( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.310 OF 2005 CRIMINAL APPEAL NO.310 OF 2005 CRIMINAL APPEAL NO.310 OF 2005 Shivaji Kisan Gandugale R/at. Laxmi Building, 47/49, Nagdevi X Lane, Gr. Floor, Below staircase, Pydhunie, Mumbai - 400 003 Native Place at Yelewadi, Post : Kalgaon, Taluka Patan, District Satara (M.S.) .. Appellant. Verses The State of Maharashtra (L.T.Marg Police Station) .. Respondent. Mrs.Aarti P. Bhide for the applicant. Mrs.V.R. Bhonsale, A.P.P. for the State of Maharashtra. CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & SHRI R.Y. GANOO, JJ. SHRI R.Y. GANOO, JJ. SHRI R.Y. GANOO, JJ. DATED : 1st August, 2008. DATED : 1st August, 2008. DATED : 1st August, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- PER : SHRI.R.Y. GANOO, J. PER : SHRI.R.Y. GANOO, J. PER : SHRI.R.Y. GANOO, J. ========================= ========================= ========================= 1. The appellant faced trial in Sessions Case No.9 of 2001 before the learned Additional Sessions Judge, Greater Bombay (hereinafter referred to as the learned "Trial Judge"). By judgement and order dated 29.9.2004 passed by Ld. Trial Judge, the appellant was convicted under Section 302 r/w.Section 34 of the Indian Penal Code and the appellant was to undergo imprisonment for life and to pay fine of Rs.3,000/- and to undergo imprisonment for 2 months i/d. of ( 2 ) payment of fine. 2. Being aggrieved by the aforesaid judgement and order of conviction and sentence dated 29.9.2004, the appellant has filed the present appeal. 3. The prosecution case in gist is as under :- 4. Rasiklal Jethalal Gala since deceased (hereinafter referred to as the deceased) used to exchange money in foreign currency in club run at Mangaldas Market. According to the prosecution, on 12.8.2000, early in the morning, at about 6.45 a.m., he had left the house and had been to Mangaldas Road corner, near Woodland Shoe Shop and that he was assaulted by two persons with sickle and knife and the object of committing assault was to rob said deceased as he then possessed a sum of Rs.35,000/- and the said deceased sustained multiple stab injuries and ultimately succumbed to the said injuries. 5. According to the prosecution, the present appellant and another person by name Kondiba Baburao Naikawade assaulted the said deceased and that is how the appellant is shown to be concerned in the said incident of 12.8.2000. The F.I.R. in respect of this incident came to be lodged at L.T.Marg police station ( 3 ) on 12.8.2000 by P.S.I., Shri Manohar Kulkarni, P.W.1. The F.I.R. came to be lodged against unknown persons and after due investigation, the present appellant came to be arrested from his native place at Yelewadi, District Satara on 22.9.2000. The co-accused Balu Ananda Patil (hereinafter referred to as the "Balu") was also arrested. In addition to the appellant and said Balu, one more person by name Baban alias Babanya Ramchandra Naikawade (hereinafter referred to as the "Baban") was also arrested i.e. to say, in all three persons were shown to be concerned in this C.R.being C.R.No.202 of 2000 of L.T. Marg police station. After due investigation, the charge-sheet came to be filed against the present appellant and 2 co-accused Balu and Baban. 6. The co-accused Balu and Baban preferred application for discharge under Section 227 of the Code of Criminal Procedure. That application was decided by the learned Trial Judge on 6.8.2004 and the learned Trial Judge discharged the said co-accused, namely, Balu and Baban. Thereafter, the learned Trial Judge framed charge against the appellant on 6.8.2004 under Section 392 r/w. Section 34 and Section 302 r/w. Section 34, both of Indian Penal Code. 7. The appellant pleaded not guilty and his ( 4 ) defence was of denial and of false implication. 8. In the course of trial, the prosecution examined 11 witnesses. P.W.1, Manohar Kulkarni is Police Sub Inspector, who had lodged the F.I.R. and who had conducted various panchnamas. P.W.2 Nirmala Rasiklal Gala is the wife of the deceased. P.W.3 Pravin Khimji Gala is the person, who had taken photographs of the deceased. P.W.4 is Hirumati Gopal Makwana, who was cited as an eye witness to the incident. P.W.5 Khimji Jesa Makwana was also cited as an eye witness and had participated in the identification parade. Mustak Ali Mansuri, P.W.6 is the panch regarding recovery of the knife (Article 11) at the instance of the appellant. P.W.7 Raju Dadan Kevat is the person, who had seen the deceased in the injured condition, walking on the street. P.W.8 Mr.Noshir Rusi Mehta had conducted identification parade. P.W.9, Yeshwant Shravan Rade had promulgated prohibited orders under the Bombay Police Act. P.W.10, Dr.Ajay Vinayak Patil had conducted the post mortem. P.W.11 is Gopichand Ballu Chavan, who is styled as an investigating officer. 9. The panchnama regarding the scene of offence is at "Exhibit-17" "Exhibit-17" "Exhibit-17" and one person by name Benjamin Piris is said to have pointed out place of offence to ( 5 ) the police i.e. the place where the deceased was assaulted by the appellant. The panchnama at "Exhibit-16" "Exhibit-16" "Exhibit-16" relates to the place where the deceased was found to be lying in the injured condition. The panchnama regarding the recovery of the knife (Article 11) at the instance of the appellant is at "Exhbit-29" "Exhbit-29" "Exhbit-29" in two parts i.e. "Exhibit-29(A)" and "Exhibit-29(A)" and "Exhibit-29(A)" and "Exhibit-29(B)". "Exhibit-29(B)". "Exhibit-29(B)". The memorandum of identification parade is at "Exhibit-35". "Exhibit-35". "Exhibit-35". 10. With the assistance of learned Advocate Mrs.Bhide appearing on behalf of the appellant and Mrs.Bhonsale, learned A.P.P., for the State, we have gone through the entire record. 11. Though the prosecution has cited P.W.4 Hirumati Makwana as an eye witness, after having gone through the evidence of said Hirumati, P.W.4, we can observe that this witness could not have been used by the prosecution as an eye witness because in the examination-in-chief, she has stated that she had not seen the two persons, who had assaulted another person. At the same time, she states that Khimji Makwana, P.W.5 had seen the incident. At this stage, the learned A.P.P. sought permission to declare this Hirumati Makwana, P.W.4 as hostile and her evidence was recorded. We have gone through the evidence of ( 6 ) Hirumati Makwana, P.W.4 in its entirety and we maintain our earlier observation that this witness cannot be styled as an eye witness and is of no use to the prosecution. 12. The prosecution has examined Raju Kevat P.W.7. This witness has stated that he saw one person holding his wound over the abdomen with his hand and covering his head with another hand. This witness also states as to how the victim could not get a taxi and how he fell on the ground and as to how policemen came and the police van took away the victim from the spot. This witness confirms that the victim walked from one spot in the injured condition and fell at one spot. This explains the two panchanamas viz. Exhibit-17 Exhibit-17 Exhibit-17 regarding the place of incident and Exhibit-16 Exhibit-16 Exhibit-16 where victim was found lying in injured condition. 13. Then comes the evidence of Khimji Makwana, P.W.5, who has been cited as an eye witness. With the assistance of learned Advocates on both the sides, we have gone through the evidence of this witness Khimji Makwana, P.W.5. It is clear that this witness had the benefit of watching the incident, namely, assault by two persons on another person. This witness has deposed that one of the assailant was having a knife and another person was having something like knife. ( 7 ) Evidence of this witness clearly goes to show that he had an occasion to see the two assailants and that he has even described one person as a stocky and another person as a thin. This witness has attended identification parade at Arthur Road Jail on 2.12.2000. The evidence of this witness Khimji Makwana, P.W.5 as regards he having identified the appellant at the parade is clear and can be accepted. Some effort was made by the learned Advocate for the appellant to dislodge the evidence of P.W.5 while conducting the cross-examination. However, we are inclined to observe that this witness has stood the test of cross-examination and it would be difficult to discard the testimony of this witness. Sofar as the evidence of Khimji Makwana, P.W.5 is concerned, we are inclined to observe that his evidence is cogent, reliable and is not shattered in the course of cross-examination. It is required to be mentioned that Khimji P.W.5 did not know the victim or the appellant prior to the incident and, therefore, there is no question of this witness, developing enmity against the appellant with a view to falsely implicate the appellant. This witness has in the cross-examination given details as to what transpired at the time of identification parade and to that extent also, the witness has confirmed the identity of the appellant. Even otherwise, considering the ( 8 ) evidence of this witness, it is clear that the incident lasted for a substantially long time and that this witness had an opportunity to watch the appellant and note his features. In substance, we are inclined to accept the testimony of Khimji Makwana, P.W.5 in favour of the prosecution to hold that the prosecution has made out a case that the appellant assaulted the deceased with knife. 14. The material on record clearly shows that P.W.5 was a stranger to the appellant and, therefore, it was necessary for the investigating agency to conduct an identification parade to fix the identity of the appellant as assailant. The appellant came to be arrested on 22.9.2000 and the identification parade came to be conducted on 2.12.2000. It was argued on behalf of the learned Advocate for the appellant that the identification parade has been conducted belatedly. Insofar as this aspect is concerned, we have gone through the reasonings given by the learned Trial Judge as regards the time gap between the arrest of the appellant and conducting of the identification parade and we are inclined to accept the view taken by the learned Trial Judge. The learned Trial Judge has considered the fact that the appellant came to be arrested from his native place, namely, Yelewadi, District Satara and the learned Trial Judge has ruled ( 9 ) out the possibility of false implication. The observations of the learned Trial Judge contained in paragraph 33 of the judgement are required to be accepted and to that extent, argument advanced on the question of holding of identification parade on 2.12.2000 is required to rejected. 15. Our attention was drawn to the statement of the accused recorded under Section 313 of Cr.P.C. and, in particular, Question 9 where the circumstance appearing against the appellant is, namely, identification by Khimji P.W.5. Here, the appellant has answered as follows :- "It is true that I had been identified by P.W.5 at Arthur Road Jail. It was Mehta, who pointed out to me to identify the witness". 16. A perusal of this answer would clearly go to show that the appellant admits that the appellant was put up in the identification parade and that Khimji P.W.5 was also present at the time of identification parade and that he has identified the appellant. The only question is whether the appellant came to be identified independently of Mr.Mehta or at the instance of Mr.Mehta. The appellant has contended that Mr.Mehta, who was conducting the identification parade, pointed out to the appellant in the identification parade to the witness. Such a stand is ( 10 ) taken by the appellant only at the stage of recording of statement of the appellant under Section 313 of Cr.P.C. It was open for the appellant to put up such a suggestion to Mr.Mehta, P.W.8. However, that has not been done. Hence the stand of the appellant that Mr.Mehta assisted Khimji P.W.5 to identify the appellant cannot be accepted. The answer given by the appellant which is quoted above clearly goes to confirm the case of the prosecution that appellant was identified by Khimji P.W.5. 17. It has been the case of the prosecution that the appellant volunteered to produce the knife (Article 11) with which the deceased was assaulted. Same is sought to be done by the prosecution through panchnama at "Exhibit-29". "Exhibit-29". "Exhibit-29". We have gone through the text of the said panchnama and we are inclined to observe that though an effort was made by the prosecution to prove the said panchnama through the Panch witness, it is seen that the said knife (Article 11) came to be recovered from the place accessible to anybody and that is how the case of the prosecution that the knife (Article 11) which is said to have been recovered under panchnama "Exhibit-29" "Exhibit-29" "Exhibit-29" at the instance of the appellant, cannot be accepted. 18. The blood stained clothes of the deceased were ( 11 ) recovered vide panchnama at "Exhibit-51". "Exhibit-51". "Exhibit-51". Learned Advocate appearing on behalf of the respondent-State had tried to submit that the knife (Article 11) which came to be recovered while recovery panchnama under Section 27 of the Indian Evidence Act, at the instance of the appellant, was found to be stained with the blood and the blood group found on the same with the human blood having group "O" and the clothes of the deceased were also found to be stained with human blood and the group was "O". Learned Advocate for the respondent submitted that this matching of blood group goes to indicate that the knife (Article 11) was used by the appellant for the purposes of assaulting the deceased. 19. We have already indicated in the earlier part of the judgement that as the knife (Article 11) was found in a place easily accessible to anybody, no reliance can be placed on the said circumstance which came to be cited by the prosecution and as such this aspect of matching of blood groups by itself would not strengthen the case of the prosecution in that behalf. 20. At this juncture, itself, we wish to place on record that merely because the case of the prosecution as regards fixing the identity of the weapon as the one used by the appellant in the course of the ( 12 ) occurrence is not accepted, still that does not cause any damage to the case of the prosecution because we have in the earlier part of the judgement clearly indicated as to how the evidence of P.W.5 Khimji Makwana clearly goes to show that the appellant had assaulted the deceased with knife and as to how the various injuries were suffered by the deceased. 21. Learned Advocate Mrs.Bhide appearing on behalf of the appellant had tried to submit that the evidence of Khimji P.W.5 with reference to the place of incident and the case of the prosecution with reference to the scene of offence panchanama is at variance. 22. We have gone through the panchanama Exhibit-17 Exhibit-17 Exhibit-17 and it is seen that the place where the assault on the deceased took place came to be pointed out by one person by name Benjamin Piris. This person Mr.Benjamin Piris has not been examined by the prosecution. The investigating agency had conducted the panchnama at "Exhibit-16" "Exhibit-16" "Exhibit-16" and perusal of the said panchnama goes to show that the police recorded the said panchnama in regard to place where the deceased was found to be lying in the injured condition. Though the prosecution has not examined Mr.Benjamin Piris, who had pointed out the place where the assault ( 13 ) took place, that does not damage the case of the prosecution. The evidence of Khimji P.W.5 would clearly go to show that the deceased went in the direction of Kalbadevi Road after he was injured i.e. after the incident of assault took place. The evidence of Raju Kevat P.W.7 also goes to show that one person was holding his wound over the abdomen with his hand and covering his head on the other and was coming from Mangaldas Market towards main road and how he attempted to get a taxi and how he fell on the road. All this will clearly go to show that the deceased after suffering the injuries walked for a distance and thereafter fell down. Some comments were offered by the learned Advocate Mrs.Bhide on the question of Khimji P.W.5 standing near a shop etc. and the relevant aspects as regards the place where the injuries were inflicted and the place where the deceased fell down. However, we are not impressed by that argument. We have also indicated as to how evidence of P.W.5 is cogent and beyond challenge. 23. Insofar as the injuries found on the person of the deceased, we have evidence of Dr.Ajay Patil, P.W.10, who had conducted the post mortem on the body of the deceased. Dr.Ajay Patil, P.W.10 has observed the following injuries on the person of the deceased. "i] I.W. seen on left side of back 10 cm ( 14 ) below left shoulder, 8 cm below nape of neck of size 15 cm x 3 cm x 3.5 cm in size, directed obliquely, upper end medial and lower end lateral, both the edges shape, angles, acute. ii] I.W. seen 1 cm wound No.1 of size 2.5 cm x 0.5 cm in size. iii] lacerated wound seen on back of left four arm 12 cm below left elbow, 12 cm above left wrist of size 6 cm x 2 cm x 1.5 cm, margins irregular, lower and bones and muscles exposed. iv] Stab seen on left side of chest 7 cm below left nipple 9 cm from midline, of size 3 cm x 1.8 cm chest cavity deep, directed vertical, margins clear cut but angles were blunt. v] lacerated wound seen on front of left arm, 12 cm below left elbow 12 cm above left wrist, of size 8 cm x 4 cm x bone deep. vi] Abrasion seen on chin 2 cm x 1 cm irregular shape, surface reddish vii] I.W. seen on right side back of head, 15 cm from right eye brow and 11 cm from right ear of size 8 cm x 0.5 cm X skull bone deep, margins clear angles acute". 24. P.W.10 Dr.Ajay Patil has deposed that all the aforesaid injuries were anti mortem and he has observed that the probable cause of the death was haemorrhage and shock due to multiple injuries and has also stated that external injuries at Sr.No.4 and 7 cumulatively and even individedly sufficient to cause death of victim. 25. Perusal of the various injuries suffered by the deceased, it is clear that the deceased suffered ( 15 ) serious injuries on the vital organs and, in particular, injury at serial No.4 was a stab injury on the left side of the chest 7 cm below left nipple 9 cm from midline of size 3 cm x 1.8 cm etc. The learned Advocate Mrs.Bhide appearing on behalf of the appellant had tried to submit that since the case of the prosecution is, namely, the deceased came to be assaulted by two persons and both the persons were having the sharp edged weapons, it would be difficult to attribute a particular injury suffered by the victim to the appellant and hold that the appellant had committed an offence punishable under Section 302 of the Indian Penal Code. 26. We have considered this submission and we are of the view that the same cannot be accepted. Injuries suffered by the deceased are mentioned aforesaid and evidence of Khimji P.W.5 clearly goes to show that the appellant had assaulted the victim with the sharp edged weapon. In such a situation, it would be difficult to accept the argument advanced by the learned Advocate for the appellant that the appellant cannot be held responsible for the injuries suffered by the deceased. In this connection, we have perused the reasonings given by the learned Trial Judge at paragraph 37 as to why he has observed that the appellant should be convicted under Section 302 of the ( 16 ) I.P.C. We see no reason to depart from the reasonings and the approach of the learned Trial Judge in the wake of the evidence of Khimji P.W.5 coupled with the evidence of Dr.Ajay Patil, P.W.10, narrating the various injuries suffered by the victim and that the various injuries were on the vital parts of the body. The appellant will have to be held responsible for it and that the case of the present appellant fairly falls within the parameters of Section 300 of the I.P.C. and as such the appellant has been rightly convicted under Section 302 of the I.P.C. 27. Learned Advocate Mrs.Bhide appearing on behalf of the appellant submitted that the prosecution has not been able to place on record any specific reason as to how the deceased had visited the place where the incident is allegedly to have taken place and to that extent, case of the prosecution is weak and is required to be treated accordingly. We are not impressed by this argument. It was not necessary for the prosecution to explain as to why the deceased was at or about the place of incident in the morning of 12.8.2000, particularly, when we have accepted the evidence of Khimji P.W.5. 28. Learned Advocate Mrs.Bhide appearing on behalf of the appellant had submitted that Nirmala Gala, ( 17 ) P.W.2 wife of the deceased had stated that the deceased i.e. her husband left the home at about 7.00 a.m. as he received a telephone call at the time quarter to 7.00 a.m. This portion of the evidence was treated by the learned Advocate for the appellant as something to suggest that the case of the prosecution that the incident took place at about 6.45 a.m. as stated by Khimji P.W.5 is required to be disbelieved. We have considered the evidence of Khimji P.W.5 and evidence of Nirmala P.W.2 and we are not impressed by the said argument. It is true that Khimji P.W.5 has stated that he was near about the scene of offence at about 6.45 a.m. i.e. at the area which is commonly called as Lohar Chawl. This discrepancy sought to be placed on record is not vital so as to come to the conclusion that evidence of Khimji P.W.5 is false. Hence, the above argument is required to be rejected. 29. We have gone through the judgement delivered by the learned Trial Judge and we are inclined to accept the view arrived at by the learned Trial Judge on the basis of the evidence of P.W.5 Khimji Makwana, P.W.8 Mr.Mehta, who had conducted the identification parade as also the evidence of Dr.Ajay Patil, P.W.10, who had given detailed evidence with reference to the injuries suffered by the deceased and the cause of the death. We are inclined to observe that the learned ( 18 ) Trial Judge has appreciated the evidence in the proper perspective and has rightly arrived at a conclusion that the appellant deserves to be convicted under Section 302 r/w. Section 34 of I.P.C. 30. The appellant had to face trial for charge under Section 392 r/w. Section 34 of I.P.C. The learned Trial Judge has acquitted the appellant of charge under Section 392 r/w. Section 34 of I.P.C. The respondent - State has not preferred any appeal against this order and as such we need not comment upon the judgement delivered by the learned Trial Judge in regard to his observations on the said order of acquittal and to that extent, no observations are made against the said observations. 31. Insofar as the imposition of punishment for conviction under Section 302 r/w. Section 34 of I.P.C.,