- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1047 OF 2002 (By accused against conviction) Rambahadur Bhimsingh Vishwakarma aged about 31 years permanently residing at Ghatipada Vaishali nagar,B.R.Road, Mulund (E) Mumbai-80 and at present undergoing sentence imposed upon him at Yerwada Central Prison, Yerwada,Pune. ... Appellant (Orig.Accd.no.1) vs The State of Maharashtra At the instance of Sr.Inspector of Police,Mulund police station,vide their C.R.No.108/1991 ... Respondents Mr.Nitin Sejpal with Ms.Pooja Bhojane for Appellant Ms.P.P.Shinde A.P.P.for Respondent-State ... CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ DATE: 6th May,2010 JUDGMENT (Per Mrs Mridula Bhatkar, J) 1. The accused along with two co-accused was charged for the offence punishable under section 302 read with section 34 of the Indian Penal Code and in contravention of the prohibition order thereby - 2 - committing an offence punishable under section 37 read with section 135 of the Bombay Police Act. By Judgment and order dated 17th July, 2002 the learned Additional Sessions Judge, Greater Bombay convicted accused no.1 Rambahadur Bhimsingh Vishwakarma under section 302 of IPC and to suffer R.I.for life and fine of Rs.1000/- in default thereof R.I. for one month. The accused no.2 Anand Kisan Khambe was absconding at the time of trial hence, his case was separated. 2. Being aggrieved by the said order of conviction and sentence the appellant (accused no.1) herein has preferred this appeal. 3.As perthe case of the prosecution, the complainant PW 2 Suryakant Rawate was residing at Ghatipada hutments, Khokale chawl, B.R.Road,Mulund (W) Bombay-80. Deceased Yashwant Rawate was the active member of a union. Baban Khambe was a temporary worker employed through a contractor and was working in Hindustan Vegetable Oil Co. It is alleged by the prosecution that brother of said Baban Khambe viz - 3 - Anand Khambe the absconding accused, and his friend Kalu Bhimsingh Vishwakarma accused no.1, Sanjay Gadkar accused no.2 and Sudhir Dalvi accused no.3 used to pursue deceased to make Baban permanent in the employment. However, deceased Yashwant and PW 3 Ramu Jaiswal had expressed there inability that it was not in their hands since it was within the authority of the chief officer of the company. The accused persons have threatened and intimidated deceased Yashwant on 9th February 1991 and also tried to assault Ganpat Kalkute PW 3 and Ramu Jaiswal. 4. On 10th February 1991 at 11.30 p.m. the complainant Suryakant Rawate and the deceased Yashwant Rawate were proceeding from the house of accused no.1 at B.R.Road, Vaishali nagar, at that time the accused halted them and started quarreling that they were not making efforts to confirm Baban Khambe. Thereupon, Yashwant tried to explain them but they did not listen and gave him kicks and fist blows. PW 2 complainant Suryakant Rawate tried to intervene but, was pushed away. Accused no.1 Kallu Vishwakarma suddenly whipped out a weapon like knife which was concealed near his waist and stabbed - 4 - the same into the middle portion of the chest of Yashwant Rawate. Blood started oozing out from the said injury and as he collapsed,the accused fled away from the scene of offence. Complainant Suryakant was frightened and ran to the residence of Ramu Jaiswal PW 3. They both went to the spot of the offence and lifted Yashwant and put him in a rickshaw and immediately removed him to Mulund General Hospital. The doctor on duty examined him and declared him dead. 5. PW 7 P.I. Nemade was on duty on 10thFebruary, 1991 on receiving telephonic message from duty constable attached to Mulund hospital made station diary entry and went to the hospital made inquiries recorded statement of PW 2 which was treated as an FIR and registered the offence under C.R.No.108/1991 under section 302 read section 34 of the Indian penal code against four persons i.e. Kalu Rambahadur accused no.1. and Anand Khambe absconding accused, Suryakant Gadkar accused no.3 and Sudhir Dalvi accused no.4. 6. API Nikam drew the inquest panchanama Exhibit 24 and sent the dead body for post mortem - 5 - examination on 11th February,1991 and the post mortem notes Exhibit 19 disclosed cause of death stabbed wound with perforated heart with extensive haemorrhage and shock (unnatural). 7. The spot panchanama Exhibit 29 was prepared and PW 8 recorded statements of witnesses. 8. During the course of investigation, PW 8 arrested the absconding accused Anand Khambe on 11th February, 1991. PW 7 S.I.Nemade arrested the accused nos.1,2 and 3 on 12th February, 1991. Under Memorandum Exhibit 35 and recovery panchanama Exhibit 36 one sura which was concealed below a stone was recovered at the instance of the appellant accused. Accused persons were sent to police hospital, Nagpada and blood sampless were obtained and sent to the Chemical analyser for examination purpose and C.A reports. The blood sample of deceased was received disclosing his blood group of A. 9. After completion of the investigation, PW 7 S.I.Nemade filed the charge sheet against all the four accused and thereafter case was committed to - 6 - the court of Sessions Bombay on 9th August, 1991. The accused were tried for the offences under the charge and the appellant accused alone was convicted under section 302 of the Indian penal code. 10. Mr.Sejpal the learned counsel appearing for the accused has submitted that conviction of the accused is illegal and based on inconsistent and unreliable evidence of the eye-witnesses. He has submitted that PW 2 Suryakant Rawate is brother of the deceased. He has admitted that he was not on good terms with the appellant-accused. He is an independent witness. Therefore, his evidence should be scrutinized minutely. In his cross-examination, he has stated that the role of the persons and the act of assault by only the appellant accused and he did not take the names of other accused whose names he had mentioned in the FIR Exhibit 23. He has further pointed in cross-examination that the defence has brought this omission on record which is marked A and B is a material omission. On this background, the learned counsel developed his arguments that if the witness has falsified by this material contradictions, and presence of the other accused is - 7 - doubtful then possibility of appellant-accused might have been absent at the spot and his name was maliciously taken by PW 2 the brother of the deceased cannot be overruled. He has submitted that PW 2 did not depose about the presence of other eye witnesses i.e. PW 5 Paramhansa Thakur and however, PW 5 claims to be present and has witnessed the accused stabbing the deceased. In cross-examination PW 2 Suryakant Rawte the eye witness has admitted that he did not know accused by name i.e Anand Khambe, Sanjay Gadekar and Sudhir Dalvi and he did not state the names of the said persons. He pointed out that PW 5 Paramhansa Thakur has deposed that the accused has stabbed in the stomach of the deceased. However, injury is not in the stomach but, in the chest. Mr.Sejpal submitted that this contradiction dilutes the credibility of the evidence on the point of presence of PW 5 Paramhansa Thakur. He further argued that the incident has taken place on the ground floor in front of the chawl consisting of 15 rooms. There were other independent witnesses which were definitely available to the police but except the interested witness PW 2 and chance witness PW 5 Paramhansa Thakur no other - 8 - witness is examined by the prosecution. 11. The learned counsel further submitted that evidence of PW 5 Paramhansa Thakur is doubtful. He witnessed the incident but, did not go to the police. 12. Mrs.Shinde the learned A.P.P. has opposed this appeal. She argued that there is no inconsistency in the evidence of the eye-witnesses and the medical evidence corroborates the ocular evidence of the witnesses. No illegality is found in the judgment passed by the Sessions Court and so it is to be confirmed. 13. The learned counsel for the accused has put- forth two fold defence i.e.of total denial and secondly the offence is of lessor gravity. 14. At the outset, we have no hesitation to discard the evidence of theChemical Analyser. We were quite surprised to see the dates of sending the articles to the Chemical Analyser i.e. 26th of May 1991 and the date of receipt of the said articles as 13th September, 1991.The Chemical Analyser whose office - 9 - is in Mumbai itself has acknowledged the articles after three months. Why and how the articles were in transit for a period of 3 1/2 months was required to be explained by the prosecution. There might be a possibility of articles simply lying in police station due to negligence of the police or lethargy in the office of the Chemical Analyser. Whatever it may be, but the court expects the prosecution and the investigating agency to come forward with all the true facts including negligence or apathy during investigation. All the necessary circumstances are required to be explained and proved by the prosecution in a criminal trial. If unexplained or uncovered, then benefit goes to the accused. 15. Every panchanama is a document of the panchas. However, if the panchas are not traceable, and despite of the genuine efforts to get the panchas, if they are not traceable then the panchanama can be proved through the Investigating Officer who was present at the time of the panchanama and under his supervision the panchanama is drawn. - 10 - 16. The learned defence counsel while assailing the evidence of the recovery under section 27 of the Evidence Act has pointed out that the panchas were not examined by the prosecution and the panchanama was proved through P.I.Exhibit 31. He has identified the knife article no.1. He argued out that the C.A.report regarding the blood stains found on Article no.1 knife has given result positive in respect of blood stains i.e. of ‘A’ blood group which was of the deceased Yashwant. However, the recovery of knife so also report of the Chemical Analyser is doubtful due to inordinate delay of three months by the police in sending this article to the Chemical Analyser. He pointed out that the forwarding letter of sending the seized articles to the Chemical Analyst discloses the date as 26th May 1991. However, the forwarding letter from the Chemical Analyst to the office discloses acknowledgment of the receipt of the articles as 13th September, 1991. The learned counsel has submitted that the prosecution has not explained why there was delay of nearly 3 1/2 months in sending the articles to the office of the chemical Analyst and therefore case of the prosecution in respect of positive report is to be discarded. He has submitted - 11 - that the accused is to be found guilty under section 302 but, then it is a case of single blow and so it is to be reduced to section 304 part I of the Indian penal code. 17. In the FIR PW 2 Suryakant Rawate has taken the names of all the accused that they were present and they questioned his brother and assaulted with kicks and fist blows. However, this entire portion is omitted by him in his evidence. This omission is brought on record by the defence. This omission needs to be weighed on the background of his evidence in respect of the incident and also evidence of other eye witnesses PW5 Paramhansa Thakur and PW 3 Ramu Jaiswal. 18. PW 2 Suryakant Rawte has deposed that the appellant accused had brandished the knife and stabbed in the middle portion of the chest of his brother. This evidence is corroborated with the medical evidence i.e. Of Dr.Pravin Bagul PW 1 and the postmortem notes Exhibit 18 which discloses one stab wound. The doctor has deposed about the injuries as under : - 12 - On external examination of the said dead body I found the following injuries : Incised wound left side of sternum 3.5 x 1.5 cm obligue upward direction at 6 intercoastal region. Abrasion on the right knee Anterior aspect 2 cm x 1 cm. Abrasion the left knee of 1 cm x 1.5 cm. On internal examination, I found the corresponding injuries which are as follows: 1. Incised wound on left side of sternum at 6 intercostal region. Pleura ruptured on the left side. Left lung perforated at left side. Pericardium perforated with good in pericardium. Heart perforated at anterior interior region size 2.5 cm x 0.5 cm. 19. On the point of the presence of the appellant accused the evidence of PW 5.Paramhansa Thakur and other witness is found reliable. He has deposed that on that night he had seen the incident at a distance - 13 - of about 25 to 30 metres. When the quarrel was going on he reached there. He has seen appellant accused taking out a knife which was concealed inside his shirt, and he stabbed in the stomach of deceased Yashwant. PW 5. Paramhansa Thakur though has stated that the injury was in the stomach and the medical evidence shows that the injury was in the chest this cannot be a material discrepency as this witness has seen the appellant stabbing the deceased at a distance of about 25 to 30 metres. In the cross- examination of PW 2 Suryakant Rawte though the defence has sought admission that at the time of the incident,no other person known to him was present and PW 2 was acquainted with PW 5, this admission does not nullify the presence of PW 5 Paramhansa Thakur. PW 2 Suryakant Rawte might not have noticed PW 5 as he was little away and as per evidence of PW 5, he arrived when the quarrel had begun. PW 5 has admitted that he was scared and so he ran away. This reaction of of PW 5 is natural hence the evidence cannot be disbelieved. 20. PW 3 Ramu Jaiswal is a natural witness. He corroborates the evidence of PW 2. PW 2 has deposed that after the incident of stabbing he got scared - 14 - and ran away. First he went to his residence and then went to the house of PW 3 Ramu Jaiswal. He apprised him about the incident and both of them rushed to the spot and lifted Yashwant and took him to the hospital. PW 3 Ramu Jaiswal has confirmed the arrival of PW 2 Suryakant Rawte at his residence immediately after the assault. Evidence of PW 2 us found credible due to such immediate disclosure of the incident that the appellant accused had assaulted Yashwant by a knife in front of Vaishali Nagar and thereafter they both went to the spot and took deceased Yashwant to the hospital by an autorickshaw. 21. The evidence of Ramu Jaiswal is very important as it supports and confirms the presence of PW 2 Suryakant Rawte on the spot. Thus, the evidence of all these three witnesses is consistent and reliable so also sufficient to accept the case of the prosecution that the appellant accused had stabbed deceased Yashwant with a knife. 22. On this background omission in the evidence of PW 2 regarding the names of the co-accused is not - 15 - significant and omission itself cannot destroy entirely the evidence of PW 2. Omission indicating absence of co accused at the spot cannot disprove the presence of the appellant accused. The learned Sessions Judge has rightly, after accepting the evidence, held accused no.1 guilty of the offence of killing deceased Yashwant. 23. We have to consider the other leg of the submission of the learned defence counsel. The medical evidence has disclosed that there was only one single blow on the vital part. It reveals knowledge and intention of the accused to cause such bodily injury to the deceased which is likely to cause death. However, we do appreciate the submissions of the learned defence counsel that it is not a case that the appellant accused after giving one blow has again inflicted 2/3 stab injuries which might have been disclosed the obvious intention to commit culpable homicide amounting to murder. We cannot lose our sight from the fact that the deceased happened to meet the accused at the spot and a quarrel took place and suddenly accused took out a weapon hidden near his waist and assaulted the deceased. Thus, it is not the case of - 16 - planned killing after waiting for his arrival or accused had knowledge that the deceased is going to come at the spot. These circumstances in our considered view have brought the case out of the ambit of culpable homicide amounting to murder punishable under section 302 of the Indian penal code and is covered under section 304 part I of the code. 24. Hence, the appellant-accused is found guilty of culpable homicide not amounting to murder under section 304 part I of the Indian penal code. Hence, we pass the following order : 25. This Criminal Appeal is allowed partly. The impugned order of conviction and sentence passed by the Additional Sessions Judge,Greater Mumbai in sessions Case No.479 of 1991 for the offence punishable under section 302 of Indian Penal Code is hereby quashed and set aside. 26. The accused is convicted for the offence punishable under Section 304 Part I of the Indian penal code and sentenced to suffer RI for ten years with a fine of Rs.1000/- in default to suffer one - 17 - month’s imprisonment. 27. The accused was under trial prisoner from 12th February 1991 to 6th March 1992 and thereafter he was re-arrested on 19th September 2000 and he is continuously in jail since then. He has thus undergoing sentence of more than ten years. He is therefore directed to be released forthwith unless required in some other case. Mrs Mridula Bhatkar, J B.H.Marlapalle, J - 18 - - 19 - - 20 - The learned defence counsel while assailing the evidence of the recovery under section 27 of the Evidence Act has pointed out that the panchas were not examined by the prosecution and the panchanama was proved through P.I.Exhibit 31. He has identified the knife article no.1. He argued out that the C.A.report regarding the blood stains found on Article no.1 knife has given result positive in respect of blood stains i.e. of ‘A’ blood group which was of the deceased Yashwant. However, the recovery of knife so also report of the Chemical Analyser is doubtful due to inordinate delay of three months by the police in sending this article to the Chemical Analyser. He pointed out that the forwarding letter of sending the seized articles to the Chemical Analyst discloses the date as 26th May 1991. However, the forwarding letter from,the - 21 - Chemical; Analyst to th office discloses acknowledgment of the receipt of the articles as 13th September, 1991. The learned counsel has submitted that the prosecution has not explained why there was delay of nearly 3 1/2 months in sending the articles to the office of the chemical Analyst and therefore case of th prosecution in respect of positive report is to be discarded. He has submitted that the accused is to be found guilty under section 302 but, then it is a case of single blow and so it is to be reduced to section 304 part I of the Indian penal code. - 22 - - 23 -