mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 751 OF 2005 LAXMAN BENGEPPA WAGHMARE .. APPELLANT Vs. THE STATE OF MAHARASHTRA . .. RESPONDENT Mr. Abhaykumar Apte, appointed advocate for the appellant Mr. S. S. Pdenekar, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 12TH JULY, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 22nd JULY, 2010 JUDGMENT: (Per Smt. Ranjana Desai, J.) The appellant was tried in the Court of Sessions at Kalyan in Sessions Case No. 119 of 2004 for offence punishable under Section 302 of the Indian Penal Code (“IPC” ) on the allegation that on 17/8/2003 he committed murder by intentionally or knowingly causing death of deceased Vasant Shetty. 2. The case of the prosecution may be stated briefly. Complainant PW 1 Suresh Patil was at the relevant time attached to Dombivli Police Station as police constable. He was on petrolling duty from 21.00 hours of 16/8/03 till 14.00 hours of 17/8/03, along with PW 6 PC Sanjay Jadhav within the limits of Thakurli (Cholegaon) Police Outpost. While they were doing petrolling duty they saw a person coming from a narrow lane nearby Tushar Bungalow situated at Thakurli. On seeing them the said person started running. Therefore, PW 1 and PW 6 chased him and caught him on the road near railway hospital at about 4-35 a.m.. They asked him his name and whereabouts. The said person disclosed his name as Laxman B. Waghmare of village Kusnur, Taluka and District Gulbarga of Karnataka State. PW 1 and PW 6 found that the said person was concealing something in his right hand at the back. PW 1, therefore, asked him as to what was in his hand. He replied that there was nothing in his hand. PW 1 and PW 6 verified and found that there was a hammer stained with blood in his hand. They also noticed that there were bloodstains on his shirt and pant. Therefore, they took him to the police outpost. Thereafter they made inquiry with him and he took them to the place of occurrence which is situated on the first floor of the vacant incomplete building situated at the back of Thakurli Police Outpost. PW 1 and PW 6 saw a person in a pool of blood. That person was dead. Thereafter PW 1 and PW 6 took the accused to the Dombivli Police Station and handed him over to PW 9 PSI Ramesh Patil. The circumstances clearly indicated that he had murdered the said person by beating him with a hammer on his head and forehead. PW 1 the complainant Suresh Patil lodged his complaint Exh. 9 before PW 9 PSI Ramesh Patil, at Dombivli Police Station on 17/8/03 at about 6-30 a.m. On receipt of this complaint the offence came to be registered. Investigation was set into motion. After completion of the investigation the accused came to be charged as aforesaid. 3. In support of its case the prosecution examined as many as 12 witnesses. PW 1 Suresh Patil and PW 6 Sanjay Jadhav are the police constables who had seen the appellant with a bloodstained hammer in his hand. PW 8 Dr. Kishor Saundanmal had done postmortem on the deceased. He has proved the postmortem notes which are at Exh.-26. PW 10 is Shekhar Krishna Shetty the cousin of the deceased. PW 12 is PSI Ramdas Borse, Investigating officer. The prosecution also examined panch witnesses to prove the panchnamas. Out of them PW 2 Ashok Gaikwad and PW 5 Jagdish Patil have turned hostile. 4. The appellant pleaded not guilty to the charge. His defence was one of denial. After perusing the evidence on record, learned Sessions Judge convicted the appellant as aforesaid and hence this appeal. 5. We have heard Mr. Apte, learned counsel appearing for the appellant and Mr. Pednekar, learned APP. With their assistance we have gone through the record of the case. Mr. Apte submitted that the prosecution case rests entirely on the evidence of police witnesses. Most of the panchas have turned hostile. He submitted that there is no corroboration to the evidence of the police witnesses. Motive has not been established and, therefore, the impugned judgment and order of conviction and sentence cannot be sustained. He submitted that it may be set aside. 6. PW 8 Dr. Kishor Saundanmal had done the postmortem on the deceased. He has produced the postmortem notes which are at Exh.-26. The cause of death is stated to be death due to neuro haemorrhagic shock due to multiple fracture skull. Dr. Saundanmal has described the injuries sustained by the appellant and has stated that all the injuries have been caused by hard and blunt weapon. When hammer Article No. 3 was shown to him he stated that the said injuries were possible by the said article. 7. The prosecution case is unfolded by PW 1 PC Suresh Patil and PW 6 PC Sanjay Jadhav. PW 1 has stated that while he was on petrolling duty between 21.00 hours of 16/8/03 upto 14 hours of 17/8/03, he saw one person coming from the narrow lane adjoining the police chowky. On seeing him and his colleague the said person started running and, therefore, he chased him. He was concealing his hand at the back. When he asked him as to why he was running, he said that there was no reason for his running. PW 1 saw a hammer in his hand stained with blood. He also found bloodstains on his shirt. PW 1 has further stated that after he made a query the said person took him and PW 6 Sanjay Jadhav to a place situated on the first floor. There they found a person lying in a pool of blood. There were injuries on the face and head of that person. PW 1 and PW 6 then took the said person to the police chowky and informed PSI Patil about the incident. The said person disclosed his name as Laxman Bengeppa Waghmare and the name of the person lying on the floor as Shetty. PW 1 identified the appellant who was sitting in the court as the same person by name Laxman Waghmare. PW 1 stated that he had lodged his complaint at the Dombivli Police Station which is at Exh.9. He identified the hammer Article 3 when shown to him in the court. He also identified Articles 1 and 2, the pant and shirt of the appellant when shown to him in the court. PW 1 has been cross-examined, however, he has stuck to his version in the examination-in-chief. PW 6 PC Sanjay Jadhav has corroborated the evidence of PW 1 Suresh Patil. It is, therefore, not necessary to refer to his evidence. 8. PW 2 Ashok Gaikwad is a pancha to arrest panchnama Exh.-11. The clothes of the accused stained with blood and the hammer stained with blood were taken possession of after his arrest. However, PW 2 has turned hostile. 9. PW 3 is Manik Patil, who has proved inquest panchnama Exhibit-13. PW 4 is Birendra Sharma who has proved Exh.-15 panchnama of the scene of offence. PW 5 Jagdish Patil is also pancha to Exh.-15. However, he has turned hostile. PW 7 Baburao Telgote is a pancha to Exh.-24 under which Article Nos. 9 to 12 i.e. the clothes of the appellant and Article No. 12 pair of shoes of the appellant were taken charge of. PW 9 is PSI Ramesh Patil, who has proved the arrest panchnama Exh.-28. He has stated that at the time of arrest panchnama he had seized bloodstained blue colour pant and full sleeve shirt of the appellant. He has also stated that he has seized hammer Article No. 3 having bloodstains from the possession of the appellant. When the clothes Article Nos. 1 and 2 and hammer Article No. 3 were shown to him he identified them as the same clothes and the same hammer which were seized under panchnama Exh.-28. 10. PW 10 Shekhar Shetty has stated that the deceased was his cousin. He has stated on 17/8/03 his brother informed him about the murder of his cousin Vasant Shetty. He thereafter went to see the dead body of Vasant Shetty i.e. the deceased at Thakurli. 11. PW 11 Rajendra Sirswal is pancha to Exh.-33. He has turned hostile. PW 12 is PSI Ramdas Borse, the Investigating Officer, who has deposed about the fact that on 18/8/03 the appellant made a statement that he would show the place of occurrence. He has stated that he prepared memorandum of the statement of the accused which is at Exh.-19. He has further stated that the appellant led the police and the panchas to the scene of offence which is situated at the back of Thakurli police chowky which is an old constructed building. He thereafter prepared spot panchnama which is at Exhibit-20. He has also stated that he sent the seized muddemal to the chemical analyzer. He has brought on record Chemical analyzer’s Report dated 11/12/03 which is at Exhibit-37 and two Chemical analyzer’s Report dated 13/2/04 which are at Exh.-38 and Exh.-39. It must be stated that the police witnesses have been cross-examined, however, they have not deviated from their version in the examination-in-chief. 12. It is true that this case rests on the evidence of police witnesses. However, in our opinion, the prosecution has proved its case beyond reasonable doubt because we find the evidence of PW 1 PC Suresh Patil and PW 6 PC Sanjay Jadhav to be reliable. They corroborate each other and their version has not been demolished in the cross- examination. It is true that PW 3 Ashok Gaikwad who is pancha to seizure of hammer Article No. 3, PW 5 Jagdish Patil who is pancha to the scene of offence panchnama and PW 11 Rajendra Sirswal who is pancha to arrest panchnama have turned hostile. But this has had no adverse affect on the prosecution case inasmuch as PW 9 PSI Ramesh Patil has proved the relevant panchnamas and PW 12 PI Ramdas Borse has also stated what steps he had taken in investigation. We find no hesitation in relying on the evidence of PW 1, PW 6, PW 9 and PW 12. There is no indication in the evidence that these witnesses have purposely involved the appellant in this case by creating false evidence. These witnesses had no axe to grind against the appellant. 13. It is not correct to always view testimony of a police officer with suspicion. Undoubtedly a police officer is interested in seeing that the accused is convicted. But that does not mean that in all cases he will make an effort to substantiate the prosecution case by concocting evidence. Circumstances of each will have to be examined to see whether the police officer’s evidence can be relied upon. In Nathoosingh v. The State of Madhya Pradesh, AIR 1973 SC 2783, the Supreme Court has held that the mere fact that the witnesses are police officers is not enough to discard their evidence. Where no reason is shown for their hostility to the accused, they can be relied upon. 14. In Ram Kumar v. State (NCT) of Delhi, AIR 1999 SC 2259, the Supreme Court has held that, if independent witness is not available, the police officer’s evidence cannot be discarded when it is found to be reliable. In the present case, there is nothing on record to show that the police officers had any hostility towards the appellant. In the light of the above judgments, in the facts of this case since the evidence of police witnesses is reliable, it cannot be discarded. We find no reason to disbelieve the police witnesses. 15. At the cost of repetition it must be stated that PW 3 Manik Patil has proved inquest panchnama. PW 4 Birendra Sharma has proved Exh.-15 panchnama of the scene of offence and PW 7 Baburao Telgote has also proved panchnama Exh.-24 under which clothes and shoes of the appellant were taken charge of. The evidence of these pancha witnesses corroborates the evidence of PW 1, PW 6, PW 9 and PW 12. 16. Apart from the above evidence, the chemical analyser’s evidence completely bears out the prosecution case. The chemical analyzer’s report shows that the blood group of the deceased was ‘A’. This is evident from the fact that the blood found on Article No. 3 hammer, pair of sleepers seized from the place of occurrence and on the clothes of the deceased bear bloodstains of blood group ‘A’. On examination of the sample of blood of the deceased it was found that the blood group of the deceased was ‘A’. Chemical Analyzer’s report Exh.-39 pertains to the examination of the blood sample of the appellant. The blood group of the appellant is ‘AB’. Thus the finding of the blood of ‘A’ group on the clothes of the appellant is a clinching circumstance. The appellant has not been able to explain how the bloodstains on his clothes were of the blood group of the deceased. The deceased had multiple skull fracture. Dr. Saundanmal PW 8 has stated that the injuries caused to the deceased could be caused by hammer Article No. 3 which was found bloodstained. 17. In our opinion, the prosecution has led reliable, cogent and clinching evidence to bring home guilt to the accused. The accused was caught with a bloodstained hammer. He led the police to the dead body. In our opinion, the circumstances form a chain which points unerringly to the guilt of the accused and no hypothesis consistent with the innocence of the accused is possible on the basis of evidence on record. It is true that the prosecution has not proved motive, however, the evidence adduced by the prosecution is so clinching that absence of motive does not have any adverse impact on the prosecution case. 18. There is no merit in the appeal. The appeal is, therefore, dismissed. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 751 OF 2005 LAXMAN BENGEPPA WAGHMARE .. .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. .. RESPONDENTS Mr. Abhaykumar Apte, appointed advocate for the appellant Mr. S. S. Pednekar, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 22nd JULY, 2010 OPERATIVE PART OF THE JUDGMENT: For the reasons recorded separately in the Judgment, this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.)