1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 737 OF 2001 Savriraj @ Raj Abraham Kaunder. ... Appellant. V/s. The State of Maharashtra. ... Respondent. .... Ms. Sharmila Kaushik for the Appellant. Ms. M.M. Deshmukh, A.P.P. for the State. ..... CORAM : F.I. REBELLO & K.U. CHANDIWAL, JJ. DATE : 03RD JUNE 2008. JUDGMENT (PER K.U. CHANDIWAL, J.) :- The Accused – Appellant has challenged conviction and sentence of life imprisonment under Section 302 of Indian Penal Code awarded to him in Sessions Case No.833 of 1999 on 30th June 2001 by the Additional Sessions Judge, Greater Bombay. 2 2. The facts in brief are as under :- The complainant Ayya Kutti Salayya Konar, a resident of Himmat Nagar Zopadpatti, Antop Hill, Mumbai was standing on the street alongwith his friends Rosari and Shanmugam on 20.00 hours on 6.3.1999. At 20.30 hours, he came across noise of quarrel and scuffle between the deceased Nidhi Mudliyar and the accused/appellant. The complainant Ayya Kutti saw that the accused/appellant assaulted Nidhi with a knife of around 16 inch in length due to which Nidhi sustained blood injuries. The complainant intervened, held the Appellant and asked Nidhi to go away. The accused/appellant managed to flee away. The injured Nidhi was removed in a taxi by complainant Ayya Kutti, other persons in the locality and admitted at the K.E.M. hospital. On the way to hospital, Nidhi disclosed to Shiva that he was assaulted by the accused/appellant due to earlier day quarrel. Nidhi was operated and considering the nature of stab injuries, Police Officer recorded F.I.R. statement of complainant Ayya Kutti in the hospital itself. Nidhi expired at 2.35 p.m. On 7.3.1999. On 7.3.1999 itself, the 3 Investigation Officer recorded statement of PW-2 Shiva, PW-3 S.P. Krishnamurthy. On 7.3.1999 accused was put under arrest, under panchanama. Charge-sheet was filed against the accused before 30th Metropolitan Magistrate's Court, Mumbai. He committed the case to the Sessions Court. 3. Charge below Exhibit 2 was explained to the accused. He did not plead guilty to the charge as per his plea (Exhibit 3) and claimed trial. In order to substantiate guilt of the accused, prosecution has examined following 9 witnesses :- (a) PW-1 Ayya Sallaya Kutti is complainant and eye witness proved the F.I.R. (Exhibit 6). (b) PW- 2 Shiv Mannagatti Udiyar did not support prosecution on material part but confirmed the deceased was removed to hospital, in the company of PW-1. (c) PW-3 S.P. Krishnamurthy is the father of deceased (Exhibit 11). He has spelt out to the earlier day dispute between his son and the accused Savriraj. (d) PW-4 Hattyapam Shankar Lingam Tewander (Exhibit 4 13) relating to recovery of knife on 10.3.1999 (Article 8) at the instance of accused. (e) PW-5 Rambhirsingh M. Valmiki, panch (Exhibit 16) concerning recovery of knife (Article 8) at the instance of accused. He has not supported prosecution. However, admitted that the labels and panchanama bear his signature. (f) PW-6 Dr. Anand Iyer examined the deceased Nidhi at 1.30 a.m. on 7.3.1999 when Nidhi in a critical condition and according to him Nidhi expired on 2.35 a.m. on 7.3.1999. The medical papers are at Exhibit 18 (not disputed). He was not cross examined. (g) PW-7 Dr. Santosh Parab has examined the accused when he was brought in a injured condition and issued medical certificate at Exhibit 21 (21-A). (h) PW-8 is Sunil Solanke, P.S.I., he carried the investigation in the present case. (i) PW-9 Dr. Balsara carried autopsy on the dead body of Nidhi deceased while attached to K.E.M. hospital on 8.3.1999. In his opinion, the internal injuries cumulatively were sufficient in the 5 ordinary course to cause the death of victim. 4. The learned Counsel representing the accused/appellant, canvassed before us that evidence of PW-1 cannot be believed. He is a got up witnesses, knife was not shown to him. PW-2 and PW-1 did not corroborate on vital aspects, the injuries referred by PW-9 Dr. Balsara are not sufficient in ordinary course to cause death by stabbing. No other witnesses in the vicinity examined. Alternatively, she has suggested whether there was intention of the accused to cause the death, age of the accused needs to be considered. Injuries on the person of the accused were not got explained by the prosecution. 5. At the outset, we discard contention of defence Advocate that PW-1 is a got up witness. The Accused/Appellant had in fact exercised his influence when he could succeed to get panch PW-4 and PW-5 to show hostility towards prosecution. PW-2 also has on material aspects of oral dying declaration, supported the accused. 6. PW-1 had no reason to keep any rancour against the accused. He was standing with his other friends near the Ganpati 6 temple and when he came across a scuffle/fight between the accused and deceased Nidhi, he rushed, and found that the accused had a knife around 1 ft. to 1.5 ft. by which he was stabbing Nidhi. The complainant and even others got feared due to the event. However, he showed courage in controlling the accused and by that time he asked Nidhi to run away but Nidhi due to the impact of the injuries fell down. The accused pushed him and ran away. When the deceased was conscious , PW-1 asked him as to what could be the reason of assault, upon which Nidhi disclosed, he had a quarrel with the Accused a day before and as a result thereof, he was assaulted by the accused. In the cross examination it is brought on record that police did not seize blood stained lungi of PW-1. We find that this mistake of the investigator is not fetal to turn the table. PW-1 went to call Shiva (PW-2) and PW-2 since he was standing outside the residence, and on hearing commotion, he proceeded towards the place from which the commotion emerged. There is no dispute that the place of commotion was near Ganesh mandir or a crowded locality. The controversy of PW-1 going to call PW-2 or PW-2 by 7 himself going to the spot is of little consequence. It will not be provoking us to discourage the testimony of PW-1 or of PW-2. PW-2 supported the prosecution version to the extent of removal of Nidhi to K.E.M. hospital in a taxi associated with 2/3 persons namely Vasant and Pakya. He saw PW-1 in the hospital. PW-2 did not support about the oral dying declaration made by Nidhi that there was a quarrel ensued between him and the accused on 5.3.1999 and 6.3.1999, and Accused assaulted him. The portion mark 'A' in his statement dated 7.3.1999 is got proved through the Investigating Officer, PW-8 (Exhibit 25). The circumstances do indicate as pointed by PW-6 Dr. Anand, Nidhi was conscious immediately after the assault and he had made the disclosure implicating the accused to even PW-2, which is seen recorded in the statement dated 7.3.1999 without any delay therein. 7. The accused has not disputed about death of Nidhi. The same is established through PW-6 and PW-9 Dr. Balsara. The post- mortem notes are at Exhibit 18-B. There is no doubt that the death of Nidhi was homicidal caused due to stab injuries on his 8 chest/abdomen and vital parts of the body. 8. Use of the knife by the accused is establish by PW-1 Ayya Kutti and it could be read from the evidence of PW-9 that such dagger having blade of 11” from which the sharp portion is 71/2” is the probable weapon to cause the internal injuries to the deceased. 9. PW-9 Dr. Balsara ruled out possibility of causing the injuries suffered by the deceased by fall on sharp edged stones or on barbed wire. It was informed by PW-9 that the spleen and tail of pancreas were removed due to multiple deep injuries. The suggestion given to Dr. Balsara (PW-9), in fact does not reflect to any other witnesses in the cross examination nor the accused in his statement under Section 313 of Cr.P.C. Comes with such a case. Hence, the contention of death of Nidhi due to falling on a sharp edged stone or on barbed wire is ruled out. 10. The Police Officer promptly recorded F.I.R. of PW-1 (Exhibit 6) while at the hospital itself in the similar manner, statement of PW-2 Shiva, Vasant and Pakya were recorded. The evidence of PW-1 is totally in tune to the F.I.R. and there is hardly major improvement 9 made by him. There is no compulsion under the law on the prosecution to examine all the witnesses referred in the charge-sheet. The credibility of one witness to establish particular fact is sufficient for assuming the guilt of the accused. There is no quarrel on the legal preposition, the credibility of the witness has to be adjudged by the Appellate Court in drawing inference from the proved and admitted facts. We have scanned evidence of PW-1 and PW-2 thoroughly, it satisfies legal conscious to rely, evidence match in all particulars to the reference of seizure of knife, to the injuries suffered by Nidhi, as proved through PW-6 and PW-9. 11. The claim that PW-4 and PW-5 panch for recovery of knife turned hostile to the prosecution and therefore, sole evidence of the investigator PW-8 cannot be accepted, is difficult to digest. The hostility of panch should not be decisive factor, to disbelieve the present case. It is observed by the Hon'ble Supreme Court in the matter of Modan Singh V/s. State of Rajastan, AIR (1978) Supreme Court (1511) in paragraph 9 “ it is found that the witnesses who have been examined for attesting the seizure have not supported the 10 prosecution version. If the evidence of Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground of that seizure witnesses do not support the prosecution version”. In this case, according to the Investigating Officer, PW-8 Sunil Solanke, cloths of Nidhi were collected in the presence of panch witnesses which were with blood stain, he had identified pant (article 1), shirt (article 2), banian (article 3), jangya (article 4) to be of said Nidhi taken charge on panchanama dated 3.7.1999 at hospital (Exhibit 24). In paragraph 10 he deposed that during the course of interrogation the accused made a statement on 10.3.1999, to the effect that he was prepared to discover the knife used in the crime. His statement was recorded in the form of memorandum in the presence of panch (Exhibit 14). The memorandum bears signature of PW-8 and also that of PW-4 and PW-5. It was the accused who led to a building under construction situated near Ganesh Mandir as well as Acamy Company, Barkatali Naka Road, Wadala. He took the police and the panch to compound wall of Roshan building which was under construction. There were 11 stone lying near the compound wall. The accused took out the knife from underneath the stones. The particular place from where the knife is taken away cannot be said to accessible to any ordinary person without prior knowledge. The knife was sharp at both the edges with writing on it. Reddish stains were found on blade as well as on handle. The panchanama of knife seizure is drawn in presence of the panch witnesses and it is at Exhibit 14-A. The panchanama is in the hand writing of PW-8. The knife was packed and sealed in the paper. Packing was labeled having signature of the panch. At Exhibit 15 is the label which bears signature of the panch witnesses and PW-8. PW-5 has admitted his signature at Exhibit 15 but has not offered any explanation as to under what circumstances he had reason and occasion to put such signature on the slips or on the panchanama (Exhibit 14, 14-A). In this situation of the matter, we have no hesitation for accepting the recovery of knife (Article 8) on 10.3.1999 witnessed by PW-4 and PW-5. 12. The accused was arrested at 2.30 a.m. on 7.3.1999 at the residence of his sisters situate at Shaikh Mistry Darga Road, Near 12 Muslim Cemetery, Wadala and blood stained clothes – shirt, chaddi and jangya (Articles 5 to 7) were found on his person at the time of his arrest. PW-8 and the panch noticed an incised wound to the accused behind right knee and hence he was sent to Sion hospital for medical treatment under memo (Exhibit 27). The accused admitted the fact of his medical examination at Sion hospital. PW-7 Dr. Parab had examined the accused on 7.3.1999 and has tendered the entries in Casualty Registrar (Exhibit 21) at Serial No.4209. This entry was made by PW-7 during the ordinary course of his business. PW-7 found injury – CLW 1 x 0.5 mm Rt. lower limb poplitial region. Injury was muscle deep. According to the history given by accused, it was self inflicted injury. According to PW-7 if the sharp edged weapon is kept at poplitial region i.e. Above the calf, and it is being removed or handled by such person, keeping the weapon, such injury is possible. According to him, such injury is also possible by any sharp object or fall on a sharp edged stone. PW-7 do not notice any fever to the accused as accused was thoroughly checked at the time of examination. There was no symptoms of jaundice to the accused. 13 The accused was referred to casualty surgical register for further treatment. The accused in his statement under Section 313 of Cr.P.C. (Exhibit 35), vide Question No.11 was asked about the injuries sustained by him. However, his reply is “it is true that I was brought to Sion Hospital by one constable because I was suffering from jaundice”. Thus, the injury suffered by the accused, would definitely be self-inflicted injury, caused due to handling by the knife/sharp weapon causing muscle deep injuries. Hence there can be no other explanation offered by prosecution. 13. The C.A. Report at Exhibit 32 revealed that the shirt (Article 2), Banian (Article 3) of deceased Nidhi were soaked with human blood of the blood group ` O', which is different than blood group of the accused, as the accused has the blood group of ` B'. The report also indicate that the clothes of the accused (Articles 5 to 7) carried human blood which was significantly washed, as noticed by the C.A. The bermuda chaddi (Article 6) having moderate number of blood stains randing from 1 cm to 7 cm. in diameter. No explanation is offered by the accused though specific question was put to him in 14 relation to C.A. Report (Exhibit 32). However, on the dagger (knife) (article 8) human blood was found but ABO grouping inconclusive. It is the lapse of time which has obliterated the ABO grouping on metal like Article 8. 14. The learned defence Counsel during the course of arguments was seeking to create doubt about concealment of knife by Accused and claimed that no question was put to any witness that the knife could not have been hidden by the accused. We do not accept this preposition as we cannot go in any speculation that the accused was roaming with knife openly. PW-1 saw the accused when he was stabbing Nidhi and had no occasion to interact with the accused immediately prior thereto. 15. We have no hesitation to accept that there was earlier day controversy between the accused and Nidhi as deposed by PW-3 the father of deceased. It was out of this quarrel the accused again argued with Nidhi on 6.3.1999 and inflicted the stabbed injuries to Nidhi to which he succumbed subsequently. The evidence of PW-1 in the above situation coupled with narration of PW-2, holds good 15 ground to accept their testimony that the accused had stabbed Nidhi. 16. The injuries suffered by the deceased Nidhi were tried to be put under controversy. However, we have scanned evidence of PW-6 Dr. Anand Iyer who had examined the deceased as the defence also admitted the documents and PW-9 Dr. Balsara, who carried autopsy. The injuries noticed by PW-6 as reflected in Exhibit 18 and PW-9 Dr. Balsara are as under :- CHART Injuries recorded at Exhibit 18 Injuries recorded by Dr. Balsara at Exhibit 18-B Stab about ½ x ½ cms. In size on the right sige of abdomen about the periumbilical (Sr.4) Mid-line abdominal sutured wound measuring 22 cm. In length (exploratory laprotomy) (Sr.No.1) Stab in the chest wall on the (1) side 1 x 2 ½ cm in size breach in the chest wall postetuoraly AE if on the (1) side (Sr.No.2) Roughly linear sutured wound in upper, left midaxillary line measuring 3.5 cm. (Sr.No.ii) 16 Injuries recorded at Exhibit 18 Injuries recorded by Dr. Balsara at Exhibit 18-B Stab on the (1) thigh about 1 ½ cms in size about deep on the medical aspects (Sr.3) Roughly linear scratch abrasion measuring 5 cms x 0.3 cm longitudinally placed on lateral part of right thigh (Sr.No.v) Sutured wound at the medical side of mid-part of left thigh measuring 3.5 cms in length (Sr.No.vi) Sutured wound 4 cm in lengh present in the mid postero-inferior side of left thigh (Sr.No.viii) Stab wound on the medial aspect of the left thigh ½ x ½ in size (Sr.No.5) 17. Thus, chart dispel the theory that PW-6 or PW-9 recorded different set of injuries. That apart, looking to the evidence of PW-6 and PW-9 it cannot be said that there was only one injury to the thigh (Injury No.5) and rest of the injuries were the result of the operative procedure. PW-9 has clarified in paragraph 6 that the internal injuries cumulatively were sufficient in the ordinary course to cause death of the victim. 18. On analysis of entire evidence, we find that there is no 17 infirmity in the order of conviction recorded by the learned Sessions Judge and accordingly, we dismiss the appeal, confirming the conviction and sentence of the accused/appellant. ( F.I. REBELLO, J.) ( K.U. CHANDIWAL, J.)