1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 831 OF 2003 IN SESSIONS CASE NO. 444 OF 1990 Shri.Dhondu Bhaganji Bhanse, ] Resident of Natubhai Khak Chawl ] 1st floor, Room No.10A, Above Shiv ] Sena Branch No.111, Hanuman Tekdi ] Tanaji Nagar, Dhubi Ghat, Malad (E) ] Mumbai-400 097 (At present in ] custody at Kolhapur Central Jail) ]..Appellant [Ori.Accused No.1] Vs. The State of Maharashtra ] (at the instance of L.T. Marg ] Police Station, Mumbai) ]..Respondent .... Ms. Indu Varma appointed Advocate for Appellant Mr. Rajesh More APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING JUDGMENT : 19th MARCH, 2010 DATE OF PRONOUNCING JUDGMENT : 26th MARCH, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 Through this appeal, the appellant / original accused no.1 has 2 challenged the judgment and order dated 25th March, 2003 passed by learned Additional Sessions Judge for Greater Bombay in Sessions Case No. 444 of 1990. By the said judgment and order, the learned Judge convicted the appellant under section 324 of I.P.C. for causing hurt to P.W. 4 Pandurang Ganpat Khade and under Section 302 of IPC for causing death of Gopal Ratna Bhanse. For the offence under Section 324 of I.P.C. the appellant was sentenced to RI for three months and fine of Rs.500/- in default RI for one month. For the offence under Section 302 of I.P.C. he was sentenced to suffer life imprisonment and to pay a fine of Rs. 200/- in default RI for one month. The learned Sessions Judge directed both the sentences to run concurrently. 2 The prosecution case briefly stated, is as under: That an Association Javale Gram Vikas Mandal was formed by people who are residents of village Jawale in Ratnagiri District. This Association was formed to help the people who had come to Mumbai for the purposes of work and who had no suitable accommodation to stay in Mumbai. Hence, two rooms i.e. Room No. 9 and 10 on the second floor of Building Nos. 22-24 located in Telli Gully, Kalbadevi, Mumbai, were acquired by said Mandal in the year 1950. The building in which these two rooms were located, was a very old building and it was in 3 dilapidated condition and hence, the entire building was taken up for repairs. The members of the said Mandal contributed for the expenses incurred for repairs of the said rooms. After the rooms were repaired, a Vastu Pooja was arranged on 9th January, 1990. The accused as well as Gopal Bhanse and other persons attended that Vastu Pooja. At about 12.45 p.m. a dispute arose on account of giving accounts in respect of expenses incurred for carrying out repair work. On account of rendering accounts, verbal exchange of words took place between appellant and some office bearers of the said Mandal. At that time, the appellant suddenly took out Rampuri knife from his pocket and dealt two blows of knife on the abdomen of Gopal Bhanse (deceased). When Pandurang Khade rushed to rescue Gopal, the appellant assaulted Pandurang Khade by means of knife. Pandurang Khade sustained four injuries in the incident. Original accused no.2 Ramesh assaulted P.W.1 Pandurang Bhanse with a tile. Thereafter, the appellant along with co-accused Ramesh ran away from the place of incident. Gopal Bhanse was brought to G.T.Hospital in an injured condition by the persons who were present in that room. P.W.1 Pandurang Bhanse who was assaulted by original accused no.2-Ramesh rushed to L.T.Marg Police Station. He lodged 4 complaint. PSI Salvi recorded the complaint of Pandurang Bhanse. Offence under Sections 307, 324, 114 of IPC came to be registered against the accused. Pandurang Bhanse was referred for medical examination to G.T.Hospital. Both the accused came to be arrested on the day of the incident itself. As Gopal died, the case was converted from 307 IPC to 302 IPC. After completion of investigation, charge sheet came to be filed. 3 Charge came to be framed against the appellant under sections 302 and 324 r.w. Section 34 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties and the judgment delivered by the learned Additional Sessions Judge, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any 5 interference. 5 In order to prove that the death of Gopal was caused by appellant, the prosecution has mainly relied on the evidence of eye witnesses. In order to prove its case, the prosecution has mainly relied on the evidence of four eye witnesses i.e. PW 1 Pandurang Bhanse. PW 2 Ganpat Bhanse, PW 3 Vishram Khade and PW 4 Pandurang Khade who is also an injured witness. PW 1 Pandurang Bhanse is also the complainant in the present case. In his evidence, PW 1 Pandurang has stated that at about 12.45 p.m. a meeting was going on about the affairs of the Mandal. Accused Dhondu and Ramesh were also present in the said meeting. Some disputes cropped up between accused no.1 and Gopal Bhanse, at that time, accused no.1 i.e. appellant whipped out knife and stabbed Gopal in the stomach. 6 PW 4 Pandurang Khade has stated that at about 12.30 p.m. `Pooja ’ was going on. There was discussion regarding accounts of repairs in the said meeting. At that time the appellant whipped out a knife from his pocket and stabbed Gopal twice in the stomach. When this witness rushed to save Gopal, he was also assaulted by the appellant. The evidence of PW 2 Ganpat Bhanse and PW 3 Vishram 6 Khade is on similar lines as that of PW 1 Pandurang Bhanse. Nothing has been elicited in the cross examination of any of these four eye witnesses so as to discredit their testimony. 7 The case of the prosecution is also corroborated by the fact that knife article-1 came to be recovered at the instance of the appellant. PW 5 Shantaram Pawar is the panch witness to the recovery of knife article-1. His evidence shows that blood stained knife Article-1 came to be recovered at the instance of the accused which was hidden by the accused behind some planks of wood. The recovery of knife has taken place at about 10 p.m. from the very room where the incident took place. The said knife was sent to the Chemical Analyser and the CA report (Exhibit-39) shows that blood group “B ” was found on the knife. It is pertinent to note that the blood group of deceased Gopal is also “B ”. 8 PW 8 Dr. Murlidhar Kulkarni has deposed that the following two injuries were found on the body of Gopal i.e. (1) one stab injury to Rt. anterior maxilla 2 ” x 1/2 ” x 1 and 1/2 ” with exposed intestine was found and same was bleeding and (2) stab injury to Rt. anterior axilla just 2 ” above first wound, 1 ” x 1/2 ” x 1 and 1/2 ” exposed fasia, rib, at level of 9th ”. The blows were given with such force that it had 7 exposed the intestines as well as ribs. According to the Doctor, all injuries were ante-mortem. On internal examination, three injuries were found i.e. 1) Tear of Rt. Hypochondria, 2) Tear of Lt. Petitonium and 3) Tear at left hypochondria. Injury was also observed on the small intestine and large intestine. From the post mortem report (Exh.19), it is clear that the knife blows had cut the walls, peritoneum and cavity of abdomen and damaged the small intestine and large intestine, causing profuse bleeding. Due to this reason, the deceased went into shock and he died. According to Dr. Kulkarni, death was caused due to excessive blood through large intestine. Dr. Kulkarni has clearly opined that the injuries caused, were sufficient to cause death in ordinary course. Doctor has also opined that the injuries could have been caused by weapon like knife Article-1. Looking to the evidence of Dr. Kulkarni and post mortem notes, we have no manner of doubt that Gopal died a homicidal death. From the evidence, it is clear that appellant dealt two blows of knife in succession on vital part of deceased with such force and vigour that it has caused injury to the large and small intestines and also the ribs. 9 The learned advocate for the appellant submitted that the appellant would not have assaulted Gopal and it may have been 8 Pandurang Bhanse or Pandurang Khade who caused injuries to Gopal by accident. However, the defence being put forward that injuries could have been caused by Pandurang Bhanse or Pandurang Khade to Gopal by accident, has not been put to any of the witnesses nor does it emerge from the cross-examination of any witness or in the evidence of any of the defence witnesses. Hence, we find no substance in this submission. 10 The learned advocate for the appellant has placed reliance on the evidence of DW 1 Kishan Bhanse. She submitted that Kishan was injured in the very same incident and hence, his credibility cannot be doubted. She has pointed out that Kishan has stated that P.W.1 Pandurang Bhanse asked accounts from DW 2 Sahadeo Bhanse. DW 2 Sahadeo replied that it was not possible for him to give account on that day, however, Pandurang Bhanse insisted that accounts be given on that very day and Pandurang Bhanse slapped him. PW 3 Vishram Khade whipped out a cycle chain and started revolving it the room thereby two persons including this witness sustained blow of chain. He has stated that thereafter PW 1 Pandurang Bhanse lifted knife which was lying on the place of Pooja and gave blow with it on the left thigh of this witness. D.W.1 Kishan has identified Article-1 as being the same 9 knife. This witness has stated that thereafter the appellant lifted him and removed him to the ground floor. Ms. Verma, the learned advocate for the appellant submitted that when the accused lifted this witness and removed him to the ground floor, there was no question of the appellant being in the same room and causing any injury to Gopal as the appellant had already left the room where the incident occurred. 11 We have carefully gone through the evidence of DW 1 Kishan. It is specific case of DW 1 Kisan Bhanse that PW 1 Pandurang gave him blow with knife Article-1 on his left thigh, however, his testimony is not at all corroborated by the medical evidence. PW 9 Dr.Hendre examined DW 1 Kishan. Dr. Hendre has stated that he found two injuries on Kishan. Both these injuries were of minor nature and both the injuries were on the knee. Thus, from the evidence of Dr.Hendre, it is clear that no injury by knife was found on the thigh of Kishan. This fact creates a serious shadow of doubt on the evidence of DW 1 Kishan. Another fact which causes us to disbelieve the testimony of DW 1 Kishan is that DW 2 Sahadeo has stated that the appellant Dhondu Bhanse and original accused no.2 Ramesh were present in the said room till he went to the ground floor. He has stated that Gopal (deceased) was also present in the said room at the said time. This 10 clearly shows that the appellant was very much present in the room with Gopal and it belies the story put forward by DW 1 Kishan. Though all the three defence witnesses state that they were present in the room when altercations took place, none of them stated as to how Gopal came to sustain injuries and who caused the injuries to Gopal. Thus, it is clear that these three witnesses are clearly suppressing the material facts. The evidence of DW 3 Prakash Bhanse is on the same lines as that of DW 1 Kishan. We have already observed earlier that evidence of Kishan does not inspire confidence. 12 The learned advocate for the appellant further tried to contend that the recovery of knife has been foisted on the appellant and therefore, recovery cannot be relied upon. In support of this contention, she pointed out that the spot panchnama was drawn from 2.45 p.m. to 3.45 p.m. She submitted that if there was a knife in the room, the same would have been seen and seized by the police at that time. Hence, recovery of knife at 10 p.m. from the very same room cannot be believed. As far as this aspect is concerned, it is seen that knife was not lying in an open place but knife was hidden by the appellant behind some planks of wood. Thus, it is seen that knife was not visible and there was no reason at that time for the police to conduct the search 11 behind the planks of wood in that room. Thus, we find no merit in this submission. 13 After carefully going through the evidence, in our considered opinion, the learned Sessions Judge was right in holding that the offence under Sections 302 and 324 r.w. 34 of IPC is proved against the appellant. 14 Before we part with this judgment, we would like to place on record our appreciation for the able assistance rendered by Ms. Indu Varma to the Court. She be paid the fees for conducting this matter as per the Rules. 15 In the result, the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Greater Bombay dated 25th March, 2003 in Sessions Case No. 444 of 1990 is confirmed. Appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.] 12