1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1547 OF 2003 1. PINTYA @ PRAVIN RAJARAM ) WADKAR. ) 2. MARUTI ANNA PAWAR ) 3. DILIP KISAN WADKAR ) All R/o. Islampur, Taluka Walwa, ) District – Sangli. ) At present in Solapur Central Prison ) Solapur. ) .. APPELLANTS VERSUS 1. STATE OF MAHARASHTRA ) (At the instance of Islampur ) Police Station, Dist. Sangli ) 2. DEEPALI DILIP AWATE ) R/o. D.C.C. Bank Colony, ) Hanuman Nagar, at post ) Islampur, Tal. Walwa, ) Dist. Sangli ) .. .. RESPONDENTS Mr. Pratap Patil for the appellant Mr. Rajesh More, APP Mr. Nilesh Wable i/b M. V. Umesh Mankapure for R-2. 2 CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 9TH JULY, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 13TH AUGUST, 2010 JUDGMENT: (Per Smt. Ranjana Desai, J.) The appellants accused 1 to 3 respectively were tried by the Court of Sessions at Islampur in Sessions Case No. 18 of 2002 for offences punishable under Sections 452, 302, 324 read with 34 of the Indian Penal Code (“IPC” ). By the judgment and order dated 26/9/2003 learned Sessions Judge convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced them to suffer RI for life and to pay fine of Rs.10,000/- each in default to suffer RI for two years each. The appellants were also convicted for the offence punishable under Section 452 read with Section 34 of the IPC and sentenced to suffer RI for two years and to pay a fine of Rs. 1000/- each, in default to suffer further RI for three months each. The appellants were also convicted for offence punishable under Section 324 read with Section 34 of the IPC and each of them was sentenced to suffer RI for three months and to pay fine of Rs.500/- 3 each, in default to suffer RI for one month each. The substantive sentences were ordered to run concurrently. Being aggrieved by the said judgment and order the appellants have preferred this appeal. For the sake of convenience, we shall refer to the appellants as per their description in the trial court. 2. Gist of the prosecution case as stated by PW 1 Deepali is as under: a) PW 1 Deepali is the daughter of deceased Sheela Dilip Awate, resident of D.C.C. Bank Colony, Hanumannagar, Islampur. The deceased used to give loans to needy persons on interest. About one and half year back from the date of incident, accused 1 had borrowed Rs.5,000/- from the deceased. He had refunded that amount. In October, 2001 accused 1 was in need of Rs.40,000/- for purchasing a tempo. He demanded loan from the deceased. The deceased was unable to give such big amount, however, Shivaji Katkar, a neighbour of the deceased agreed to repay the loan amount, if accused 1 did not pay it. Hence the deceased paid Rs. 30,000/- to accused 1 and after about 15 days she paid another sum of Rs.10,000/- to him. Accused 1, however, did not repay that 4 amount. He promised to pay the amount on phone. b) On 19/12/2001 PW 1 was present in her house. At about 9 a.m. the deceased had gone to the house of accused 1. She came back and told PW 1 that she had been to the house of accused 1 and Sanjay, friend of accused 1 would be paying Rs.10,000/-. The deceased further told her that Shrikant Mane, who also used to come to their house had advised accused 1 to repay the loan by installments. After having this conversation with the deceased PW 1 went to the school. She came back from the school at about 1 p.m. At that time accused 1 and his three friends came to their house. After sometime they went away. The deceased told PW 1 that they were discussing the money advanced by her to accused 1. She also told PW 1 the names of those persons as Dilip Wadkar (accused 3), Maruti Pawar (accused 2) and Suresh Bhosale. c) On 21/12/01 PW 1 was in the house. She was studying. The deceased was also at home. At about 10 a.m. her husband had gone to the bank. PW 1 took meals with the deceased at about 12-30 p.m. She was then studying in her bedroom and the deceased was taking rest in the hall. At about 1 p.m. the door bell rang. PW 1 went to open the door but by that time the deceased got up and 5 opened the door. Accused 1 to 3 entered the house. The deceased was standing between the sitting room and the dining hall. PW 1 went to the bathroom. As she was coming back from the bathroom she heard cries of her mother as “Tai Tai”. Therefore, she ran towards the dining hall. She saw that accused 1 and 2 had held her mother and accused 3 was dealing blows of gupti on her head and abdomen. She went screaming to the back door of the house. She called Jadhav Sir. Jadhav Sir came towards the house. PW 1 picked up a stick and entered the house to save the deceased. Accused 3 dealt a blow of gupti on her right arm. She sustained bleeding injuries to her fingers. She came out of the house from the back door and Jadhav Sir came there with bricks in his hands. Accused 1 to 3 then went away from the front door of the house. The deceased had bleeding injuries. PW 1 tried to give her water but she had passed away. Then PW 1 went to the police station at about 2 p.m. and lodged the FIR which is at Exh.-24. On the basis of the FIR lodged by PW 1 investigation was set into motion. After completion of the investigation the accused came to be charged as aforesaid. 3. Apart from PW 1 Deepali, the prosecution examined PW 2 Arun Jadhav, the neighbour of the deceased, PW 3 Dinkar Patil, pancha to 6 Memorandum and Panchnama Exh.-29 and Exh.-30 respectively under which clothes of accused 1 were taken charge of on a statement made by him, PW 4 Shamrao Jagtap pancha to panchnama under which clothes of accused 2 were seized, PW 5 Dr. Dilip Sawant, who had done postmortem on the deceased. PW 6 PI Prabhakar Patil, who conducted the investigation of the case and PW 7 Amin Munde, pancha to Exh.-40 under which document produced by PW 1 was taken charge of. Defence of the accused was one of denial. The accused did not examine any defence witness. After perusing the evidence on record learned Sessions Judge convicted the accused as aforesaid. Hence this appeal. 4. We have heard Mr. Patil, learned counsel for the accused and learned APP at some length. With their assistance, we have gone through the record of the case. 5. Mr. Patil, learned counsel for the accused submitted that learned Sessions Judge erred in convicting the accused because the evidence adduced by the prosecution is not credible. He submitted that there is no evidence on record to show that in fact any money was advanced to accused 1 by the deceased. The prosecution has failed to adduce the most important evidence of Shivaji Katkar. PW 2 7 Arun Jadhav, who is supposed to have come to the house of the deceased on being called by PW 1 has not supported the prosecution case. PW 1 Deepali who claims to have seen the incident could not identify the accused and hence her supplementary statement had to be recorded on the basis of photographs. The prosecution failed to hold identification parade. Counsel submitted that this is a serious lacuna in the prosecution case. Counsel submitted that learned Sessions Judge wrongly drew support from the evidence of hostile witnesses. Counsel submitted that evidence of PW 1 Deepali does not inspire confidence. In any case it is wrong to convict the accused on the basis of evidence of Deepali in the absence of sufficient corroboration to that evidence from other evidence on record. Counsel submitted that, therefore, the impugned judgment of conviction and sentence be set aside. 6. Learned APP on the other hand submitted that PW 1 Deepali’s evidence inspires confidence. It is supported by the other evidence on record such as discovery of bloodstained knife at the instance of accused 1 and discovery of bloodstained clothes at the instance of accused 2. Learned APP submitted that accused 1 and 3 were absconding. Learned APP submitted that the prosecution has 8 proved its case beyond reasonable doubt and hence the appeal be dismissed. 7. At the outset it may be stated that the genuineness of the inquest panchnama Exh.-8, panchnama of scene of offence, the panchnama of seizure of clothes of the deceased and panchnama of arrest and seizure of clothes of accused 1 to 3 dated 10/2/02 (Exh.-12) is admitted by the accused under Section 294 of the Code of Criminal Procedure. That the incident in question occurred in the house of the deceased can, therefore, hardly be disputed. 8. PW 5 Dr. Dilip Sawant had done postmortem on the deceased. Dr. Sawant found 10 external injuries on the deceased. They are noted in column 17 of the Post Mortem Notes. According to Dr. Sawant all the injuries were antemortem. Injury Nos. 3,4 and 5 were on the skull. Injury No. 1 had cut the abdominal aorta at large vessels. According to Dr. Sawant the cause of death was “Haemorrehagic shock due to incised stab wounds”. Dr. Sawant stated that all the injuries mentioned in column 17 were sufficient to cause death. When Article 6 gupti was shown to Dr. Sawant he stated that injury No. 1 was possible by that weapon . When Article 9 No. 6 gupti, Article No. 14 knife were shown to him Dr. Sawant stated that all the injuries were possible by those two weapons. From the evidence of Dr. Sawant it is clear that death of deceased Sheela was homicidal. 9. Dr. Sawant also examined PW 1 Deepali Awate on 21/12/2001 at 7-45 p.m. Dr. Sawant found that PW 1 had suffered incised wound over distal phalanx of right middle, ring and little fingers. The injury on middle finger was measuring 1 cm x 2 mm and injury on ring finger was measuring 1.5 cm x 2 mm. The injury on the little finger measured 1 cm x 2 cm. According to Dr. Sawant the age of injuries was within 6 to 7 hours and the injury was caused by hard and sharp object. The nature of injury was simple. Dr. Sawant stated that PW 1 gave history of assault at about 1 p.m. with gupti like weapon by Dilip Wadkar and others. Dr. Sawant denied that history was not narrated by PW 1. From the evidence of Dr. Sawant it is clear that PW 1 suffered injury on the right middle, ring and little finger during the course of incident in question.. 10. We have already given the gist of PW 1 Deepali’s evidence. Her evidence establishes that the deceased used to give loan to 10 people. PW 1 knew accused 1. Being the daughter of the deceased her knowledge about the fact that the deceased had given loan to accused 1 cannot be doubted. It is true that the prosecution has not examined Shivaji Katkar, who according to PW 1 had promised that in case accused 1 does not pay the loan back he would pay the amount. But non-examination of Shivaji Katkar does not reduce the importance of evidence of PW 1. There is no reason to disbelieve PW 1. It is pertinent to note that PW 1 produced the promissory note dated 4/10/01 in the sum of Rs.40,000/- indicating that accused 1 had taken loan of Rs.40,000/- from the deceased on 4/10/01. This promissory note was found in the purse of the deceased. Panchnama to that effect is on record. It is at Exh.-40. PW 7 Amin Munde is the pancha to the said panchnama. He has brought the said panchnama on record. He has stated that on 21/12/01 PW 1 produced the said document i.e. the promissory note and the police seized it under panchnama. The said promissory note is on record. It is at Exh.-25. This promissory note corroborates the case of PW 1 that the deceased had given loan of Rs.40,000/- to accused 1. PW 1 has stated that accused 1 did not refund the amount. According to her on 19/12/01 the deceased had gone to the house of accused 1. She came back from there and told PW 1 that Sanjay, friend of 11 accused 1 would be making payment of Rs.10,000/-. She further stated to PW `1 that one Shrikant Mane was present in the house of accused 1, who advised accused 1 to repay the loan by installments. According to PW 1 after this conversation she went to the school. She came home at about 1 p.m. At that time accused 1 and his three friends had come to their house. They left the house after sometime. According to PW 1 her mother then told her the names of those persons. She has stated that they were Dilip Wadkar (accused 3), Maruti Pawar (accused 2) and one Suresh Bhosale. She identified accused 1, accused 2 and accused 3 as those who had come to their house. According to PW 1 on 21/12/01 she was at home. Accused 1 to 3 entered the house at about 1 p.m. The deceased was standing in between the sitting room and the dinning hall. PW 1 went to the bathroom. According to her when she was coming from the bathroom she heard the deceased crying as “Tai Tai”. She, therefore, ran towards the dinning hall. She saw that accused 1 and 2 had held her mother and accused 3 was dealing blows with a gupti on her head and abdomen. She went to the back door of the house. She called Jadhav Sir. Jadhav Sir came towards her house. She picked up a stick and entered the house to save her mother. Accused 3 attacked her with a gupti on her right arm. She sustained 12 bleeding injury to her fingers. She went from the back door. Jadhav Sir came there with bricks in his hands. Accused 1 to 3 then ran away from the front door. 11. It is argued that PW 1’s evidence cannot be believed because in her complaint she has named the third person as Suresh Bhosale, however, Suresh Bhosale is not the accused in this case. Therefore, the identification made by her is suspect. In her cross examination PW 1 has admitted that the third person’s name was given by her as Suresh Bhosale in her FIR. It appears that she had offered explanation that she named Suresh Bhosale because she was in a confused state of mind. Learned Sessions Judge has made a note to this effect. It is necessary to mention at this stage that this error was corrected by PW 1 in her supplementary statement on the same day. This is stated by PW 6 PI Patil in his evidence. 12. We are unable to discard the evidence of PW 1 Deepali because of this minor inconsistency. PW 1 has clearly said that she knew accused 1 and she had seen accused 2 and 3 in her house. Her mother had told her their names when they had earlier visited their house. In her examination-in-chief she has said that on 13 19/12/01 accused 1,2 and 3 and one Suresh Bhosale had come to their house. So far as incident dated 21/12/01 is concerned she has stated that only accused 1 to 3 had entered the house. She has ascribed role to accused 1 to 3 only. She has stated that she received injury when accused 3 dealt a blow of gupti on her right arm. Thus on 21/12/01 Suresh Bhosale had not come to her house. Only accused 1 to 3 had entered the house. It appears that PW 1 who had suffered a great mental trauma committed a minor error in naming Suresh Bhosale as one of the accused although Suresh Bhosale had not come to their house on 21/12/01 when the deceased was mercilessly attacked. Her case that accused 3 Dilip Wadkar was present and he attacked the deceased and when she tried to save her mother he attacked her with gupti is borne out by the fact that she had received injury on her right hand fingers. Immediately after the incident PW 5 Dr. Sawant examined her. According to Dr. Sawant she told him that she was attacked by Dilip Wadkar and others at 1 p.m. with a gupti. Exh.-37 is the injury certificate issued by Dr. Sawant to that effect. Evidence of PW 1 appears to us to be natural. It was argued that on 21/12/01 PW 1 could not have been at home because the school was open. This submission will have to be rejected because PW 1 has stated that on 14 that day there was a picnic arranged by the school. There were no classes and, therefore, she was studying in the house. In any case the injuries suffered by PW 1 support her case that she was present in the house. Being the daughter of the deceased her presence in the house is natural. Evidence of PW 1 inspires confidence. 13. We are not impressed by the submission that the failure on the part of the prosecution to hold identification parade creates a lacuna in its case. Since PW 1 knew accused 1 very well because he had earlier taken loan of Rs.5,000/- from the deceased and returned it and since she had seen accused 2 and 3 in her house and the deceased had told her their names there was no need to hold identification parade. It is true that PW 2 Arun Jadhav has not fully supported the prosecution case. He has, however, confirmed that there was some incident in the house of PW 1 on 21/12/01. He has said that he heard the cries of PW 1 and he found the mother of PW 1 lying in a pool of blood when he went there. Thus he has confirmed that PW 1 was present when the incident in question took place. It is well settled that evidence of a hostile witness need not be discarded in its entirety. The prosecution can draw support from that part of the evidence which supports it. The prosecution story 15 that PW 1 was present in the house when her mother was attacked is supported by the evidence of PW 2. He refused to support the prosecution case that he had seen accused 1, 2 and 3 running away from the house of the deceased with weapons. However, that does not adversely affect the prosecution case. On that aspect PW 1’s evidence is consistent and credible. 14. We are also of the opinion that the prosecution has proved the motive. PW 1’s evidence establishes that the deceased was giving loan to people. She had earlier given loan to accused 1 which he had repaid. The fact that she paid Rs.40,000/- to accused 1 is established by evidence of PW 1 and promissory note Exh.-25. It has come in evidence that the deceased had gone to the house of accused 1 to demand money. The accused had also come to her house in that connection. It appears that the deceased was nagging accused 1 to return the amount which he was unable to do. The attack on the deceased appears to have been prompted by that. 15. PW 3 Dinkar Patil is a pancha to Memorandum Exh.-29 and Panchnama Exhibit-30. According to him on 7/2/2002 accused 2 had made a statement that he would show the weapon which he had 16 hidden in his aunt’s house at Belawade. The memorandum of statement is at Exh.-29. He led the police and the pancha to Belawade. He took them to the house of his aunt. He took out a knife hidden in a heap of firewood and tiles. The knife had a brass handle and it had bloodstains. The knife was seized under panchnama. When knife Article-14 was shown to him he identified it as the same article. PW 3 identified his signatures on memorandum Exh.-29 and Exh.-30. PW 3 has been cross-examined but in his cross-examination he has stood firm. Evidence of this witness establishes that at the instance of accused 1 a knife was seized. Chemical Analyzer’s report Exh.-22 states that the blood found on Article 14 was human blood. 16. Chemical Analyzer’s report Exh.-22 states that blood group of the deceased was ‘B’. Scalp hair of the deceased were found stained with human blood of ‘B’ group. 17. PW 6 PI Prabhakar Patil has stated that accused 1 and 3 were arrested on 4/2/02 at Chiplun, Devgadh. The accused have admitted the genuineness of the panchnama Exh.-12 dated 10/2/02 under which clothes of accused 1 and 3 were seized. Panchnama 17 Exhibit-12 describes the clothes of accused 1 and 3 which were seized by the police. The Chemical Analyzer’s report Exh.-22 states that on the clothes of accused 1 and 3 human blood was found. On the shirt and pant of accused 1 human blood of ‘B’ group was found and on pant of accused 3 human blood of ‘B’ group was found. 18. PW 6 PI Patil has stated that accused 2 was arrested on 22/12/01 at about 11.00 a.m. On 24/12/01 he made a statement in the presence of two panchas that he had concealed bloodstained clothes in the house of Pramod Wadkar at Borgaon and that he is ready to produce the same. The memorandum is at Exh.-32. PI Patil has further stated that accused 2 took them to the house of Pramod Wadkar and produced one open shirt and full pant having bloodstains. Those clothes were seized under panchnama Exh.-33. PI Patil has said that those clothes were sealed. He identified the said clothes in the court when shown to him. 19. PW 4 Shamrao Jagtap is pancha to Exhibits 32 and 33. Though at some stage this witness has turned hostile, his evidence in fact supports the prosecution case. He has admitted that on 24/12/01 he was called by the police of Islampur Police Station. He has admitted 18 his signature on the panchnama. He has stated that accused 2 stated that he had kept the clothes in the house of his relative at Borgaon. Though he has stated that he did not go to Borgaon, in the cross-examination he has stated that after recording the statement accused 2 took him and the Police Patil to Borgaon to the house of his relative Pramod Wadkar. He has stated that Pramod produced clothes given by accused 2 to him which were kept by him in a tin box. PW 4 has stated that the said clothes were having bloodstains and they were seized by the police in his presence. He has stated that labels were attached by the police on the said clothes. When those clothes i.e. Articles 12 and 13 were shown to him, he identified them. He has stated that signatures on the said panchnama of seizure were taken in the house of Pramod Wadkar at Borgaon. He identified accused 2 in the court. He has admitted that Exh.-32 was read over to him and his signature was obtained. Thus to a large extent this witness supports evidence of PI Patil in respect of seizure of bloodstained clothes of accused 2 at his instance. We may reiterate that the evidence of hostile witness need not be discarded in its entirety. That part of the evidence which supports prosecution