drp {1} Cri. Appeal No.210/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.210 OF 2009 Balaji s/o Kisan Shinde APPELLANT Age-20 years, Occ-Labourer R/o Malegaon, Tq-Ardhapur, Dist-Nanded VERSUS The State of Maharashtra RESPONDENT ....... Mr. S.S.Panale, Advocate for the appellant (Appointed) Mr. B.V.Wagh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 9 th December 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer S.I. for 3 months, vide judgment and order dated 07.08.2008 passed by Additional Sessions Judge, Nanded in Sessions Case No.202/2007, has questioned the correctness and legality of the said judgment by preferring the present criminal appeal. drp {2} Cri. Appeal No.210/2009 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- a) Hanmantu Nathuram Gaikwad (PW-8) was attached to Nanded (Rural) police station, as PSI. On 28.08.2007, on the complaint (Exhibit-11) of Yashwant Shinde (PW-1), an offence at Crime No.203/2007 was registered for an offence punishable u/s 302 of the Indian Penal Code, against the appellant. Investigation of the said crime was entrusted to PW-8 Gaikwad. Thereafter, PW-1 identified the dead body as of his father and the IO drew inquest Panchanama (Exhibit-12). b) Dr.Anjali Patil (PW-6) conducted Postmortem on the dead body. She noticed the following injuries on the dead body - i) Contused lacerated wound of 3 cms X 2 cms on right tempo parietal region. ii) CLW of 4 cms X 2 cms. On right mastroid region. Iii) CLW of 4 cms X 2 cms on right parietal region. On internal examination it was noticed that huge haematoma on right and left tempo parietal region with intra cerebral bleeding. Accordingly, she prepared drp {3} Cri. Appeal No.210/2009 Postmortem report (Exhibit-26). According to her the cause of death is due to the said injury. She had collected blood sample of deceased for ascertaining his group, which was later on forwarded to CA for analysis. c) PW-8 visited the place of offence, situated in the agricultural field of PW-4 Mohd. Mudsaroddin at village Brahmapuri and drew the spot Panchanama (Exhibit-19). He had also collected one big thick wooden stick (Article-1), blood mixed soil and plain soil. P.C. Gajbhare produced clothes of the deceased, which were seized under Panchanama (Exhibit-17). Statements of certain witnesses were recorded. d) Appellant was arrested on 29.08.2007 under arrest Panchanama (Exhibit-32). While in custody, the appellant made a disclosure statement (Exhibit-23) in presence of witnesses. The appellant produced one full pant and one shirt (Articles 8 and 9),which were seized under Panchanama (Exhibit-23A). The seized articles were sent to CA for analysis along with covering letter (Exhibit-33). Thereafter the CA report (Exhibit-34) was received and after completion of the investigation charge sheet was submitted against the appellant before the JMFC, Nanded, who after passing requisite committal order, committed the trial to the Court of Sessions, drp {4} Cri. Appeal No.210/2009 Nanded. e) Additional Sessions Judge, Nanded, framed charge (Exhibit-4) for an offence punishable u/s 302 of the Indian Penal Code. The appellant pleaded innocence and claimed to be tried. The prosecution has examined total 8 witnesses to prove the charge against the appellant, including PW-1-complainant-Yashwant, real brother of the appellant, who proved the FIR (Exhibit-11), PW-2 Vinayak Magare, Pancha witnesses to seizure of clothes of the deceased (Exhibit-17), PW-3 Hashmi Sayyed, Pancha to the Spot Panchanama (Exhibit-19), PW-4 Mohd Mudsaroddin, who had last seen the appellant in the company of the deceased, PW-5 Juned Salim, to prove the memorandum statement (Exhibit-23) and recovery of clothes of the appellant (Exhibit-23A), PW-6 Dr.Anjali Patil, who had conducted the Postmortem on the deceased and had prepared Postmortem report (Exhibit-26), PW-7 Shivaji Ipper, PSO before whom the appellant had made the confessional statement and PW-8 Hanmantu Gaikwad, investigating officer in the crime. On appreciation of the evidence of these witnesses, the trial court convicted the appellant, which judgment is impugned in the present offence. 3. Before we embark upon the rival submissions, it is necessary drp {5} Cri. Appeal No.210/2009 to advert to the evidence of material witnesses. 4. It is in the evidence of PW-1 Yashwant that the appellant is his brother, who was residing with his deceased father in the field of one Ingale at Bonder. The appellant was jobless and used to demand money from his father and when his father used to refuse to give the money, he used to took quarrel with the deceased. On the day of the incident, he received information at about 11.00 a.m. that his father is dead and the appellant was absconding. He reached at the spot at 11.30 a.m. and saw the dead body of his father, he also saw that blood was oozing from the head of his father and one stick was found lying near the dead body. On enquiry, the manager of Ingale informed that since the occurrence of the incident, the appellant was absconding. Thereafter, he lodged complaint (Exhibit-11) against the appellant. Perusal of his cross examination indicates that his evidence is not shaken even in his cross examination. 5. It is in the evidence of PW-4 Mohd. Mudsaroddin that his field is situated in the vicinity of village Brahmapuri. The deceased was working on his field. The deceased was residing in a hut and occasionally, the appellant was residing with the deceased. The appellant used to take quarrel with the deceased on account of demand of money. The incident took place in the night between 26.08.2007 and 27.08.2007. He was present in his field till the evening of 26.08.2007 till then the appellant was present in the drp {6} Cri. Appeal No.210/2009 field along with the deceased. In the morning of 27.08.2007, he learnt about the death of Kisan from his servant. He came to his field and verified the same and found that the appellant was not present there. He informed the complainant, who arrived in the field around noon. Relatives of the deceased were also called there. Yashwant lodged a complaint and on the next day morning the police took the dead body to the hospital. It has came in his cross examination that the deceased was engaged by his father on 26.08.2007. In his presence no quarrel took place between the appellant and the deceased. Field workers were also residing in the nearby fields. Four to five persons accompanied Yashwant to his field. He denied that in collusion with each other the appellant is falsely implicated in the said offence to avoid the payment of compensation. 6. In this background heard submissions of learned counsel for the appellant followed by learned APP. Learned APP supported the impugned judgment of conviction and urged to dismiss the appeal. 7. Learned counsel for the appellant urged that the case of the prosecution rests on circumstantial evidence and hence it was necessary to prove the motive behind the crime, which, according to learned counsel for the appellant, the prosecution has failed to establish. It is also urged that the prosecution has also failed to establish the exact time of death of the deceased so also drp {7} Cri. Appeal No.210/2009 the presence of the appellant at the relevant time at the place of the incident. According to learned counsel for the appellant, the evidence of recovery of clothes of the appellant is shaky and hence to be discarded. According to him, considering these infirmities in the evidence, benefit of doubt be given to the appellant and he be acquitted. Relying on the observations of the Apex Court in the matter of “Gokul Parashram Patil V/s State of Maharashtra” AIR 1981 SC 1441, in the alternate it is urged that as the death of the deceased is caused due to single blow, as per the PM report, the conviction of the appellant be altered from the offence punishable u/s 302 of the Indian Penal Code to offence punishable u/s 304 Part II of the Indian Penal Code and the appellant be sentenced to imprisonment for the period which he has already undergone. 8. Considering the rival submissions, we are in agreement with the submission that the case of the prosecution rests on circumstantial evidence. These circumstances are - 1. Soon before the incident the appellant and the deceased were seen together. 2. Appellant was jobless and was demanding money from deceased and on refusal used to took quarrel with the deceased. 3. Immediately after the incident, the appellant was absconding. drp {8} Cri. Appeal No.210/2009 4. Death of the deceased is a homicidal one. 5. Blood of the group of the deceased was found on the clothes of the appellant. 9. According to us, first three circumstances stand established from the evidence of PW-1 – complainant- Yashwant and PW-4 Mohd. Mudsaroddin. At the material time, the appellant was jobless and was absconding from the scene of the offence till his arrest on 29.08.2007 are undisputed facts. 10. Though PW-6, Dr.Anjali Patil, in her cross examination, agreed that the injuries mentioned in column No.17 of the PM report (Exhibit-26) are possible if a person falls on a stone, yet neither the spot Panchanama (Exhibit-19) nor PW-3, Hashmi Sayyad, a Pancha witness to the spot Panchanama, has stated about existence stone stained with blood or even a stone at the spot of incident, which wipes out the possibility created in the cross examination of the medical officer Dr.Anjali Patil. In other words, evidence of PW-6 Dr.Anjali Patil is sufficient to establish that the death of the deceased is homicidal one and not accidental. 11. Recovery of the clothes of the appellants is proved from the evidence of PW-5 Juned Salim. No doubt, signature of appellant is not obtained on his memorandum statement (Exhibit-23) recorded in presence of PW-5 (Exhibit-23A), however it is not sufficient to discard the evidence of PW-5 as Exhibit 23A drp {9} Cri. Appeal No.210/2009 pertains to the recovery of clothes at the instance of the appellant, which is duly proved. It is not even disputed by the appellant in his statement recorded u/s 313 of the Criminal Procedure Code that the clothes seized at his instance were not his clothes. 12. During the investigation, blood of the appellant was collected and was sent for analysis, report of which is at Exhibit-38. Exhibit-38 indicates that the blood group of the appellant is “AB”. As per the report of the CA (Exhibit-37), group of the blood of the deceased is “B”. As per the report of the CA, the blood found on the clothes of the appellant is of “B” group, which matches with the blood group of his father (deceased), which was found on the clothes of the appellant which were recovered after 3 days from the arrest of the appellant, i.e. after 5 days of the the occurrence of the incident. The blood found on the stick, which was recovered from the spot, is a human blood. The appellant has not offered any explanation to the effect that as to how the blood of “B” group, i.e. blood group of his father, was found on his clothes. 13. From the analysis of the material evidence on record, the circumstances indicate that the chain is complete to point out the guilt of the appellant that he has caused the death of his father. Now, coming to the citation relied upon by the appellant i.e. “Gokul Patil V/s State” referred supra. Perusal of the observations of the Apex Court, particularly paragraph No.3 to 5 demonstrates that in the said case a single blow given by the appellant was on drp {10} Cri. Appeal No.210/2009 the “Non vital part” and the appellant was not knowing the effect of it. As against this, the medical evidence in the present case clearly demonstrate that the blow was given by the appellant on the vital part / organ of the deceased, which resulted into death of the deceased. Therefore, the present case clearly covers u/s 300 thirdly, punishable u/s 302 of the Indian Penal Code and cannot be converted into punishable u/s 304 Part II of the Indian Penal Code. 14. For the above discussion, we are of the considered view that there is no merit in the appeal, which requires interference by this Court. Therefore, the appeal deserves to be dismissed. 15. Consequently, the appeal fails and accordingly dismissed. We appreciate the able assistance rendered by the learned counsel appointed on behalf of the appellant and quantify the fees payable to Mr.S.S.Panale, learned counsel appointed to represent the appellant in this appeal at Rs.5000/-. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel210-09