1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.163 OF 2008 Shaikh Akram s/o Shahanawaz Shaikh, Age 20 years, Occu.Nil, R/o Naikwadpura, Newasa, Tq. Newasa, District Ahmednagar, at present c/o Ghogre, N-7, CIDCO, Near Vitthal Rukhmai Temple, Aurangabad, Tq. and Dist.Aurangabad .. APPELLANT VERSUS The State of Maharashtra through Police Station, M.I.D.C. CIDCO, Aurangabad .. RESPONDENT Shri V.N.Damle, Advocate holding for Shri V.D.Gunale, Advocate for appellant Shri K.J.Ghute Patil, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 3rd February 2010 ORAL JUDGMENT (PER SHRIHARI P.DAVARE, J.) 1. The present appeal is directed against the judgment and order rendered by learned Ad-hoc Additional Sessions Judge-3, Aurangabad dated 5.4.2008 convicting the appellant (original accused) for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- with a default condition for non 2 payment of fine to suffer further imprisonment for one month. The appellant herein prays for quashment thereof. 2. The factual matrix of the prosecution case can summarised as under. P.W.8 P.I. Vinayak Bapurao Mahanor was attached to M.I.D.C. CIDCO Police Station on 22.3.2006 who received the M.L.C. report from Sumananjali Hospital, regarding admission of one Harish Diliprao Patil at about 4.50 p.m. Accordingly, P.S.O. took the entry in station diary vide Entry No.43 and directed Head Constable Shinde to make the further enquiry. Pursuant to the said directions, Head Constable Shinde went to the hospital and recorded statement of P.W.2 Sudhakar Wattamwar by way of complaint. On the basis of the said statement of P.W.2 Sudhakar, offence was registered (Exh.27) under C.R.No.37/2006 and criminal law was set into motion. Thereafter, P.W.8 P.I. Vinayak Mahanor commenced with the investigation in the matter and made enquiry with the Medical Officer in respect of condition of the said patient but the injured Harish was not in a condition to give the statement. Thereafter, P.W.8 P.I. Vinayak Mahanor made efforts to search the accused but he was not found since he was absconding from Aurangabad. Hence, P.W.8 P.I. Vinayak Mahanor sent two Constables to village Newasa for taking search of the accused. 3 3. It is also the case of prosecution that on the next day, P.W.8 P.I. Vinayak Mahanor visited the spot of incident and prepared the spot panchnama (Exh.29) and seized one iron pipe as well as blood stained pieces of cardboard from the place of the incident under the spot panchnama. Moreover, P.W.8 P.I. Vinayak Mahanor recorded the statements of witnesses. On 23.3.2006, the members of squad produced the accused before P.W.8 P.I. Vinayak Mahanor and accordingly, he arrested the accused under the arrest panchnama (Exh.23). On 24.3.2006 P.W.8 P.I.Vinayak Mahanor sent the accused for medical examination and blood sample of the accused was taken by the Medical Officer. On 25.3.2006, the complainant produced the shirt of injured Harish Patil bearing blood stains thereon and same was seized under the seizure panchnama (Exh.31). On 28.3.2006, P.W.8 P.I. Vinayak Mahanor received a letter from Sumananjali Hospital reporting that injured Harish expired at about 8.50 p.m. on 28.3.2006. Accordingly, P.W.8 P.I. Vinayak Mahanor put the entry in the register and directed A.S.I. Thosarmal to prepare the inquest panchnama who prepared the inquest panchnama of the dead body of deceased Harish (Exh.19). 4. The prosecution case further recites that P.W.8 P.I. Vinayak Mahanor forwarded the attached property to the Chemical Analyzer’s office along with the forwarding letter (Exh.46) dated 4 3.4.2006. Pursuant to the said forwarding letter, two Chemical Analyzer’s reports were received which are produced at Exhs.22 and 23. It is also case of prosecution that after death of Harish on 28.3.2006, his dead body was sent for post mortem notes and P.W.8 P.I. Vinayak Mahanor collected the post mortem notes (Exh. 21). Thereafter, P.W.8 P.I. Vinayak Mahanor handed over the further investigation to P.W.10 P.I. Dhiwar on 24.5.2006. After receipt of the case papers of the present case for further investigation, P.W.10 P.I. Dhiwar collected the Chemical Analyzer’s report (Exhs.22 and 23). Moreover, after completion of investigation, P.W.10 P.I. Dhiwar filed a charge-sheet against the accused before the Judicial Magistrate, First Class, Aurangabad on 21.6.2006. Since the offence was triable exclusively by the Court of Sessions, the learned Judicial Magistrate, First Class committed the said case to Court of Sessions, Aurangabad on 30.6.2006. Accordingly, the learned IIIrd Ad-hoc Additional Sessions Judge, Aurangabad framed the charge against the accused at Exh.15 for the offence punishable under Section 302 of the Indian Penal Code. 5. To substantiate the said charge against the accused, the prosecution has examined inasmuch as ten witnesses as mentioned below: 5 P.W.1 - Dr.Sharad Kulkarni who carried out the post mortem on the dead body of deceased Harish (Exh.21). P.W.2 - Sudhakar Wattamwar, complainant and the eye witness who is uncle of victim (Exh.27) P.W.3 - Pratap Dandwate a panch to the spot panchnama P.W.4 - Devidas Mate a panch to the panchnama of seizure of clothes of victim (Exh.15) P.W.5 - Shaikh Anees Shaikh Bashir, Co-worker of the accused in C.R.Enterprises who turned hostile P.W.6 - Mahendra Gade, eye witness who allegedly carried the victim to hospital along with P.W.2 complainant Sudhakar Wattamwar P.W.7 - Ajmatkhan, another Co-worker working in C.R. Enterprises with the accused – turned hostile P.W.8 - P.I. Vinayak Mahanor, Investigating Officer P.W.9 - Dr.Santosh Kulkarni, belonging to Sumananjali Hospital, Aurangabad, who treated the victim P.W.10 - P.I. Dhiwar, who filed a charge-sheet against the accused After assessing the evidence on record, the learned trial Judge convicted and sentenced the accused as aforesaid by the Judgment which is impugned in the present appeal. 6 6. Before adverting to the submissions advanced by learned Counsel for the appellant and learned Assistant Public Prosecutor for respondent-State, we feel it necessary to scrutinise the material evidence adduced and produced by the prosecution on record and in the said context coming to the evidence of P.W.2 Sudhakar Wattamwar, who is the maternal uncle of victim Harish and complainant in the present matter and who also placed as an eye witness to the occurrence of incident, has stated that deceased Harish was his nephew i.e. son of his sister and he was staying with him. He also stated that he was running a kirana shop in the name and style as “Bhagwati Kirana Shop”, which was situated on the ground floor of Vishnu Complex, N-1, CIDCO, Aurangabad. He also states that since last five years he was having a boarding in the said complex in the name and style as “Radhakrishna Boarding”. He further states that the incident took place on 22.3.2006 at about 2.30 to 3.00 p.m. and at the time of incident he was present in the house and deceased Harish was present in his Kirana shop. At that time he heard a shout of his nephew Harish and, therefore, he came to the ground floor of apartment where his nephew Harish was running kirana shop and saw that accused was assaulting Harish by iron pipe. He caught hold of the accused but the accused rescued himself from his clutches giving jerk to him and ran away. He also stated that accused assaulted Harish by iron pipe on his head. Due to 7 assault on the head, deceased Harish became unconscious and fell down. He sustained head injury and blood was oozing from his head. Hence, P.W.2 Sudhakar stated that he carried the injured Harish to Sumananjali Hospital for medical treatment. He further stated that he went to Police Station and lodged complaint (Exh.27). 7. P.W.2 Sudhakar also stated that Police visited the spot of incident on the next day and prepared the spot panchnama and seized the iron pipe and blood lying on the spot and identified the said pipe in the Court. He further stated that accused was serving in the electrical shop of one Pande situated in front of his apartment. He also stated that on the day of incident, deceased Harish was wearing full shirt of black and yellow colour and Harish died in the hospital on 28.3.2006. He also stated that Harish was in unconscious state since admission till his death. He further stated that Police also recorded his supplementary statement. 8. During cross-examination, P.W.2 stated that when he came on the first floor at that time except the accused and deceased Harish nobody was present there. He further stated that P.W.6 Mahendra Gade was proceeding towards his boarding to call him. Suggestion was given to him that when P.W.6 Mahendra Gade called him he came on the spot and accused was not present in 8 kirana shop but the same was denied by him. It was also suggested to him that he stated falsely that the accused assaulted his nephew Harish by iron pipe on his head but the same was also denied by him. 9. Keeping in mind the testimony of said eye witness, P.W.2, Sudhakar Wattamwar and coming to the deposition of another eye witness P.W.6 Mahendra Gade, wherein he has stated that he was running medical shop under the name and style as Ranglaxmi Medical Stores in N-7, CIDCO, Aurangabad since 2 and ½ years prior to the occurrence of the incident. His residential house was situated just in front of his shop and Vishnu Complex was situated just adjacent to his medical shop. He also stated that P.W.2 Sudhakar Wattamwar was running a kirana shop in the name and style as Bhagwati kirana shop on the ground floor of Vishnu Complex and one Harish Patil was looking after the affairs of the said kirana shop. He further stated that the incident taken place on 22.3.2006 at about 2.30 to 3.00 p.m. and he was present in front of Bhagwati kirana shop at that time. He also witnessed that a quarrel was going on between the accused and the deceased on account of credit amount. He also stated that accused was working in C.R.Enterprises which is situated just in front of Vishnu Apartment. He further stated that during the quarrel the accused went in his shop and brought an iron pipe in 9 his hands and thereby assaulted deceased Harish on his head. Hence, P.W.6 Mahendra Gade immediately went in the mess for calling P.W.2 Sudhakar, maternal uncle of deceased Harish but he was not present there. He stated that when he again gone in front of Bhagwati shop at that time he saw that maternal uncle of deceased caught hold the accused and deceased Harish was lying on the ground and blood was oozing from his head. Meanwhile, the accused rescued himself from the clutches of maternal uncle of deceased Harish and ran away. Thereafter, P.W.6 Mahendra Gade and Sudhakar Wattamwar, maternal uncle of Harish carried injured Harish to Sumananjali Hospital for medical treatment. However, Harish died in hospital on 28.3.2006. P.W.6 Mahendra Gade also identified the iron rod showed to him in the Court. 10. During cross-examination P.W.6 stated that his medical shop is situated on the Southern side of Vishnu Apartment and distance between his shop and Vishnu Apartment is about ½ k.m. and kirana shop of deceased Harish is not visible from his medical shop. An omission was elicited in the cross-examination that P.W. 6 Sudhakar stated in his previous statement recorded on 23.3.2006 that accused went in his shop and brought iron rod. A suggestion was given to him that when he appeared on the spot at that time the accused was not present there and injured Harish was lying on the ground but same was denied by him. It was also 10 suggested to him that due to close relations with the family of deceased Harish he deposed falsely but same also was denied by him. He further stated in the cross-examination that the pipe like attached pipe are easily available in the market. 11. That takes us to the testimony of P.W.1 Dr.Sharad Kuchewar who has deposed that he was attached to Ghati hospital as Medical Officer at the relevant time and on 28.3.2006 he was present on duty. He further stated that while he was on duty the Police personnel belonging to M.I.D.C. Police Station brought one dead body of the person namely Harish Dilip Patil for post mortem. Accordingly, he conducted autopsy on the dead body of Harish and issued post mortem notes which are produced at Exh.21. He also stated that while conducting autopsy on the dead body of deceased Harish, he found the following injuries on his corpus. (i) 13 cm stitched wound over left fronto parietal region 18 stitches in situ, vertically placed; (ii) 3 cm stitched wound over high parietal region horizontally placed, 3 stitches in situ. (iii) Evidence of tracheotomy over anterior aspect of neck. 11 Moreover, during autopsy the following internal injuries were found on the corpus of Harish Patil. Skull Injury : (i) Sub galeal hematoma present over both frontal, both parieto temporal bone and some part of occipital region. Dark, red in colour; (ii) Depressed fracture over left parietal region 9 cm margin irregular, evidence of blood infiltration; (iii) Linear undisplaced fracture running horizontally from left parietal region to right parietal region 9 cm margins irregular, evidence of blood infiltration present. Brain Injury : (i) Evidence of extra dural haemorrhage present over left and right parietal region both size 8 x 8 cm x 1.5 cm thick dark redish, evidence of dural tear on left parietal region corresponding to fracture site; (ii) Brain matter congested and edematous. He further stated that he noticed the aforesaid injuries in Column 17 and 19 post mortem notes as well as noticed internal injuries in column 19 of the post mortem notes. According to him, 12 the cause of death was due to head injury. He also stated that injuries mentioned in post mortem notes may be possible by hard and blunt object just like iron bar or rod. Cross-examination of P.W.1 Dr.Sharad was declined by learned Counsel for the appellant. 12. The learned Counsel for the appellant submitted that the medical case papers of Sumananjali Nursing Home have been produced on record at Exh.52 which disclosed the history of the victim as alleged assault beaten by 2-3 people by G.I. pipe over head today i.e. 22.3.2006 at 3.00 p.m. and, therefore, it is canvased that it is apparent that the alleged assault upon victim Harish was committed by 2-3 persons and not by one person and accused herein has been implicated in this case falsely. The learned Counsel for the appellant also submitted that considering the external injuries recorded in Column No.17 of the post mortem notes (Exh.21), it is obvious that the said injuries are four in number and might have been caused by 2-3 persons and not by one person and, therefore, also the accused herein has been implicated in this case falsely. As regards the testimony of P.W.2 complainant Sudhakar, the learned Counsel submitted that he is the maternal uncle of victim Harish and he is interested witness and, therefore, his testimony cannot be believed. As regards the testimony of P.W.6 another eye witness Mahendra Gade, learned 13 Counsel for the appellant submitted that he has categorically stated in the cross-examination that distance between his shop and Vishnu Apartment is about ½ km. and Kirana shop of deceased Harish was not visible from his medical shop and, therefore, it is canvased that P.W.6 Mahendra Gade is a chance witness and it is unbelievable that he has witnessed the occurrence of the incident. Accordingly, the learned Counsel for the appellant submitted that the deposition of both the eye witnesses are in doldrums and they cannot be believed and conviction cannot be based against the appellant on the testimony of such eye witnesses. 13. The learned Assistant Public Prosecutor supported the judgment and order rendered by learned trial Judge and submitted that the trial Judge has rightly believed in the depositions of aforesaid both the eye witnesses and rightly convicted and sentenced the appellant herein. It is further submitted that the view adopted by the learned trial Judge is a possible view and after appreciating the evidence on record, there is no necessity to interfere in the said view. It is also canvased by learned Assistant Public Prosecutor that the reasoning adopted by the learned trial Judge while convicting and sentencing the accused herein cannot be faulted with and, therefore, further submitted that no interference is warranted in 14 the judgment and order convicting and sentencing the appellant herein. 14. We have considered the submissions advanced by learned Counsel for the appellant and the learned Assistant Public Prosecutor for the State anxiously. Prosecution case principally relied upon the two eye witnesses i.e. P.W.2 Sudhakar and P.W.6 Mahendra and considering the testimony of P.W.2 Sudhakar it is amply clear that he witnessed the occurrence of the incident and he has categorically stated that he saw that the accused assaulted Harish by an iron pipe and he caught hold of the accused but the accused rescued himself, by giving jerk and ran away. He further stated that accused assaulted Harish by an iron pipe on his head due to which Harish became unconscious and fell down and sustained head injury and blood was oozing from his head. There is nothing in the cross-examination which is beneficial for the accused and testimony of P.W.2 Sudhakar has not been shaken in the cross-examination and hence, the version of P.W.2 in his deposition in respect of occurrence of incident wherein accused assaulted victim by iron rod on his head is required to be accepted, and consequently, required to be believed. 15 15. That takes us to the deposition of P.W.6 Mahendra Gade, another eye witness who also stated that the accused assaulted deceased Harish by iron rod on his head and he saw that P.W.2 Sudhakar i.e. maternal uncle of Harish caught hold of the accused but the accused rescued himself from him and ran away and Harish was lying on the ground. Considering the cross- examination of P.W.6 Mahendra Gade, a distance between his shop and Vishnu Apartment was brought on record which was stated to be ½ km and two suggestions were given to the said witness which were obviously denied by him. Thus, considering the testimony of P.W.6 Mahendra Gade, it is amply clear that the said testimony connects the appellant with the crime since nothing of importance and supportive to the case of accused could be elicited in the cross-examination. 16. It is material to note that the injuries stated by P.W.1 Dr.Sharad are the head injuries which are reflected in Column No. 17 of post mortem notes (Exh.21) and the said head injuries are in consonance with the versions of the aforesaid two eye witnesses, and, therefore, undisputedly the victim Harish met with the homicidal death and authorship thereof can be very well connected with the appellant herein, relying upon the unshaken testimonies of aforesaid two eye-witnesses. 16 17. In the circumstances, after assessing and scrutinizing the occular and medical evidence on record as well as on perusal of judgment and order rendered by learned 3rd Ad-hoc Additional Sessions Judge we are of the considered view that the reasoning adopted by learned trial Judge convicting and sentencing the appellant-accused cannot be faulted with and no interference therein is warranted in the appellate jurisdiction and, therefore, present appeal deserves to be dismissed. 18. In the result, present appeal bears no substance being sans of any merit and, therefore, same stands dismissed. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal163.08)