1 Cri.Appeal No.3 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.3 OF 2011 Syed Chand s/o Syed Mohammed, Age 45 years, Occu.Labourer, R/o Gidhada, Taluka Paithan, District Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.J.Salgare Advocate (appointed) for the appellant Mrs S.D.Shelke, Assistant Public Prosecutor for respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 1st August 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- in default to undergo further rigorous imprisonment for two months, by the II Ad hoc Additional Sessions Judge, Aurangabad, by judgment dated 29.6.2006, in Sessions Case No.206 of 2005, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No.3 of 2011 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.7 Bajirao Joshi, an A.P.I. who was attached to M.I.D.C. Paithan Police Station received an M.L.C. submitted by the Medical Officer of Paithan about death of deceased Mainabai. An enquiry in respect of this M.L.C. was entrusted to Head Constable Dighole. The M.L.C. is at Exh.30. Inquest panchnama of the dead body of deceased Mainabai was drawn in the presence of panch witnesses at Exh.31. On the basis of the complaint filed by P.W.3 Kisan vide Exh.20, an offence came to be registered vide Crime No.41/2005 under Section 302 of the Indian Penal Code. The investigation was retain by P.W.7 P.S.I. Joshi. He accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of witnesses at Exh. 15. One quilt, pieces of bangles, one diary were seized from the scene of the offence. The 7/12 extract and the S.T. pass of the niece of the accused, which were found in the diary were also seized. Statements of witnesses came to be recorded and the accused came to be arrested on 14.5.2005. Clothes on the person of the accused came to be seized in the presence of panchas vide seizure memo at Exh.26. Clothes of deceased came to be seized vide seizure memo at Exh.27. On 16.5.2005 during custodial interrogation the appellant/accused expressed his willingness to point out the place where the knife was hidden by him. Memorandum, therefore, came to be recorded at Exh. 3 Cri.Appeal No.3 of 2011 27 in the presence of P.W.6 Somnath. The appellant led the Police and the panch to Wahegaon and from near one Babool tree produced a knife, which came to be seized under seizuere memo at Exh.28. The said knife is Article 7. The seized property was referred to Chemical Analyzer along with the requisition at Exh.32. Further to the completion of investigation, A.S.I. Shinde had submitted the charge- sheet. The report of the Chemical Analyzer is at Exh.34. 3. Post mortem on the dead body of deceased Mainabai was performed by P.W.5 Dr.Thakur. He noticed the following external injuries: (i) Abrasion on left breast region 1 ½ x 1 cm i.e. scratch redish colour; (ii) Abrasion on right breast region ½ x 1 cm scratch red; (iii) Abrasion on right breast region 1 x 1 cm scratch redish colour; (iv) Incised wound under right opthalmic region ½ x ½ x 4 cm oblique; (v) Incised wound on right cheek region ½ x ½ x 5 cm i njury was oblique; 4 Cri.Appeal No.3 of 2011 (vi) Lacerated wound on right opthalmic region right eye ball severe from base; (vii) Abrasion on right thigh region anteriorly; (viii) Abrasion on left thigh region anterior ½ x 1 x 2 cm; (ix) Abrasion on left thigh region anterior ½ x 1 cm He also noticed fracture of the skull at the frontal bone and also noticed that internal organs were congested. He opined that all the injuries were ante mortem in nature. According to him the cause of death was intra cranial haemorrhage due to brain injuries. According to P.W.5 Dr.Thakur injuries No.4 and 5 were possible due to knife while all other injuries were possible due to striking of the head against rough surface. The post mortem report is at Exh.23. 4. On committal of the case to Court of Sessions, trial Court vide Exh.8 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses while defence of the appellant is of denial. The trial Court upon appreciation of the evidence of the prosecution found that the prosecution had proved the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant. 5 Cri.Appeal No.3 of 2011 5. The entire case of the prosecution revolves round the evidence of P.W.3 Kisan, who is the eye witness to the incident and the first informant. P.W.3 Kisan states that he was working in the field of one Shyam Kulkarni on contract basis and was residing in his land. He states that he used to come to the village daily in the evening for his dinner. Deceased Mainabai was also residing in the same field of Shyam Kulkarni in one tin shed. About 15 days prior to the incident, the appellant had come to the field and Mainabai was present in the tin shed. The appellant sat near the leg of Mainabai and Mainabai immediately shouted, therefore, P.W.3 Kisan went there. He noticed that the appellant was under the influence of liquor. P.W.3 Kisan and deceased Mainabai asked the appellant to go away. He states that on the day of the incident when he returned to the farm house in the night, he heard the noise of quarrel. The appellant/accused was abusing Mainabai and, therefore, P.W.3 Kisan went towards the house of Mainabai. He noticed that the accused had sat on the chest of Mainabai and was striking her head on the hard surface of the ground. The accused was also abusing Mainabai in filthy language. Kisan thereafter states that he, therefore, pulled the appellant away. Kisan further states that the appellant had caused injuries by knife on the cheek, neck of Mainabai. The appellant caught the neck of P.W.3 Kisan and questioned him as to why he was middling. Kisan escaped from the clutches of the accused and on coming out of the hut, began to cry for help. Pralhad Shinde, Shrimant Shinde and others rushed to the spot. The accused fled away. The owner of the field Shyam Kulkarni 6 Cri.Appeal No.3 of 2011 was informed about the incident and thereafter Mainabai was shifted in an auto-rickshaw to the Paithan hospital. Mainabai succumbed to her injuries on the same night. Kisan states that he had lodged his complaint at Exh.20. In cross-examination omission has been duly proved that Kisan had not stated in his report that the appellant had caused injuries to Mainabai by a knife. P.W.3 Kisan has admitted that Mainabai had been employed to guard the field of P.W.2 Shyam. Kisan has admitted that his sons Santosh and Somnath used to visit the said field sometimes. He has denied the suggestion that there used to be frequent quarrels between Kisan and his sons. He has also denied the suggestion that his sons had killed deceased Mainabai, as Mainabai had informed P.W.2 Shyam that sons of Kisan were damaging the crops. He has admitted that his sons used to collect fuel wood from the land of P.W.2 Shyam and that Shyam had asked Mainabai to prevent persons from collecting fuel wood. Kisan states that P.W.2 Shyam had permitted him to remove the fuel wood. 6. Mr Salgare, learned Counsel for the appellant has urged before us that no reliance can be placed on the testimony of P.W.3 Kisan, as Kisan had not stated in his report that he had seen the appellant causing injuries to Mainabai by a knife. Mr Salgare further states that if the appellant was striking the head of Mainabai on the ground, injuries ought to have been caused to the occipital region of the head. The Medical Officer has not found any injuries on the occipital region and, therefore, P.W.3 Kisan ought to be disbelieved. According to us 7 Cri.Appeal No.3 of 2011 this can hardly be a ground for rejecting the testimony of P.W.3 Kisan. P.W.3 Kisan had immediately lodged the complaint on the basis of which an offence came to be registered. Moreover, evidence of P.W.2 Shyam indicates that on hearing the cries he had rushed to the field and P.W.3 Kisan had informed him that the appellant had killed Mainabai. Kisan was residing in a hut near the tin shed in which Mainabai was residing. Presence of Kisan at the scene of the offence, therefore, is natural. Moreover, no enmity has been pointed out between Kisan and the appellant so as to infer false implication of the appellant. Injuries were noticed to the frontal bone and, therefore, according to us the presence of injuries on the head would certainly corroborate the evidence of P.W.3 Kisan in respect of the fact that the appellant was striking the head of Mainabai on the ground. 7. Moreover, prosecution has examined P.W.6 Somnath, who is a panch witness to the memorandum and the recovery of the knife, Article-7. P.W.6 Somnath has supported the prosecution case and has deposed about the statement and the consequential recovery. There is nothing in the cross-examination, which would in any manner impel us to reject the testimony of P.W.6 Somnath. Moreover, the report of the Chemical Analyzer at Exh.34 discloses that the knife was stained with blood of “A” group. The shirt worn by the appellant/accused was also found stained with blood of “A” group. The appellant/accused has not explained the presence of blood stains of “A” group on his shirt as well as on the knife, Article-7 produced by him. In such circumstances, 8 Cri.Appeal No.3 of 2011 therefore, according to us there is overwhelming evidence in support of the prosecution case. 8. Accordingly, this criminal appeal being sans merit is dismissed confirming the conviction and sentence. Fees payable to Mr S.J. Salgare, learned Counsel appointed on behalf of the appellant quantified at Rs.5,000/- (Rs.Five thousand). ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/3.2011criapeal)