1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1152 OF 2002 Prakash Dattaram Talwadkar aged : about 35 years, residing at Utkarsh Nagar Behind Kali Mata Temple, Muttu Compound, Bhandup Mumbai 400 078. at present undergoing life sentence at Yerwada Central Prison, Pune ..Appellant. Vs. State of Maharashtra At the instance of Sr. Inspector of Police, Bhandup Police Station vide CR No.513 of 1989. ..Respondent. .... Mr. Rahul Arote i/b Mr. S.R. Pasbola for the Appellant. Dr. F.R. Shaikh, APP for the State. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 17th March, 2009. JUDGMENT (PER DR. D.Y.CHANDRACHUD , J.) : 1. The Appellant together with five other persons was charged with the commission of offences punishable under Sections 147, 148 and 302 read with Section 149 of the Penal Code and, in the alternative, of an offence punishable with Sections 302 read with 2 Section 34. The Additional Sessions Judge by a judgment dated 13th September, 2002 convicted the Appellant of the offence punishable under Section 302 read with Section 34 of the Penal Code and sentenced him to suffer rigorous imprisonment for life and to a fine of Rs.5,000/- and in default thereof to suffer rigorous imprisonment for a further period of three months. The five other accused were acquitted. 2. Arjun Balu Dhurat retired from the service of the Police Department. He had three sons. Of them Rajaram was working as an electrician. On 21st July, 1989 Rajaram is alleged to have left home in connection with his work. On his return home at about 5.30 p.m., he left for a visit to his sister who resided in her matrimonial home at Ramabai Nagar, close to the place where he resided with his father. At about 8.30 p.m, after his return, it is alleged that the Appellant visited the house and asked Rajaram to accompany him. Rajaram followed the Appellant. The case of the prosecution is that Rajaram's father – Arjun followed him. The Appellant resided in close proximity. Four or five persons were alleged to have assaulted Rajaram. The 3 Appellant is alleged to have stabbed Rajaram with a knife on his chest. Rajaram's father intervened, but was pushed into a gutter. Rajaram rushed into his house, shouting that he had been stabbed by the Appellant. His father Arjun followed him into the house where a pool of blood had collected. The victim was rushed initially to the Bhandup Police Station by Arjun Dhurat and his son-in-law by rickshaw and from there to the Rajawadi Hospital. In the rickshaw, Rajaram was alleged to have stated that he had been stabbed with a knife by the Appellant. A police officer followed the victim, his father and brother-in-law to the Rajawadi Hospital at Ghatkopar. The victim was examined there by Dr. Sujata Samant, the Medical Officer on duty at 9.55 p.m. The following injuries were found on the victim : “1. Epigastriam I.W. 2 x 1 c.m. Querry Deep. 2. Posteriorly left lumber region I.W. 5 x 1 cm. s.c. Deep.” 3. Rajaram succumbed to his injuries soon after his admission to hospital and he was declared dead at 10.15 p.m. 4. The Appellant was arrested on 27th July, 1989. The Appellant was charged with the commission of the offences noted 4 earlier, in the course of this judgment, and was committed to trial by the Court of Sessions together with five other accused. The prosecution examined seven witnesses. P.W. 1 Dr. Sujata Samant was the casualty Medical Officer at Rajawadi Hospital on the night between 21st and 22nd July, 1989. P.W. 2 Arjun Dhurat is the father of the deceased and an eye witness to the incident. P.W. 3 Dr. Prakash Ambekar was the Medical Officer attached to the Court of the coroner and had conducted the postmortem. P.W. 4 and 5 were panch witnesses while P.W. 6 Mangesh Walzade was the constable attached to the Bhandup Police Station, who had accompanied the victim together with his father in an auto rickshaw to the Rajawadi Hospital. P.W. 7 had recorded the complaint. The defence of the Appellant was of total denial in his statement under Section 313 of the Code of Criminal Procedure 1973. 5. As noted earlier the co-accused were acquitted by the Court of Sessions while the Appellant has been convicted of an offence punishable under Section 302 read with Section 34 of the Penal Code. 5 6. While assailing the correctness of the judgment of the Trial Judge, counsel appearing for the Appellant submitted that (i) The postmortem report was not on the record – the case of the prosecution being that it was lost in transit. Consequently, the cause of death has not been proved and the Appellant would be entitled to acquittal; (ii) What is exhibited in evidence was a photocopy of the ADR form. The evidence of P.W.3 Dr. Ambekar who is alleged to have made an endorsement in his handwriting thereon as regards the cause of death is not trustworthy; (iii) The evidence of the alleged eye witnesses, P.W.2 is improbable inter alia because there was no reason for the father to accompany the victim when he is alleged to have left the house together with Appellant on a monsoon night; (iv) No motive for the crime has been established and (v) The Trial Court has disbelieved the recovery / seizure of the clothes of the accused. 7. On the other hand, it was urged on behalf of the State by the APP that (i) though the postmortem notes had been lost during the shifting of the coroner's Court, the cause of death was fully 6 established through the evidence of P.W.3, Dr. Ambekar who had proved the ADR form which was signed by him in endorsing the cause of death and the document was therefore correctly marked in evidence as Exhibit 37; (ii) P.W. 1 Dr. Sujata Samant had initially examined the victim when he was brought to the Rajawadi Hospital and had made note of the injuries in the casualty book which was produced and marked in evidence as Exhibit 28. P.W.1 deposed that the injuries which have been noted were sufficient to cause death in the ordinary course and have been caused by a sharp instrument such as a knife; (iii) The evidence of P.W.2, the father of the victim, was natural and trustworthy and he was an eye witness to the incident. There was no reason to disbelieve the testimony of the father. The Appellant resided in the same locality and P.W. 2 had identified the Appellant; (iv) P.W. 6 who had accompanied P.W. 2 and the victim to the Rajawadi Hospital corroborated the case of the prosecution, in that he had deposed that the victim had named the accused as the author of the crime while he was being removed to the Hospital. In the circumstances, the mere fact that the prosecution has not established the motive for the crime would not shake the 7 foundation of the case inasmuch as the guilt of the Appellant has been established beyond reasonable doubt. 8. The submissions which have been urged on behalf of the Appellant now fall for consideration. P.W. 3, Dr. Ambekar deposed that he had conducted the postmortem on the body of Rajaram Dhurat, the victim, on 22nd July, 1989. P.W. 3 was attached to the Rajawadi Coroner's Court as a Medical Officer. P.W. 3 deposed that the postmortem notes which had been prepared by him were not available as they have been lost in transit when the Coroner's Court was transferred. P.W. 3 produced the report submitted by the Medical Clerk of the Coroner's Court on the letter addressed to the Medical Officer by the Senior Inspector of Bhandup Police Station (Exhibit 26). P.W.3 deposed that he had received the dead body together with ADR No. 136/89 for postmortem examination. P.W.3 tendered in evidence a photocopy of the ADR form which contained his own endorsement in regard to the cause of death viz. “shock due to internal haemorrage due to rupture of liver, due to stab wounds (unnatural)”. The ADR form, Exhibit 37 contains the signature of 8 P.W. 3 besides the aforesaid endorsement which is in his handwriting. The submission of the Appellant, that the prosecution has failed to prove the cause of death, does not merit acceptance. Dr. Ambekar who conducted the postmortem deposed in evidence. He identified the endorsement made by him in his own hand in regard to the cause of death on the ADR form and his signature at the foot thereof. There is no reason to disbelieve the testimony of P.W. 3. P.W. 3 is a medical officer attached to the Coroners Court and had no reason to depose falsely. Apart from the testimony of P.W. 3, P.W. 1, Dr. Sujata Samant was the Medical Officer on duty at the Rajawadi Hospital on 21st July, 1989 when the victim was brought for admission at about 9.55 p.m. P.W. 1 in the course of her deposition referred to the injuries which were found on the victim. The first injury was an incised wound on the epigastriam 2 cm. X 1 cm and the second was an incised wound on the left lumber region 5 cm x 1 cm. Both the injuries were mentioned by P.W. 1 in the casualty book which was marked as Exhibit 28 in evidence. P.W. 1 noted that the injuries which she noted were sufficient in the ordinary course of nature to cause death and were caused by a sharp instrument such as a knife. 9 There is no valid reason for the Court to discard the testimony of P.W. 1 and P.W. 3. Neither of the two witnesses had any reason to depose falsely. The cross examination of the two witnesses has not elicited any basis that would lead to discarding of the evidence of the two witnesses. The prosecution has established the nature of the injuries sustained by the victim and the fact that the death of the victim resulted from the injuries that had been sustained by him. The death was homicidal. The seriousness of the injuries would be apparent from the vital parts of the body on which they were inflicted and from the circumstance that the victim died within a short span of fifteen minutes of his admission to the Rajawadi Hospital. There is therefore no merit in the first submission. 9. Under Section 63(5) secondary evidence includes oral accounts of the contents of a document given by a person who has himself seen it. Section 65 contemplates that secondary evidence of the contents of a document may be given inter alia when the original is destroyed or lost (clause g). The original postmortem notes having been lost in transit secondary evidence was admissible. The 10 secondary evidence was of the Doctor who had himself conducted the postmortem and who deposed in evidence. Moreover, apart from this the ADR form bears both the endorsement and the signature of P.W. 3. 10. There is absolutely no merit in the contention that the evidence of P.W. 2, Arjun Dhurant is untrustworthy. P.W. 2 is the eighty year old father of the victim. The Appellant resided in close proximity to the house of the victim and P.W. 2. P.W. 2 is an eye witness. The presence of P.W. 2 at the time when the incident took place is natural. P.W. 2 deposed to the entire sequence of events including in regard to the whereabouts of his son immediately prior to the incident and during the course of the actual incident when the victim was made to accompany the Appellant outside his house. P.W. 2 identified the Appellant and deposed that it was the Appellant who had stabbed the victim with a knife, on the chest. The evidence of P.W. 2 is duly corroborated by the medical evidence, in the depositions of P.W. 1 Dr. Sujata Samant and P.W. 3 Dr. Ambekar. 11. The contention of the Appellant that no motive has been 11 established is not a circumstance which in itself would discredit the case of the prosecution. Motive, it is well settled is a double edged weapon. In the present case placing in balance the absence of proof of motive, the prosecution has brought home the guilt of the Appellant through the evidence of P.W. 2 who was an eye witness to the incident. The deposition of P.W. 2 is cogent and consistent and has not been shaken in the course of cross examination. This evidence is amply corroborated by the medical evidence. 12. P.W. 6 Mangesh Walzade was a constable attached to the Bhandup Police Station and was on duty on the night of 21st July, 1989 when the victim together with his father came to the police station. P.W. 6 deposed that when he had asked the victim as to who had assaulted him, the victim had named the Appellant together with his associates. In the course of the cross examination of P.W. 6 it was brought out that the father of the victim had informed him for the first time as to who had assaulted the victim. In our view even if the evidence of P.W. 6 is disregarded, the material evidence on the record is sufficient in itself to establish the guilt of the Appellant 12 beyond reasonable doubt. 13. The Additional Sessions Judge acquitted the five other accused, holding that the prosecution had failed to establish their guilt. The Trial Judge observed that though in his cross examination P.W. 2 had deposed that he had stated before the police in his statement – Exhibit 31 that the other accused had started pelting bricks in the lane where the incident took place, PSI Mahajan (P.W. 7) had stated in his deposition before the Court that such a statement was not made by P.W.2. There was an omission to that effect in the FIR lodged by P.W. 2. P.W. 2 was not in a position to identify the persons who were accompanying the Appellant at the time of the incident. The recovery of the knife at the instance of accused No.4 Shashikant was also disbelieved as an independent panch witness had not been examined. The recovery of the bloodstained clothes was also not believed on the ground that the possibility of planting of clothes by the police could not be ruled out. In our view, insofar as the Appellant is concerned, the case of the prosecution principally rested on the evidence of P.W. 2 who has noted above was the father 13 of the victim. The evidence of P.W. 2 was cogent and consistent and sufficient to establish the guilt of the Appellant beyond reasonable doubt. The fact that there were certain omissions in the statement of P.W.2, insofar as the other accused were concerned, led to the acquittal of the others. The law does not mandate that the deposition of P.W.2 has to be rejected in its entirety. P.W. 2 has named the Appellant, identified him and ascribed a specific role to the Appellant in the death of the victim. The evidence of P.W. 2 is trustworthy and has to be accepted. 14. Counsel appearing for the Appellant placed reliance on the judgment of the Supreme Court in Vijender v. State of Delhi1. The Supreme Court noted (in paragraphs 18 and 19 of the judgment) that the only witness that was examined by the prosecution to prove the homicidal death of the victim was a record clerk of the District Hospital. The original copy of the postmortem report was not on the record and the Doctor who had conducted the postmortem did not depose in evidence. It was in these circumstances that the Supreme Court held that the prosecution was bound to lead the best evidence 1 1997 (6) SCC 171. 14 available and that was the evidence of the Doctor who had actually conducted the postmortem examination. The Doctor who had conducted the postmortem was available in the Hospital on the date when the evidence of the record clerk was adduced and hence the pre requisites of Section 32(2) of the Evidence Act were not established. The original of the postmortem report was also not produced. In the present case the facts are distinguishable. P.W. 3 Dr. Ambekar who deposed in evidence was the Doctor who had actually conducted the postmortem. The circumstances in which the original postmortem notes were lost in transit were explained by P.W.3. P.W. 3 deposed to the nature of the injuries and to the cause of death. Additionally, P.W. 3 produced the ADR form which contained both his endorsement in regard to the cause of death and his signature. 15. Counsel then relied upon the judgment of the Supreme Court in Sharad B. Sarda v. State of Maharashtra2 in support of the contention that circumstances which are not put to the accused in his statement under Section 313 of the Criminal Procedure Code must be 2 AIR 1984 SC 1622. 15 completely excluded from consideration because the accused did not have any chance to explain them. The principle was reiterated by the Supreme Court in Nirmal Pasi v. State of Bihar3. In the present case, the statement of the Appellant under Section 313 would show that all the incriminating circumstances material to the guilt of the Appellant were put to him. Save and except for admitting that P.W. 2, the father of the victim, resided in close proximity and knew the Appellant, all the other circumstances met with a complete denial. Undoubtedly, the procedure under Section 313 is mandatory and all the incriminating evidence has to be presented to the accused in order to apprise him of the circumstances appearing in the case against him. The accused has a right to offer an explanation of the incriminating circumstances. The onus is however on the accused to establish that an improper examination under Section 313 has caused prejudice to him. In the present case, there is no merit in the contention which was urged on behalf of the Appellant since a perusal of the statement under Section 313 would show that the incriminating circumstances were placed before him in the course of the statement. 3 2003 (1) Crimes 244 SC (at para 7) . 16 16. For all these reasons, we are of the view that there is no merit in the Appeal. The judgment of the Learned Additional Sessions Judge, does not suffer from infirmity. The prosecution has established the guilt of the Appellant beyond reasonable doubt. The Appeal shall accordingly stand dismissed. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.