- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.133 OF 2008 Fakira @ Prakash Jayram Pol, Age 33 years, Occ. Agri., R/o Salwadi, Taluka Kalamnuri, District Hingoli. ... APPELLANT VERSUS The State of Maharashtra, through Basamba Police Station, (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENT ----- Shri R.R. Karpe, Advocate for the appellant (appointed) Shri S.D. Kaldate, A.P.P. for the respondent ----- CORAM : P.V. HARDAS AND N.D. DESHPANDE, JJ. DATED : 25th January, 2010. ORAL JUDGMENT (PER HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code, by the Additional Sessions Judge, Hingoli, by judgment dated 12.3.2008 in Sessions Trial No.40/2007, and sentenced to imprisonment for life and to pay fine of Rs.1000/- with a default stipulation of undergoing further S.I. for six months in the event of non payment - 2 - of fine, by this appeal, questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.10 Laxman Pole, Police Head Constable attached to Basamba Police Station, recorded the complaint of P.W.9 Bhimrao at Exhibit 34. On the basis of the aforesaid complaint, he registered an offence and handed over the investigation. P.W.15 Ramkrishna Kale, who was then attached to the Basamba Police Station as A.P.I. and on being informed about the murder of deceased Gautam, proceeded to the scene of the offence. He, accordingly, proceeded to the scene of the offence and in the presence of P.W.1 Baban, drew the scene of offence panchanama at Exhibit 11. From the scene of the offence, certain articles came to be seized. In the presence of P.W.2 Bhaurao, an inquest panchanama at Exhibit 13 came to be drawn. The dead body of deceased Gautam was referred for post mortem examination and post mortem came to be conducted by P.W.4 Dr. Namdeo Dighole. P.W.4 Dr. Namdeo Dighole noticed the following external injuries on the dead body of deceased Gautam:- (1) Stab wound over abdomen in epigastric region - 3 - just on the right side 2 cm. from the midline, it was oblique in size was 4 cm. x 1 ½ cm. deep in to the abdominal cavity. It was spindle shaped. Margin were clearcut. (2) Stab wound over the abdomen at left side in hypochondric region 2 cm. lateral on left side of midline. It was vertical in direction. Size was 3 x 1 ½ cm. deep in abdomen cavity, spindle shaped. (3) Stab wound over the zippisterhum middle transverse in direction, spindle shaped, size was 3 x 1 ½ cm. deep to abdomen. (4) Abrasion over the left chest just lateral to 2 cm. zippister num on left side to midline. (5) Incised wound over the right forearm middle laterally, oblique in direction 6 cm. x 3 cm. x 1 cm. deep. Spindle shaped. Blood stained margine clean- cut. (6) Incised wound over the left forearm middle laterally dorsal surface vertical spindle shaped, size 3 x 1 ½ cm. x ½ cm. deep. (7) Incised wound over the left hand between the thumb and index finger in the groove size 3 x 2 x 1 cm. (8) Abrasion over the neck on both sides laterally, transverse in direction 2 cm. width from front to angle - 4 - of mandible on both sides. (9) Abrasion over the left leg laterally size 8 x 3 cm. (10) Abrasion over the right knee size 2 x 1 cm. All injuries were ante-mortem, caused within 24 hours. On internal examination, he noticed cut to the right side of pleurea and diaphragm on right side and blood had collected in the pleaural cavity. On examination of the abdomen, he noticed that abdomen wall was distended stab wounds over the epigastic region and hypochondrium on both sides. There was a tear of peretonium and rectus muscle due to stab injury of size 5 x 3 cm. Blood had also collected in the abdominal cavity. The liver was lacerated due to stab injury on the abdomen. The post mortem report is at Exhibit 17. P.W.15 A.P.I. Ramkrishna Kale then recorded the statements of the witnesses and arrested the accused on 25.3.2007 vide arrest panchanama at Exhibit 43. The clothes on the person of the accused came to be seized vide seizure memo at Exhibit 26 in the presence of P.W.6 Sambhaji. The aforesaid clothes are at Articles 10 and 11. The clothes of deceased came to be seized under seizure memorandum at Exhibit 25 in the presence of P.W.6 Sambhaji. The aforesaid clothes of deceased are Articles 4 to 8. During custodial interrogation, on 27.3.2007, the accused expressed his willingness - 5 - to point out the place where he had hidden the knife. Accordingly, the memorandum of the accused came to be drawn in the presence of P.W.6 Sambhaji at Exhibit 27. Pursuant thereto, the accused led the police and the panch to Salwadi and produced the knife which had been hidden in the bushes. The said knife came to be seized by seizure memo at Exhibit 27-A. P.W.15 A.P.I. Ramkrishna Kale thereafter forwarded the seized articles to the Chemical Analyser along with the articles. The reports of the Chemical Analyser are at Exhibits 21 and 44. P.W.3 Shriram Shinde was requested to draw the sketch of the scene of the offence and the sketch of the scene of the offence is at Exhibit 15. Further to the completion of investigation, a charge sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exhibit 5 came to be framed against the accused for offence punishable under Section 302 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 15 witnesses. The pivot of the prosecution case revolves upon the testimony of P.W.9 Bhimrao and P.W.11 Bhiva, who are the eye witnesses to the incident. The prosecution also relied upon the testimony of P.W.12 Asha and P.W.13 Bhagubai to whom P.W.9 Bhimrao had narrated the incident. The prosecution also relied upon the discovery of the - 6 - knife at the behest of the appellant/accused. The trial Court accepted the evidence and convicted and sentenced the appellant as aforestated. 4. Before we advert to the submissions advanced before us by Mr. R.R. Karpe, learned counsel appointed for the appellant, and the learned A.P.P. representing the respondent/ State, it would be useful to refer to the evidence of prosecution witnesses. P.W.9 Bhimrao, brother of deceased Gautam, states that P.W.11 Bhiva and one Raju and Sandesh and deceased Gautam were proceeding to Kharwad by a pathway. He states that they after they walked a distance of about 1 Km. from village Salwadi suddenly the accused appeared before them and caught the shirt collar of deceased Gautam. The accused thereafter asked deceased Gautam, “Whether the wife of the accused is his or the wife of Gautam ?” The accused suddenly took out a knife from the pocket of his trouser and pierced the said knife in the stomach of Gautam. The accused thereafter assaulted Gautam on his chest, stomach and hand with the said knife. The accused thereafter fled from the scene of offence. P.W.9 Bhimrao took Gautam towards the field of Ramji and thereafter went to the well of one Burkule for fetching water. Ladies who were present there, were informed by P.W.9 Bhimrao about the assault on his brother. - 7 - P.W.9 Bhimrao thereafter brought water and attempted to give it to deceased Gautam, but deceased Gautam did not drink the said water. The others who had accompanied P.W.9 Bhimrao and deceased Gautam returned to the village. Thereafter P.W.9 Bhimrao proceeded to the police station and lodged his report at Exhibit 34. In cross-examination, P.W.9 Bhimrao states that they had left village Salwadi at about 11.45 a.m. He has admitted that they had not noticed the accused while following them. He has admitted that there are fields near the pathway. He has stated that the accused came running. He had personally seen the accused while coming towards them. He has admitted that the accused was not knowing that they were going towards village Kharwad. He has also stated that the accused had not kept a watch on them. He was confronted with the portion marked “A” in his complaint which he has stated as not correct. Portion marked “A” is in respect of the accused keeping watch on the movements of deceased Gautam. He has further stated that they were not apprehending any danger from accused when he asked them to stop. He has admitted that there was no altercation between accused and deceased Gautam. He has admitted that he had not attempted to intervene and rescue deceased Gautam. He has admitted that he was next to deceased Gautam when the accused had clutched the collar of deceased Gautam. He has admitted portion marked “B” from his report at Exhibit 34 when he was - 8 - confronted with it. Portion marked “B” is in respect of P.W.11 Bhiva and the other two children fleeing from the scene of the incident. He has explained that he could not intervene as he was frightened. He has also admitted that the well of Burkule is at some distance from the scene of the incident, but could not state the distance in terms of either Kms. or furlong. He has admitted that he had taken Gautam to the field of Ramji Maske while holding deceased Gautam. He has stated that the blood from the wound of deceased Gautam had not adhered to his clothes. He was confronted with portion marked “C” wherein it is stated that on taking Gautam to the field of Ramji his brother suddenly fell down. Omission has been duly proved that he had not stated in his report at Exhibit 34 that he had taken Gautam to the field of Ramji by holding him. Similarly, omission has been duly proved that he had not stated in his complaint about the presence of ladies at the well of Burkule. Omission has been duly proved that he had not stated about having informed the ladies. He has also admitted that he was not aware about the illicit relations between the wife of accused and his brother prior to the incident. 5. Prosecution has examined P.W.11 Bhiva, another eye witness to the incident. P.W.11 Bhiva deposes on similar lines as that of P.W.9 Bhimrao. In cross-examination, omission has been duly proved that he had not stated that he had seen the accused - 9 - running towards them. He has admitted that they had not apprehended that there would have quarrel when he had seen the accused rushing towards them. He has admitted that he had tried to intervene and rescue deceased Gautam but the accused did not permit them. He has admitted that he had witnessed the incident from a distance of about 15 to 20 ft. 6. Mr. Karpe, learned counsel for the appellant has urged before us that it is extremely doubtful if either P.W.9 Bhimrao or P.W.11 Bhiva were present at the scene of the offence as both the witnesses have admitted that they had not intervened in the quarrel and had not attempted to rescue deceased Gautam. It is also urged before us that there is no material on record to hold that the incident was witnessed by both P.W.9 Bhimrao and P.W.11 Bhiva. Learned A.P.P. has rightly argued before us that the conduct of P.W.9 Bhimrao in informing the ladies about the assault on his brother and the aforesaid statement being corroborated by P.W.12 Asha and P.W.13 Bhagubai lends assurance to the statemnet of P.W.9 Bhimrao that he was present and had witnessed the incident. The learned A.P.P. has also argued before us that knife came to be recovered at the behest of the appelant/ accused which was found stained with human blood. 7. We have minutely perused the record and particularly - 10 - the cross examination of both P.W.9 Bhimrao and P.W.11 Bhiva. At the close of their cross-examination, both the witnesses have emerged unscathed. No dent has been made to their examination- in-chief so as to disbelieve what they have stated. The contradictions and omissions which have been elicited in their evidence during the cross-examination are not matters touching to the core of their testimony. Contradictions and omissions are on peripheral aspects of their evidence. Fanatical adherence to the practice of disbelieving the testimony of witnesses on the ground of minor variations is not the correct approach of appreciating the evidence of eye witnesses. In the present case, what we find is that evidence of P.W.9 Bhimrao stands squarely corroborated by evidence of P.W.11 Bhiva as well as by the evidence of P.W.13 Bhagubai. 8. P.W.13 Bhagubai states that P.W.9 Bhimrao had come to the well and had informed them about the accused assaulting his brother deceased Gautam. She also states that Bhimrao took water and attempted to administer the water to deceased Gautam. P.W.13 Bhagubai further states that she had gone to the scene of offence and had noticed that Gautam had expired. Attempt was made in the cross-examination to point out that this witness was a tutored witness. This witness stoutly denied that she was advised in the Court and told to depose in a particular manner. Nothing has - 11 - been elicited in the cross-examination which would doubt the credibility of this witness. We are not inclined to accept the evidence of P.W.12 Asha as P.W.12 Asha in cross-examination has admitted that she was tutored to depose in the manner in which she had deposed. P.W.12 Asha obviously is tutored witness on whose testimony no reliance can be placed. In addition thereto, prosecution has examined P.W.14 Vilas Maske, who states about learning about deceased Gautam proceeding to the scene of the offence and noticing the dead body of deceased Gautam. 9. After giving our anxious consideration to the submissions advanced before us by the learned counsel for the parties, according to us, there is overwhelming evidence in the evidence of P.W.9 Bhimrao and P.W.11 Bhiva in respect of the assault by accused on deceased Gautam. The motive which the prosecution has ascribed for the assault is that accused was suspecting about the illicit relations between deceased Gautam and his wife. Of course no evidence is led by the prosecution to substantiate this part of the motive. In cases resting on the testimony of the eye witnesses, failure of the prosecution to establish motive would pale into insignificance in the event the eye witnesses stand the scrutiny of cross-examination. In the present case, both the eye witnesses have emerged as reliable witnesses despite searching cross-examination on behalf of the accused. - 12 - We, therefore, find no ground whatsoever for disbelieving the evidence of P.W.9 Bhimrao and P.W.11 Bhiva. Even if the recovery of the knife and the seizure of the weapon by the accused is left out of consideration, there is overwhelming evidence of the eye witnesses. According to us, the trial Court has rightly appreciated the evidence and has convicted the appellant as aforestated. We, therefore, find that there is no merit in the appeal. 10. Criminal Appeal No.133/2008 is accordingly dismissed, confirming the conviction of the appellant. We, however, quantify the fees payable to Shri R.R. Karpe, who has very ably argued the appeal on behalf of the appellant, at Rs. 5000/-. [N.D. DESHPANDE, J.] [ P.V. HARDAS, J.]