Cri.Appeal No283/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 283 OF 2009 Sovindrao Lala Chavan, Age 62 years, Occu.Agri., R/o Lingi Tanda, Taluka Kinwat, District Nanded .. APPELLANT (Orig.Accused) VERSUS The State of Maharashtra .. RESPONDENT Mr P.S.Dighe, Advocate for appellant Mr K.G.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 11th January 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. 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.1,000/-, with a default condition of undergoing simple imprisonment for six months in the event of non payment of fine, by the Additional Sessions Judge, Nanded, by judgment dated 24.4.2009, in Sessions Case No.209/2007, by this appeal questions the correctness of his conviction and sentence. Cri.Appeal No283/2009 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.10 Police Head Constable Hemchandra Bavne who was attached to Police Station, Sevagram was directed by the Police Station to record statement of Sulochana, who had been admitted in the hospital. Sulochana was admitted in the trauma center and was under the treatment of Dr.Soniya. P.W.10 Head Constable Bavne visited the hospital and requested the Medical Officer to examine the patient and opine if she was in a fit condition to give her statement. The Medical Officer accordingly endorsed that the patient was in a fit condition to give her statement. P.W.10 Head Constable Bavne ascertained himself that Sulochana was in a fit condition to give her statement and thereafter recorded the statement of Sulochana at Exh.54. He obtained the thumb mark of Sulochana and thereafter signed the statement. It appears that the said statement of Sulochana at Exh.54 was forwarded to the police station and on the basis of the said statement, an offence came to be registered vide Crime No.32/2007 under Section 307 of the Indian Penal Code. It appears that Sulochana succumbed to her injuries and thereafter Section 302 of the Indian Penal Code came to be added. Inquest panchnama at Exh. 26 came to be drawn in the presence of P.W.4 Dudhram while the scene of the offence panchnama at Exh.12 came to be drawn in Cri.Appeal No283/2009 3 the presence of P.W.2 Vikas. The accused came to be arrested and clothes on his person came to be seized vide seizure memorandum at Exh.8 in the presence of P.W.1 Balwant. The seized property was then referred to the Chemical Analyzer and was carried by PW.6 Police Constable Datta. P.W.8 Dr.Dixit performed post mortem examination on the dead body of deceased Sulochana and noticed the following external injuries. 1. Stitched wound on right supra auricular region with 5 stitches in situ. Accurately placed 2 cms above upper right pinna. Edges were well approximated pale. 2. Contusion 3 x 0.2 cm Reddish brown, on right mid-1/3rd of lower mandibular margin; 3. Contused abrasion 1 x 1 cm over bony prominence of mandibular margin placed sub-mentally, reddish brown; 4. An abrasion 3 x 3 cms reddish brown, 1 cm above occipital protuberance; 5. Inverted Bow like shape (semiarcuate); at the base of neck i.e. right side of nape of neck, a stitched wound with 9 stitches in situ, ranging dimension 8 x 0.1 cm, edged well approximate pale and oozing frank pus on cut section; Cri.Appeal No283/2009 4 6. Two clean cut incised wounds with terminal tailing, placed over bony prominence of right shoulder placed in continuity with each other by old healed hypo pigmented scar mark of 3 stitches in situ. Lateral most wound measures 2 x 0.3 x 05 cms. Medial one measures 0.5 x 0.3 x 0.5 cms. Edges - retracted, shows gaping. reddish in colour; 7. Sickle shapped clean cut incised wound with terminal tailing (crescent), mid gapping 3.5 x 0.5 x 2 cms, placed 1 cm below injury No.6, edges retracted, reddish in colour; 8. Stitched wound over left shoulder following the curve of shoulder with 8 stitches in situ, measures 10 x 0.1 cm in anterolateral aspect, edges well approximated, pale. 9. Hypo pigmented whitish glistening scar mark with surrounding hypo pigmented area placed over posterior aspect of right mid./3rd of right arm 3 x 0.1 cm. and over right upper half of scapular prominence; 10. Obliquely placed scar mark of 5 stitches in situ. 6 x 0.1 cm old healed regular edges, lacerated wound over vertex of head, 2 x ½ cms with surrounding hypo- pigmented area. He opined that the injuries were ante mortem and noticed fracture of the shoulder blade, on the right side corresponding to Cri.Appeal No283/2009 5 injury No.6. He also noticed that the spinal cord was contused at C-3, C-4 level and also fracture at C-2, C-3 level. The said injury was corresponding to external injury No.5. He, therefore, opined that cause of death was “Complications of injuries to cord caused by chop wounds.” Post mortem report is at Exh.49. He has opined that the injuries were possible by means of axe Article-1. Further to the completion of the investigation, a charge-sheet against the appellant came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh.5 came to be framed by the trial Court for an offence punishable under Sections 307 and 302 of the Indian Penal Code against the appellant. It appears that charge under Section 307 of the Indian Penal Code was inadvertently framed as it was relating to the assault on Sulochana. However, the trial Court while convicting the appellant has convicted the appellant only under Section 302 of the Indian Penal Code and not under Section 307 of the Indian Penal Code. In any way, the defect in the charge does materially affect the outcome of the prosecution. 4. Prosecution heavily relies upon two eye witnesses to the incident, P.W.3 Praful and P.W.5 Punkaj. In order to appreciate the submissions advanced before us by Shri P.S.Dighe, learned Counsel appointed on behalf of the appellant, it would be useful Cri.Appeal No283/2009 6 to refer to the evidence of these eye witnesses. 5. P.W.3 Praful states that at the relevant time he was a student studying in the Zilla Parishad High School at Mandvi. He states that on the day of the incident, which was a Bazar day, he had returned home at about noon. At 4.30 p.m. he heard cries from the house of deceased Sulochanabai, who was serving in the Anganwadi. On hearing her cries he went towards the house of Sulochanabai which was adjoining his house. He noticed that the accused was assaulting Sulochanabai with an axe. He also noticed that Sulochanabai had sustained injuries by an axe on her back, shoulders and neck. He states that P.W.5 Punkaj tried to snatch the axe from the accused. The accused, however, did not allow Punkaj to snatch the axe and, therefore, P.W.3 Praful snatched the axe from the accused and kept it on the floor near the grinding stone. He also noticed that Sulochanabai had been grinding grains on the grinding stone. Because of the injuries, Sulochanabai was rendered unconscious and was taken to the Government Hospital at Mandvi and thereafter was referred to the hospital at Wardha and Nagpur. On fourteenth day of the incident Sulochana succumbed to her injuries. In cross- examination he has admitted that his mother is aunt of Sulochanabai. He has admitted that his house is near the Maroti temple and he has admitted that his house is at some distance Cri.Appeal No283/2009 7 from the house of Sulochanabai. He has also admitted that Sulochanabai was working at the Anganwadi situated in front of the school. He has also admitted that husband of Sulochanabai had died about 10 years prior to the incident. He has denied the suggestion that there were illicit relations between the teachers and Sulochanabai. He has also denied the suggestion that one of the teachers was with Sulochanabai in the house and another teacher who was arrived at her house had assaulted Sulochanabai. He has denied the suggestion that he was deposing false as Sulochanabai was his relative. 6. Though this witness has been cross-examined at length, nothing of importance has been elicited in the cross-examination of this witness. The evidence of this witness remains unaffected despite the cross-examination. There is virtually no cross- examination in respect of this witness noticing the accused assaulting Sulochana with an axe and Sulochana sustaining injuries by an axe and this witness thereafter snatching the axe from the accused. 7. Prosecution has also examined P.W.5 Punkaj, another eye witness to the incident. P.W.5 Punkaj states that he knew Sulochana who was serving in the Anganwadi. He states that he was grazing goats and had returned to the village at about 4.00 Cri.Appeal No283/2009 8 p.m. He had thereafter heard cries from the house of Sulochana and, therefore, had gone to the house of Sulochana to see what had happened. He states that Sulochana was grinding the grains at the grinding stone and accused was assaulting Sulochana with an axe. Accused dealt blows of axe on the neck and arm of Sulochana. He states that he tried to rescue Sulochana but the accused rushed on his person with an axe and he, therefore, shouted loudly. He states that the neighbours including P.W.3 Praful and others arrived at the house and P.W.3 Praful snatched the axe from the hands of the accused. The axe was kept near the grinding stone. He states that Sulochana had sustained injuries on her neck, arms and had fallen unconscious. Sulochana was shifted to the hospital at Mandvi and thereafter referred to the hospital at Yeotmal. He has identified the axe as Article No.1. In cross-examination he has admitted that he used to return to the village along with the goats at about 4.00 p.m. He has also admitted that Sulochana was not related to him. He has also stated that Sulochana did not belong to his caste. He has stated that the house comprises of three rooms and one room is occupied by Sulochana while the third room was occupied by the accused. He has admitted that Sulochana was beautiful but has denied the suggestion that there were illicit relations of Sulochana with two teachers. He has denied the suggestion that he was deposing false. Cri.Appeal No283/2009 9 8. In respect of this witness also though he has been cross- examined, nothing of importance has been elicited in the cross- examination which would in any manner affect his veracity. There is virtually no cross-examination in respect of the statement of this witness that he had seen the accused assaulting Sulochana with an axe. We, therefore, find that implicit reliance, placed by the trial Court, on the testimonies of these two eye witnesses mainly P.W.3 Praful and P.W.5 Punkaj is not misplaced. Mr Dighe, learned Counsel for the appellant, who has very ably argued the appeal has urged before us that no reliance can be placed on the testimony of these two witnesses. According to Mr Dighe, learned Counsel for the appellant P.W.3 Praful is an interested witness and at one stage in his evidence had stated that house of Sulochana was adjoining his house while in cross-examination has admitted that house of Sulochana is at some distance. It is also urged before us that there is delay in recording the statement of P.W.5 Punkaj and the prosecution has not examined other independent witnesses. 9. A related witness cannot be disbelieved only on that score. The fact that a witness is related to the deceased would put the Court on guard and would impel the Court to carefully scrutinise the evidence of the related witness. After close scrutiny of the evidence of P.W.3 Praful, we find that the evidence of this witness Cri.Appeal No283/2009 10 inspires confidence of the Court for its acceptance. As stated by us earlier, though this witness i.e. P.W.3 Praful has been cross- examined at length, nothing of importance has been elicited in his evidence, which would in any manner affect his credibility. At the close of the cross-examination both P.W.3 Praful and P.W.5 Punkaj have emerged as reliable witnesses and we see no reason whatsoever to doubt that they are eye witnesses to the incident. No doubt P.W.3 Praful has made conflicting statements in respect of the distance at which house of Sulochana is situated. According to us, this contradiction is on extremely minor aspect of the prosecution case and does in any manner affect the other part of his evidence. It is not suggested to this witness that on account of the distance he had not heard the cries of Sulochana. Evidence of P.W.3 Praful stands amply corroborated by the evidence of P.W.5 Punkaj and, therefore, delay in recording the statement of P.W.5 Punkaj by itself cannot be a ground for rejecting his evidence. Since we have found both these eye witnesses to be reliable witnesses, non-examination of other witnesses would not affect the prosecution case. We do not find that the other witnesses were necessary witnesses for unfolding the prosecution case further as both these witnesses have unfolded the prosecution case completely. Cri.Appeal No283/2009 11 10. Mr Dighe, learned Counsel has urged before us that no reliance whatsoever can be placed on the dying declaration at Exh.54 recorded by P.W.10 Head Constable Bavne as P.W.10 Head Constable Bavne has not proved the contents of the dying declaration. We see considerable merit in the aforesaid submission. P.W.10 Head Constable Bavne only states about recording the statement of Sulochana without proving or adverting to the contents of what was stated to him by injured Sulochana. In the light of the judgment of the Division Bench of this Court in Jeevan and another Vs. State of Maharashtra, 2008 ALL MR (Cri) 2018 and Laxmibai Vs. State of Maharashtra 2010 ALL MR (Cri) 182, the dying declaration at Exh.54 would be wholly inadmissible in evidence. 11. Mr Dighe learned Counsel for the appellant has also urged before us that the appellant is entitled to be acquitted as the prosecution has failed to examine the investigating Officer. Reliance is placed on the judgment of Supreme Court in Kapildeo Sinha Vs. Kirandeo Prasad and another, (2008) 14 Supreme Court Cases 658. In the aforesaid judgment the Supreme Court had found that the evidence of the eye witnesses was not reliable and therefore, in the absence of the examination of the investigating Officer, the Supreme Court held that no conviction was sustainable. In the presence case, we have Cri.Appeal No283/2009 12 already held that the evidence of the eye witnesses is reliable. In that background, therefore, according to us the ratio of the said judgment is not applicable to the facts of the present case. 12. Mr Dighe, learned Counsel for the appellant has further urged before us that the medical case papers of the deceased have not been placed on record. We have already held that the dying declaration cannot be relied upon for the reasons ascribed above. The cross-examination of the doctor who had conducted the post mortem does not even remotely indicate that the deceased had died because of any other circumstance except the injuries inflicted by the accused. The question of the deceased being in a position to give her statement, therefore, does not arise. In that background, according to us, no prejudice has been caused to the appellant by the non production of the medical case papers. 13. Even if the dying declaration at Exh.54 is left out of consideration, there is overwhelming evidence against the appellant in the evidence of P.W.3 Praful and P.W.5 Punkaj. We have found that implicit reliance can be placed on the testimony of these two witnesses and, therefore, the conviction and sentence of the appellant for offence punishable under Section 302 of the Indian Penal Code deserves to be sustained. We see Cri.Appeal No283/2009 13 no reason to take a view different from the view taken by the trial Court. 14. In that light of the matter, there being no merit in Criminal Appeal filed by the appellant, Criminal Appeal No.283 of 2009 is dismissed. We wish to place on record our appreciation for the efforts taken by Mr P.S.Dighe in ably arguing the appeal on behalf of the appellant and accordingly, we quantify the fees payable to Mr P.S.Dighe, learned Counsel appointed for the appellant at Rs. 5,000/- (Rs.Five thousand). 15. Appeal is accordingly dismissed confirming the conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/283.2009criapeal)