1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.701 OF 2006 Ajaykumar Bali Yadav ...Appellant Vs. The State of Maharashtra ...Respondent Mr.A.G.Toraskar, Appointed Advocate for Appellant Mrs. M.M.Deshmukh, A.P.P for the State CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 9TH SEPTEMBER, 2009 JUDGMENT (PER SMT. ROSHAN DALVI, J.) 1.The appellant has challenged the judgment of the Learned Sessions Judge, Mumbai dated 30th June 2005 in Sessions Case No. 951 of 2002 under which he came to be convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and a fine of Rs.5000/- and in default to suffer further rigorous imprisonment for two months. 2.The appellant was charged with having committed the murder of one Ashok Baburao Rupwate at Chindhi Galli, Wadala, on 5th July 2002 at about 8:30 p.m along with the wanted accused Vijay Laxman Dhoke by intentionally causing his death by giving him blows with a broken beer bottle on his chest and abdomen due to which he 2 succumbed to the injuries. 3.The complainant is a police Constable having buckle number 7108. Whilst he was on petrolling duty he noticed 2 persons fleeing and running towards him. Upon being told to stop also they continued to run. He, therefore, chased and apprehended them. One of them fled. The other was caught with an empty beer bottle in his hand. He was the present accused. He was taken towards the crowd that had gathered. He saw that one person was badly injured. One person came out from the crowd claiming to have witnessed the incident. He disclosed that the accused and his associate were involved in the fight. He described the incident to the Police Constable who came with the accused near the crowd. The injured was shifted to the hospital and was declared dead. The accused was arrested on the spot. The other accused who fled has been absconding. 4.The crime came to be registered as C.R number 84 of 2002. Spot panchanama and Inquest punchnama were drawn. The clothes of the accused were seized. The dead body was sent for post mortem. Statements of witnesses, including the eye witness, were recorded. The broken bottle was seized. Upon the arrest of the accused his personal search was taken. The clothes of the accused, including one eraser bottle which was found in his pant pocket, were seized. His blood 3 sample was sent for chemical examination. Upon the receipt of the chemical analyser's report the charge sheet came to be filed and the case was committed to the Sessions Court. 5.The prosecution examined eight witnesses; four of them are police officers. The prosecution has also examined the eye witness as PW-3, the Doctor who conducted the post mortem of the body of the deceased and made his report, and the two panchas of the seizure of the clothes of the accused. 6.It may be mentioned that the accused had suffered an injury on his left thumb in the incident. P.W-4 has deposed about the injury. The accused has admitted the injury in reply to question number 40 in the statement of the accused recorded under section 313 of the Criminal Procedure Code. It may also be mentioned that the accused had blood on his right hand and which fact has been deposed by PW-2. The accused has admitted that aspect also in reply to question 16 in his Section 313 statement. Besides, PW-1 has deposed that he knew the accused about 5-6 months prior to the incident, which fact has been admitted by the accused in answer to question 4 in his Section 313 statement. The case of the prosecution shall have to be considered taking into account these vital admissions. 4 7.The evidence of PW-1, the Police Constable, shows that whilst he was on patrolling duty he noticed a crowd at Chindhi Gully. Two persons from the crowd were rushing towards him. He signalled them to stop. However they continued to run. Therefore he started chasing them. He succeeded in catching one of them. He identified that person in court as the accused. He knew the accused previously as he was earlier arrested by his police station. He deposed that the accused had a broken beer bottle in his hand and his hand was smeared with blood. There was blood on the bottle also. He took the accused towards the crowd. His two colleagues were with him. He saw that one person was lying in injured condition on the road in front of one Dargah. One person came out of the crowd. He disclosed his name as Mohammad Issakuddin Rehman Sayyed (P.W.-3). That person disclosed that the accused and his associate assaulted the injured with a broken bottle. The injured, who was lying down, was sent to Sion hospital. P.W-1 lodged the complaint. He identified the FIR dated 5th July 02. He also deposed about the spot panchanama. He identified the broken beer bottle. Upon being asked in the cross- examination he stated that he knew the accused since about six months prior to the incident. The fact of his knowledge of the accused has been an admitted by the accused himself. 8.P.W-2 has deposed that the accused was brought to the 5 police station upon being arrested. Blood was found smeared on his right hand. This fact is also admitted by the accused. He also identified the accused before the court. 9.P.W-3 is the eye witness. He was a teacher of Arabic language in the Dargah near which the incident took place. He also served as a priest in the Dargah. He has deposed about what happened on 5th July 2002 at about 20:20 hours. He was in the Dargah. He heard a commotion outside the Dargah. He came out and saw one person holding the victim. The victim s back was towards him. He saw another person assaulting the victim with a broken glass bottle. He could see the face of the person who assaulted the victim. That person was the accused whom he identified in the court. He further deposed that both the persons fled towards the police chowky. One person came from the side of the police chowkey. He caught hold of the accused with the broken piece of bottle in his hand. He further deposed that the victim fell down on the spot. He was removed to the hospital. He had sustained injury to his stomach. He identified the broken bottle. He deposed that the broken bottle shown to him in court may be the same bottle. 10.His cross examination has revealed that he had heard screams at about 8 to 8:15 p.m. He was at a distance 6 of 11 to 12 feet from the spot when he heard the screams. He saw the incident. He has clarified that the back of the victim was towards him. He has also deposed that the face of the assailant was towards him. He further stated that the accused gave one blow to the victim with the broken bottle on the stomach of the victim. He identified the victim in court after having seen him on the spot of the offence. He could not state how long the incident lasted. He has been unable to describe the clothes of the accused. He did not accompany the police to the police station. He deposed that the victim was taken in a taxi by the police. He refuted the suggestion that there was darkness at the spot. He volunteered to state that the incident was on the road and there was sufficient light. 11.P.W-3 comes out as a witness of truth. He was an independent witness. He has no reason to lie. He was a teacher and a priest. He was at the place where he was expected to be. The incident took place near the Dargah. The timing of the incident stated in his examination in chief and hearing of the commotion and the screams stated in his cross examination almost match. The description of the incident as deposed by this witness is natural and is seen to be truthful. Since one person was holding the victim and the other assaulted him, either the victim or the assailants could have been facing him. The fact that the victims 7 back was towards him shows that the assailants were facing him. Hence his specific deposition that the face of the accused was towards him comes out as natural and understandable. He could, therefore, see the face of the assailant clearly. That assailant was the accused. The accused was arrested on the spot. Hence there was no reason to put up the accused for identification in a test identification parade. Consequently the eye witness, who had seen the incident fully, deposed directly in court after having seen the accused only at the time of the incident. It is important to note that in the examination in chief as well as in the cross- examination this witness has stated in no uncertain terms that the face of the assailant was towards him and he could see it. He has also deposed about the fact that both the persons fled and one was caught. This evidence corroborates the evidence of PW-1 who saw both the persons flee from the other side of the road. The fact that the other wanted accused is yet absconding is a further corroboration of the evidence of PW1 as well as PW-3. Besides, PW-3 has not embellished his evidence. Upon being shown the broken beer bottle he deposed that it  may be the same. Further his deposition about the bottle shows his description as 'some glass bottle'. He is not expected to have known that that bottle was a beer bottle. His deposition, therefore, only shows some broken glass bottle. His deposition about the victim having fallen 8 down on the spot is not disputed. Further, he has described the blow given by the accused. That was on the stomach of the victim. His deposition is that he saw the accused giving only one blow to the victim with the broken bottle. This evidence shall have to be considered alongside the PM report produced by the Doctor PW5. The Doctor, has identified the PM report as having been written in his handwriting and signed by him. He has mentioned the external injuries at column No.17 and internal injuries at Column No. 20 of the report. He has deposed that injury number 1 in column 17, corresponding to injury about the perforation of the heart in column 20, is a fatal injury. That is possible if the injured is assaulted with a broken glass bottle. Upon being shown the bottle he has deposed that that would be a weapon having sharp pointed edges. He has refuted in his cross-examination that the single blow is not sufficient to cause such injury with such a weapon. 12.The first three injuries in the PM Report in column 17 show the injuries to the chest and the injury below the injury to the chest. The chest injury is an incised wound on the left chest below the nipple. The second injury is on the pectoral region tailing downwards. The third injury is shown to be an injury below the above injury. That would be the injury to the stomach. The fact that the second injury was tailing downwards shows 9 the blow given in the chest going downwards to the stomach causing the injury to the chest as well as below the chest. These injuries corroborate the evidence of PW-3 about the blow given to the victim in his stomach. The internal injuries in column 20 of the postmortem report shows the lower lobe and the left ventricle perforated and large vessels empty. These injuries show the force with which the blow was given to the victim. It resulted in the rupturing his heart. His aorta was emptied of blood. The cause of death shown in the PM report is hemorrhagic shock due to heart perforation. 13.The prosecution has examined two panchas to prove the seizure of the clothes of the deceased. These are P.W-7 and 8. P.W-7 turned hostile. He has refuted that there was any injury to the thumb of the accused, a fact admitted by the accused himself in his 313 statement. He has, however, deposed that the clothes were seized in his presence. In his cross examination he has denied the suggestion that there was no other Panch. He volunteered that there was another Panch by name Paul ( Pal ). 14.P.W-8 is the other Panch to prove the seizure of the clothes of the accused. He has deposed about the fact that PW-7 was the other Panch. He has identified the accused in the court. His deposition shows the 10 description of the clothes of the accused seized from the accused in his presence. He has deposed that the shirt of the accused had blood stains on the front left side. He has also deposed about the personal search of the accused. The search revealed a whitener bottle found in the pant pocket of the accused. He has identified that bottle in court. 15.His cross examination shows that he had not seen the accused prior to the panchanama. This shows that he had seen the accused at the time the panchnama was prepared. His cross-examination also shows that he had signed on the already prepared panchnama. That evidence is natural since a punch is expected to sign only after the panchanama is prepared. His cross examination also shows that though he did not know the name of the accused, the accused was the same person who was present in the police station. He has refuted the suggestion that the accused was not present in the police station though he had seen the accused thereafter only in the court. 16.This witness has also come out as a witness of truth. He had not noticed any injury to the accused, a fact admitted by the accused himself. He stated about that fact in his examination in chief itself. He described the clothes of the accused which match the description of the articles seized from the accused and produced in 11 court as the clothes of the accused. His evidence further shows a whitener bottle being seized and thus corroborates the evidence of PW4 who deposed about the eraser bottle being found in the pant pocket of the accused. 17.The evidence led by the prosecution shows the natural flow of events at the time of the incident and thereafter. The fact that the accused was arrested on the spot in front of the crowd by a police officer on duty itself shows the presence of the accused. The injury caused to the accused himself in the fight that took place with his friend in the incident shows the presence of the accused. That injury is admitted by the accused himself. The incident has been clearly described by the eye witness who has come out as a witness of truth. He was an independent witness having no enmity with the accused and had no reason to falsely implicate the accused. The description of the blow given by the accused upon the victim is corroborated in the PM report. The case of the prosecution of the accused having committed murder of the victim is clearly made out. 18.Mr. Toraskar, Learned Advocate on behalf of the accused, argued that there was a sudden fight in which the accused accidentally hit the victim. He relied upon paragraphs 2 of the evidence of PW-1 to show that 12 on the same day one hour prior to the incident there was a quarrel between the accused and his friend Vijay with the injured Ashok because the victim refused to provide the accused and his friend the whitener. The quarrel having taken place one hour prior to the incident does not show any sudden and grave provocation under which the accused could have acted. The reliance upon this evidence shows the presence of the accused along with his friend who is the absconding accused. This itself corroborates the evidence of PW-1 as well as PW-3 that two persons were involved in the fight, out of whom one fled and the other was caught. We are unable to accept the argument of Mr. Toraskar that the accused could be covered under the umbrella of section 304 of the Indian Penal Code. 19.The Learned Trial Judge has correctly appreciated the evidence to conclude that the injury caused by the accused was of such nature as to impute upon him the intention and knowledge that that would have resulted in the death of the victim. The accused is, therefore, squarely covered under the offence of murder punishable under Section 302 of the Indian Penal Code, as the evidence clearly proves that none of the exceptions below Section 300 of the Indian Penal Code are applicable to the homicidal death of Ashok Rupawate. 20.The evidence led by the prosecution is sufficient to 13 convict the accused under the aforesaid section. The conviction of the accused is, therefore, maintained. The appeal, accordingly, stands dismissed and the impugned order of conviction and sentence stands confirmed. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]