1 Criminal Appeal No.168 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.168 OF 2010 Ekarya Jayram Bhosale, Age-32 years, Occu-Nil, R/o.Hingangaon, Tq.Shevgaon, Dist. Ahmednagar APPELLANT VERSUS State of Maharashtra, Through its Police Station, Shevgtaon, Tq.Shevgaon, Dist. Ahmednagar. RESPONDENT Mr.Vinod Patil, learned counsel for the appellant. Mr.S.D.Kaldate, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 15/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of the IPC and sentenced to suffer life imprisonment and to pay fine of Rs.1,000/- in default to suffer further RI for 6 months by Additional Sessions Judge, Ahmednagar in Sessions Case No. 152/2008 vide his judgment dated 16/01/2010, questions the correctness of his conviction and sentence by the present appeal. 2 Criminal Appeal No.168 of 2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be summarized as follows : (a) On 13/05/2008, PSI Ramdas Kedare (P.W.No.8) attached to Shevgaon Police Station of Dist. Ahmednagar was directed by P.I. Gawade attached to same police station to visit Civil Hospital, Ahmednagar to record statement of one Raju Surase as he had sustained injuries and admitted in Civil Hospital, Ahmednagar. Immediately, he rushed to Civil Hospital, Ahmednagar, but he was informed that injured Raju is un-conscious and is not in a condition to give his statement. Brother of injured Bhausaheb Surase (P.W.No. 1) was found present near the injured. P.W.No.8 recorded statement of Bhausaheb (Exh.19). On the basis of this statement/complaint, an offence was registered vide CR No.67/2008 for an offence punishable u/s. 307 of the IPC against the appellant. On 14/05/2008, he visited the spot of incident and drew spot panchnama (Exh.25). As the victim was reported to be dead, offence punishable u/s. 302 of the IPC was added in the said CR. He visited the hospital where he drew inquest panchnama (Exh.16). On that day, he recorded statements of witness Bablu Shaikh (P.W.No.3) and 5 other witnesses. On 15/05/2008, he recorded supplementary statement of complainant Bhausaheb and witness Ashabai Surase. After inquest panchnama, dead body was referred for post mortem. (b) Dr.Gorakhnath Gaikwad (P.W.No.6) conducted post 3 Criminal Appeal No.168 of 2010 mortem on the dead body of the deceased on 14/05/2008 in Civil Hospital, Ahmednagar. During post mortem, he noticed following external injuries on the dead body of the deceased. 1. Incised stab injury on left side of umbilical region size 4 cm x ½ cm. abdomen deep cavity, sutured wound. 2. Left paramedian sutured wound an abdomen from Epigastrine to lower order of umbilical region. 3. Punctured wound on left axilla ½ x 1 x 4 cm skin deep 4. Incised wound of left middle finger on middle phalanx size 4 cm x ½ cm skin deep. Out of the 4 injuries noticed on the deceased, injury no.1,3 and 4 are anti-mortem injuries, while injuries noticed at Sr.No.2 is a surgical wound. He opined that the cause of death of deceased is a shock due to hypovolemia due to stab injuries. He opined that injury no.1,3 and 4 are possible by sharp and cutting object like Article 4, the knife. He prepared post mortem notes Exh.29. (c) After 23/05/2008, further investigation in the said crime was transferred to Shri P.S.Garje (P.W.No.7). During the investigation, he arrested the appellant on 25/05/2008. While in custody, on 27/05/2008, appellant made disclosure statement in presence of panch witnesses, of which memorandum is at Exh.33, which leads to the discovery of one button knife (Article 4), which was hidden behind the hut, below the heap of sticks. It was seized under panchnama Exh.34. While conducting post mortem, cloths on the 4 Criminal Appeal No.168 of 2010 person of the deceased were seized under panchnama. On 01/08/2008, clothes seized from the person of the deceased, the knife so also clothes of the appellant were referred for chemical analysis alongwith the covering letter Exh.35. In due course, report of Chemical Analyser Exh.43 and 44 are received. Further completion to the investigation, charge sheet was filed against the appellant before 2nd J.M.F.C. Shevgaon on 20/08/2008. (d) On committal of trial to the Court of Sessions, learned Lower Court framed charge against the appellant at Exh.10 for an offence punishable u/s. 302 of the IPC, to which appellant pleaded not guilty and claimed to be tried. During the trial, prosecution has examined in all 8 witnesses to substantiate the charge lavelled against the appellant. Defence of the appellant is of total denial and his false implication in the present case. On appreciation of the evidence, learned Lower Court pleased to convict the appellant for an offence punishable u/s. 302 of the IPC, for which he was sentenced as stated above, which finding is impugned in the present appeal. 3. For better appreciation of the submissions of learned counsel for appellant, so also submissions of learned A.P.P. for respondent/ State, it is necessary to advert to material evidence led by the prosecution before the Trial Court. 4. It transpired from the evidence of Bhausaheb (P.W.No.1) that 5 Criminal Appeal No.168 of 2010 deceased Raju is his brother. On the day of incident, he was present near Market Yard. The time was about 7.30 to 8.00 p.m. At that time, one Sudhakar Dhakne (P.W.No.2) was with him. One Sagar Phadke approached to them and informed that Raju was assaulted by the accused and was taken to Kamble Hospital. Accordingly, he and Sudhakar went to the hospital. In the hospital, he noticed that due to assault, intestine of Raju had come out of the stomach which the Doctor has put inside and put bandage over the injuries sustained by Raju. Dr.Kamble advised to immediately shift Raju for better treatment to Ahmednagar. Accordingly, Raju was shifted to Civil Hospital, Ahmednagar. On the way, Raju informed them that he and the accused were consuming alcohol in the shop of Sagar Phadke. At that time, he was listening music on his cell-phone. Appellant/accused asked him as to why he was listening music when there is no balance in the cell phone, to which Raju told appellant that he would slap appellant 2-3 times if balance was found in the cell-phone. Thereafter, he shown balance in the cell phone to the appellant and slapped appellant. Thereafter, he left for his home. At that time, appellant abused him on the road near Mahadev Temple and stabbed with knife on his abdomen. He has further stated that Raju was in a position to speak till he was brought and admitted in the hospital at Ahmednagar. Then he became unconscious and did not regain till he took last breath. Accordingly, he lodged complaint with the police at Exh.19. Through this witness, prosecution had proved complaint Exh.19. He has denied in his cross examination 6 Criminal Appeal No.168 of 2010 that there was smell of alcohol in the breath of Raju and Raju was under influence of alcohol and unconscious when doctor examined Raju in the hospital. He has admitted in his further cross examination that one Noor Mohd. told Sagar Phadke to inform about the incident to them. This Noor Mohd. Shaikh is P.W.No.3 and is working in the liquor shop of Sagar Phadke. He has further admitted in his cross examination that the incident occurred on 12/05/2008, but the complaint was lodged on 13/05/2008 at about 8.30 p.m. The complaint was lodged after Raju expired on 13/05/2008 at about 7.30 p.m. He has further admitted that he is acquainted with accused as he frequently used to come to Shevgaon for labour work. Even though he has admitted in his further cross examination that Raju was habitual and heavy drunkard, Raju used to come back to home only after consuming alcohol, but he denied that Raju fell on the iron plates at the bazartal under the influence of alcohol in the night of 12/05/2008 and sustained injuries. 5. Evidence given by this witness is fully supported by P.W.No.2 Sudhakar Dhakne as this witness was the person to whom Sagar Phadke intimated about the incident and about the fact that the deceased was taken to Kamble Hospital. He has also corroborated the oral dying declaration of Raju. He has stated that this disclosure statement was made by Raju before P.W.No.1 while Raju was taken to Ahmednagar in the jeep. Some admissions were tried to bring on record in the cross examination of this witness that the 7 Criminal Appeal No.168 of 2010 speed of the jeep was 70-80 kms per house. Due to noise of the jeep and blowing of the wind, nothing was audible to him, as Raju and his brother P.W.No.1 were in the rear side of the jeep while he was on the front sit of the jeep. We have taken a note that this admission will not serve the purpose of the appellant as it is nowhere brought on record that P.W.No.2 has not heard the oral dying declaration of Raju given before P.W.No.1. 5. It transpired from the evidence of P.W.No.5 Dr.Vikas Kamble that on the day of incident, he was in the hospital situated at Shevgao-Newasa Road. When he came out from the operation theater around 7.40 p.m., he saw that one person was lying in front of his hospital, near the main gate and noticed that intestine of that person was protruded. On his inquiry with the patient, patient gave his name as Raju Surase and informed that one “Akarya Paradhi” have stabbed him, who is appellant before us. He has further stated that injured has put his left hand over his stomach. He noticed that the intestine of the injured have already came out. He put the intestine inside the stomach and put bandage on the injury. At that time, some persons came at the spot within 5-10 minutes. One of them was introduced as brother of the injured. He has stated in his cross examination that he informed the police on telephone about the incident and on his information, police reached in his hospital. Nothing was elicited from his cross examination. 8 Criminal Appeal No.168 of 2010 6. Thus the fact is clear that injured Raju has made disclosure statement as to how he had sustained injuries before P.W.No.1,2 but before P.W.No.5, who is totally independent person and not related with the injured at all. He can not be termed as an interested witness, who can falsely implicate the appellant in the said offence. 7. It transpired from the evidence of P.W.No.3 Bablu Noormohammad Shaikh that at the material time, he was working in the liquor shop of Kanta Phadke. He knew appellant and deceased Raju as they were their regular customers. He has further stated that on the day of incident, both of them were in his shop to drink alcohol. For some reason, at about 4.30 p.m., dispute arose between them on account of cellphone as deceased was listening music on his cell phone even though appellant was claiming that there was no balance in his cell-phone. Thereafter they left the shop. He has not supported the prosecution case. Even though this witness has not supported the case of the prosecution altogether, but the evidence given by him that in the evening of that day, appellant and deceased were together, left the shop together, this evidence remains unchallenged, which goes against the appellant. 8. In his evidence, P.W.No.6 Dr.Gaikwad has denied the suggestion given to him that injury no.1,3 and 4 may be caused due to fall on the sharp substance, as according to him, those injuries were stab injuries. In the light of this evidence, we have heard 9 Criminal Appeal No.168 of 2010 learned counsel for appellant and learned A.P.P. for State. During the course of submissions across the bar, it is tried to urge that the evidence of P.W.No.1 Bhausaheb, brother of the victim, P.W.No.2 Sudhakar, friend of P.W.No.1 and evidence of Dr.Vikas Kamble is not reliable as prosecution have not examined Sagar Phadke, who has informed P.W.No.1 and 2 about the assault by appellant on deceased and admitted the injured Raju in the hospital of P.W.No.5 Dr.Kamble. We are not in agreement with these submissions of learned counsel for appellant on the ground that on perusal of the evidence given by P.W.No.1 and 2, they have nowhere deposed that Sagar Phadke admitted the injured in the hospital of Dr.Kamble. They have only deposed that injured was taken to the hospital of Dr.Kamble. It also reveals from the evidence of Dr.Kamble that he saw the injured outside his hospital and on inquiry, injured himself stated about the history of injuries he received. 9. Apart from oral dying declaration of the injured before P.W.No.1 and 2, oral dying declaration of the injured before P.W.No.5 Dr.Kamble that appellant inflicted a stab blow on his abdomen which resulted in his death, is not shakened at all. 10. From the evidence of P.W.No.6, autopsy surgeon, stab and puncture wounds were found on the person of deceased Raju, which are sufficient in ordinary course of nature to cause death. The injuries are homicidal. It is positively established from the evidence 10 Criminal Appeal No.168 of 2010 of P.W.No.1,2 and 5 before whom oral disclosure was made by the deceased. Considering this evidence, we do not find any fault with the conclusion drawn and findings recorded by the learned Lower Court that the appellant is guilty for an offence punishable u/s. 302 of the IPC to cause murder of deceased Raju, for which he was sentenced by the learned Trial Court. 11. For the reasons recorded by the learned Lower Court, we do not find that any interference is required at the hands of this Court in the reasoning recorded by the Trial Court to convict the appellant/accused. Accordingly, we dismiss this appeal by confirming the conviction and sentence recorded by the Trial Court. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 168-10