1 Cri.Appeal No.115 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 115 OF 2010 Gajendra s/o Nanasaheb Shirsath, Age : 28 years, Occ.Agri., R/o Savtawadi, Kolhar (Kh), Taluka Rahuri, District Ahmednagar ..APPELLANT (Ori. Accused) VERSUS The State of Maharashtra, Through Rahuri Police Station, Rahuri, Dist. Ahmednagar ..RESPONDENT Mr Sandeep S. Deshmukh, Advocate for the appellant; Mrs S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 9th June, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/-, in default of which to undergo further S.I. for six months, by the Sessions Judge, Ahmednagar, 2 Cri.Appeal No.115 of 2010 by judgment dated 2.12.2009, in Sessions Case No.17 of 2009, by this appeal questions the correctness of his conviction and sentence. 2. Facts, in brief, which are necessary for the decision of this appeal, may briefly be stated thus :- First information report at Exh.11 came to be lodged by P.W.1 Gangubai, mother-in-law of deceased Savita, alleging therein that the appellant/accused, who had illicit relations with deceased Savita, had assaulted her and caused injuries due to which deceased Savita had died. It also appears that on hearing the cries for help of P.W.1 Gangubai, P.W.3 Swati and P.W.7 Dattu had gone to the house and had inquired from Savita the cause of the injuries sustained by her. Savita had informed them that it was the appellant who had inflicted the injuries. The appellant came to be arrested after the offence came to be registered on the basis of the first information report at Exh.11. Pursuant to his arrest, the appellant, during custodial interrogation, expressed his willingness to point out the place where the weapon i.e. knife was hidden. Accordingly, memorandum at Exh.13 came to be recorded in the presence of P.W.2 Deepak. The appellant led the police and the panch and accordingly the weapon i.e. knife came to be seized vide seizure memo at Exh.14. During investigation the clothes of deceased came to be seized vide Exh.15. Dead body of deceased Savita was referred for post mortem examination and post mortem examination came to be 3 Cri.Appeal No.115 of 2010 conducted by P.W.4 Dr. Farooqui. P.W.4 Dr. Farooqui had noticed the following external injuries :- (1) Spindle shaped stab wound over chest at right sternal border obliquely presented having size 1.7 cm. x 1.8 x 0.4 cm. which is 1.6 cm. below and 8 cm. medial to mid right nipple; (2) Spindle shaped penetrating wound with bilateral clear margins and sharp edges horizontally placed at xiphisternum 3/6 cm. below the injury no.1 having size 3 cm. x 1.5 cm. into cavity deep, which is 10 cm. medial and 5 cm. below the mid of right nipple; (3) Spindle shaped penetrating wound of bilateral clear margins horizontally placed on left side of chest at the level of left sternal border having size 2.5 cm. x 1.6 cm. into cavity deep which is 9 cm. below and 6 cm. medial left mid nipple and 2.3 cm. below and 3 cm. lateral to injury no.2; (4) Spindle shaped penetrating wound with clear margin horizontally placed having size 2.9 x 1.4 cm. into cavity deep present 1.6 cm. lateral and 6.8 cm. below the mid of right nipple, 2 mm above this injury there is horizontally placed parallel incised looking lacerated wound having size 1.2 x 0.2 x 0.2 cm.; (5) Triangular shaped penetrating wound with inverted margins placed over right side of upper region of abdomen of diameter 1 cm. which was 16.5 cm. below and 3 cm. medial to mid of right nipple; 4 Cri.Appeal No.115 of 2010 (5A) Spindle shaped penetrating wound over right side of abdomen 2 mm. lateral and above to injury no.5 with clear cut margins having size 2 cm x 1.3 cm. by cavity deep at the line of right nipple which is 14 cm. below the mid of right nipple; (6) Spindle shaped penetrating wound 3 mm below the injury no.5A at the line of mid of right nipple having size 3 x 1.6 into cavity deep with clear cut margins which is 7 cm. lateral and 6 cm. above the mid of umbilicus; (7) Spindle shaped penetrating wound with clear cut margins over right side of abdomen 1.6 cm. below the injury no.6 having size 1.3 cm. x 9.7 cm. x cavity deep, situated over 8 cm. lateral and 3 cm. above the mid of umbilicus; (8) Spindle shaped penetrating wound with inverted margins, horizontally placed, over outer aspect of right arm having size 5 x 2.3 x bone deep which is 11 cm. above the tip of olecranon process; (9) Spindle shaped penetrating wound over the outer aspect of right forearm with clear cut margins having size 3.6 cm. x 1.7 cm. x 1.3 cm., which is 10.3 cm. below the lateral epicondyle; (10) Spindle shaped penetrating wound with inverted margins over the distal part and outer aspect of right forearm having size 2.9 cm. x 1 cm. x 1 cm. over the styloid process; (11) Lacerated wound with ragged margins over the right forearm having size 1 cm. x 0.5 cm. x 0.3 cm. and is 4 cm. above and 3 cm. lateral to styloid process; 5 Cri.Appeal No.115 of 2010 (12) Spindle shaped penetrating wound over the inner aspect of right forearm having size 2.1 x 1.1 x 1 cm. and 9 cm. below and 2 cm. medial to epicondyl; (13) Spindle shaped penetrating wound over inner aspect of right arm with clear cut margins having size 1.7 cm. x 0.6 cm. x 0.5 cm. which is 9 cm. above the medial epicondyl; (14) Spindle shaped penetrating wound over the outer aspect of left forearm with clear cut margins having size 3 cm. x 1.7 cm. x 1 cm. which is 11 cm. above and 2.5 cm. lateral to styloid process; (15) Spindle shaped perforating wound over the lateral border of inner aspect of left forearm with clear margins having size 2 cm. x 1 cm., which is 0.4 cm. above and 1 cm. lateral to injury no.14; (16) Fracture of right side of 7th rib at sternal border. On internal examination the following injuries were noticed :- (1) stab injury having size 2.8 x 1.8 c.m. oval shaped at the level xiphisternum; (2) stab injury over right rectus abdominus having size 5 x 3.2 c.m.; (3) stab injury below injury No.2 over right rectus abdominus having size 1.3 x 1.2 c.m.; (4) Peritoneal tear on right side of the cavity containing 2.2 liter blood with clots; 6 Cri.Appeal No.115 of 2010 (5) There was perforating wound over left lobe having size 3.2 c.m. at anterior surface, 2.2. c.m. over the posterior surface, 3 c.m. below this 2.9 c.m. wound at anterior surface, 0.7 c.m. at posterior surface, 2.1 c.m. at posterior surface, 3.7 c.m. below this wound at caudat lobe rent (whole) of 1.1 c.m. (6) At small intestine we noticed penetrating wound over the 2nd part of duodenum of lumen deep having size 1.5 x 0.7 c.m. (7) We noticed tear having size 3 x 2.9 c.m. wound over the right side of mesentery along with clots (8) Pupils were pale, bladder was empty, spleen found pale. There was no injury to esophagus and also to Pancreas and suprarenals. (9) Spinal was intact. P.W.4 Dr. Farooqui, therefore, opined that cause of death was due to haemorrhage and shock due to multiple stab injuries. The post mortem report is at Exh.28. The accused also was referred for medical examination and came to be examined by P.W.5 Dr. Kshirsagar. P.W.5 Dr. Kshirsagar noticed the following external injuries :- (1) Incised but superficial wound 3 x 1/2 x 1/4 cm. over right palm at the middle region; (2) Incised but superficial wound over right palm at the base of ring finger, having size 2 x 1/2 x 1/4 cm. 7 Cri.Appeal No.115 of 2010 (3) Incised but superficial wound over right finger anterior aspect having size 2 x 1/2 x 1/4 cm. He opined that the aforesaid injuries were possible in the assault on the victim. He has proved the certificate at Exh.31. 3. Further to the completion of investigation, charge-sheet against the appellant came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed charge against the appellant for offence punishable under section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 5. The prosecution in support of its case examined eight witnesses. The prosecution principally hinges around the evidence of P.W.1 Gangubai, P.W.3 Swati and P.W.7 Dattu. The Trial Court disbelieved the evidence in respect of the discovery of the weapons and the seizure of the blood stained clothes of the accused and ultimately convicted and sentenced the appellant by relying on the aforesaid evidence. 6. The accused, who it appears, was the paramour of deceased Savita, brutally assaulted her and committed her murder. The appellant/accused had inflicted as many as 16 external injuries which 8 Cri.Appeal No.115 of 2010 resulted in massive internal damage, which led to the haemorrhage and ultimately Savita succumbed to the haemorrhagic shock due to multiple stab wounds. P.W.1 Gangubai, her mother-in-law states that deceased Savita was her daughter-in-law and was residing with her and other family members. She further states that accused Gajendra used to frequently visit her house in the absence of her sons. She has stated that she had asked Gajendra not to visit her house, but in spite of that he continued visiting her house. According to her, the accused used to seduce deceased Savita and used to present chocolates to the grand children of P.W.1 Gangubai. She states in respect of the incident that on that day she was sitting outside the house. Her grand children had qauarrelled and thereafter were watching the T.V. programme. Deceased Savita had entered the room where the T.V. programme was being viewed by the grand children of P.W.1 Gangubai. Gangubai further states that she heard the cries of Savita and accordingly rushed inside the room and noticed the appellant assaulting Savita with a knife while asking her as to why she was not maintaining the illicit relations with him. She further states that as soon as she entered the room, the accused ran outside the house. She states that she then questioned as to what had happened and Savita had informed her that Gajendra (accused) had assaulted her with a knife. She states that thereafter she raised cries for help and accordingly a vehicle was arranged for and Savita was taken to the Loni Hospital where she was pronounced dead. 9 Cri.Appeal No.115 of 2010 7. In cross-examination she has admitted that the house of Gajendra is to the west to the road which is in front of her house. She has further admitted that Savita was married with her son Kiran about seven years prior to the incident. She has also admitted as correct that the appellant used to visit her house daily since last about five years, but could not state if the appellant was having illicit relations with Savita since last three years. She has further stated that there was a hatred expressed by the other family members towards the appellant while talking to deceased Savita. She has further stated that her sons including the husband of Savita had tried to convince Savita to break off relations with the appellant and not to permit him to enter the house. In respect of the incident, in the cross-examination she has stated that she was sitting outside the house while Savita was doing the household chores inside the house. She has then admitted as correct that the incident of assault took place in the house of Changdeo where the boys were watching the T.V. programme and at that time she was sitting outside the door of the house. She has candidly admitted that she does not know as to when the appellant entered the house. She has admitted as true that on hearing the commotion she had gone near the door of the house of the appellant and the appellant had fled away. She has then further admitted that she had not seen any weapon in the hand of the appellant while he ran away. This witness volunteered by stating that she had seen the appellant putting the knife in his pocket. In further cross-examination she has stated that she had seen the appellant assaulting her daughter-in-law 10 Cri.Appeal No.115 of 2010 with a knife from a distance of about 7 to 8 feet. She has admitted that on account of the injuries blood was vanishing out of the injuries. She has further stated that upon entering the room she held deceased Savita and her sari was stained with blood. She has denied the suggestion made on behalf of the appellant that the sons of P.W.1 Gangubai had entered the house and upon seeing them the appellant had fled. 8. Mr Deshmukh, learned Counsel for the appellant has urged before us that initially this witness stated that she had witnessed the incident, while in the cross-examination she has admitted that as soon as she entered the door, she saw the appellant leaving. According to Mr Deshmukh, therefore, the aforesaid admission completely wipes out the evidence of this witness that she had witnessed the incident. The learned A.P.P. supported the findings of the Trial Court and urged for dismissal of the appeal. 9. A sentence in the cross-examination cannot be read in isolation. The entire evidence of the witness has to be read while appreciating the evidence of this witness. This witness, in response to the question, had answered that when she had entered the door of house of Changdeo she had seen the appellant leaving. In further cross-examination she has clearly stated that she had seen the appellant from a distance of 7 to 8 feet. while assaulting Savita with a knife. In the face of this admission, according to us, merely because of a stray admission in the cross- 11 Cri.Appeal No.115 of 2010 examination or a truncated statement in the cross-examination can not lead the Court to a finding that the witness is not a witness of truth or that the witness had not witnessed the incident. In the present case, according to us, even if it is presumed that upon hearing the cries of Savita, Gangubai had entered the room and seen the accused leaving the said room, according to us the aforesaid evidence would be sufficient for justifying the conviction of the appellant. Gangubai had immediately noticed Savita in an injured state having sustained as many as 16 external injuries. Savita had orally informed her that it was the appellant who had stabbed her. If the appellant's presence in the room immediately after Savita sustaining the injuries has been established, in the light of the absence of any explanation whatsoever by the appellant, the conviction of the appellant can certainly be sustained. In any event, we find that Gangubai can be relied upon as a witness of truth, who had seen the incident of the appellant stabbing deceased Savita. 10. Prosecution has also examined P.W.3, Swati who claims that upon hearing the cries of P.W.1 Gangubai she had gone to her house and had seen Savita lying in a pool of blood. P.W.3 Swati states that she had questioned Savita and Savita had informed her that it was the appellant who had stabbed her. Similarly, P.W.7 Dattu also claims to have gone to the house of P.W.1 Gangubai upon hearing the cries and after questioning Savita and Savita informing him that it was the appellant who had stabbed her, he had left the house. 12 Cri.Appeal No.115 of 2010 11. Mr Deshmukh, learned Counsel for the appellant has urged before us that no reliance whatsoever can be placed upon the oral dying declarations alleged to have been made to P.W.3 Swati and P.W.7 Dattu as neither P.W.3 Swati nor P.W.7 Dattu show the presence of each other in the house of Gangubai. It is also urged before us that Gangubai also does not refer to the presence of these two witnesses. 12. According to P.W.3 Swati, immediately after the disclosure was made by Savita she had left the house. Evidence of P.W.7 Dattu clearly indicates that he had entered the house after P.W.3 Swati had left the house. In such circumstances, therefore, we do not find it fatal to the prosecution the failure of these two witnesses to inter se refer to their presence. Gangubai obviously must have been distraught at seeing Savita lying in a pool of blood after having sustained a barbaric attack at the hands of the appellant. In such distraught condition it is certainly not expected that she would keep a mental note of the presence of the persons at the scene of the incident. In such circumstances, P.W.1 Gangubai not referring to the individual presence of P.W.3 Swati and P.W. 7 Dattu, according to us is not fatal to the prosecution case. 13. Mr Deshmukh, learned Counsel for the appellant has further urged before us that Dr. Farooqui, who had conducted the post mortem, refers to the history being disclosed to him by one person. According to Mr 13 Cri.Appeal No.115 of 2010 Deshmukh, the aforesaid person is neither interrogated by the police nor has he been examined as a witness. In such circumstances, it is urged before us that the entire prosecution case appears to have been manufactured with the object of taking revenge against the present appellant. 14. According to us, the aforesaid submission needs no consideration whatsoever. It was not necessary for Dr. Farooqui to have recorded the history or the manner in which the deceased had sustained the injuries. However, since Savita was taken to the hospital by others, a history came to be recorded. According to us, the history not only corroborates the prosecution case but also cements the case further. Failure of prosecution, therefore, to examine the person who had disclosed to the Doctor as to how deceased Savita had sustained the injuries would not in any manner whittle down the other reliable evidence which the prosecution has produced. In any event, a small weak link in the prosecution case would not destroy the entire edifice of the prosecution, which according to us establishes the offence against the appellant beyond reasonable doubt. We, therefore, see no reason whatsoever to take a view different from the view taken by the Trial Court and, therefore, we find no merit in the present appeal. 14 Cri.Appeal No.115 of 2010 15. Accordingly, Criminal Appeal No.115 of 2010 is dismissed confirming the conviction and sentence of the appellant. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria115.10