1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1559 OF 2004 Baban @ Babnya Yeshwant Pawar Age: 47 years, residing at Muktabai Chawl, Gundavali Gaothan, Andheri (East), Mumbai (Presently lodged at Nasik Road Central Prison at Nasik) ...Appellant. (Org. Accused) v. State of Maharashtra (At the instance of MIDC Police Station in its Cr.No.381 of 1995) ...Respondent. Mr. S.V.Pradhan, adv., for the Appellant. Ms. M.H.Mhatre, APP for the respondent/State. CORAM : J.H.Bhatia, J. DATE : 22nd July, 2010 JUDGMENT: 1 Accused/appellant in this appeal has challenged the judgment and order passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.202 of 1996 whereby the accused was convicted for the offence punishable under Sections 304(I) of the I.P.C. and was sentenced to undergo R.I. for 8 years and also to pay fine of Rs.6,000/-; in default to pay fine, he was to undergo further R.I. for three months. 2 2 To state in brief, the prosecution case is that one Rohit Rathod used to sell illicit liquor at his house at Shibu Baban Chawl, Malpa Dongri No.1, Andheri (E). He also used to live in the same house with his family members, including sister Saraswati. On 5th November, 1995, Rohit Rathod went to Shirdi alongwith his family members. He asked his brother Kishor to stay in the house alongwith their sister Saraswati but not to sell liquor to anybody in absence of Rohit Rathod. Normally Kishor, his brothers Vijay, Sanjay and Pankaj as well as their mother Bachubai used to live in separate house at a short distance from the house of Rohit Rathod. One Ganesh Bapu Chavan, Kishor and Saraswati were present in the house of Rohit Rathod at the time of the incident. At about midnight during the night between 5th and 6th November, 1995, accused Baban @ Babanya Pawar alongwith one Vasant @ Bhai Laxman Ghadigaonkar went to the house of Rohit Rathod and demanded liquor but Kishor refused to give liquor to them. At that time, Ganesh Chavan, who was present in the house left the house of Rohit Rathod and went to take pan. Within a short time Ganesh Chavan heard some noise and commotion from the house of Rohit Rathod and he immediately went and peeped inside and saw the accused assaulting Kishor with sword due to which Kishor 3 fell down. Thereafter, accused came out from the house followed by Bhai Ghadigaonkar. Then Ganesh saw present accused and his accomplice Bhai being chased by Sanjay Rathod (P.W.2) and Nandkumar Gurav (P.W.3). After some chase, due to slip the accused fell down and Sanjay and Gurav caught hold of the accused while his companion escaped in the darkness. P.W.1, Bachubai and some other persons had also come to the spot and they had seen Kishor lying in the pool of blood. Sanjay and Gurav took the accused to the police station while P.W.5 Shantaram and some others took the injured Kishor to the Cooper hospital. However, by the time he was taken to the hospital, he had died. On getting information from the constable on duty at the Cooper Hospital, P.W.11 PSI Mahesh Desai, who was on duty as Station House Officer at the MIDC police station, rushed to the Cooper hospital alongwith P.W.12 police inspector Mrs. Arti Bandgar and other staff members. Statement of Ganesh Chavan was recorded and it was treated as F.I.R., on the basis of which Crime No.381/95 came to be registered. Meanwhile accused, who had suffered some injury due to fall was also referred to the hospital by the police. He was taken back from the hospital to the police station and then he was arrested. 4 3 Police recorded spot panchanama and collected blood stained carpet and blood, which had fallen on the ground. Clothes of the deceased as well as clothes of the accused were seized under panchanama. On the basis of information given by the accused, the sword was seized from the lane through which accused had run away after the incident. Post-mortem examination was conducted on the dead body of Kishor. Muddemal property and the blood samples were referred to C.A. After investigation, chargesheet was filed against the present appellant and Vasant @ Bhai Laxman Ghadigaonkar. Case was committed to the Court of Sessions. Both the accused were charged for the offences punishable under Sections 450 and 302 r/w Section 34 of the I.P.C. They pleaded not guilty. Pending the trial, Ghadigaonkar died and case against him abated. 4 On behalf of the prosecution in all twelve witnesses were examined. However, the eye witnesses namely Saraswati and Ganesh Chavan, who had lodged the FIR had died before the trial commenced. On the basis of evidence led by the prosecution, the learned trial Court held that the offence under Section 450 was not proved but it was proved that Kishor had died homicidal death. The learned trial Court held the present accused guilty for the offence punishable under 5 Section 304(I) and sentenced him as stated above. 5 Heard the learned counsel for the parties and perused the record and proceeding of the Court below. Mr. Pradhan the learned counsel for the accused/appellant mainly harped upon certain discrepancies in the evidence of the prosecution witnesses to support his contention that the prosecution had failed to prove beyond reasonable doubt that the accused had caused the death and had committed the offence. On the other hand, the leaned APP contended that the incident had occurred in the year 1995 while the evidence was recorded in the year 2004 and, therefore, due to lapse of long period of nine years, memory of the witnesses might have faded and, therefore, some discrepancies here and there could occur but that itself cannot be the ground to discard the prosecution evidence. 6 P.W.1 Bachubai is mother of the deceased Kishor. P.W.2 Sanjay is his brother and P.W.5 Shantaram is his maternal uncle. P.W.3 Nandkumar was the next door neighbour of these witnesses. From the evidence of P.W.1 Bachubai, P.W.2 Sanjay and P.W.3 Nandkumar Gurav, it appears that Bachubai and her sons including Kishor and Sanjay used to reside in one house while her son Rohit used to reside in separate house at a short distance in the same 6 locality. Their evidence also shows that Rohit alongwith his family members had left his house to go to Shirdi for pilgrimage while his sister Saraswati, who was patient of T.B., was alone at his house. Therefore, he had requested deceased Kishor to stay at his house in his absence. Hence, on 5.11.1995 Kishor was at the house of Rohit. Ganesh Chavan was also with him during that night. Evidence also shows that Rohit had instructed Kishor not to sell liquor to anybody in his absence. Evidence of Bachubai, Sanjay and Nandkumar shows that they heard sound of commotion and shouts from the house of Rohit and they immediately rushed there. According to Bachubai, when she entered into the house of Rohit, she found that her son Kishor was lying in the pool of blood with injury on his head. According to her, the accused Baban was present in the room with sword. As the accused Baban saw her, he ran away from the room. P.W.2 Sanjay deposed that at about midnight he heard the noise. According to him, one Baban Gurav also came and said that something was happening in the room of Rohit. Immediately, P.W.2 Sanjay and others rushed to the room of Rohit and as he entered into the room, he saw the accused Baban with the sword in his hand. At that time, the accused was standing near the left side of the door of the room. He 7 also deposed that as he entered into the room, accused ran out. He and Baban Gurav chased him and near the Shukla Chawl, accused Baban slipped and fell down and Sanjay and Baban Gurav pounced upon him and caught him. According to Sanjay, they took accused Baban towards their house and on arrival of the police, they handed over the accused to the police. P.W.3 Nandkumar Gurav deposed that he heard some commotions and shouts and, therefore, he came out from his house and heard Santosh and Vijay shouting “Pakda, Pakda” (catch). He also saw two persons including accused Baban running away. He deposed that accused Baban was caught near Bhaiyya’s chawl but the other person managed to escape. He deposed that Kishor was taken to the hospital by Santosh Jadhav and others. P.W.2 Sanjay and P.W.3 Nandkumar took the accused to the police station and handed over the accused to the police. It appears that P.W.3 Nandkumar is also known as Baban Gurav and he has been referred to as Baban Gurav in the evidence of P.W.2 as well as in the judgment. P.W.5 Shantaram deposed that at about midnight, he heard the noise from the room of Rohit Rathod and he went there. He was told by his sister Bachubai that her son Kishor was assaulted. As he entered into the room, he found Kishor lying on the floor of the room. Ganesh was also present 8 inside the room. Ganesh told him that two persons assaulted Kishor and they were Baban Pawar and Ghadigaonkar. He deposed that Baban Pawar, i.e., the present accused was caught hold of by Vijay, Sanjay and Nandkumar. He also claims to have seen sword in the hands of the accused Baban. He did not support the prosecution story to the extent that he had himself seen accused running away from the Rohit’s room. He denied that he had stated before the police to that effect. Thus, he does not claim to have seen accused persons running from the room but he deposed that he had seen the accused with sword and that he was caught by P.W.2, P.W.3 and one Vijay. 7 The evidence on record shows that Kishor was taken to Cooper Hospital by several persons of the locality including Ganesh Chavan. Before he could reach the hospital, he had died. It is proved by P.W.12 Police Inspector Arti Bandgar that on getting the information that one injured Kishor Rathod had died and was brought to the hospital, she alongwith P.W.11 PSI Mahesh Desai went to the hospital where PSI Mahesh Desai recorded the report of one Ganesh Chavan, which was treated as F.I.R. Evidence of P.W.11 Mahesh Desai shows that he recorded report of Ganesh Chavan , Exhibit 44A and registered the offence punishable under Section 302 of the Indian 9 Penal Code. 8 Post-mortem examination on the dead-body was conducted by P.W.4 Dr.Baban Shinde, who was then attached to Additional Coroner’s Court. He found following external injuries “i Incised Wound 10 cm X 1.8 cm X bone deep over left cheek/extended from 1 cm below left eye above left ear. ii Incised Wound 8 cm X 1 cm X bone deep over left pariato occipital region.” On opening the body, he found following internal injuries: “i Haematoma under scalp left pariato occipital region and there was fracture of parietal below injury no.2. ii Sub arachnoid brain hemorrhage all over the brain around all cerebellum.” According to him, external injuries were corresponding to the internal injury no.2. He also deposed that death was caused due to shock and hemorrhage due to head injury. He issued post-mortem report, Ex.23. In view of this medical evidence, it is clear that Kishor had died homicidal death and there is no dispute about this part of the evidence. 9 Question is only as to whether the present accused had 10 10 caused death of Kishor. Evidence of P.W.10 Constable Dnyandev Gaikar and P.W.11 Mahesh show that at about 12.30 a.m. two persons had brought one injured and as per the directions given by PSI Mahesh Desai, he was taken to Cooper hospital by P.W.10 Constable Gaikar. Later on, he brought him back to the police station after the treatment. According to the PSI Mahesh Desai after he registered F.I.R., he recollected that one injured was brought to the police station by two persons before registration of the offence and he was referred to the Cooper Hospital through constable Gaikar, therefore, he directed constable Gaikar to bring him back to the police station and after he was brought, clothes of the accused Baban were seized under panchanama, Ex.28 in presence of P.W.6 Santosh Jadhav. Clothes were shirt and pant, articles 4 and 5. 10 P.W.12 PI Arti Bandgar deposed that on interrogation accused Baban agreed to show the place where he had dropped the sword while running away from the spot. That information was recorded as a memorandum and the accused took the police and the panchas to the spot and showed the sword. That sword was seized under Panchanama Exh.41. P.W.9 Ashok Suradkar was one of the pancha witnesses. He supported prosecution evidence and proved 11 11 seizure panchanama Ex. 41 and memorandum Ex.41-A . Sword Art.2 was seized, sealed and labelled. Evidence shows that clothes of the deceased were also seized. Spot panchanama was prepared and carpet was seized from the spot. Blood samples of the accused as well as deceased were taken. 11 All these properties were referred to C.A. with the covering letter, Ex.30. As per the C.A.Report Ex.30, full pant, shirt and jangya of the deceased Kishor had the blood stains of group ‘A’. Similarly, blood found on the carpet in the house as well as full pant of the accused, human blood of group ‘A’ was found. As per C.A. Report, Ex.31/1, blood group of the deceased accused Vasant @ Bhai Ghadigaonkar was ‘O’ while as per C.A.Report Ex.31/2, blood group of accused Baban Pawar was ‘B’. From this it is clear that while the blood groups of the accused persons were ‘B’ and ‘O’, blood group of the deceased Kishor was ‘A’. Presence of the blood stains of Group ‘A’ on the pant of the accused provides corroboration to the testimony of other prosecution witnesses that this accused was running away from the spot after assaulting the deceased. Besides on the sword recovered on the basis of information given by the accused human blood was found as per C.A.Report. This also provides corroboration to the case 12 12 that the sword was used to cause death of Kishor. Discovery of the sword on the basis of information given by the accused Baban is a material circumstantial evidence against him. 12 The learned counsel for the appellant pointed out certain discrepancies in the evidence of the witnesses. He pointed out that P.W.1 Bachubai had deposed that accused Baban was wearing banyan and half pant but on his arrest, police seized full pant and shirt from him. He also pointed out that as per the evidence of P.W.2 Sanjay, accused Baban was brought to the spot of the incident after he was caught and then he was handed over to the police when police came there. On the other hand P.W.3 Nandkumar deposed that he and P.W. 2 Sanjay had taken the accused to the police. Evidence of P.W.3 Nandkumar finds corroboration from the testimony of P.W.10 Constable Dnyandev Gaikar , P.W.11 PSI Mahesh Desai and P.W.12 PI Arti Bandgar. In view of the evidence of three witnesses to show that the accused Baban was taken to the police station by P.Ws.2 and 3 and there he was handed over to the police, much importance need not be given to the version of P.W.2. Discrepancy arising in the evidence of P.W.1 Bachubai about the clothes and in the evidence of P.W.2 Sanjay appears to be due to failure of memory due to lapse of long period of 13 13 nine years. 13 Taking into consideration the evidence on record , it becomes clear that hearing the shouts, mother and brother of the deceased and other people from the locality came there. Some of them had seen the accused in the room of Rohit, where injured Kishor was lying in a pool of blood and at that time, accused was holding the sword. Seeing the mother and brother of the deceased Kishor, accused ran away from the spot and at a short distance, he slipped and fell down near Shukla Chawl, where he was caught. It appears that he must have thrown away the sword in the lane while running away, which was discovered later on. Presence of the blood of the deceased on the clothes of the accused as well as human blood on the sword discovered on the basis of information given by the accused go to establish that the accused was assailant and he had caused the death. In my considered opinion, even though both the eye witnesses namely, Saraswati and Ganesh could not be examined due to their death prior to the trial, circumstantial evidence is sufficient to establish guilt of the accused. Therefore, I find that trial Court had rightly convicted and sentenced the accused. I do not find any material to interfere in the impugned order of conviction and sentence. 14 14 14 For the aforesaid reasons, appeal stands dismissed. (J.H.BHATIA, J.)