1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 532 OF 2003 Babu Bapu Hembade, Age 50 years ] R/o. Dhavlas, Tal. Mangalwadhe, ] Dist. Solapur. ] Appellant / Accused Vs State of Maharashtra ] Respondents ... Mr. M.A. Choudhary for the Appellant Mr. V.B. Konde-Deshmukh, APP for the State ... CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE OF RESERVING THE ORDER : 17.06.2010 DATE OF PRONOUNCING THE ORDER : 23.06.2010 JUDGMENT (PER SMT. V.K. TAHILRAMANI, J): 1. The appellant / original accused has preferred this appeal against the judgment and order dated 04.03.2003 passed by learned II Addl. Sessions Judge, Pandharpur in Sessions Case No. 131 of 1992. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of the I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 100/-, in default to suffer further simple imprisonment for period of two weeks. apeal532-03 2 2. The prosecution case briefly stated is as under: The complainant PW4 Chagan More is one of the sons of deceased Maruti More. They were residing in separate houses in Village Dhavlas, Tal. Mangalwedha. The accused Babu after consuming liquor had abused Maruti More, hence Maruti More informed this to his sons including the complainant PW4 Chagan More. They went to the accused and questioned him as to why he had abused their father. The accused was offended by the said act. About 10 to 12 days thereafter i.e on 03.05.1992, in the evening, the deceased Maruti along with Police Patil PW5 Dharmaraj Patil, PW6 Suresh More and some others were chitchatting on the platform of the Zilla Parishad school at Village Dhavlas. At about 06.00 p.m., the accused came there armed with an axe. The accused was under the influence of alcohol. He asked Maruti as to why he had caused his sons to give threats to him. The accused abused and threatened Maruti and told him that he would commit his murder. Immediately, thereafter the accused gave two blows with the axe on the head of Maruti and one blow on the right eyebrow of Maruti. Maruti sustained bleeding injuries and fell down unconscious. In the meanwhile, PW4 Chagan - son of Maruti came to the spot. PW5 Dharmaraj informed him that the accused had assaulted his father and Maruti had become unconscious. PW4 Chagan took his father to hospital by jeep. Maruti came to be admitted in the hospital. At about apeal532-03 3 09.00 p.m., F.I.R. came to be lodged by PW4 Chagan. It was registered under section 326 of the I.P.C. After registering of F.I.R., investigation commenced. However, two days thereafter, Maruti died without regaining consciousness. After the death of Maruti, the case came to be converted to section 302 of I.P.C. 3. Charge came to be framed against the appellant - accused under section 302 of I.P.C and under section 135 of the Bombay Police Act. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard Mr. M.A. Choudhari, the learned counsel for the applicant and learned APP for the State. We have also perused the judgment and order passed by learned Sessions Judge as well as the record in the present case. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the said judgment and order does not call for any interference. 5. There are two eye witnesses to the present case i.e PW5 apeal532-03 4 - Dharmaraj and PW6 - Suresh More. P.W. 5 Dharmaraj was the Police Patil of Village Dhavlas. He has stated that on 03.05.1992 at about 06.00 p.m., he along with deceased Maruti More, PW6 Suresh More and some others were sitting on the platform of the Zilla Parishad School. At that time, the accused came there armed with an axe. The accused told Maruti that Maruti had told his sons to abuse and threaten him, hence, he would commit the murder of Maruti More. The accused gave two blows on the head of Maruti and one blow on the right eyebrow of Maruti. Maruti sustained injuries due to which he became unconscious and fell down. In the meanwhile,PW4 Chagan - son of the Maruti came to the spot. Dharmaraj informed Chagan that the accused gave axe blows to his father Maruti due to which Maruti became unconscious. Thereafter, Chagan took his father to hospital. 6. P.W.6 Suresh was also sitting along with PW5 Dharmaraj and Maruti on the platform of Zilla Parishad School. He has also witnessed the incident. His evidence is on the same lines as that of PW5 Dharmaraj. Nothing has been elicited in the cross-examination of both these witnesses so as to discredit their testimony. Thus, we have no hesitation in relying on the evidence of both these witnesses. 7. PW4 Chagan is the son of deceased Maruti. He is the apeal532-03 5 complainant in the present case. Though Chagan is not an eye witness to the incident, we find that his evidence corroborates the testimony of PW5 and PW6. Chagan has stated that at about 5.45 pm, he came to village Gaothan. He noticed a crowd near the Zilla Parishad School. PW5 Dharmaraj told him that he (Dharmaraj) was sitting along with Maruti and some others on the platform. At that time, the accused came there and asked Maruti as to why he caused his sons to give him threats and abuses. Dhamaraj also informed Chagan that the accused was carrying an axe and had given 2/3 blows with the axe to his father Maruti. Chagan saw that his father was lying there with injury on his head. Then he took his father to the rural hospital at Mangalwedha. However, his father died within 2-3 days thereafter in the civil hospital at Solapur. We find that this witness has not been shaken in his cross-examination. His evidence fully lends much support to the testimony of PW5 Dharmaraj and PW6 Suresh. 8. PW2 Dr. Kanki performed postmortem on the day body of Maruti More on 15.05.1992 at about 09.00 pm. He found following injuries on the body of Maruti More: 1. Sutured wound on the scalp,right parietal region 3/1" in length, oblique with swelling. 2. Sutured wound on face, right maxillary region from outer corner of right eye to right ear. apeal532-03 6 2" in length. 3. Sutured wound at bridge of nose, 1" in transverse with fracture of messal. On internal examination, he found heamotoma at frontal and right parietal region under the scalp and fracture of frontal and right parietal bones of the skull. He also found oxtra-durel hemorrhage at right fronto-parietal region, dura was found torn on right side and sub dural haemotoma was found all over brain. Right cerebrum of the brain was found torn in the cortex. The brain was congested oedomatous. According to him, all the external and internal injuries were ante-mortem. In his opinion, the cause of death was shock and heamorage due to fracture of skull with extra dural and sub-dural heamotoma with injury to brain. Accordingly, he issued death certificate at Ex. 19. Thus, the finding of three injuries on the body of Maruti More corroborates the evidence of two eye witnesses who have stated that the accused gave three blows with axe on the body of Maruti More. 9. Besides the evidence of eye witnesses, we find that there is other evidence, which connects the appellant with the crime. The axe (article 2) which was used by the apeal532-03 7 appellant in the incident came to be recovered at his instance. Panch Witness PW3 Tulshiram has deposed about recovery of axe at the instance of the appellant. The axe was blood stained. The axe came to be sent to the Chemical Analyzer and Chemical Analyzer's report (Ex.35) shows that axe bore blood stains of blood group 'B'. It is pertinent to note that the blood of the accused as well as deceased was also sent to Chemical Analyzer. The C.A. report shows that blood group of the deceased is "B" and that of accused is "A". Thus, the recovery of blood stained axe at the instance of the appellant and the Chemical Analyzer's report relating to the axe which shows that the axe bore blood stains of the same group as that of the deceased is another circumstance which would go against the appellant. 10. Mr. Chaudhary, the learned counsel for the appellant submitted that the panch witness does not mention that the axe was sealed at the spot. On carefully going through the evidence of the panch witness, we find that he does mention about the sealing of the axe. No doubt, wax seal was not used in the present case but the parcel in which the axe came to be wrapped came to be sealed by using paper seal. This also amounts to sealing. It is not always necessary that sealing has to take place with wax seal. The important aspect as far as sealing is concerned is that if a parcel is opened, there apeal532-03 8 should be something to show that the parcel has been opened and even if paper seal is affixed, it would serve the very same purpose. Hence, we do not find any merit in this submission. 11. One additional circumstance which goes against the innocence of the appellant is finding of blood stains on his clothes which were on his person at the time of his arrest. The appellant was arrested soon after the incident. Blood stains were found on his clothes. The Chemical Analyzer's report relating to the blood stains on the clothes of the accused also favours the case of the prosecution. Thus, there is sufficient evidence to prove the guilt of the appellant. 12. The learned advocate for the applicant submitted that the prosecution case cannot be relied on as there is serious discrepancy with regard to the place where the incident took place which makes the evidence of prosecution witnesses suspect. In support of this contention, he has placed reliance on the evidence of the complainant Chagan. Mr. Choudhary, the learned counsel for the applicant submitted that according to the complainant, the incident took place outside of the house of PW5 Dharmaraj. Mr. Choudhary pointed out that PW6 Suresh and PW5 Dharmaraj have stated that the apeal532-03 9 incident took place near the Zilla Parishad school. However, we do not find any such discrepancy in relation to the scene of offence. We say so because PW5 Dharmaraj has stated that his house was opposite Zilla Parishad School. Thus, even if some witnesses say the incident took place near the Z.P school and some say it took place near house of Dharmaraj, it amounts to the same thing, as both these places are situated opposite one another. 13. Looking to the evidence of two eye witnesses and other evidence on record, we are of the opinion that the learned Sessions Judge has rightly convicted the appellant under section 302 of I.P.C.. We do not find any merit in this appeal and the same is dismissed. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] apeal532-03 10 apeal532-03