Chemical Analyzer. The report of the Chemical Analyzer is on record and that has come in the evidence through I.O. Indrajit Kamble. He has stated that the seized muddemal was sent to Chemical Analyzer and the report is at Exh. 45 to 47. In the Chemical Analyzer’s report, Item No. 4 is described as "Rambo sura". The blood identified is shown as human. The group is held to be inconclusive. The knife was attached pursuant to the spot panchanama. P.W. 4 Ramesh Salunkhe was one of the panchas. He has deposed to the fact of the seizure of the knife and that there were blood stains on the knife. He has further deposed that the knife was kept in a separate paper wrapped and it was sealed and so also other articles seized. He had his signature on the panchanama. He identified the knife. At the time the knife was attached, it 8 was lying in the nala and there was some water flowing. . P.W No. 8 Mohan Shrirang Sawant had partly conducted the investigation. According to this witness, on the very night of 29.4.2003 on receiving information at 11.15 p.m. he recorded statement of the brother of the deceased who is complainant P.W. No.1. He went to the spot with two panchas to record spot panchanama. They searched the weapons and found Rambo Knife lying on the grass in nalla having blood stains. This witness have also deposed to attachment of clothes of the appellant. He also deposed the fact of attaching clothes of the deceased by drawing panchanama in the presence of two panchas. He had also noticed fresh injuries on the palm and hands and on leg of the accused. 7. In our opinion, amongst the eye witnesses, P.W. No. 5 Nagnath is an independent witness. P.W. No. 7 has deposed to his presence at the scene when the assault took place and that he attempted to prevent the appellant from attacking the deceased and that he also was injured by the Appellant. The evidence of the brother of the deceased P.W.No. 6 as also of the complainant P.W.No.1 can not be rejected. We have no doubt whatsoever that the appellant caused injuries to the deceased by the knife Article No. 6 9 which has been recovered. Apart from the witnesses having identified the knife, it has also been identified by P.W. No. 8 who has prepared the spot panchanama. From the evidence of P.W. No. 9 Dr. Prakash Rokade who conducted post mortem and the report of the Chemical Analyzer, there is no doubt whatsoever, that it was the knife which was used in the assault. 8. In so far as purported contention of the learned counsel for the appellant that there was delay, we find that the complaint was recorded at the hospital itself in terms of the evidence of P.W. No. 8 Mohan Sawant. There is therefore, in our opinion, no delay in lodging the F.I.R. It is true hat there is some discrepancy about the time of the offence in the evidence of P.W. No. 8, P.W. NO. 10 and P.W. No. 9. Considering that the deceased was shifted to hospital and the information was received by the police at about 10.15 p.m. in all probability, the incident took place between 10 to 10.30 p.m. on the night of 29.04.2003. Much was sought to be argued that as there was flowing water in the nalla, Article No. 6 Rambo Sura could not have had blood on it. From the spot panchanama, it will be clear that though the article was recovered from nalla, it was recovered from the place where there was grass. Apart from that it is not possible to accept that 10 clotted blood only because the knife was thrown in the nalla, the blood would be washed away. It must be borne in mind that there were altogether 47 injuries on the deceased and most of which were incised wounds. The assault therefore, must have been continued over period of time. The blood therefore, on the knife will be there in the natural course. It was attached soon after the incidence. The Chemical Analyzer though has not identified the blood group nonetheless found however, blood on the knife. 9. In our opinion, all this evidence clinches the case of the prosecution against the appellant. We have therefore, no hesitation in holding that there is no merit in this appeal. Accordingly, we confirm the judgment passed by the leaned Additional Sessions Judge. Appeal dismissed. (SMT. V.K.TAHILRAMANI, J.) (SMT. V.K.TAHILRAMANI, J.) (SMT. V.K.TAHILRAMANI, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)