1 CRI-APPEAL-260-05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 260 OF 2005 Sunil Vithal Shirke ] Convict No. C/ ] Presently lodged at Yerawada ] Central Prison, Pune ]..Appellant/Accused versus The State of Maharashtra ] ..Respondents Mrs. Pranali Kakade – Advocate appointed for Appellant / Accused. Mrs. A. S. Pai - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND SMT. V. K.TAHILRAMANI, JJ. Date of Reserving the Judgment : 26.11.2010 Date of Pronouncing the Judgment : 10.12.2010 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State. 2. The appellant being aggrieved by the judgment and order dated 13th April, 2004 passed by the Sessions Judge, Pune, whereby he has been convicted for the offence punishable under Sections 302, 324 and 504 of 2 CRI-APPEAL-260-05.sxw the Indian Penal Code as well as order of imposition of fine, preferred the present appeal impugning the said judgment and order passed by the trial court. 3. The prosecution case in nutshell is as follows:- Complainant Sunderabai (P.W. 1) was working as maid servant and was residing in one of the rooms in the wada at Pune along with her son Chandrakant (P.W. 2), daughter Rita, daughter-in-law Vandana and grand children. The appellant was living with his wife and children in the adjoining room. He was a rickshaw puller. On 9th April 2001 Sunderabai returned to her house at about 12.30 p.m. Her daughter-in-law also returned to the house shortly thereafter. Vandana told Sunderabai (complainant) that appellant was giving abuses to deceased Ramesh Limhan and Chandrakant outside the wada. At about 2.30 p.m. complainant and her daughter-in-law Vandana were chitchatting outside their house. Appellant was sleeping outside his house on the floor mat. At that time Chandrakant (P.W. 2) and deceased Ramesh came there and asked the appellant why was he abusing them. Thereupon the appellant started scuffle with them and while scuffle was going on, took out a knife which was concealed under the pillow and dealt blow with the said knife on the stomach of deceased Ramesh. Deceased Ramesh sustained bleeding injury and fell down on the ground. 3 CRI-APPEAL-260-05.sxw The appellant also inflicted knife blow on the left side of waist of Chandrakant. Complainant intervened to pacify the quarrel, however she also sustained bleeding injuries to the thumb and two fingers of right hand. The appellant thereafter ran away from the spot. The brother of deceased Ramesh P.W. 3 Rajesh came on the spot, took Ramesh to Sassoon Hospital in a rickshaw, however, Ramesh was declared dead by doctor at the hospital. Complainant was also referred to Sassoon Hospital for treatment. On receipt of the information about the incident P.W. 8 P.I. Poman and Senior Police Inspector went to the scene of offence with the staff. When the police went to Sassoon Hospital they came to know that Ramesh was declared dead by doctor. P.W. 1 Sunderabai lodged the complaint, on the basis of which F.I.R. was registered against the appellant for the offences punishable under Sections 302, 324, 323 and 504 of the Indian Penal Code coupled with Section 25(3) of Arms Act and Section 37(1) read with 135 of the Bombay Police Act. On completion of investigation, charge sheet came to be filed against the appellant. Charge was framed and explained to the appellant who pleaded not guilty and claimed to be tried. The trial court convicted the appellant for the offence punishable under Section 302 and sentenced him to suffer imprisonment for life; and for offence punishable under Section 324 of the Code the appellant is sentenced to suffer R.I for one year, and for offence punishable under Section 504 of the Code the 4 CRI-APPEAL-260-05.sxw appellant was sentenced to suffer R.I. for three months. Fine was also imposed by the trial court on each count. Being aggrieved by the same, the appellant filed the present appeal. 4. The prosecution examined number of witnesses to bring home the guilt of the appellant. However, the material evidence is of P.W. 1 Sunderabai (the complainant), P.W. 2 Chandrakant, both were examined as eye witness to the incident, P.W. 3 Rajesh (brother of the deceased). The evidence of P.W. 3 Rajesh shows that on the day of the incident at about 2 to 2.30 p.m. he came to know that his brother Ramesh was injured in a fight, hence, he went to the place of incident, took Ramesh to the hospital for treatment. At the hospital, doctor declared him dead. It has also come in the evidence of this witness that he went to the spot of incident, he saw the appellant running away with the knife in his hand from the spot of incident. He has identified shirt article 6 and pant article 8 which belonged to a deceased and baniyan article 7 and half pant article 10 which belonged to the appellant. These clothes were on the person of the appellant at the time of incident. He has also identified knife article 12. The other important evidence adduced by the prosecution is of P.W. 5 Dr. Suresh who has examined P.W. 1 and issued injury certificate and P.W. 9 Dr. Hanumant who had examined P.W. 2 Chandrakant and issued injury certificate. P.W. 6 Dr. 5 CRI-APPEAL-260-05.sxw Belsare was examined by the prosecution to prove the post-mortem report. 5. The learned counsel for the appellant has contended that the evidence of complainant P.W. 1 Sunderabai as well as P.W. 2 Chandrakant is wholly inadequate to demonstrate motive behind the crime. As per the prosecution case at the relevant time the appellant was sleeping on the floor mat. P.W. 2 Chandrakant and deceased Ramesh came at the spot where the appellant was sleeping and when they asked the appellant why was he abusing them, the appellant all of a sudden took out the knife and assaulted them. It is contended that there was no apparent reason for the appellant to assault the deceased and the other prosecution witnesses. The prosecution case disclosed by P.W. 1 complainant and P.W. 2 Chandrakant does not appear to be truthful and reliable. It is further contended that the evidence of P.W. 3 Rajesh (brother of the deceased) is also not truthful. P.W. 3 Rajesh reached the place of incident after he came to know about the assault and therefore his claim that when he reached the place of incident, he saw appellant running away from the scene of offence with the knife article 12 is a concocted story and therefore his evidence is wholly unreliable. The learned counsel for the appellant has submitted that the other evidence adduced by the prosecution is of three doctors and therefore, that by itself does not improve the case of the prosecution when the evidence of eye witnesses is 6 CRI-APPEAL-260-05.sxw unreliable and untrustworthy. 6. The learned Additional Public Prosecutor on the other hand has supported the impugned judgment and order of conviction passed by the trial court and contended that the evidence of complainant P.W. 1 Sunderabai and another eye witness P.W. 2 Chandrakant coupled with the evidence of medical officers, Dr. Suresh, Dr. Belsare and Dr. Hanumant, the prosecution succeeded in bringing home the guilt of the appellant. It was contended that apart from the ocular testimony of eye witnesses, the other corroborative piece of evidence is the chemical analyser’s report which show that the clothes of the appellant as well as knife were stained with blood of human origin. It is therefore contended that the appeal suffers from lack of merit and liable to be dismissed. 7. We have given anxious thought to the contentions canvassed by the learned counsels for the parties and carefully scrutinised the prosecution evidence. In the instant case P.W. 1 is a complainant as well as eye witness to the incident, P.W. 2 Chandrakant is examined by the prosecution as an eye witness to the incident. Both these witnesses were injured in the incident. At this stage, it will be appropriate to consider the evidence of eye witnesses those who were also injured in the incident. 7 CRI-APPEAL-260-05.sxw 8. P.W. 1 Sunderabai in her examination-in-chief has stated that at the relevant time her son P.W. 2 Chandrakant returned to the house. At that time the appellant was sleeping in front of his house on the floor mat. The appellant went to him and asked him why was he abusing him. The appellant got angry and started quarreling with P.W. 2 Chandrakant. Scuffle ensued between them. The appellant took out long knife (sura) which was kept under pillow and gave blows on the person of the deceased with the said knife. The deceased sustained injuries on his stomach and chest and fell down on the ground. It has come in the evidence of P.W. 1 complainant that after Ramesh fell down she tried to intervene to rescue her son Chandrakant, at that time she also sustained injuries to her fingers of right hand and her son Chandrakant P.W. 2 also sustained injury on account of blow given by the appellant by knife. This witness further stated that she immediately thereafter went to police chowky and lodged the report. The cross-examination of complainant shows that defence has not seriously disputed the incident of assault. This witness has admitted in the cross- examination that incident lasted for 10 to 15 minutes. The omissions in the police statement of this witness brought on record in her cross-examination, in our view, are not of material nature and therefore those omissions are wholly inadequate to affect the veracity of the testimony of this witness. It is 8 CRI-APPEAL-260-05.sxw pertinent to note that the complainant is injured witness and lodged the first information report almost immediately after the assault, which, in our view ruled out possibility of concoction and fabrication and in absence of any material omission and contradiction, the evidence of complainant appears to be trustworthy and is consistent with the material particulars of the prosecution case disclosed by the complainant in the first information report as well as other eye witness. 9. P.W. 2 Chandrakant is the another eye witness examined by the prosecution who was also seriously injured in the incident by the appellant. It has come in the examination-in-chief of P.W. 2 that when this witness along with deceased Ramesh went to the appellant and questioned him as to why was he abusing them, scuffle ensued between them. Deceased Ramesh intervened in the scuffle. At that time the appellant took out knife and dealt blow on the stomach and waist of deceased Ramesh. This witness has also stated in his evidence that appellant also assaulted him with knife. It has also come in the evidence of this witness that mother of this witness, the complainant, intervened to rescue him. She also sustained injuries to her thumb, index and middle fingers on account of knife blow given by the appellant. The tenor of the cross-examination of this witness conducted by the defence also demonstrates that the incident of assault was not seriously 9 CRI-APPEAL-260-05.sxw disputed by the defence. It has come in the cross-examination of this witness that the incident lasted for 15 to 20 minutes. There was a scuffle ensued between the appellant and this witness and at that time deceased Ramesh intervened. This witness has admitted in the cross-examination that the appellant had taken out knife which was under his pillow and the incident took place at about 2.30 p.m. The omission brought out in the cross- examination of this witness, in our view, is not a material omission. The evidence of this witness is cogent and trustworthy. 10. P.W. 5 Dr. Suresh has examined P.W. 1 complainant and found following injuries: 1. Abrasion right thumb ½ cm x ½ cm 2. Abrasion right index finger ½ cm x ½ cm 3. Abrasion right middle finger ½ cm x ½ cm The medical officer has opined that the said injuries were caused by a hard and blunt object like article no. 12, within six hours of the examination. Defence could not get anything worthwhile to discredit the testimony of this witness. Similarly P.W. 9 Hanumant has examined P.W. 2 Chandrakant and found stab wound over left iliac fassa 2 cms x 1 cm. Doctor also noticed that there was a peritronial breach 5 cms above left anterior superior iliac spine. The doctor opined that injury was grievous in nature and was 10 CRI-APPEAL-260-05.sxw caused by sharp edged weapon. Injury certificate issued by the doctor is at Exhibit 35. The evidence of medical officers Dr. Suresh and Dr. Hanumant completely corroborates the evidence of complainant P.W. 1 Sunderabai and P.W. 2 Chandrakant. 11. Dr. Belsare (P.W. 6) has conducted post-mortem examination on the dead body of deceased Ramesh and found following external injuries: 1. Stab injury on mid-line of abdomen 3 ½ inches above umbilicus, 2 x ¾ inches, perforating the abdominal cavity, sharp margins and pointed ends. 2. Stab injury on left lateral aspect 6 and ½ inches below the axillary, 2 x ½ x 1 inches. Sharp margins, pointed ends. 3. Abrasion on left cheek ½ x ½ inches. 4. 2 linear abrasion on left side of neck, 1 x ¼ inches each. 5. Abrasion on left shoulder, 1 x ½ x ½ inches. As per the opinion of Dr. Belsare cause of death of deceased Ramesh was shock due to stab injuries on chest and abdomen. 12. In the instant case the medical evidence completely corroborates the prosecution case disclosed by the complainant P.W. 1 Sunderabai, as well as P.W. 2 Chandrakant coupled with the other circumstantial evidence brought 11 CRI-APPEAL-260-05.sxw on record by the prosecution, we are of the view that the prosecution has succeeded in bringing home the guilt of the appellant for the offences charged beyond all reasonable doubts. 13. The learned counsel for the appellant has alternatively contended that even if it is assumed that the appellant in a sudden fight and without premeditation in heat of passion inflicted injury on the person of deceased even then the offence committed by the appellant could not be punishable under Section 302 of the Indian Penal Code but would be punishable either under Section 304 (Part I) or (Part II). The contention canvassed by the learned counsel for the appellant is difficult for us to accept in view of the following aspects : (a) The weapon used by the appellant was a deadly weapon i.e. knife; (b) The injuries sustained by the deceased Ramesh were on the vital part of the body; (c) The injuries were serious injuries inflicted with the deadly weapon by applying force; (d) P.W. 1 Sunderabai (complainant) and P. W. 2 Chandrakant when tried to intervene also sustained multiple injuries. Some of them were of grievous nature. 12 CRI-APPEAL-260-05.sxw 14. Taking into consideration the above referred aspects, we have no hesitation to hold that the offence committed by the appellant falls within the ambit of Section 300 (2ndly) of the Indian Penal Code and therefore same is punishable under Section 302 of the Indian Penal Code. The contention of the learned counsel for the appellant canvassed in this regard is devoid of substance and therefore rejected. 15. The impugned judgment and order passed by the trial court, in our view, is just and proper, needs no interference. Hence, criminal appeal is dismissed. (D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI,J.)