IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 859 OF 1988 SATISH SHRINIWAS SHETTY ) residing at Mulund (E) ) Mumbai 81 ) .. APPELLANT vs THE STATE OF MAHARASHTRA ).. RESPONDENTS Shri Rajendra Shirodkar for appellant Shri D. S. Mhaispurkar APP CORAM:-SMT. RANJANA DESAI & A. S. OKA, JJ. DATED:- 5th November, 2004 ORAL JUDGMENT:-(Per Smt. Ranjana Desai, J.) The appellant (for convenience original accused 2) along with one Shabbir Ismail Parkar (original accused 1) was tried in Sessions Case No. 30 of 1987 in the court of Sessions Judge at Ratnagiri for offence under Section 302 read with 34 of the Indian Penal Code ("I.P.C." for short). Both the accused were also charged for voluntarily causing hurt to PW 1 Santosh Gopal Salunkhe under Section 323 of the I.P.C. Accused 2 was also charged substantively for offence under Section 302 and for offence under Section 504 of the I.P.C. for intentionally insulting PW 1 Santosh Salunkhe and thereby giving him provocation with intent and knowledge that such provocation would cause him to commit breach of public peace. By his judgment and order dated 1/9/1988, the learned Sessions Judge acquitted accused 1. He, however, found accused 2 guilty of offence under Section 302 of the I.P.C. For that offence he was sentenced to suffer R.I. for life. Accused 2 however, was found not guilty of other charges and he was acquitted of the same. Being aggrieved by the said judgment and order so far as it convicts and sentences him for offence under Section 302 of the I.P.C., Accused 2 has preferred this appeal. 2. At the trial, the case of the prosecution was as under: PW 1 Santosh, PW 2 Sachin Rane, PW 4 Shashikant Vichare, PW 5 Devendra Prasad Aroskar, PW 6 Shivaji Parab, PW 7 Chandrakant Narkar, PW 12 Balkrishna Gawas, PW 13 Satish Samant, PW 14 Deepak Shinde, PW 15 Sunil Ghatge, PW 17 Narayan Tanagade, PW 18 Rajesh Bhosale and deceased Sameer Chawan were students studying in the Polytechnic conducted by Mandar Education Society at Pedhambe, Taluka Chiplun. PW 1 Santosh and deceased Sameer Chawan were friends. They were staying in the adjoining room of the hostel of the polytechnic. The other students were also the residents of the hostel. According to the prosecution in the year 1986 there was a quarrel between Sanjay Rane and accused 1. PW 1 Santosh Salunkhe and deceased Sameer had gone to see Sanjay Rane who was injured in that quarrel. Both the accused were present there. They did not like PW 1 Santosh Salunkhe and deceased Sameer going there. Since that day the accused stopped talking with PW 1 Santosh and deceased Sameer. In August, 1986, there was a quarrel between accused 2 and deceased Sameer because deceased Sameer had asked accused 2 as to why he was teasing and harassing the student by name Ravi Punjabi. After that incident accused 1 and 2 were abusing and taunting PW 1 Santosh, deceased Sameer and others. In front of the D. Ed. College of the said polytechnic there is a padvi. Beyond that padvi there is some open space and thereafter there is a foot-ball ground. On 9.2.1987, at about 5-15 p.m. except PW 1 Santosh, other students namely PW 2 Sachin Rane, PW 5 Devendra Prasad Aroskar, PW 6 Shivaji Parab, PW 7 Chandrakant Narkar, PW 12 Balkrishna Gawas, PW 13 Satish Samant, PW 14 Deepak Shinde, PW 15 Sunil Ghatge, PW 17 Narayan Tanagade, PW 18 Rajesh Bhosale and some other boys were playing football on the said football ground. PW 1 Santosh was sitting in the padvi to watch the football game. At about 5-30 p.m. the accused came near that padvi riding on a cycle. They kept aside their cycle at the stand and came to PW 1 and started abusing and assaulting him. Santosh raised cries and on hearing him some of the students including deceased Sameer started coming towards him. PW 2 Sachin Rane, PW 5 Devendra Prasad Aroskar, PW 6 Shivaji Parab, PW 7 Chandrakant Narkar and PW 18 Rajesh Bhosale were amongst them. Deceased Sameer started climbing the steps of the padvi to rescue PW 1 Santosh. Accused 2 held him and then dragged him towards the Suru tree standing to the north of that padvi at a distance of 15 to 20 feet. After going near the tree accused 2 is alleged to have taken out a dagger and dealt two blows with it on the left side of chest of the deceased. Thereby the deceased sustained two stab wounds which started bleeding. After that accused 2 started running away with the dagger in his hand. The deceased hurled a stone towards accused 2 but that did not hit him. The deceased was caught hold of by Shashikant Vichare and others. That time the deceased said that he was stabbed by accused 2. The deceased escaped and walked some distance but was again brought near the said padvi. There he stated that he was stabbed by accused 2. He collapsed and became unconscious. He was then put in the padvi. From the padvi the deceased was taken near the bakery lying to the north of the foot- ball ground beyond the road in a shopping complex. One of the students i.e. Sandeep Desai brought the jeep of Mr. Patankar, the Director of the hostel to that place. The deceased was put in the jeep and taken to Government Dispensary at Alore. The deceased was examined by PW 8 Dr. Pandharpatte. After some time he was declared dead. Thereafter PW 1 Santosh Salunkhe came to Alore police station where he lodged his complaint which is at Exhibit 9. This complaint was recorded by P.W. 19 Madhukar Chavan Police Sub-Inspector. Offence came to be registered vide C. R. No. 9 of 1987 under Sections 302, 323, 504 read with Section 34 of the I.P.C. On the basis of this complaint, the investigation started. Accused 1 came to be arrested at 10 p.m. on the same day. It appears that on 10th February, 1987, at 11 a.m. accused 2 was brought to the police station. He was referred to Medical Officer, Alore under Yadi because there was bleeding from his nose. He was discharged from the hospital on 13.2.1987 and was thereafter arrested at 8-35 a.m. under panchnama Ex. 13. After completion of the investigation, the accused came to be charged as aforesaid. In support of its case, the prosecution examined as many as 18 witnesses PW 1 Santosh Salunkhe, PW 2 Sachin Rane, PW 4 Shashikant Vichare, PW 5 Devendra Prasad Aroskar, PW 6 Shivaji Parab, PW 7 Chandrakant Narkar, PW 12 Balkrishna Gawas, PW 13 Satish Samant, PW 14 Deepak Shinde, PW 15 Sunil Ghatge, PW 17 Narayan Tanagade, PW 18 Rajesh Bhosale are students. PW 17 and PW 18 claim to be eye- witnesses. PW 4 Shashikant Vichare, PW 6 Shivaji Parab, PW 12 Balkrishna Gawas, PW 13 Satish Samant and PW 14 Deepak Shinde have turned hostile. The medical evidence consists of evidence of PW 8 Dr. Prakash Pandharpatte, PW 9 Dr. Arun Joshi, PW 10 Dr. Patankar and PW 16 Dr. Dange. The details of investigation have been given by PW 19 PSI Madhukar Ganpat Chavan. The defence of the accused was one of denial. They contended that they were falsely implicated. Both the accused filed their written submissions. 3. After perusing the evidence on record the learned Sessions Judge acquitted accused 1 of all the charges and convicted accused 2 as aforesaid and hence this appeal. 4. We have heard at some length Mr. Shirodkar, the learned counsel appearing for the appellant and Mr. Mhaispurkar, learned APP. With the assistance of the learned counsel, we have gone through the evidence and the record of the case. 5. Mr. Shirodkar, learned counsel for the appellant contended that the learned Judge erred in convicting accused 2. He submitted that out of the twelve witnesses examined by the prosecution, two witnesses claim to have seen the actual incident. They are PW 17 Narayan Dattaram Tanavade and PW 18 Rajesh Gajanan Bhosale. Their statements are recorded on 2nd March, 1987 and 23rd March, 1987 respectively. Similarly statement of PW 15 Sunil Vasant Ghatge is recorded on 24th February, 1987. The learned counsel contended that considering the enormous delay in recording their statements the evidence of the witness cannot be relied upon. He further submitted that out of the remaining ten witnesses, five witnesses have turned hostile and hence their evidence will also have to be left out of consideration. 6. According to Mr. Shirodkar, PW 1 Santosh Gopal Salunkhe's evidence does not inspire confidence because whereas in the court he has stated that he saw accused 2 running with a dagger in his hand and the deceased chasing him with a stone and that there was bleeding from the left side of the deceased's stomach, in his statement before the police he has omitted to say so. He has also omitted to say in his police statement that the deceased told him that accused 2 assaulted him with a dagger. Therefore, his evidence cannot be relied upon. 7. So far as other witnesses are concerned, Mr. Shirodkar contended that there are major omissions in their evidence making them totally unreliable witnesses. He drew our attention to those omissions and contended that evidence of such witnesses cannot be relied upon to convict the accused. The learned counsel further contended that there is no discovery of weapon at the instance of accused 2. He submitted that the evidence clearly establishes that the nose of accused 2 was bleeding. Therefore, the blood-stains on the clothes of accused 2 cannot be an incriminating circumstance against him particularly because the blood group of the deceased and that of accused 2 is the same. Mr. Shirodkar contended that the prosecution has not been able to establish motive. The prosecution has failed to establish its case as against accused 1. The learned counsel contended that with this state of evidence, it is difficult to come to a conclusion that the case of the prosecution so far as it relates to the participation of accused 2 is true and hence the order of conviction and sentence must be set aside. 8. As regards delay in recording statements, Mr. Shirodkar relied on Balkrushna Swain v. The State of Orissa, A.I.R. 1971 S C 804 and Ganesh Bhavan Patel & Anr. v. State of Maharashtra (1973) 4 S C C 371. As regards improvements made by the witnesses and the value of the evidence of such witness, Mr. Shirodkar relied on Appanna Yellawwa Madar & Ors., v. State A.I.R. 1956 BOM. 471, Yudhishtir v. State of Madhya Pradesh, 1971 SCC (Cri.) 684 and State of Haryana v. Gurdial Singh & Ors., 1974 Cri. L.J. 1286. The learned counsel also relied on Ramsevak & Ors. v. State of M.P. , 2004 SAR (Cri.) 673. 9. Mr. Mhaispurkar, the learned APP on the other hand submitted that the prosecution has established its case beyond reasonable doubt against accused 2. He submitted that P.W. 1 Santosh's evidence inspires confidence. He is a truthful witness. He has given a graphic account of what he had seen. Though he has not stated in the F.I.R. that he saw the accused running with a dagger and the deceased following him, he has named accused 2 as the assailant of the deceased. The learned APP submitted that the evidence of other witnesses corroborates the evidence of PW 1 Santosh. The omissions in their evidence are not major omissions. He further submitted that the prosecution has given proper explanation as regards delay in recording statements and therefore, the evidence of PW 15, 17 and 18 cannot be discarded on that count. The learned APP further urged that the clothes of accused 2 were bloodstained. The torn pocket of his shirt was found at the scene of offence. These circumstances establish the guilt of accused 2 and hence his conviction may be confirmed. Mr. Mhaispurkar relied on SUCHA SINGH & ANR. V. STATE OF PUNJAB, (2003) 7 S C C 643. and submitted that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of accused 2, notwithstanding acquittal of accused 1 conviction of accused 2 can be maintained. 10. Before we deal with the rival submissions, it is necessary to refer to the postmortem notes to get an idea about the injuries suffered by the deceased. The postmortem notes have been admitted in evidence by consent. In column 17, the external injuries are described as under:- 1) Stab injury over sternal region at Lt. 6th rib level 1 cm right from 6th left. Costo- sternal junction slightly oblique. (Upper end pointing towards right side) 2 x 1/4 cm on proabing 5 cm deep blood clots + ve. 2) Stab injury over left side of chest in 6th Inter Costal space just below 6th rib horizontal, in mid-axilllary line. 2x1/2 cm on proating 9 cm deep. blood clots + ve. On internal examination following injuries were disclosed:- Sternum Fracture lower end 1 cm right from left 6th Cost o-sternal junction. Slightly oblique 2 x 1/4 cm. Left lung: Stab injury over left lobe, congeted - 2x1/2 x 2 cm. Pericardium Pericardial tear +ve corresponding to the site of sternal injury - Pericardial cavity contain blood; Large vessels Stab injury over interior surface of right ventricle. Slightly oblique 2 x 1/4 c.m. x endo-cansium deep. Cause of death is given as stab injury to the vital organ heart. 11. At the outset we would like to make it clear that we find it difficult to place reliance on the evidence of three witnesses whose statements have been recorded after great delay. Statement of PW 15 Sunil Ghatge is recorded on 24.2.87. In his evidence he has stated that the day after the incident he went to his village and returned after 10 to 15 days. 12. PW 17 is Narayan Tanawade. His statement is also recorded on 2.3.87. He claims to be an eye-witness. He has stated that the day after the incident he along with the father of the deceased and his brother came to Bombay in an ambulance. According to him he returned to Pedhambe on 1.3.87 because his parents did not allow him to return earlier. 13. PW 18 is Rajesh Bhosale. His statement is recorded on 23.3.87. He has stated that the day after the incident he accompanied others to Bombay. He went to Bombay in the ambulance which took the corpse of the deceased to Bombay. He returned from Bombay after one month because his mental condition was not good and his family members did not allow him to go. After he returned to Pedhambe his statement came to be recorded. It is true that some explanation is offered for the delay. It is quite possible that out of fear these witnesses stayed on in Bombay or perhaps their parents did not allow them to return to the village. But in our opinion, it is risky to rely on such evidence for the possibility of exaggeration or concoction cannot be ruled out. In this connection we may refer to Brahm Singh & Ors. etc. v. The State of Uttar Pradesh, (1972) 3 Supreme Court Cases 388. In that case statements of some of the witnesses were recorded after a delay of twenty five days. The Supreme Court observed that even if the evidence of those witnesses is excluded from consideration, there are still independent witnesses who have fully supported the case of the prosecution. On the basis of that evidence, the Supreme Court confirmed the sentence. While confirming the sentence the Supreme Court observed that the delay in recording statements in the facts of that case did not cut at the root of the prosecution case. It is, therefore necessary to see whether if the evidence of these three witnesses is left out of consideration, the prosecution case can be still held to be proved. 14. PW 1 Santosh Salunkhe has stated that he had been studying in the polytechnic at Pedhambe for the last about three years. He was staying in a hostel of the said polytechnic. He knew the deceased who was studying in the same class as his but he was pursuing mechanical engineering while this witness was pursuing electronic engineering. The deceased used to stay in a room adjoining his room. In May, 1986, there was a quarrel between Sanjay Rane and Isaq Parkar accused 1. At that time Isaq Parkar had assaulted Sanjay Rane. He and the deceased had gone to see Sanjay Rane. Because of that the accused got annoyed. Thereafter in August, 1986 there was a quarrel between accused 2 and the deceased. Thereafter he and the deceased and two/three others had been taunted by the accused without naming them. 15. According to this witness on 9.12.87 from 5-30 p.m. onwards the deceased, Shashikant Vichare, Sachin Rane, Chandrakant Narkar, Shivaji Parab and Satish Sawant and others were playing football on the college ground. He was then sitting in a padvi adjoining the said ground. After some time the accused arrived there riding on a cycle. They sat by his side. They started abusing him. Hearing that the deceased, Shivaji Parab, Sachin Rane and Chandrakant Narkar came to him. Accused 1 started giving him fist blows. Samir Chavan, the deceased, Shivaji Parab and Narkar intervened to rescue him. Then accused 2 pushed the deceased backward towards one tree. When accused 1 was assaulting him he heard cries of the deceased and he looked at him. He saw accused 2 running with a dagger in his hand. The deceased was chasing him with a stone in his hand. He saw bleeding from left side of the stomach of the deceased. Then the deceased came near him and told him that he was assaulted by accused 2 and then he became unconscious. Thereafter he fell down. He saw that there were two injuries on the left side of chest of the deceased. Then he, Mangesh Tanawade, Sachin Rane, Devendra Aroskar and Shashikant Vichare took the deceased to the Government Medical Officer. It was about 6-30 p.m. The jeep of the Rector was brought for the purpose of taking the deceased to the dispensary by Sandeep Desai. After 10 to 15 minutes it was reported that Samir (the deceased) had died. 16. This witness then went to Alore Police Station and gave information. PSI Madhukar Chavan recorded his complaint which is at Exh. 9. According to this witness at the time of the incident the accused was wearing blue colour T-shirt and blue pant. He showed the place of incident to the police. At that place the pocket of the T-shirt of accused 2 Satish was lying. It was attached under panchnama. When the said pocket Muddemal Article No. 8 was shown to him in the court, he identified it as being the same pocket. 17. The evidence of this witness is attacked by Mr. Shirodkar on the ground that there are material omissions which make him an unreliable witness. It appears that while he has stated in the court that he was assaulted in the padvi, he has not stated so in his police statement. While in the court he has stated that he saw accused 2 running with a dagger and the deceased chasing him with a stone, this is not found in the F.I.R. He has also not stated in the F.I.R. that the deceased told him that he was assaulted by accused 2 with a dagger and then he collapsed. 18. It is true that in the F.I.R. these facts are not mentioned. This witness does not claim to have witnessed the actual assault. In the F.I.R. he has stated that when accused 1 and 2 began to abuse him and beat him, the deceased came to rescue him. Accused 2 pulled him by the side, beat him with hands and stabbed him with sharp weapon. We may quote the relevant paragraph from the F.I.R.; "So, today on date 9-2-87 at about 6 O'clock in the evening while foot-ball play was going on, on the ground in front of B. Ed. college of Mandar Education Technical Institute at Bherade in Pedhambe village, and when I was sitting there, keeping past quarrel in mind (1) Shabbir Ismail Parkar of Furus Tal. Khed, (2) Satish Shrinivas Shetti of Mulund, Bombay at present Bharade colony. Both came there with common intention and began to abuse me and beat me with hands, and while my friend Samir Jayawant Chawan of Bhandup, at present at Bharade colony, came forward to rescue me, Satish Shriniwas Shetti, pulled him by the side and beat him with hands and stabbed him with sharp weapon and thus he has committed his murder and hence this is my information." 19. As regards the omissions he has stated that he could not state those facts while lodging the complaint because he was frightened. In the cross-examination he has clearly stated that due to fear of being involved he did not state some facts on 9..2.87. He has again reiterated that the only reason for not stating certain facts while lodging complaint Exh. 9 was fear of being involved and none else. We are unable to attach much importance to the omissions in the evidence of this witness. PW 1 Santosh was only 20 years when this incident took place. He is a student. The incident of stabbing appears to have shocked him. It is natural for him to feel scared. We find him to be a truthful witness because he has candidly stated what he had seen. If he wanted to exaggerate or falsely implicate accused 2 he could have stated that he saw accused 2 stabbing the deceased with a dagger. Though he was scared, he mustered courage, went to the police station immediately after the incident and lodged his complaint. Accused 2's name is found in the F.I.R. which is lodged soon after the incident. This is very significant. This fact strengthens the prosecution case against accused 2. 20. It is also important to note that apart from PW 1 Santosh and the two accused none else was there at the padvi. The accused started abusing him. Accused 1 started giving fist blows to PW 1 Santosh. That time the deceased and others intervened. Accused 2 pushed the deceased towards the tree. Considering the quarrel that took place between the accused and PW 1 Santosh, in the facts of the case no third person could have stabbed the deceased except accused 2 and that obviously is the reason why PW 1 Santosh has stated that accused 2 stabbed the deceased. In his written statement Exh. 59, accused 2 has admitted that he and accused 1 had gone to watch the football match on their cycles and there was some altercation between PW 1 Santosh and the accused. The presence of the accused is therefore, admitted. The quarrel is admitted. This lends support to the evidence of PW 1 Santosh. There is also significant other corrobation to the evidence of this witness from the evidence on record to which we shall soon advert. We, however, feel that the alleged statement made by the deceased near the padvi that accused 2 had stabbed him will have to be left out of consideration because it is not found in the F.I.R. and there is no corroboration to it from other evidence. This, however, does not weaken the truthful evidence of this witnesses. 21. Another attack made on this witness is that when he was in the hospital while the deceased was being examined, one Rajaram Shinde known as "Appa" was present. He has stated that he did not tell Appa about the incident at that time. This according to Mr. Shirodkar is unnatural and