1 Appeal No.539/03 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.539 of 2003 IN SESSIONS CASE NO.1094 of 1987 Mahendra @ Baggad Pajiraj Yadav aged 38 years, an adult, Hindu, Bombay inhabitant resident of Laxman Chawl, cutting no.5, Bhim Nagar, Kurar Village, Malad (East) Bombay 400097 and presently undergoing sentence at Arthur Road Central Prison ... Appellant versus State of Maharashtra, At the instance of Malad Police Station, Mantralaya, Bombay 400032. ... Respondent ... Ms.Manjiri Parasnis, Advocate appointed from Legal Aid Panel as per the order dated 18/3/2011. Mrs.P.H. Kantharia, APP for the respondent State. CORAM : V.M.KANADE AND A.M.THIPSAY, JJ DATED : 23rd August 2011 2 Appeal No.539/03 ORAL JUDGMENT :- (PER A.M.THIPSAY) 1. This appeal is directed against the judgment and order dated 29th March 2003 passed by the Addl.Sessions Judge for Greater Mumbai convicting the appellant who was an accused in Sessions Case No.1094 of 1987 for an offence punishable under section 302 of the IPC and sentencing him to suffer Imprisonment for Life. The learned Sessions Judge also imposed a sentence of fine in the sum of Rs.30,000/- upon the appellant and provided for a default sentence of 10 months. Being aggrieved by the said order of conviction and sentence, appellant has approached this court in appeal. 2. The prosecution case before the trial court was that the first informant Harishankar Yadav (PW 1) was at the material time residing in the room of one Musayee Yadav (PW 2) which was situated in Ramchandra Chawl, Room No.8, Inamdar Estate, Malad (West), Mumbai 400064. Musayee’s son Bhanuprakash (deceased) was also residing in the said room with his wife Sitadevi Bhanuprakash Yadav (PW 3) and son Tinku. One Lekhraj, relative of Musayee Yadav and his nephew Mahendra i.e. appellant were also residing in the said room (hereinafter referred to as “accused”. 3 Appeal No.539/03 The room had been divided into compartments and Bhanuprakash, his wife Sitadevi(PW 3) and their son Tinku used to sleep in the kitchen side compartment in the room in the night. There was some feeling of enmity between the accused and the said Bhanuprakash. Bhanuprakash had assaulted Patiraj, father of Mahendra over some dispute over property situated at their native place. That on 23rd August 1987 in the morning, at about 6.00 a.m Bhanuprakash came out of the kitchen room and slept on the cot of Harishankar (PW 1). Harishankar was sleeping on the cot and Bhanuprakash slept by his side. Sitadevi was inside the kitchen. Lekhraj had already left for his work. At about 6.15 a.m, suddenly the accused who was also lying on his cot got up, came near the cot where Bhanuprakash was lying and assaulted Bhanuprakash by a knife. Bhanuprakash shouted. Harishankar (PW 1) also got frightened. The accused repeatedly assaulted Bhanuprakash by the said knife. Due to the shouts raised by Bhanuprakash, the acused ran away holding the said knife. Bhanuprakash, though was injured, chased him. Harishankar also chased the accused but the accused succeeded in running away. He had thrown away the knife while running away. Bhanuprakash and Harishankar then came 4 Appeal No.539/03 inside the room. Bhanuprakash was bleeding profusely from his throat. Musayee Yadav (PW 2) was informed about the incident. He came home. At about 7.45 a.m, Harishankar went to Malad police station and lodged the First Information Report which was registered vide C.R.No.793/87. The investigation commenced and during the course of investigation, certain articles were seized and taken charge of under various panchnamas. Inquest panchnama was also drawn. The offence that was initially registered was one punishable under section 307 of the IPC but after Bhanuprakash succumbed to the injuries, the offence was altered to one punishable under section 302 of the IPC. 3. The accused pleaded not guilty to the charge of an offence punishable under section 302 of the IPC and consequently, evidence was adduced by he prosecution. Totally 13 witnesses were examined by the prosecution. The accused did not examine himself as a witness for the defence but examined one Triveni Yadav as a defence witness. 4. The defence of the accused as appearing from his examination under section 313 of the Code of Criminal Procedure and the cross 5 Appeal No.539/03 examination of the prosecution witnesses is of total denial. According to the accused, he was not present at all in the said room at the material time and that he had been falsely implicated due to enmity. After considering the evidence on record, the learned Addl.Sessions Judge held that the charge against the accused was proved. He therefore convicted and sentenced the accused as aforesaid. 5. We have heard Ms.Manjiri Parasnis, Advocate appointed to defend the accused under the Free Legal Aid Scheme. We have also heard Smt.P.H. Kantharia, learned Additional Public Prosecutor for the State. We have gone through the entire evidence adduced before the trial court. We have also been taken through the impugned judgment and order. 6. Harishankar (PW 1) is an eye witness to the incident. He has stated about the strained relationship between the accused and the said Bhanuprakash. He has described the incident stating that it took place at about 6.00 to 6.15 am in the morning. He has stated that when Bhanuprakash had come and slept on his cot, the accused was also lying on his cot in the same part of the room. He claims to have actually seen the act of the accused of stabbing Bhanuprakash 6 Appeal No.539/03 on his neck and on his right hand. He has also stated that the accused stabbed Bhanuprakash about four to five times. He has then stated that after Bhanuprakash had shouted, the accused started running away and that he was chased by this witness and Bhanuprakash for a distance of about 12 – 13 metres. He then states that he thereafter brought Bhanuprakash inside the room, went to the adjoining shopkeeper and narrated the incident to him. He then speaks of reporting the matter to the Malad police station. The contents of the FIR were read over to him and on his admitting the same to be correct, it was marked as Exhibit-8. 7. Harishankar has also stated that when Bhanuprakash was stabbed and started bleeding, Harishankars’ banian was also stained with blood. According to him, after the FIR was lodged, the police took charge of his bloodstained banian. The banian produced before the court (Article-1) was identified by him as the same banian. He has also stated that the police came to the room and took Bhanuprakash to Bhagwati hospital. He has also stated about blood having been scattered inside the room and the police preparing the panchnama of the scene of the offence. The nylon strips of the cot had also been soaked in blood and the police cut 7 Appeal No.539/03 some parts of the strips and seized the same. The nylon strips produced before the court (Article 10) were identified by him as the same. He then speaks of the police seizing the bedsheet, a pillow and towel which were also soaked in blood. The bedsheet, pillow and towel produced before the court have been identified by this witness. He has also identified the knife (Article 14) as the same knife which was used by the accused to stab Bhanuprakash. He has then stated that the clothes on the person of Bhanuprakash were soaked with blood and has identified the lungi (Article 4), Jangi (Article 5) and banian (Article 7) as the same which Bhanuprakash was wearing at the material time. The pant and shirt produced before the court and marked as Articles 2 and 3 respectively were identified by him as the same clothes which was worn by the accused at the material time. 8. In his cross examination, he was questioned regarding various co-lateral matters, but not much about the incident. The cross examination was directed to suggest that he was not residing in the room of Musayee Yadav at all. Such suggestion however has been denied by this witness. It is also suggested to him that at the time of incident, he was not present in the room of Musayee Yadav which 8 Appeal No.539/03 suggestion has also been denied by him. We find that the suggestions given to this witness in the cross examination are contradictory. For instance, after having suggested to him that he was not residing in the said room at all, it was also suggested to him that at the time of incident he was asleep and that he woke up only after the whole incident was over. That the witness was in sound sleep at that time was again put to him, but naturally the witness has again denied the same. In our opinion, the evidence of this witness is not at all shaken in the cross examination. The evidence of this witness is consistent with his version in the FIR. 9. As regards the evidence of Musayee, (PW 2) the father of the deceased, the same is also consistent with the version of Harishankar. Undoubtedly, Musayee has not seen the incident as he had gone for his duties when the incident took place but he has spoken about his neighbour Sukhraj coming to his company at about 8.00 a.m and informing him that Bhanuprakash had been stabbed by the accused. The witness then came home and sent Harishankar to the police station. He also states that when Bhanuprakash was to be taken to the hospital, police came there and took him to Bhagwati hospital. In the cross examination it was 9 Appeal No.539/03 suggested to him that the accused was not residing with him. Such suggestion was denied by this witness. We do not find that the cross examination of this witness has resulted in eliciting anything favourable to the defence. Suggestions were given to this witness that the deceased was of a bad character etc which are of not much consequence in our opinion. 10. Sitadevi (PW 3) is also not an eye witness to the incident but she was present in the room when the incident took place and has immediately learnt about the incident. She speaks that as the deceased was brought inside the room even the clothes which she was wearing were soaked in blood. In her cross examination, it was suggested that Harishankar (PW 1) was not residing in the said room at all which suggestion has been denied by this witness. She has admitted that when the incident of stabbing took place she was sleeping. 11. If the evidence of these three witnesses is considered together, it leaves no manner of doubt that the incident of assault took place inside the room of Musayee. It also leaves no manner of doubt that the deceased as well as the accused were residing in the said room apart from these three witnesses. 10 Appeal No.539/03 12. Dr.Harish Modi is the fourth witness who had examined the deceased in the casualty ward of the Bhagwati hospital. His evidence shows that Bhanuprakash was already dead when he was examined by this witness. This witness has stated about the injuries noticed on the person of Bhanuprakash. According to him, the following injuries were noticed on the dead body. Injury no.1 CLW about 1/2” x 1/2” contused laverated wound over the chin Injury no.2 Incised wound about 3/4’ x 1/2’ over the left side of mandible. Injury no.3 Incised wound about 1 ½’ over the right side of the throat. Injury no.4 Incised wound about 1 ½’ over the right forearm. Injury no.5 Incised wound 3/4’ x 1/2’ over the left forearm. Injury no.6 Incised wound about ½ inch over the left forearm. Injury no.7 Bleeding was found from left nostrils. This witness has noted the injuries in the casualty register and relevant entry was produced before the court, marked and exhibited 11 Appeal No.539/03 (Exhibit 12). In the cross examination of this witness, an admission to the effect that none of the injury was individually fatal to cause death has been elicited. His evidence, which is supported by the relevant entries in the casualty register cannot be doubted as regards the factum of injuries found on the dead body. 13. We may now consider the evidence of Dr.Kantilal Chachare (PW 8) who had conducted post mortem examination on the dead body of Bhanuprakash. He has spoken about having found the following injuries on the dead body. (1) Incised wound on right side of chin 2 x 0.5 c.m bone deep. (2) Incised wound on left side of chin 1.5 c.m x 0.8 cm skin deep. (3) Incised wound on right side of neck above thyroid gland wound open in cavity 3.5 cm x 1.0 cm. (4) Incised wound on right arm, laterally 5.0 cm x 0.8 cm skin deep. (5) Incised wound on left forearm near wrist 2.5 cm x 1.0 c.m. Through and through 2 c.m x 0.5 c.m. Total depth 4.5 c.m, external distance between two wounds 4.5 c.m. He has opined the injuries to be antemortem. On internal examination he found the following injuries. 12 Appeal No.539/03 (1) Trachea cut through and through in relation to injury no.3, total depth of external injury no.3, 7.00 c.m. (2) Left side of common carotid artery cut in relation to injury no.3. 14. This witness has given his opinion that the death was caused by hemorrhage and shock due to stab injuries and that it was unnatural. He has opined that the injuries were possible by the knife (Article 14). His evidence is corroborated by the notes of the post mortem examination that were tendered in evidence (Exhibit 19 collectively). In the cross examination, it was suggested to him that none of the injuries except the injury no.3 were fatal which suggestion has been denied by this witness. 15. We may now examine the evidence of Harilal Yadav (PW 6) and Shri Ramesh Joshi (Pw 7) who are the panch witnesses in respect of the inquest panchnama (exhibit 15) and the spot panchnama (exhibit 17). Harilal Yadav speaks about having acted as a panch and states that the police took charge of the clothes of the deceased in his presence. He has identified the lungi (Article 4), underwear (Article 5) and banian (Article 7) as the same clothes 13 Appeal No.539/03 that were taken charge of by the police during the inquest panchnama. It was suggested to him that he had not seen the injuries of the dead body as the dead body was covered by a white sheet which suggestion has been denied by this witness. According to him, the white sheet was removed and the injuries were seen by him. Nothing which would cast a doubt on his version has been brought on record in the cross examination of this witness. Ramesh Joshi (PW 7) has stated that at about 11.00 am, he was called by the police at room no.8, Ramchandra Chawl, Inamdar Estate, Malad (West), Mumbai 400064 and that the police officers along with other panch were present there. This witness saw that there was one cot having blood patches under it. That the nylon strips of the cot were also stained with blood. He has also stated that a pillow was lying on the said cot and that the pillow was also stained with blood. He has given the description of the room. He has stated that the police and the panchas then proceeded to a lane outside the house and that one knife was found lying near the electric box fixed to the wall of the building. The witness has stated that the said knife was seized by the police under panchnama. He was shown the knife (Article 14) which he identified as the same that was seized under panchnama. He has also identified the other 14 Appeal No.539/03 articles which were taken charge of under the said panchnama. His evidence is also in no way shaken in the cross examination. 16. An examination of the evidence of all these witnesses which has been discussed above leaves no manner of doubt that the time and place where the assault took place is satisfactorily established. It also leaves no manner of doubt that Bhanuprakash died an unnatural death due to the stab injuries. 17. Suresh Wadar (PW 9) is a panch in respect of the seizure of the clothes of Harishankar under a panchnama (Exhibit 22). Ramchandra Kadam (PW 10) is a panch in respect of the seizure o the clothes of the accused under a panchnama dated 27 August 1987 (exhibit 24). The evidence of these witnesses is not shaken in any manner and fits in properly with the other evidence. 18. The evidence of Harishankar is fully corroborated by the evidence of Musayee and Sitadevi and the same is also corroborated by the evidence of panch witnesses with respect of the inquest panchnama (exhibit 15) and spot panchnama (exhibit 17). The version of Harishankar is natural, probable and fits in properly with 15 Appeal No.539/03 the rest of the circumstances as revealed by the evidence of the panch witnesses and the doctors. 19. An attempt was made by Ms.Manjiri Parasnis, learned advocate for the accused to canvass that the case is based only on the testimony of a solitary eye witness. According to her, it would be hazardous to hold the accused guilty only on the basis of the sole testimony of Harishankar. We are unble to accept this contention. First of all, Harishankar appears to be a wholly reliable witness and secondly his evidence, in all material particulars is corroborated by the evidence of Musayee (PW 2) and Sitadevi (PW 3) which has been discussed earlier. In fact, that Sitadevi claims that she was asleep at the time of the incident, indicates that she is a truthful witness inasmuch as it was not difficult for her to claim to have seen the incident herself. This admission on her part indicates that neither she nor Harishankar resorted to any exaggeration or ventured to make any false statements for the purpose of “strengthening” the prosecution case. Moreover, the evidence of Harishankar, Musayee and Sitadevi which is corroborated by the evidence of the panchas and the medical evidence is in consonance with the probabilities so as to carry conviction. 16 Appeal No.539/03 20. A reference may now be made to the evidence of Siddiqui Mohammed Khan (PW 5). His evidence shows that the accused had purchased a knife from him about 20 days prior to 30th August 1987. According to him, on 30th August 1987, the police brought the accused to him and that, at that time, he realised that he had seen that person – accused – previously, and had sold a knife to him. The witness also identified the knife (Article 14) as the same knife which had been sold by him to the accused. In the cross examination, it was admitted by him that he did not have any documentary record to show the sale of the knife to the accused. This witness appears to be doing his business on the footpath and therefore, it would not be possible to expect that he would be maintaining any record of the articles sold by him. In our opinion, there is no reason to discard the evidence of this witness. His evidence would therefore show that a knife was indeed purchased by the accused about 20 days before 30th August 1987 i.e. About 12 – 14 days before the incident. 21. Ramnarayan Yadav (PW 11) was declared as hostile. It was attempted to establish through his evidence that on 27 August 1987 17 Appeal No.539/03 the accused went to his house, confessed about the assault on Bhanuprakash and that thereafter, this witness made him surrender at Bhandup police station. However, this witness has not supported this aspect of the prosecution case. 22. From the evidence of Arun Jadhav (PW 12) who was at the material time attached to Bhandup police station as Sub-Inspector of Police and the evidence of Suresh Jadhav (PW 13) who was at the material time attached to Malad police station as Inspector of Police, it is established that on 27 August 1987 Ramnarayan Yadav and the accused had gone to Bhandup police station where the accused surrendered himself. It is also established that thereafter the accused was brought to Malad police station where he was placed under arrest. Arun Jadhav has produced a certified copy of two entries in the station house diary which has been taken on record, marked and exhibited (exhibit 13 collectively). These entries have been made by a police officer in the discharge of his official duties and are substantive evidence under section 35 of the Evidence Act. Now, the first entry (at serial no.34) shows that one Ramnarayan Babu Yadav brought one Mahendra Kumar Yadav to the Bhandup police station and informed that the said person i.e. Mahendra 18 Appeal No.539/03 Yadav was an absconding accused in a murder case registered at Malad police station. The entry also shows that the said person was therefore taken in custody by the police. The second entry (serial no.35) shows that one Sub-Inspector Nirmale from Malad police station along with a police naik and police hawaldar came to Bhandup police station and took away the said Mahendra Yadav in their custody. Thus, even though Ramnarayan Yadav has turned hostile, the fact that he had taken the accused to Bhandup police station and that the accused surrendered before the Bhandup police station is satisfactorily estbalished. In our opinion, this is a very significant circumstance. This indicates that the accused was well aware that he was wanted by the police and that he was not available to the Malad police station till 27 August 1987. The fact of his surrender before the Bhandup police station therefore lends great assurance to the entire case of prosecution. 23. The articles seized during the course of investigation were sent to the Forensic Science Laboratory for analysis and opinion and though the group of the blood found on most of the articles was not ascertained, the blood was found to be human. 19 Appeal No.539/03 24. Coming to the evidence of the defence witness Shri Triveni Yadav what is intended to be established through this witness is that at the material time the accused was not residing in the room of Musayee Yadav at all. This witness is from the native place of the accused and the deceased. Through him the bad character of the deceased Bhanuprakash is also sought to be established. The witness has stated that in August 1987, the accused was residing in Kurar village at Malad (east). The trial court has not believed the evidence of this witness and has observed that, even otherwise, Kurar village was not far away from the place of incident and that it was possible for a person to come to the said room from Kurar village within a short time. We are also unable to place any reliance on the defence version to the effect that the accused was not residing in the room of Musayee Yadav on or about 23 August 1987. It is clear that the deceased, accused, Harishankar and this witness are all from Uttar Pradesh and apparently they had come to Mumbai in search of work. The evidence of Musayee Yadav, Harishankar and Sitadevi is clear on the aspect that the deceased was residing in Musayee’s room at the material time. There is no evidence in the nature of any ration card or rent receipt to show that the accused was residing at a particular place in Kurar village 20 Appeal No.539/03 and not residing in the room of Musayee Yadav. No neighbours, who could have said about the accused residing in Kurar village, have been examined. This defence of the accused in the nature of alibi therefore does not succeed. When this type of defence is taken so as