1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.211 OF 2009 Karma S/o.Devman Pathare, Age about 25 years, R/o.Mandurne, Tal.Chalisgaon, Dist. Jalgaon APPELLANT VERSUS 1. The State of Maharashtra, High Court Building of Aurangabad, 2. Sangita W/o.Rajendra Pathare, Age-Major, R/o.Mandurne, Tal.Chalisgaon, Dist. Jalgaon 3. Police Station, Mehunbare, Tal.Chalisgaon, Dist. Jalgaon RESPONDENTS Ms.Pratibha Bharad, learned counsel for the appellant (Appointed) Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/10/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present criminal appeal, the appellant has questioned the legality and correctness of the judgment dated 11/04/2008, passed by Ad-hoc Additional Sessions Judge, Jalgaon, in Sessions Case No.157/2006, by which the appellant was convicted for the 2 offence punishable u/s. 302 of The IPC and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.5,000/-, i.d. to suffer further rigorous imprisonment for one year. It is also ordered that, if the fine amount is recovered, then out of the recovered fine amount, Rs.3,000/- to be paid to Sangita Rajendra Pathare, the wife of the victim Rajendra. 2. Such of the facts as are necessary for the decision in appeal can be summarized as follows : a) P.S.I.Arun Chaudhary, P.W.No.7 was attached to Mehunbare Police Station of Tal.Chalisgaon, Dist. Jalgaon. On 15/07/2006, when he was on duty, at about 4.00 p.m., Zamabai Uttam Sonwane (P.W.No.5) lodged the report about the murder of Rajendra Maniram Pathare (Exh.19). On the basis of said report, offence was registered against the appellant/accused vide CR No.59/2006 for the offence p.u.s. 302 of The IPC. Following to the registration of the offence, investigation was haded over to A.P.I. Jadhav (P.W.No.12). During the investigation, he went to Municipal Hospital, Chalisgaon where dead body of deceased Rajendra was lying. In the presence of panch witnesses, he drew inquest panchnama (Exh.10). Thereafter, he went to the spot and drew spot panchnama (Exh.29). From the place of offence, he had collected sample of blood mixed soil and plain soil. Thereafter, he recorded statement of certain witnesses. Then dead body of deceased Rajendra was sent for post mortem. During the post mortem, the Medical Officer had conducted the post mortem and noticed some external injuries like stab injury on left 3 nipple, stab injury at the level of 12th rib on the person of the deceased, connecting with some internal injuries mentioned in coloumn no.17, 18 and 20 respectively. The cause of death of deceased as per the post mortem report is Respiratory Attack due to stab injuries on the lungs and heart of the deceased. b) On the same day, at about 9.00 p.m. or so, accused was put under arrest. At that time, clothes on his person were seized under the panchnama Exh.21. Blood stains were found on the clothes of the deceased. Thereafter, he had recorded statement of certain witnesses. c) During the further investigation, while the appellant accused was in custody, he made the disclosure statement, which was recorded in the presence of panch witnesses. Following to the said memorandum of disclosure, at the instance of appellant, one sickle was recovered without handle, which was seized under the panchnama at Exh.31. So far as the muddemal property collected from the spot as well as sickle was concerned, were recovered at the instance of appellant, and deposited with the muddemal clerk, of which the entry was recorded in the muddemal registered vide Exh. 32 and 33. During the investigation, the seized property was sent to C.A. alongwith forwarding letter (Exh.35). It was sent to C.A. through one constable by name Badgujar. During the investigation, report of C.A. was received (Exh.36 to Exh.39). After completion of investigation, charge sheet was filed against the appellant accused in 4 the Court of J.M.F.C. Chalisgaon in due course. After passing requisite committal order, trial against the appellant was committed to the Court of Sessions, Jalgaon. d) After the trial was committed to the Court of Sessions, charge was framed against the appellant accused (Exh.5) for the offence punishable u/s. 302 of The IPC, to which appellant accused pleaded not guilty and claimed to be tried. During the trial, to prove the charge against the appellant accused, prosecution has examined in all 12 witnesses including 4 eye witnesses, 3 panch witnesses, complainant wife of the deceased, medical officer who had examined accused and the investigation officer. On the basis of evidence recorded before the Trial Court, and relying on the testimony of the complainant eye witness, and the C.A. report, learned Lower Court pleased to convict the appellant accused for the offence punishable u/s. 302 of The IPC, vide its judgment and order dated 11/04/2008, which is impugned in the present appeal. 3. In this appeal, we have appointed Adv.Ms.Pratibha Bharad to represent the appellant accused. Before considering the submissions of learned counsel appearing for the appellant accused and learned A.P.P. for State, it is necessary to consider the evidence of the material witnesses recorded before the Trial Court, which can be summarized as follows : a) At the outset, from the post mortem report, admitted by the 5 defence u/s. 294 of The Cr.P.C. at Exh.12, we have no hesitation to hold that the death of the deceased is a homicidal death. b) It transpired from the evidence of Zamabai Uttam, the complainant and eye witness in the present case, who is the mother in law of deceased Rajendra as well as the present appellant accused that she had 5 daughters and a son. Her daughters by name Sangita and Anita are married daughters. Sangita is the wife of deceased and Anita is the wife of appellant accused. On the 11th day of Marathi month of "Aashad", quarrel took place between the appellant accused and his daughter Anita on the ground that the appellant accused was suspecting about the character of Anita that she had illicit relations with deceased Rajendra. This information was given to her by her daughter Anita. When she tried to convince the appellant accused, instead of listening her, appellant accused abused her. On 14/07/2006, when she was outside the house, she saw that appellant was abusing deceased Rajendra. Thereafter, deceased Rajendra followed the appellant accused. Some scuffle took place between them. She tried to pacify the situation and tried to intervene. At that time, appellant pushed her back. Then appellant accused assaulted the deceased with the help of sickle in his hand on the left side of the chest. Due to said assault, deceased Rajendra fall on the ground. She tried to caught hold the appellant, but the appellant fled away from the spot. At that time, person by name Aaba, Waman, Ankush and Kisan tried to shift Rajendra, but Rajendra found dead immediately after the incident. Then the police 6 reached at the spot and shifted Rajendra to Municipal Hospital, Chalisgaon. This incident took place in front of house of the appellant. One Nathu Pathare was residing in the neighbourhood of the appellant. Wives of Nathu, Rukhmabai and Mangalabai tried to rescue the deceased from the clutches of the appellant, but failed. Then she went to Mehunbare Police Station, where she had lodged the complaint (Exh.19). She identified the sickle, weapon of assault used by the appellant before the Court as well as the clothes on the person of the appellant accused. It transpired from her cross examination that prior to the incident, her daughter Anita never informed her that appellant was suspecting about having her illicit relations with deceased Rajendra. At the same time, she had disclosed in her cross examination that on 11/07/2006, some 2-3 days prior to the incident, Anita disclosed this fact to Rajendra of suspecting her relationship with him. On the same day, when she was working in the field alongwith her daughter Anita in the afternoon, Anita disclosed the fact that the appellant was suspecting her character and her relationship with Rajendra, but when she contacted Rajendra, Rajendra informed her that Anita is like her daughter. Suggestions were given in her cross examination that during the scuffle between Rajendra and appellant, sickle was in the hand of deceased with which deceased sustained injuries. Thus on minute perusal of the evidence given by P.W.No.5 Zamabai, the complainant and eye witness, we have no hesitation to hold that the injuries sustained by the Rajendra, which were caused by the appellant accused, resulted in his death. 7 4. It revealed from the C.A. report at Exh.36, 37, 38, and 39 that the blood group of deceased Rajendra as per Exh.36 is of blood group 'B'. As per Exh.37, the C.A. report, the blood found on the clothes of the appellant is of 'B' group. The blood found on the sickle recovered at the instance of the appellant is human blood. It is to be noted that these clothes were recovered from the person of the appellant accused at the time of his arrest, within some hours after the alleged incident took place, for which we do not find any material in the cross examination of P.W.No. 12 about finding of blood stains on his clothes. 5. During the course of submissions across the bar, it is tried to urge on behalf of appellant accused that eye witnesses Rukhmabai P.W.No.2, Musa P.W.No.3, Motiram P.W.No.4, and Kashinath P.W.No.8 have not supported the case of prosecution about the assault on the deceased at the hands of appellant. Case of the prosecution rests on the testimony of Zamabai, the complainant who is an interested witness, and as her son in law succumbed to injuries, the appellant is falsely implicated in the present case. As against this, learned A.P.P. appearing for the State supports the judgment impugned in the present appeal. 6. Considering these submissions across the bar, and the settled legal position that even the conviction can be based on the evidence of a solitary witness, if the evidence of the solitary witness is trustworthy. It revealed from the record that even though the eye 8 witnesses turned hostile, the testimony of the complainant eye witness Zamabai is not shackened at any point in her cross examination. We have taken a note of the fact that like deceased, appellant is also son in law of the complainant. Considering the fact that she has witnessed the incident, we find no reason to disbelieve her testimony. Apart from the testimony of the complainant, the circumstance about finding of blood, of the blood group of the deceased, on the clothes of the appellant, when those clothes were seized immediately after some hours, from the person of the appellant itself. There is no cross examination on this point, as to how the blood of the blood group of the deceased was found on the clothes of the appellant accused, likewise no explanation is offered on this count on the part of the appellant in his statement recorded u/s. 313 of The Cr.P.C. This is an additional corroborating circumstance to the testimony of the complainant eye witness. In one of the paragraph supra, we have taken a note that death of the deceased is a homicidal death and from the testimony of the complainant eye witness, it is proved beyond reasonable doubt that the injuries found on the person of the deceased were caused due to assault at the hands of appellant, which is corroborated by the circumstance of the report of C.A. about the finding of blood of the blood group of the deceased on the clothes of the accused. Considering all these aspects, we do not find any error in the view taken by the learned Lower Court while convicting the appellant accused for the offence punishable u/s. 302 of The IPC. Even though it was vehemently urged by the learned counsel for appellant that the motive behind the 9 crime was not established, but we are not in agreement with these submissions, as the fact is brought on record by the defence counsel in the cross examination of the complainant itself, that soon before the incident, her daughter Anita had disclosed that the appellant was suspecting on her character and about her illicit relationship with deceased, who is her brother in law. In the premise, as stated earlier, we are of the considered view that as no error is found in the impugned judgment, then no interference is required in the conviction recorded by the learned Lower Court while convicting the appellant for the offence punishable u/s. 302 of The IPC. 7. In the substance, the appeal failed. We confirm the order of conviction and sentence passed by the learned Lower Court. We, however, quantify the fees payable to the learned counsel appointed to represent the appellant in the sum of Rs.5,000/-. We also appreciate the assistance provided to us by the learned counsel appointed to represent the appellant. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/OCT. 2010/cri.appeal 211-09