1 mss APEAL+54 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 54 OF 2006 GANESH PANDURANG AWAGONE ) resident of Indira Nagar, Behind Akash ) Ganga Society, Kalyan (West) ) Presently at Central Prison at Kalamba, ) Kolhapur – 416 007 ) .. APPELLANT Vs. THE STATE OF MAHARASHTRA ) Through Mahatama Phule Chowk Police ) Station, Kalyan ) .. RESPONDENTS Ms. B. P. Jakhade, appointed Advocate for the appellant Ms. P. H. Kantharia, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATE ON WHICH THE JUDGMENT IS RESERVED : 15TH APRIL,2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 15TH APRIL, 2011 JUDGMENT: (Per Smt. Ranjana Desai, J.). The appellant was tried by the II Ad hoc Additional Sessions Judge, Kalyan, in Sessions Case No. 456 of 2001 for offence punishable under 2 mss APEAL+54 Section 302 of the Indian Penal Code (“IPC”), under Section 25(1-B)(b) of the Arms Act and under Section 135(ii) of the Bombay Police Act, on the complaint lodged by Jitendra Harishchandra Patil on 12/6/2000. 2. The prosecution case needs to be stated: Jitendra Harishchandra Patil is the brother of deceased Gurunath Harishchandra Patil (referred to as “the deceased or Gurunath”) Complainant Jitendra Patil, the deceased and their two other brothers were residing jointly. They were engaged in construction business. The deceased exclusively owned one chicken centre situate near Vishal Colony. One Khairun Shaikh was engaged by the deceased 10 to 15 days prior to the incident in question as a servant. He used to work in the chicken centre. The appellant and Khairun Shaikh used to visit the house of the deceased. Three months prior to the incident, the deceased had thrown a party and at that time the appellant had taken motor cycle of the deceased for some business. The motor cycle was damaged. Therefore, there was conflict between the appellant and the deceased. Since then both of them were not on talking terms. Eight days prior to the incident the deceased had assaulted the appellant. 3 mss APEAL+54 On 12/6/2000 at about 6 p.m., the complainant Jitendra was at his construction site near Birla College. At that time his cousin Nandkumar Patil came to him and disclosed that the appellant had injured the deceased by inflicting blows on his head and nose. He brought the deceased to the complainant. The complainant saw the deceased lying in the jeep with injuries. Both of them took the deceased to Godbole Hospital and from there to Ajit Scanning Centre. Thereafter the deceased was admitted in Dr. Dahiwadkar’s Hospital. As per the information supplied by Khairun Shaikh, the incident took place at 5-40 p.m. The complainant lodged the FIR at Mahatma Phule Chowk Police Station at about 9 p.m. against the appellant. The offence came to be registered. On the same day at about 20.30 to 23 hours the appellant was arrested. Arrest panchnama Exh.-29 was prepared and clothes of the appellant were seized. After completion of the investigation the appellant came to be charged as aforesaid. 3. In support of its case, the prosecution examined as many as seven witnesses. PW 1 is the complainant Jitendra Harishchandra Patil, brother of the deceased. PW 2 is Nandkumar Patil, cousin of the deceased. PW 3 Dr. Champak Lad, the medical officer gave details of the postmortem conducted by him. PW 4 Khairun Shaikh is the eyewitness. PW 5 Surekha Patil is the wife of the deceased. PW 6 Mukhtar Khan is pancha to the 4 mss APEAL+54 panchnama under which sword was recovered at the instance of the appellant. PW 7 is PI Bhimrao Gaikwad, the investigating officer, who has given the details of the investigation. The defence of the appellant was one of denial. According to him he was falsely implicated. After perusing the evidence on record, learned Sessions Judge convicted and sentenced the appellant as aforesaid. Hence this appeal. 4. We have heard at some length Ms. Jhakhade, learned counsel appearing for the appellant and learned APP Ms. Kantharia. With the assistance of the counsel, we have gone through the record. Ms. Jhakhade submitted that the prosecution has failed to prove motive. The alleged incident of the motor cycle of the accused being damaged would not establish/furnish the motive. Evidence in that connection is merely hearsay evidence. Counsel submitted that recovery of weapon of assault i.e. the sword is not proved. The evidence of prosecution witnesses is not consistent. There are several omissions and contradictions in their evidence which make them totally unreliable. Counsel submitted that the appellant has been acquitted of the charges under Section 25(1-B)(b) of the Arms Act and of the offence under Section 37 read with Section 135 of the Bombay Police Act. The State of Maharashtra has not appealed against that acquittal and, therefore, it is not proved that the appellant was holding a sword in his 5 mss APEAL+54 hand. Counsel submitted that in any event this is a case where the appellant is entitled to benefit of doubt. She submitted that in the circumstances the impugned judgment and order be quashed and set aside and the appellant be released forthwith. 5. Learned APP on the other hand submitted that the evidence adduced by the prosecution proves the prosecution case beyond doubt. The prosecution has examined an eye-witness who has given accurate account of the incident in question. Sword which is the weapon of assault has been recovered at the instance of the appellant. The injuries sustained by the deceased are consistent with use of sword. Learned APP submitted that the prosecution has successfully proved its case and hence there is no question of giving benefit of doubt to the appellant. She submitted that, therefore, the impugned judgment and order be confirmed. 6. Dr. Champak Lad who had done postmortem on the deceased has produced the postmortem notes. The cause of death is “Shock and haemorrhage following the depressed fracture skull due to the injuries sustained”. When sword Article 6 was shown to him, he has stated that injuries could have been caused by the said weapon. Thus there can be no dispute about the fact that death of Gurunath was homicidal. It is, therefore, 6 mss APEAL+54 not necessary to dilate on this issue any further. 7. PW 1 Jitendra, the brother of the deceased has stated in his evidence that he and his three brothers are in construction business. The deceased also owned a chicken shop in which PW 4 Khairun Shaikh was employed. He knows the appellant as the appellant used to be in the company of the deceased. According to this witness on 12/6/2000 he was present at the construction site. His cousin PW 2 Nandkumar came to his site at about 6 p.m. and disclosed to him that the appellant had assaulted the deceased with a sword. He brought the deceased to the construction site in his jeep. They took the deceased to Godbole Hospital. From there the deceased was taken to Ajit Scanning Centre. Then they admitted the deceased in the hospital of Dr. Dahiwadkar. He then lodged his First Information Report (FIR) which is at Exh.-14. His brother expired on 26/6/2000. This witness has been cross-examined but he has remained firm in the cross-examination. 8. PW 2 is Nandkumar Patil. He has stated that the deceased was his cousin. PW 4 Khairun Shaikh was the employee of the deceased. He knows the appellant because the appellant used to be in the company of the deceased. According to him 2 to 3 months prior to the incident the appellant had taken the motorcycle of the deceased and caused damage to it. Hence 7 mss APEAL+54 there was altercation between the two. On 12/6/2000 in the evening at about 5-40 p.m., he was going towards Birla College in his jeep. When he came near the chicken centre of the deceased, he saw the deceased lying on the road with bleeding injuries on his face and hand. He saw the appellant running away with a sword after assaulting the deceased. PW 4 Khairun Shaikh went to the house of the deceased to inform members of the family of the deceased. After he came back they put the deceased in the jeep and took him to PW 1 Jitendra, who was near Birla College. He informed PW 1 about this incident. After admitting the deceased in Dr. Dahiwadkar’s hospital, he went to lodge the FIR at Mahatma Phule Chowk Police Station. He frankly stated that he could not identify the sword which the appellant had used or the clothes which were on the person of the deceased. Apart from the fact that statement of this witness was recorded two days after the incident, nothing has come on record which can possibly help the defence. He has denied the suggestion that he had not seen the appellant running with the sword. He has denied the suggestion that before he reached the spot, PW 4 Khairun Shaikh had already left the spot. It is true that statement of this witness is not recorded immediately after the incident but from the tenor of his evidence it does not appear that he has concocted a story. Pertinently defence has not asked PW 7 Bhimrao Gaikwad, the Investigating Officer, why the statement of this witness was not recorded immediately after the 8 mss APEAL+54 incident. Therefore, the defence cannot draw any support from this fact. The evidence of this witness is supported by PW 4 Khairun Shaikh. We, therefore, have no difficulty in relying on his evidence. 9. PW 4 Khairun Shaikh has stated that he used to work in the chicken shop of the deceased from 8.00 a.m. to 8.00 p.m. On 12/6/2000 he opened his chicken shop at about 5 p.m. The deceased arrived there at about 5.30 p.m. on Yamaha motor-cycle. He asked him to wash his motor-cycle. He started washing the motor-cycle. He heard a cry ‘Bap Re”. It was voice of the deceased. He saw the appellant inflicting blows after blows on the head and face of the deceased with a sword. He rushed to the deceased to save him but the appellant threatened and asked him to run away. Due to fear he retraced. The appellant ran away to Thanagewadi with a sword. Blood was oozing from the head and face of the deceased. According to this witness at that time PW 2 Nandkumar Patil was passing from there in his jeep. He informed Nandkumar about the incident. They took the deceased in the jeep of Nandkumar to the construction site of PW 1 Jitendra brother of the deceased. From the construction site all of them took the deceased to Dr. Godbole’s hospital. Thereafter he was taken to Dr. Dahiwadkar’s hospital. He succumbed to the injuries on 26/6/2000. This witness identified the appellant in the court. He identified sword Art. 6 when shown 9 mss APEAL+54 to him as the same weapon which was used by the appellant. In his cross- examination Khairun Shaikh has stated that the appellant used to visit the shop of the deceased almost daily. He has stated that his statement was recorded on 12/6/2000. There are no omissions or contradictions brought out in his cross-examination. He has denied the suggestion that he was deposing falsely that he had seen the appellant dealing sword blows on the deceased. Evidence of this witness corroborates the evidence of PW 2 Nandkumar. In our opinion, he is the star witness of the prosecution. 10. PW 5 Surekha Patil, is wife of the deceased. In our opinion, the prosecution cannot draw much support from her evidence because due to the trauma suffered by her she could not depose coherently. This is evident from the fact that learned Judge has observed that her examination-in-chief was deferred because she was emotionally disturbed. Her evidence will have to be read keeping this background in mind. She has stated that the appellant and her husband i.e. the deceased used to move together and the appellant also used to visit their house. She has stated that on 12/6/2000 her husband left the house on a motor-cycle at 4 to 4.30 p.m. At about 5.40 p.m. Khairun Shaikh came to her house and informed her that her husband was attacked by someone with a sword. However, a little later she has stated that PW 4 Khairun told her that the appellant had assaulted her 10 mss APEAL+54 husband. She has further stated that she directly went to the hospital and saw her husband having injuries on his nose and head. Her husband was in the hospital for about 12 days. According to her he had recovered and started talking but was in coma for the last 2 days. She has, however, added that since he had received an injury on his jaw, he could not talk properly. PW 7 Bhimrao Gaikwad, the Investigating Officer has stated that he had gone to Dr. Dahiwadkar’s hospital and asked the doctor whether the deceased was in a position to give statement and the doctor had opined that he was not in a position to give statement. Thus the statement made by PW 5 Surekha that the deceased had recovered and could talk will have to be taken with a pinch of salt. But assuming that he had recovered for a while due to medicines, he could not have given any coherent statement because of the jaw injury. She has further stated that about 8 days prior to the incident, the appellant had taken motor-cycle of the deceased to some place. After he returned, the deceased had slapped him twice and warned him. Though, in our opinion, due to confusion, she has stated in the cross- examination that she had not narrated the above facts to the police, PW 7 Bhimrao Gaikwad, the Investigating Officer has confirmed that she did state those facts to the police. She has denied the suggestion that PW 4 Khairun had not come to her house and informed her about the assault on her husband. She has denied the suggestion that she disliked the friendship of 11 mss APEAL+54 the appellant with her husband. As we have already noted evidence of this witness does not help the prosecution much, but it does not damage it either. She is a rustic witness who was under great mental stress. Allowance must be made for her. 11. PW 6 Mukhtar Khan, is a panch witness. He has stated that on 13/6/2000 he was called by the police. The appellant was present. He expressed his willingness to produce a weapon. His statement was recorded. It is at Exh.-25. Thereafter he, PSI Gaikwad, the appellant and another pancha went in a police jeep towards Thanagewadi from Sindhigate area. The appellant asked him to stop the jeep near the clinic of Dr. Pathak at Thanagewadi. They got down from the jeep. The appellant was ahead of them. They crossed the road and reached near bushes adjoining one drainage. The appellant produced one sword from those bushes. The police seized that sword. They took possession of that sword and prepared seizure panchnama. It is at Exh.-26. This witness has identified the sword Art. 6 when shown to him as the same sword which was recovered by the police. He has identified his signatures on Exhs. 25 and 26. 12. An effort has been made to discredit this witness in the cross- examination. He has frankly admitted that he is acquainted with PSI 12 mss APEAL+54 Gaikwad and that PSI Gaikwad had come to his house to request him to act as a pancha. He has stated that he was a Special Executive Officer and he had to visit police station intermittently. It is not possible to hold that merely because he knew PSI Gaikwad or because he was visiting the police station, he has obliged the police by giving false evidence. His evidence does not suggest this. 13. So far as the memorandum of statement of the accused and the seizure panchnama are concerned, he has stated that he had signed 4 to 5 times at the spot. He has categorically denied that he had signed all papers at the police station. He has volunteered to add that some signatures were made at the spot. He has also added that two documents were written by the police and he had signed on them. This witness has further said that he had signed on the spot on one occasion on a full scape paper and on that full scape paper he had signed only on one side. He has clarified that except on one full scape paper he has not signed on any other full scape paper. He has then said that the police obtained his signature on one full scape paper and cut that full scape paper into pieces. This does not affect the veracity of this witness. It is possible that police took his signatures on a paper and then tore it and prepared a fresh panchnama. After going through the contents of Exh.-26, which is panchnama of seizure of sword, he has stated 13 mss APEAL+54 that he had signed on it at Thanagewadi from where the sword was recovered. In his examination-in-chief he has stated that he was called to the police station. The appellant made a statement which was reduced in writing. It bears his signature and it is at Exh.-25. In cross-examination he has stated that he cannot say at which place in Kalyan city he had signed Exh.-25, even after going through its contents. From this it cannot be concluded that Exh.-25 was not made at the police station because Exh.-25 no where indicates that it was made at the police station. Therefore, the witness has correctly answered the question that after reading Exh.-25 it cannot be said at which place in Kalyan city he had signed it. He has then said that Art. 6 which is a sword was not wrapped in a paper when he had seen it on the spot near clinic of Dr. Phatak but in the court it was wrapped in a paper. He has then said that it is correct to say that he had seen the sword wrapped in paper for the first time in the court. This statement is quite consistent. What the witness has conveyed is that when he saw Art. 6 at the spot there was no paper wrapped around it. In the court for the first time Art. 6 sword was shown to him wrapped in a paper. We do not find any inconsistency in the evidence of this witness. Evidence of this witness is also corroborated by evidence of PW 7 Shri Gaikwad, the investigating officer. We have no hesitation in placing reliance on this witness. 14 mss APEAL+54 14. PW 7 Shri Gaikwad, the investigating Officer has given details of the investigation. He has deposed about the arrest panchnama which was effected on 12/6/2000. It is at Exh.-29. The prosecution has not examined either of the panchas who have signed on this panchnama. However, in our opinion, since evidence of PW 7 Shri Gaikwad is consistent non- examination of pancha witness does not affect the prosecution case adversely. Shri Gaikwad has no axe to grind against the appellant. There is nothing on record to come to a conclusion that he has falsely implicated the appellant. He has stated that he seized the clothes which were on the person of the appellant. He has identified the clothes of the appellant when shown to him in the court. He has also deposed about Exh.-25 which is the statement of the appellant recorded under Section 27 of the Indian Evidence Act. He has also deposed about discovery of sword from near a building at Thanagewadi. He has identified his signature on seizure panchnama Exh.-26. He has identified the sword which was shown to him. He has stated that he visited Dr. Dahiwadkar’s hospital to ascertain the condition of the deceased. According to him the doctor opined that the deceased was not in a position to give statement. In the cross-examination, he has denied that he obtained 7/8 signatures of PW 6 Mukhtar Khan on plain full scape paper. He has stated that PW 5 Surekha did say before him that the relations between the appellant and the deceased were strained on account of the fact 15 mss APEAL+54 that the appellant had damaged the motor-cycle of the deceased. He has denied that he has falsely implicated the appellant on the say of PW 2 Nandkumar. We find PW 7 Shri Gaikwad to be a reliable witness. 15. Chemical Analyser’s reports Exhibits 38 and 39 also furnish important evidence. Arrest panchnama Exh.-29 mentions that clothes of the accused which were seized on 12/6/2000, immediately after the incident, were stained with blood. Chemical Analyser’s report Exh.-38 states that blood found on the said clothes was human. The result of analysis of the said blood was inconclusive. The prosecution unfortunately did not send the blood of the deceased for analysis. The investigating officer has not given any satisfactory explanation for this lapse. However, since it is not anybody’s case that the appellant was injured finding of human blood on the clothes of the appellant is significant and is an incriminating circumstance against him. The Chemical Analyser’s report states that blood of ‘B’ group was found on the clothes of the deceased, on the sword Art. 6 and on the hair found on the sword. The blood group of the appellant as per the Chemical Analyser’s report is ‘A’. Thus the finding of blood of ‘B’ group which was found on the clothes of the deceased, on the sword, discovered at the instance of the appellant, is also an incriminating circumstance against him. 16 mss APEAL+54 16. The contention of Ms. Jakhade that because the appellant has been acquitted under Section 125(1-B)(b) of Arms Act and under Section 135(ii) of the Bombay Police Act and the State has not appealed against that acquittal, the conviction of the appellant under Section 302 of the IPC must be set aside, has no substance. This acquittal was recorded because the investigating officer failed to prove that the Commissioner of Police, Thane, had promulgated any order under Section 37 of the Bombay Police Act. There was no evidence before the court that any such order was in force. It is in these circumstances that the trial court acquitted the appellant under Section 135 of the Bombay Police Act, which provides for penalty for contravention of rules or directions issued under Sections, 37, 39 and 40 of the Bombay Police Act. The appellant was acquitted of offence under Section 25(1-B)(b) because the prosecution could not produce any evidence that the Central Government had issued any Notification under Section 4 of the Arms Act. Failure to prove these offences has no relevance to the case of the prosecution that the appellant had committed an offence under Section 302 of the IPC. 17. In the ultimate analysis, in our opinion, the prosecution has proved its case beyond reasonable doubt. PW 2 Nandkumar, the cousin of the deceased and PW 5 Surekha, the wife of the deceased have spoken about the 17 mss APEAL+54 strained relationship between the appellant and the deceased on account of the fact that the appellant had used the motor-cycle of the deceased and the deceased had slapped him. 18. PW 4 Khairun Shaikh has given eye-witness account of the incident in question. His presence at the scene of offence is natural because he is the employee of the deceased. His evidence is corroborated by PW 5 Surekha, the wife of the deceased and PW 2 Nandkumar, the cousin of the deceased. PW 4 Khairun Shaikh’s statement is recorded on the next day of the incident. His evidence has a ring of truth. Weapon of assault, the bloodstained sword is discovered at the instance of the appellant. His clothes which