{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.565 OF 2008 Navnath @ Pintya Suryabhan Phulare Age-28 years, Occ-Labourer R/o Ward No.3, Shrirampur Tq-Shrirampur, Dist-Ahmednagar (At present is in jail) APPELLANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.Sandeep Deshmukh h/f Mr.H.U.Dhage, Advocate for appellant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 7th October 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By this criminal appeal, the appellant has questioned the correctness of the judgment dated 9th September 2008 passed by the Additional Sessions Judge, Shrirampur in Sessions Case No.62/2007. By the said judgment, the appellant was convicted for an offence punishable u/s 302 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay a fine of Rs. 2000/-, in default, to suffer SI for 6 months. The appellant was {2} also convicted for the offence punishable u/s 326 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 3 years and to pay a fine of Rs.1000/-, in default to suffer SI for 6 months. The appellant was further convicted for the offence punishable u/s 452 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 1000/-, in default, to suffer SI for one month. 2. Such of the facts, as are necessary for the decision of this appeal, can be summarized as follows : a) Dr.Ravindra Bhausaheb Jagdhane (PW-14) was attached to Sakhar Kamgar Hospital, Shrirampur on 31.07.2007. During his duty hours in Casualty Ward, at about 8.00 p.m. one Raju Phulare brought Hausabai (PW-1) and Suresh (deceased) in injured condition. On the said night Navnath Phulare (Appellant) was also admitted in the said hospital as an indoor patient. Thereafter, Dr.Ravindra examined all the three injured and forwarded reports (Exhibit-51, Exhibit-53 and Exhibit-55) to Shrirampur Police Station. On receipt of the said reports, PI Baburao Saudagar proceeded to the Sakhar Kamgar Hospital and recorded statement of injured Hausabai (Exhibit-22), which was forwarded to the police station Shrirampur along with a covering letter (Exhibit-63). In the hospital itself it was learnt that injured Suresh expired and his body was sent to Municipal Hospital Shrirampur. On the basis of the complaint (Exhibit-22), an offence {3} was registered at crime No.111/2007 for the offence punishable u/s 302, 307 and 452 of the Indian Penal Code. b) During the investigation, on 01.08.2007, PI Saudagar had visited the Municipal Hospital Shrirampur and drew the inquest Panchanama (Exhibit-57) in presence of Pancha witnesses and sent the dead body for postmortem. Thereafter Police Inspector Saudagar had visited the scene of offence and during the spot Panchanama (Exhibit-35) collected some blood stains and photographer Gulaskar (PW-12) took three photographs (Exhibit-43 to 45). During the Postmortem, clothes of the deceased were seized in presence of Pancha witnesses under a seizure memorandum (Exhibit-37). On the same day i.e. on 01.08.2007, the appellant was put under arrest vide arrest memorandum Exhibit-64. At the time of arrest of the appellant, clothes on his person were seized under seizure memorandum (Exhibit-40). c) During investigation, statements of certain witnesses, who claimed that they have seen the incident of assault on the injured, were recorded. d) On 05.08.2007, the appellant was referred to Municipal Hospital, Shrirampur along with forwarding letter (Exhibit-69) to collect his blood sample with a request letter (Exhibit-17) to preserve the same. {4} e) During the investigation the appellant made voluntary disclosure statement (Exhibit-27) on 06.08.2007, in presence of witnesses. Pursuant to the said disclosure statement, one knife (Article-8) was recovered at the instance of the appellant, from the place shown by him where the knife was concealed, under a memorandum of recovery (Exhibit-28). f) During investigation, the seized articles and the blood samples were sent to Chemical Analyzer along with forwarding letter (Exhibit-71). g) On 22.10.2007, one Dipak Kurhade was arrested in connection with this offence. h) After receipt of CA reports (Exhibit-72 to 74) and on completion of the investigation, charge sheet was filed before the JMFC, Shrirampur on 29.10.2007. After passing of the requisite committal order, the trial against the appellant and accused Dipak was committed to the Court of Sessions at Shrirampur. i) Record and Proceedings indicate that the trial court framed charge at Exhibit-13 against the appellant for an offence punishable u/s 302, 307 and 452 of the Indian Penal Code, against accused Dipak for an offence punishable u/s 109 of the Indian Penal Code and against both the appellant and accused Dipak for an offence punishable u/s 120 B r/w 34 of the Indian {5} Penal Code, to which the appellant and accused Dipak pleaded not guilty and claimed to be tried. j) To substantiate the charge against the appellant and accused Dipak, the prosecution examined in all 17 witnesses including eye witnesses, complainant, medical witnesses, Pancha witnesses, a photographer and the Investigating Officer. The defence of appellant was of total denial and of his false implication. The trial court, after perusal of the evidence, came to the conclusion that the charges leveled against the appellant are proved and hence he accordingly recorded conviction against the appellant, however acquitted accused Dipak from the charges leveled against him. 3. Before considering the rival submissions, it is necessary to advert to the evidence of material witnesses examined before the trial court. 4. It appears that total four medical officers are examined by the prosecution i.e. PW-6 Dr.Bansode, PW-7 Dr.Kamble, PW-14 Dr.Jagdhane and PW-16 Dr.Shirsath. It transpired from the evidence of Dr.Jagdhane (PW-14) that on 31.07.2007, he was working as Medical Officer, Sakhar Kamgar Hospital, Shrirampur where one Raju Phulare had brought Hausabai (PW-1) and Suresh (deceased) in injured condition. Immediately after examining them, he had sent reports (Exhibit-51 and Exhibit-53) and considering {6} the condition of the injured, had advised to shift them to another hospital for better treatment. 5. From the evidence of PW-6 Dr.Bansode, it transpired that on 01.08.2007, he was working as a Medical Officer at Municipal Hospital, Shrirampur and on the said day at about 8.00 a.m. he conducted postmortem on the dead body of Suresh. During the autopsy, he noticed the following injuries- i) Laceration 3 cms below right nipple 1 ½ X 1 cm ii) Incised wound stab injury 4 cm below just right to umbilicus size 2.5 X 1 cm bleeding present. iii) Laceration 2 cm X 0.5 cm at infrascapular region iv) The injuries were antomortem. He also found the following internal injuries i) Incised wound (stab injury 4 cm below just right umbilicus 2.5 cm X 1 cm probe enters 10 cm into abdominal cavity abdominal cavity filed with blood. Contusion 500 cc semisbid, multiple rupture in intestine size 2.5 cm X 0.5 cm. ii) Inferior vanacava tear size 0.5 cm X 0.5 cm. This witness has opined that the cause of death was due to {7} cardiac arrest due to Hemorrhagic shock due to inferior vana cava tear due to stab injury to abdomen. According to him, the stab injury is sufficient, in ordinary course, to cause death and the stab injury could be possible by the knife (Article-8). It revealed form his cross-examination that injury No.2, stab injury, could not be possible due to fall on knife nor it is a self inflected injury nor it is an accidental one nor the same is possible if a person is thrust against on knife. Thus, after perusing the Postmortem report, there is no doubt in our mind that the death of Suresh is a homicidal one. 6. Evidence of PW-7 Dr.Kamble is material on the point to prove the injuries found on the person of PW-1 Hausabai. Dr.Kamble had examined Hausabai on 31.07.2007 in Municipal Hospital, Shrirampur. She had noticed the following injuries on the person of PW-1 Hausabai. 1. CLW on arms extending into forearm with gaping 3 X 1 with 4 cm extension into forearm reddish. 2. Stab injury skin cut 20 X ½ cm with gaping and reddish is on the left side of abdomen into right side reddish with caused by sharp instrument. According to Dr.Kamble, these injuries are possible by means of knife (Article-8). After examination of PW-1 Hausabai, she had issued certificate (Exhibit-32). Dr.Kamble had also examined {8} prosecution witness No.2 Pooja and had issued certificate (Exhibit-33). Thereafter PW-1 Hausabai was referred to another hospital for better treatment. In her cross-examination she has denied that the injuries sustained by PW-1 Hausabai were simple in nature. 7. In the light of this medical evidence, now it is necessary to find out as to who was the author of the said injuries and hence it is necessary to scan the evidence of material eye witnesses. 8. PW-2 Pooja Dhotre is a married daughter of deceased Suresh. On the day of the incident she had been to the house of her father, deceased Suresh, for her delivery. She has stated in the evidence that soon before the incident there were bye-elections of Municipal council, which was contested by wife of accused Dipak and wife of one Shankar Gaikwad. In the said election her father, deceased Suresh, had canvased for the wife of Shankar Gaikwad and had refused to canvas for the wife of accused Dipak and hence the appellant had threatened the deceased. On the day of the incident i.e. on 31.07.2007 twice the appellant had made inquiry as to whether the deceased is at home or not. At about 6.55 p.m. her father came home and made certain inquiries and hence her mother had been to the rear side of their house. At that point of time, the appellant, holding a knife, entered in their house and inflected knife blows on the stomach of her father, who sustained {9} bleeding injuries and hence she shouted for help and on hearing her shouts PW-1 Hausabai came there, who was also assaulted by the appellant so also PW-2 Pooja was assaulted by the appellant, then the appellant ran away from the spot. Thereafter, her mother, PW-4 came there and she and her mother took her father and Hausabai to the Kamgar Hospital from where to Shirsath Hospital where Suresh was declared dead and hence he was taken to mortuary of Municipal Hospital. PW-2 Pooja identified the clothes on the person of her deceased father as well as the knife. She has stated in her cross examination that her father was an active worker of the local MLA. She has stated that she shouted for help after she saw knife in the hands of the appellant. She has further stated that there was no exchange of words between her father and appellant before the appellant assaulted her father. She denied the suggestion that the appellant was assaulted by her father, her aunt PW-1 Hausabai and husband of Hausabai on the road and in that incident her father had sustained serious injuries. Evidence of this witness disclose that she is the sole witness to the assault on her father by the appellant. Hausabai PW-1 and Hirabai PW-4 came there later on. 9. PW-4 Hirabai Kurhade, wife of deceased Suresh and mother of PW-2 Pooja, corroborates the testimony of PW-2 Pooja on material aspects, which was not shaken even in her cross examination. {10} 10. Evidence of PW-1 Hausabai discloses that on 31.07.2007 at about 7.00 p.m. on hearing the shouts from the house of Suresh she had been there and noticed that the appellant was assaulting Suresh with knife and when she tried to intervene, she was also assaulted by the appellant with the said knife on her forearm and stomach. She has also stated that in the said incident, Pooja PW-4 was also assaulted by the appellant. She states that her statement was recorded by police at Sakhar Kamgar Hospital where she was treated as an indoor patient for 6/7 days. It revealed from her cross examination that the appellant was residing in the same locality and hence there was no question of mistaken identity of the appellant. It is also brought on record in para 12, by bringing some portion from her previous statement on record, that she was approaching to the house of Suresh, at that time, the appellant was coming out of the house of the deceased and on noticing her he inflicted knife blows on her stomach. She was suggested that in that evening the appellant was assaulted by her, her husband and Suresh and in the said incident the appellant had sustained injuries and the deceased sustained injuries by the knife in his own hands and in the process to obstruct the deceased PW-1 Hausabai also sustained injuries, which she denied. 11. It has come in the evidence of PW-3 Sangita Gaidhane that in the evening of 31.07.2007, at about 7.00 p.m. when she was passing from a road in front of the house of Suresh (deceased), she {11} saw the appellant came running out of the house of Suresh, at that time he was holding a knife in his hand and the appellant fall in a drainage and dashed against a wall and the wall fall on him and he sustained injuries. The appellant then ran away from the spot. When she peeped in the house of Suresh, she noticed that Suresh was lying in injured condition. Though some material omissions are brought on record, yet they are not enough to shake the creditability of this evidence. 12. Evidence of PW-3 is supported by the testimony of PW-11 Sunita Raju Pawar, neighbour of deceased Suresh. Her version is on the same line of PW-3 and hence we need not dilate on the same. 13. In the background of this evidence, heard learned counsel for the appellant followed by the submissions of learned APP. Learned counsel for the appellant, by drawing our attention towards the evidence of PW-14 Dr. Ravindra, has contended that on 31.07.2007 itself the appellant was also admitted in the same hospital at about 9.00 p.m. and he has given history of assault outside and in front of house of deceased Suresh by deceased Suresh, PW-1 Hausabai and her husband. Learned counsel for the appellant further contended that the appellant has also sustained injuries, which are not explained by the injured witnesses. According to the learned counsel for the appellant, inference to be drawn that the deceased and Hausabai sustained injuries in a {12} scuffle during the assault on the appellant by the deceased and injured witnesses. It is further urged that the accused had sustained injuries while he was bringing knife with him and while he was coming from his house had colluded against Hausabai and hence she sustained injuries for which the appellant must not be held responsible as in that process the appellant had also sustained injuries. It is further contended that this defence is explained by the appellant in answer to the question No.55 recorded in his statement u/s 313 of the Criminal Procedure Code as well as in his written statement (Exhibit-97). Learned counsel for the appellant also asserted that the recovery of knife at the instance of the appellant, is not supported by PW-5 Chand Shaikh and PW-15 Bhagwat Bagul. It is further contended that considering the record it is clear that the case of the prosecution rests on the sole testimony of PW-2, which is full of contradictions and omissions and hence the same to be disbelieved and by allowing the appeal, the appellant be acquitted of all the charges. 14. Per contra, learned APP supported the findings recorded by the trial court and urged to dismiss the appeal by confirming the conviction of the appellant. 15. First of all we will deal with the medical evidence, which is discussed in the earlier part of the judgment wherein we have concluded that death of deceased Suresh is a homicidal one and Hausabai had sustained grievous injuries during the said {13} incident and secondly it is clearly opined by PW-6 Dr.Bansode that the injuries found on the person of deceased Suresh were not possible due to fall on knife nor the injuries were self inflicted or accidental. The injuries were stab in nature and sufficient to cause death. From this evidence, the defence put up by the appellant regarding the injuries sustained by deceased Suresh and PW-1 Hausabai, is improbable and cannot be accepted. From the photographs (Exhibit-43 to 45) taken by PW-12 Gulaskar coupled with the evidence of PW-8 Sanjay and Exhibit-35, Spot Panchanama, it is clear that the incident had taken place inside the house of deceased Suresh. 16. Now, the medical certificate (Exhibit-77) showing injuries received by the appellant is required to be considered in the light of evidence of PW-14. Evidence of PW-14 discloses that the injuries found on the person of the appellant were simple in nature. At the same time, we require to consider that injury No.3 noticed on the person of the appellant i.e. “Lacerated wound over right thumb and index finger”, can be caused due to holding of knife in right hand and not by any other means. In addition to this, evidence of PW-3 Sangita demonstrates that she had seen the appellant came running out of the house of the deceased, fall in a drainage, dashed against a wall and sustained injuries and then ran way from there. No doubt, fall of the wall on the appellant is a omission, however, that omission cannot not take away the creditability of the earlier part of her evidence. Suffice it to say that {14} this evidence is sufficient to explain the injuries received by the appellant. Another aspect, which require consideration, which transpired from the evidence of medical officer PW-14, is that while the appellant was admitted in Sakhar Kamgar Hospital, Shrirampur in the night of 31.07.2007, instead of taking further treatment, he preferred to take discharge and was not ready to take treatment in that hospital on the ground that he wanted to go to Municipal Hospital, Shrirampur against the medical advice. This behaviour of the appellant is required to be considered in the light of the fact that deceased Suresh and injured Hausabai were admitted in that hospital at earlier point of time, where they had disclosed that the injuries sustained by them were inflected by the appellant and considering their critical condition they were advised to shift to another hospital for better treatment. 17. Further perusal of the record received from the trial court as well as the evidence of PW-17 shows that after the arrest of the appellant he was referred to medical officer for collection of his blood, which was sent to CA for analysis and as per the report of the CA (Exhibit-73) the blood group of the appellant is of “O” group. The blood group of the deceased is not detected, however blood group of PW-1 Hausabai, as per CA report (Exhibit-74) is of “B” group. As per the report of the CA (Exhibit-75) the blood group of the blood collected from the spot was of “B” group and the group of the blood found on the clothes of the appellant (item No.6 and 7) is also of “B” group even the blood found on the knife was of a {15} human blood so also the blood found on the clothes of the deceased was of “B” group. Had the appellant sustained injury during the scuffle, as per the defence of the appellant, then the blood found on his clothes would have been of his blood group and not of some other group. As per the CA report the blood found on the clothes of the appellant was of “B” group and not of his (O) group for which absolutely no explanation has been offered by the appellant. 18. Thus, from the above discussion it is clear that PW-3 has explained the injuries found on the person of the appellant and the medical evidence coupled with the CA report establishes link between the injuries found on the person of the deceased and injured Hausabai and role played by the appellant and the disclosure by the deceased himself in the hospital, which was recorded by PW-14, further establishes the role played by the appellant in the said offence. This history, given to PW-14 by the deceased while he was admitted in Sakhar Kamgar Hospital and the history recorded by PW-14 is supported by the testimony of sole eye witness. Evidence of PW-2 Pooja wherein she has disclosed as to how the appellant has assaulted her father coupled with the evidence of PW-3 Sangita and PW-11 Sunita who had seen the appellant came out of the house of the deceased holding knife in his hand, establishes that the appellant is the assailant who caused injuries to the deceased, which resulted into his death. The evidence of PW-1 Hausabai coupled with the medical evidence {16} clearly establish that the appellant is the assailant and author of the injuries sustained by her. Thus, considering these aspects, we are of the considered view that the findings arrived at by the trial court need no interference by this Court. 19. In the result, this criminal appeal fails and accordingly dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel565-08