drp {1} Cri. Appeal No.427/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.427 OF 2010 Premchand Nimba Sapkale APPELLANT Age-48 years, Occ- R/o Kadgaon, Tq & Dist-Jalgaon Present R/o Dinkar Nagar Near Mohan Talkies, Jalgaon VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.T.Kazi, Advocate for the appellant (Appointed) Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By preferring the present appeal, the appellant has questioned the correctness of his conviction for an offence punishable u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer further RI for 2 months, awarded by the Additional Sessions drp {2} Cri. Appeal No.427/2010 Judge, Jalgaon, vide judgment and order dated 11.08.2010 rendered in Sessions Case No.54/2005. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) PW-11, PI Bhagwat Sawant who was attached to Shanipeth police station, Jalgaon and was on patrolling duty, had received a wireless message on 30.11.2004 at about 11.00 a.m. that a mob was gathered in front of R.C.Bafna jewelery shop at Subhash Chowk, Jalgaon. He immediately rushed to the place and found that one dead body was lying on the road. PW-1 Vijay introduced himself as son of the deceased and identified that the dead body was of his father Gokula Goba Sonawane. b) PW-1 Vijay lodged a complaint (Exhibit-9) in Shanipeth police station, on the basis of which an offence at Crime No. 63/2004 came to be registered against the appellant. Investigation was taken over by PW-11 PI Sawant. PI Sawant, by visiting the scene of offence, drew inquest Panchanama (Exhibit-7). Thereafter the dead body was forwarded to Civil Hospital, Jalgaon for Postmortem. Blood of the deceased was also collected. c) PW-11 PI Sawant had also received an information that drp {3} Cri. Appeal No.427/2010 one Pramilabai (PW-9) was also attacked by the appellant and was brought to the Civil Hospital, Jalgaon. Statement of Pramilabai (PW-9) came to be recorded in the Civil Hospital, after she was examined by Dr.Pankaj Wadile. d) Thereafter, Spot Panchanama (Exhibit-18) of the spot situated on the road in front of RC Banfa jewelery shop was drawn and blood sample, from the blood which was found on the cement road, was collected so also frame of spectacles of the deceased was collected. Thereafter, running Panchanama, as second part of the incident was occurred in Murbad Shivar where Pramaila was attacked, was carried out. From the said spot, blood mixed soil and plain soil, a string of broken black beads was collected. e) Clothes on the person of the deceased were seized vide Panchanama (Exhibit-21). Postmortem report (Exhibit-20) and provisional death certificate (Exhibit-42) was also collected from the civil hospital. f) Postmortem report (Exhibit-20) discloses that the medical officer, who had conducted Postmortem on the dead body, had noticed following injuries- 1. Stab injury on chest left side, verticle 1 ½” x ½” x 3” size. drp {4} Cri. Appeal No.427/2010 2. Stab injury on chest middline ½” X ½” x ½” on stemum. 3. Stab injury on left side of abdomen 1” x ½” x 1” 4. Stab injury on abdomen ½” x ½” x ½” 5. Stab injury on abdomen near umbilicus ½” x ½” x ½” The medical officer opined that the probable cause of death was hemorrhagic shock due to rupture of heart and lungs. g) Clothes of injured Pramilabai came to be seized vide seizure memorandum (Exhibit-46). Further investigation was carried out by SDPO Manoj Lohar (PW-15), who had recorded statements of witnesses on 01.12.2004, 02.12.2004, 05.12.2004, and 06.12.2004. Thereafter, the appellant came to be arrested on 14.12.2004 vide arrest Panchanama (Exhibit-51). h) On 17.12.2004, while in custody, the appellant made disclosure statement (Exhibit-25), which lead to the recovery of one knife (Article-G) from the Bank of river Tapi near Bholane Shivar, which was seized vide Panchanama (Exhibit-17). Statement of Santosh Sapkale (PW-8), who claimed himself to be the eye witness of the incident, came to be recorded on 1812.2008. On 20.12.2004, blood sample of the appellant was collected. The seized property was sent to drp {5} Cri. Appeal No.427/2010 Chemical Analyzer along with nail clippers of the appellant. i) Record of previous conviction of the appellant was called and on receipt of the report from CA, sketch Map of the scene of offence and on completion of the investigation, charge sheet came to be filed against the appellant before JMFC, Jalgaon. j) On committal of the trial to the Court of Sessions, trial court framed charge (Exhibit-3) against the appellant for an offence punishable u/s 302 and 307 of the Indian Penal Code. The appellant denied the charge and claimed to be tried. The prosecution had examined in all 15 witnesses. The defence of the appellant was of total denial. After appreciation of the evidence, trial court had convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code and has acquitted him of the offence punishable u/s 307 of the Indian Penal Code, vide judgment and order dated 30.12.2005. Admittedly, the State had not challenged the correctness of the acquittal of the offence for the offence punishable u/s 307 of the Indian Penal Code. k) The appellant had questioned correctness of the judgment and order dated 30.12.2005 by preferring Criminal Appeal No.201/2006. Before this Court. Division Bench of this Court, vide judgment and order dated 28.12.2008, drp {6} Cri. Appeal No.427/2010 partly allowed the appeal and remitted the matter back with direction to examine witnesses by name Bhagatsing Ved, Dhananjay Navgade and Prakash Kawale. The trial court was specifically directed to examine Ratilal Kate (PW-10) after satisfying that he is declared fit by medical expert and the trial court that he is mentally fit to give evidence. This Court had specifically directed that the appellant should be tried for the offence punishable u/s 302 only. l) After remand of the matter, the trial court examined Ratilal Kate, Dhananjay Navgade, Prakash Kawale and Bhagatsing Ved, as per the directions of this Court. Thereafter, the trial court on appreciation of the evidence, convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code, vide the impugned judgment. 3. In order to effectively deal with the rival submissions advanced by learned counsel for the appellant it may be useful to advert to the material witnesses examined before the trial court. 4. Perusal of the record indicates that the appellant has admitted the Inquest Panchanama (Exhibit-7) so also the Postmortem report (Exhibit-28) u/s 294 of the Criminal Procedure Code. 5. Out of the 18 witnesses examined by the prosecution, drp {7} Cri. Appeal No.427/2010 PW-2 Yamuna Sonawane, PW-5 Mahendra Baviskar Pancha witness to the seizure of clothes of injured Pramilabai and PW-9 Pramilabai, did not support the prosecution case. In the premise, we need not dilate on evidence of these witnesses in respect of charge for an offence punishable u/s 307 about assault on Pramilabai. 6. Evidence of prosecution witness No.7 Dr.Swapnil Rathi, who had examined injured Pramilabai in the civil hospital so also PW-14 Dr.Pankaj Wadile, who had examined Pramilabai and certified that she was in a fit condition to give statement, also need not be discussed. 7. Before the matter was remanded by this Court, Ratilal Kate (PW-10) was examined, however, while his evidence was being recorded, he started behaving abnormally in the Court and therefore, the trial court had discharged him, however, after remand, he was again examined, as per the directions of this Court. It appears that after the matter was remanded, PW-10 though was examined before the trial court, yet he did not support the prosecution case. Similarly, PW-16 Dhananjay, PW-17 Prakash and PW-18 Bhagatsing, have not supported the prosecution case, therefore, their evidence also need not be discussed. 8. PW-1 Vijay Sonawane, son of the deceased, has deposed in his evidence that they had ancestral agricultural land drp {8} Cri. Appeal No.427/2010 in village Sujade. Pramilabai is the daughter of Renu, who are residents of the same village and were working as farm labours. Pramilabai married with the appellant and after marriage she cohabited with him at village Kedgaon. Appellant was convicted in an offence of murder and was sentenced to imprisonment for life. Thereafter, Pramila returned to their village and was residing with her mother. Both Renu and Pramila were working as farm labours. Pramila was working in their field and gradually developed intimacy with his father (deceased) and they had extra marital relations. Thereafter, appellant was released from jail and Pramila went to cohabit with him at Dinkarnagar at Jalgaon. He has further stated that his father (deceased) had disclosed him that the appellant had extended threats that he would finish his father. In respect of the day of the incident, he has stated that on that day, his father had been to Jalgaon along with (PW-10) Ratilal Kate, who was supplied water for irrigation of his land by the deceased and Rs.500/- per Bigha was charged. To pay the charges for receiving water, Ratilal intended to sell some silver ornaments and hence Ratilal and Gokul (deceased) had been to Jalgaon on a motorcycle. Around 12.00 noon, while he was working in his field, he came to know that his father was killed in Sarafa Bajar at Jalgaon. He immediately rushed to the spot and noticed that dead body of his father was lying on the road, in front of a shop of Navagade. He noticed that his father had sustained stab injuries on abdomen and chest. He has further deposed that he came to know at the spot that his father was assaulted by the appellant. He drp {9} Cri. Appeal No.427/2010 had also learn that the appellant had also assaulted Pramila. When he contacted Pramila, in the Civil Hospital, Jalgaon, she disclosed him that the appellant had made extra judicial confession to her that the appellant had murdered his father (Gokul) on account of her extra marital relations with him. Thereafter, he lodged the complaint (Exhibit-9). In his cross examination he has clearly admitted that only family members of both Gokul and Ratilal knew that they were going to Jalgaon. 9. By pointing out this evidence, learned counsel for the appellant urged that perusal of the evidence of this witness discloses that he had no personal knowledge about the assault on his father. It is further urged that the persons, Sunil Murlidhar and Pandit Shankar, who had informed him about the death of his father, are not examined by the prosecution. Moreover, evidence of this witness is silent on the point as to how and from whom he learnt about the assault on Pramila. It is further contended by learned counsel for the appellant that evidence of this witness in respect of extra judicial confession made by the appellant before Pramila is not supported by Pramila herself, in her evidence. In the premise, it is urged that this witness should not be relied even on the point of alleged motive behind the murder, as the evidence of this witness does not appear to be an evidence of a natural witness. 10. It is in the evidence of PW-6 Raju Chavan that on drp {10} Cri. Appeal No.427/2010 17.12.2004, he was called in Shanipeth police station along with one Dnyaneshwar and in their presence appellant had made a disclosure statement (Exhibit-26), which led to discovery of a knife concealed in a hole on the bank of river Tapi near Bholane Shivar, which was pointed out by the appellant after removing a stone kept on the hole. He identified the knife (Article-G) before the Court as the same knife, which was recovered at the instance of the appellant. He has admitted in the cross examination that he has acted as Pancha witness for the police on some occasions. 11. It is in the evidence of PW-8 Santosh Sapkale that he was acquainted with the deceased and he was present at the spot, at the relevant time. He has stated that Gokul (deceased) was proceeding towards the jewelery shop with one person and when they reached in front of a shop of utensils, appellant came there from Bhavani temple, took out a knife, which was concealed near his waist, and assaulted Gokul (deceased). The appellant had inflicted blows on the chest and abdomen of Gokul. Gokul had felled down on the road and expired on the spot. Due to fear he had left the spot and went to his house. He has further stated that being residents of the same locality, he knew the appellant. He also knew that the appellant was convicted in murder case and was released from jail about 18 to 20 months prior to the incident. He has further deposed that he was a labour contractor and used to supply labours to Jain Vally. He has also stated that there was apprehension in his mind that if he approach the police, the drp {11} Cri. Appeal No.427/2010 appellant would develop a grudge against him. In his cross examination, he has stated that he was working as a labour contractor since last two years. He has also admitted that the area, where the incident has occurred, is a crowded and commercial place and the road always remains crowdy from morning till night. He denied that on that day he was present at Jain Vally as it was Tuesday, however according to him for non availability of raw material in the factory there was no work. He has denied that he is regular visitor of Shanipeth police station and has friendship with the police staff. He has further stated that he had not approached Shanipeth police station on 18.12.2004, but he was called by the police. According to him, as the appellant was convicted for murder, there was apprehension in his mind to disclose the incident to the police. 12. We have heard learned counsel for the appellant and learned APP in the light of the evidence discussed above. It is urged by learned counsel for the appellant that the conviction of the appellant is based on the evidence of PW-1, who has no personal knowledge and he has also not disclosed as to from whom he had learnt that the appellant had assaulted his father. It is further urged by learned counsel for the appellant that the alleged incident took place on 30.11.2004 and admittedly statement of PW-8 Santosh was recorded on 18.12.2004 i.e. after about 18 days of the incident in question and no reason or explanation was offered as to why Santosh kept mum for about 18 days and what drp {12} Cri. Appeal No.427/2010 was the reason he surmounted the apprehension of the appellant and approached the police to give statement. Our attention is drawn by learned counsel for the appellant towards the cross examination of the Investigating Officer Lohar wherein he has admitted that PW-8 Santosh himself had came in the police station on 18.12.2004 to give the statement and had stated that now he had overcome the apprehension and hence he was giving the statement. According to learned counsel for the appellant, PW-8 Santosh is a got up witness and his evidence to be discarded. Per contra, learned APP urged that earlier the appellant was convicted in a murder case and had undergone imprisonment for life and therefore apprehension in the mind of PW-8 Santosh was natural and genuine. 13. Learned counsel for the appellant, in respect of CA report, has urged that the CA reports (Exhibit-77, 79 and 80) disclose that the blood group of the appellant, deceased and injured Pramila was “A”, so also the blood found on the clothes of the appellant, injured Pramila and the deceased was of “A” group. It is contended by learned counsel for the appellant that the appellant came to be arrested after 15 days of the incident and the weapon was recovered from the place which is accessible to all and hence it cannot be inferred that the appellant has committed murder of Gokul. 14. At this juncture, we would like to refer the drp {13} Cri. Appeal No.427/2010 observations of the Apex Court, in the matter of “State of Orissa V/s Brahmanand Nanda” (1976) 4 SCC 288, wherein the Apex Court has observed that evidence of a sole eye witness in the criminal trial not disclosing names of murderers for a day and half after the occurrence, seriously affects the creditability of the witness. In the case in hand, PW-8 Santosh had disclosed the incident after about 20 days and it has clearly been established in the evidence that after 18 days Santosh himself had gone to the police station and disclosed the incident and till that time neither he had disclosed the incident to the relatives of the deceased nor any one, which appears to be unnatural conduct on the part of Santosh (PW-8). Moreover, PW-8 Santosh had not given any reason as to how the apprehension surmounted after 20 days. In the premise, the evidence of PW-8 Santosh cannot be accepted as the evidence of a truthful witness. 15. The Apex Court, in catena of judgments, has observed that conviction can be based on sole testimony of a single eye witness, provided that the witness should pass the test that his evidence is of a sterling quality. In this respect, it may be useful to refer the observations of the Apex Court in the matter of “Yakub Ismailbhai Patel V/s State of Gujrat” (2004) 12 SCC 229, wherein the Apex Court has observed thus - “If the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the drp {14} Cri. Appeal No.427/2010 conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. The legal position in respect of the testimony of a solitary eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the rule of caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eyewitness inspires confidence then conviction can be based solely upon it.”. 16. After careful scrutiny of the evidence of PW-8 Santosh, we do not find the same is confidence inspiring for the simple reason that he kept silence for about 20 days and without any reason he subsequently approached the investigating agency. The fear or apprehension in the mind of PW-8 Santosh, to approach the police, is quite understood that the appellant might have developed grudge against him, however non disclosure of the incident even to the relatives of the deceased is somewhat unnatural conduct on his part. Nor has he disclosed the incident to anybody at all. The silence on the part of PW-8 Santosh for about 20 days, speaks a lot and creates doubt about his veracity. In the premise, we are of the considered view that PW-8 Santosh is not a reliable witness and conviction cannot be based on the testimony of such unreliable witness. Once evidence of PW-8 Santosh is discarded then drp {15} Cri. Appeal No.427/2010 remained the evidence in respect of finding of blood of “A” group on the clothes and the weapon seized at the instance of the appellant. It is clearly established in the expert evidence that blood group of the deceased, injured Pramila and that of the appellant is “A”. So also the weapon is allegedly recovered after a period of 18 days of the incident, that too from a place which was accessible to all. In the premise, no reliance can be placed on the report of the Chemical Analyzer in respect of finding of blood on the clothes and the weapon, to base the conviction of the appellant. Therefore, the appeal deserves to be allowed. 17. Criminal Appeal is allowed and the conviction and sentence of the appellant, for the offence punishable u/s 302 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. Fees, payable to learned counsel appointed on behalf of the appellant, quantified at Rs.3000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel427-10