1 cria150-92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.150/1992 The State of Maharashtra .. APPELLANT [ORIG.COMPLAINANT] VERSUS 1] Raju s/o Bhagwan Kothimbire Age 22 yrs, Occ-Education. 2] Mehboob s/o Dastgeer Shaikh age 19 yrs, Occ-Business 3] Hariram s/o Vishwanath Singanath age 24 years, Occ-Education 4] Vijay s/o Bapusaheb Katale age 20 yrs, Occ-Education [Appeal abated against R.4 vide Court’s order dt. 14/8/08] All r/o Latur, Tq.& Dist.Latur .. RESPONDENTS [ORIG.ACCUSED] .... Smt.Rekha K.Ladda,APP for appellant Shri V.D.Hon,Adv.for Respondent No.1 Shri R.M.Dhorde,Adv.for Respondent no.2. 2 cria150-92 Shri A.A.Mukhedkar,Adv.for Respondent no.3. .... CORAM : NARESH H.PATIL & T.V.NALAWADE,JJ. RESERVED ON : 08/4/2011 PRONOUNCED ON :20/4/2011 JUDGMENT : [PER PATIL,J.] The respondents were charged for an offence punishable under Section 302 of I.P.C. simplicitor and under Section 302 r.w. 34 of I.P.C. for committing murder of Madan Baburao Nalawade on 27/2/1991 at about 9 a.m. Charge was framed on 11/10/91 in Sessions Case No. 93/91 by Second Additional Sessions Judge, Latur. 2] By judgment and order dated 30/11/91, learned trial Judge acquitted all the respondents from the charges. The State preferred present appeal against the said judgment and order. 3] The prosecution case in brief is that complainant Ramchandra Baburao Nalwade runs a hotel on Latur Ausa road. He also runs a Raswanti shop. The deceased Madan is younger brother of the 3 cria150-92 complainant. The hotel of the complainant P.W.3 Ramchandra is adjacent to Khardekar building. It is alleged that Madan was taking education in I.T.I. institute and used to look after the hotel and Raswanti business. It is alleged that the incident in question took place on 27/2/91 at about 9 a.m. P.W.3 Ramchandra and his brother were sitting at the counter of the hotel. At that time, Raju Kothambire respondent no.1 and other 3 accused persons came to their hotel. Raju Kothambire was wearing black strips blue coloured T-shirt and jeans pant of blue colour. Some quarrel took place between Raju and deceased Madan. It is alleged that Raju gave 2 fists blows to Madan. P.W.3 Ramchandra intervened in the quarrel. Maternal uncle of Ramchandra Subhash Khandade, Vaijinath Dhage, Sambhaji Shinde and one Shri Alapure intervened. The respondents left the hotel thereafter. Some quarrel took place on account of hotel bill in between the deceased and Raju. It is alleged that at about 10 a.m., all the respondents again came to the hotel. Respondent no.1 Raju was armed with a dagger in one hand and motor cycle chain in another. The respondents called Madan to come outside the hotel. Ramchandra asked Madan not go go out. Thereafter, respondent no.1 entered the hotel, gave two fist blows to Madan and dragged him out. Ramchandra tried to intervene, but he was assaulted with a motor 4 cria150-92 cycle chain on his left hand. It is alleged that Raju and others took deceased Madan towards Nirmal complex. Ramchandra followed them. The other persons sitting in the hotel including Subhash, Vaijinath rushed to the spot. P.W.4 Subhash Khandade thereafter noticed that Raju Kothambire gave blow with a dagger on the right side inguinal region. The deceased thereafter, after receiving a blow, fell on the ground. Blood started oozing from the injury. The respondents thereafter, ran towards northern side i.e. to Latur side and thereafter turned to east side and ran away. Persons gathered, took the injured to Jaju hospital. Madan expired in the hospital on the very day. 4] P.W.3 Ramchandra filed a complaint to Shivajinagar police station,Latur which was recorded by police [Exh.28]. Ramchandra was also treated in the hospital. Police started investigating the offence. On the very day, A.S.I. Joshi produced respondent no.1 Raju alongwith a panchanama. A jambia was produced by respondent no.1. Panchanama of clothes was also drawn (Exh.25). Spot panchanama was drawn by police (Exh.26). Motor cycle chain, two chappals, one iron ladder were seized and blood stained earth was collected. Panchanama of hotel of the complainant and deceased was drawn [Exh.16]. Provisional death certificate of the deceased was issued [at 5 cria150-92 Exh.17]. Clothes of the deceased were produced under panchanama Exh.33. The police recorded statements of witnesses on the next day i.e. on 28/2/91. The rest of the respondents were arrested. Articles were sent to the Chemical Analyser. After completion of the necessary investigation, police filed charge sheet. 5] P.W.3 is Ramchandra Nalawade who is the complainant in this case and brother of deceased Madan who has deposed against the respondents blamed respondent no.1 for causing fatal injury to deceased Madan due to which he succumbed and died. Ramchandra claimed to be eye witness to the incident. He lodged complaint on the same day to police and thereafter, investigation started. In his deposition before Court, he stated that there was no enmity between deceased and respondent no.1 Latur Ausa road is a busy road and the main road having several hotels, shops and pan shops. 6] The prosecution witness no.4 is Subhash. The complainant and deceased are sons of wife’s brother of this witness. He deposed to the Court that he runs a grocery shop on Latur Ausa road known as “Khandade Traders”. On 27/2/1991, at about 9 to 9.15 a.m. he was in his shop. A neighbour told him that quarrel took place infront of hotel 6 cria150-92 of Ramchandra, so he went to the hotel and noticed that 4 boys were quarreling with complainant Ramchandra and deceased Madan. He noticed that out of 4 boys, one boy gave call to Madan and asked him to come outside the hotel. He intervened the quarrel alongwith others. Thereafter, 4 boys left the hotel. After some time, he noticed that some boys gathered infront of the hotel of Ramchandra who were the same persons who had come to the hotel in the morning. He deposed that one boy viz. Raju was holding a knife in one hand and cycle chain in another. He noticed that the respondents were quarreling and instigating him and provoking him to come out of the hotel. The witness went to the spot by Luna. When he reached the spot, he noticed that respondent no.1 Raju gave a blow of Jambia on the right inguinal region of the deceased. After the said assault, Madan fell on the ground infront of Rama Departmental Stores. The assailants ran towards Sitaram Nagar according to this witness. In cross examination, the witness stated that prior to the incident, he did not know name of accused Raju. 7] P.W.5 Laxman Chougale who is a labourer in the hotel of deceased. He too deposed before the Court that the morning incident was witnessed by him, where respondents had a quarrel with 7 cria150-92 deceased Madan and thereafter, they left. They again came to the hotel. At that time, respondent no.1 Raju was possessing a knife and motor cycle chain. The witness deposed that respondent no.1 entered the hotel and assaulted P.W.3 Ramchandra and Madan by motor cycle chain. Thereafter, they took Madan outside the hotel. At that time, he was busy in his work. He went to the spot with iron ladder which was possessed by him and he noticed that Madan was lying on the ground and blood was oozing from the person of Madan. He also noticed a knife in the hand of Raju which was stained with blood. Thereafter, the respondents ran away. Complainant Ramchandra was chasing accused Raju. He identified respondent no.1 Raju, but he could not identify other respondents. In his cross examination, the witness deposed that he learnt the name of Raju from the persons who gathered on the spot. He never made any attempt to assault respondent Raju. The witness stated that near about 60-65 persons were present on the spot. He saw that respondents were dragging Madan. The witness stated that the complainant Ramchandra, one Dhage and other persons were chasing Raju. 8] P.W.6 Vaininath Dhage runs a pan stall on Latur Ausa road adjacent to Ramchandra’s hotel. He too narrated the incident which 8 cria150-92 took place in the morning and thereafter the second incident where he had seen Raju possessing knife in his hand. He locked his pan stall and ran towards Nirmal complex and he noticed that Madan was lying on the ground. The witness deposed that he noticed respondent Raju running with a blood stained knife in his hand and other 3 persons. The witness stated that he chased Raju. Then police accosted Raju at ring road. The witness stated that police attached knife from Raju which was stained with blood. The knife was attached under panchanama. Clothes of Raju were also stained with blood. They were also attached under panchanama. In his cross examination, the witness deposed that the statement was recorded after 2 days of the incident. 9] P.W.7 is Datta Narod, police inspector. This witness recorded complaint filed by Ramchandra at 11 a.m. and started investigation of the case. He stated that on the date of the incident, A.S.I. Joshi produced respondent Raju alongwith a panchanama. Jambia and clothes of the accused were also produced alongwith panchanama (Exh.25). The investigating officer arrested other accused persons and after completion of investigation, filed charge sheet. 9 cria150-92 10] The learned counsel Shri Hon appearing for respondent no.1 submitted that the prosecution has failed to prove its case beyond reasonable doubt. Some of the prosecution witnesses are closely related to the deceased. They have not seen the alleged incident in question. The prosecution has not examined independent witness. It was submitted that the prosecution witness no.4 has not seen the incident. The narration of assault by respondent no.1 Raju is not corroborated by other circumstance on record. P.W.5 has also not witnessed the incident and P.W.6 saw Madan lying on the ground. Police did not undertake identification parade of the respondents. The learned counsel submitted that there was no motive to commit murder of deceased Madan. The view adopted by the trial Court being a possible view of the matter, the counsel prayed for dismissal of Appeal. 11] The learned A.P.P. Mrs.Ladda submitted that the prosecution has led direct credible evidence in this case. There are eye witnesses in this case and there are several circumstances corroborating the evidence of the witnesses. Prompt complaint was lodged and respondent no.1 was arrested on the same day. Blood stained dagger and clothes on the person of respondent no.1 were seized on the same day. The incident took place in 2 parts. In the earlier part, 10 cria150-92 respondent no.1 quarreled with deceased, gave him blows and ran away. Thereafter, respondent no.1 armed with deadly weapon alongwith 3 other persons came and called deceased Madan to come out of hotel, when Madan was not willing, respondent no.1 entered the hotel and dragged deceased Madan out of the hotel and thereafter gave a fatal blow to Madan, due to which he died. The intention to commit murder according to learned A.P.P. is clearly established. Learned A.P.P. further submitted that blood stained knife and clothes of accused persons alongwith other circumstances corroborated the testimony of the prosecution witnesses. Police had investigated the offence promptly. According to learned A.P.P., the trial Court committed error in acquitting respondents. The trial Court led much emphasis on identification of respondents. Murder was committed in broad day light on busy road and if such offences go unpunished, then it would be an unhealthy indication to the society at large according to learned A.P.P. 12] The learned counsel appearing for remaining 2 respondents have adopted the arguments advanced by learned counsel Shri Hon and submitted that the respondents 2 to 4 were not identified by any of the prosecution witnesses. They had no intention to participate in the 11 cria150-92 assault on deceased Madan. The charge framed against them is not established. Even according to prosecution, they had no role to play. 13] We have considered the evidence on record. We have perused original record, the evidence led by prosecution, judgment of the trial Court and considered the submissions advanced by learned counsel appearing for respective parties. 14] We find that the prosecution had examined witnesses who were running business on the Latur Ausa road. P.W.3 Ramchandra Nalawade with whom deceased Madan was sitting in the hotel on 27/2/91 had given a clear picture of the incident which took place in the morning hours. After quarreling with deceased Madan, respondent no. 1 alongwith other respondents left the place and came to the hotel armed with a dagger and a chain. Then respondent no.1 asked Madan to come out of the hotel, Ramchandra was not in favour of Madan going out of hotel. Thereafter, respondent no1 entered the hotel and dragged Madan outside and gave blow on the vital portion of the body with the aid of knife. The blow was vital and due to which Madan died. We find that P.W.3 was a natural witness. Just because he was brother of deceased Madan, his evidence cannot be brushed aside. 12 cria150-92 There was every opportunity for this witness to see the incident for himself and accordingly he has deposed before the Court. P.W.5 Laxman Chougule stated that when he reached the spot, he saw that Madan was lying on the ground. In the evidence of P.W.6 Vaijinath Dhage, it has been very clearly stated that the respondent no.1 was armed with a knife and chain. Sensing the seriousness of the matter, he locked his pan stall and went towards Madan and he noticed that Madan was lying on the ground and he saw respondent no.1 Raju running with a knife in his hand which was blood stained and other respondents were also running from the spot. He chased respondent no.1 Raju upto the ring road. It was 12 noon according to the witness. At that time, he stated that police also reached and accosted respondent no.1 Raju at ring road. We find no difficulty to accept the evidence of this witness. There is no exaggeration in his deposition. His deposition is corroborated by the evidence of investigating officer who stated that A.S.I. Joshi produced respondent no.1 on the same day alongwith blood stained clothes and a knife. 15] The prosecution witnesses have narrated the incident as it happened. From the evidence on record, it can be gathered that the prosecution witnesses could not properly identify respondent no.2 to 13 cria150-92 4 . No overt acts are mentioned in respect of respondents 2 to 4. It is possible that respondents 2 to 4 were not aware as to how respondent no.1 Raju was to react on the second occasion when they went to the hotel of deceased Madan. The case of the prosecution in respect of respondents 2 to 4 is not convincing that they were sharing common intention to commit murder of deceased, or cause severe bodily injury. 16] The prosecution has placed reliance on other circumstances. The police seized dagger from respondent no.1 on which human blood was found. Though the result of C.A. in respect of blood group was not conclusive. In fact no blood group could be detected on the articles which were found on the clothes of respondent no.1 and the weapon i.e. dagger used by him, whereas, on the clothes of the deceased i.e. shirt, baniyan, jangia, blood group “A” was detected. Even though blood group was not detected on the dagger and the clothes of the accused by the chemical analyser, the same would not diminish the evidential value of prosecution evidence. The prosecution has established cogent and reliable circumstances which support the version of eye witnesses in its entirety. The prosecution case against the respondent no.1 in respect of his involvement in the commission of the crime, deserves credibility. The incident took place in a broad day 14 cria150-92 light on a busy road surrounded by so many shops. There was certainly a possibility for these witnesses to see what was happening around and identify the assailant. 17] On behalf of defence, it was submitted that identification parade was not held. In the circumstances of the case, we do not find that it would provide any infirmity in the prosecution case in the light of the evidence of the prosecution witnesses. 18] P.W.1 is Mrs. Ujawala Kshirsagar-medical officer of Civil Hospital, Latur, who conducted post mortem on the dead body of deceased Madan on 2.45 p.m. on 27/2/1991. She found one surface wound on the dead body. The injury was described as incised wound over right inguinal region 4”x3”x6”. It was a vessels injury. The said injury was ante-mortem injury. The probable cause of death was stated to be hemorrhagic shock due to injury. The injury certificate is at Exh.19. According to doctor, injury was sufficient in ordinary course of nature to cause death. In the cross examination, the doctor stated that the death must have been caused within 2 to 3 hours after ingestion of food stuff. The injury received by deceased Madan according to witness was not on vital part of the body. 15 cria150-92 19] P.W.2 is Anil Gunjarge. He was called by police for drawing panchanama of personal search of respondent no.1. A jambia was found in his hand which was attached alongwith shirt and pant of respondent no.1 Raju. He noticed blood stains on the said jambia and the clothes. P.W.3 Ramchandra was also examined by Doctor who received injuries in the first incident. Injury certificate was issued (Exh. 18). P.W.3 Ramchandra suffered 2 injuries; 1 abrasion on left elbow joint and one abrasion on lumpar region right side. 20] Considering the evidence on record, the corroborative evidence which are incriminating in nature, prompt arrest of respondent no.1, seizure of weapon, blood stained clothes, we find that the prosecution has made out its case against respondent no.1. The prosecution witness chased respondent no.1 and he was arrested by A.S.I. Joshi. His presence on the spot, his involvement in the crime is established beyond reasonable doubt. The trial Court has committed error in not appreciating evidence against respondent no.1. Even if identification parade was not held, the case of the prosecution against respondent no.1 is not weakened. The prosecution has made out a reasonably sound case against respondent no.1. 16 cria150-92 21] Witnesses identified respondent no.1 Raju and after arrest of Raju, they came to know that his name was Raju Kothambire. The trial Court referred to the report of C.A., wherein it was noticed that no blood group was noticed on the dagger and the clothes of the accused as result was inconclusive. The trial Court observed that it was difficult to say that the same clothes which were seized from the person of respondent no.1 were sent to C.A. and they belong to him, as no forwarding letter was produced on record. 22] The learned A.P.P. placed reliance in the case of Bhagwan Singh & Others V/s State of M.P. (2002) 4 S.C.C. 85. The principles behind hearing the criminal appeal against acquittal filed by the State are well settled. The Apex Court in the case of C Mangesh and others V/s State of Karnataka (2010) 5 S.C.C. 645 para 36 observed as under : “36] In an appeal preferred under Section 378 Cr.P.C. no doubt, it is true that the High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, 17 cria150-92 following conditions should be always kept in mind, namely, [i] the presumption of innocence of the accused should be kept in mind; [ii] if two views of the matter are possible view favourable to the accused should be taken; [iii] the appellate court should take into account the fact that the trial Judge had the advantage of looking at the demeanour of the witness; and [iv] the accused is entitled to the benefit of doubt. But the doubt should be reasonable that is the doubt which a rational thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Ext.P-29 and Ext. P-30 as dying declarations itself had become questionable.” 23] The learned counsel Shri Hon appearing for respondent no.1 submitted in the alternative that the incident in question took place in the year 1991. The respondent no.1 had no motive to commit alleged 18 cria150-92 crime, neither he intended to commit murder of deceased. The blow was not given on vital part of the body and considering the manner of assault, it can safely be gathered that respondent no.1 never intended to cause injury which would result in death of deceased Madan. 24] From the evidence on record, considering the submissions we find that the prosecution has failed to establish its case against respondents 2 to 3. We hold that the prosecution established its case beyond reasonable doubt against respondent no.1 Raju Kothambire. The question is what offence respondent no.1 has committed in the present case. It has come on record that in the early morning, respondent no.1 had a quarrel with deceased Madan, thereafter, he went back and came alongwith others to the spot armed with a dagger. The quarrel took place on a trivial matter on account of hotel bill. There is no previous history of enmity. Even according to the prosecution witness, no sooner did Madan came out, respondent no.1 inflicted blow with the help of knife. Respondent no.1 gave a single blow on the person of deceased Madan. Considering all these aspects of the matter, we find that respondent no.1 cannot be convicted and sentenced for offence under Section 302 of I.P.C. We are of the view that the respondent no.1 could be convicted for offence 19 cria150-92 punishable under Section 304 Part II of I.P.C in the facts and circumstances of the present case. 25] The appeal filed by the State is partly allowed. The respondent no.1 Raju Kothambire is convicted for an offence punishable under Section 304 Part II of I.P.C. He is sentenced to suffer rigorous imprisonment for 5 years and fine of Rs.5000/-, in default, to suffer rigorous imprisonment for 6 months. Respondent no.4 is dead, hence appeal abated against him vide Court’s order dated 14/8/2008. Appeal against respondents 2 and 3 stands dismissed. Respondent no.1 is entitled to get set off for the period during which he was in jail. [T.V.NALAWADE,J.] [NARESH H.PATIL,J.] umg/cria150-92 20 cria150-92