apeal 390-05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 390 OF 2005 Paneer Selvam Velaidan Naikar ] Convict No. C/5079, ] Presently lodged at Nashik Road Central ] Prison, Nashik ] Appellant / Org. Accused Vs The State of Maharashtra ] Respondent (Through Kasturba Marg Police Station) Mr. Abhaykumar Apte, Advocate appointed for the Applicant Ms. A.S. Pai, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 16th DECEMBER, 2010. PRONOUNCED ON : 23rd DECEMBER, 2010. JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 18.10.2004 passed by the learned Additional Sessions Judge, Bombay 1 apeal 390-05.doc in Sessions Case No. 349 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 500/-, in default RI for one year. 2. The prosecution case briefly stated is as under: The complainant PW 1 Armagam Chenappa Arjun along with his wife PW 6 Perimi was residing on the open space in front of Bhor company situated at Borivali (E). The accused Paneer Selvam and Raju (deceased) were also residing on the said open space. On 05.02.2004, PW 1 Armagam and his wife went to sleep. The complainant got up at about 05.00 a.m the next day. He went to answer call of nature. He, then, went to fetch water. His wife who was expecting at that time, had some pain in her abdomen, hence the complainant asked her if she wanted tea. As he was taking out money, he noticed the accused holding a stone and the accused was about to hit it on the head of Raju who was sleeping. Seeing this, the complainant shouted "ay ay" but the accused struck Raju with that stone on his head. Raju sustained bleeding injury on the head. Meanwhile, because of 2 apeal 390-05.doc shouting, number of persons gathered at the spot. Some of them held the accused. The complainant, then went to Kasturba Marg Police Chowky and informed police about the incident. The police rushed to the spot. Raju was taken to Bhagvati Hospital where he was declared dead. FIR (Exh 8) of PW 1 Armagam came to be recorded. Dead body of Raju was sent for postmortem. PW 7 Dr. Sane conducted postmortem. He found following injuries :- 1. CLW. over left parietal area of size 5 cm X 3 3cm by bone cut 2. Abrasion over left fronto parietal area 3 cm X 4 cm They were ante mortem. Upon internal examination, it was found that there was haemotoma under the scalp. There was scalp fracture left parietal area of size 3 cm X 4 cm. Subdural and sub aregnoid hemorrhage was present. Brain matter was lacerated. The opinion as to the probable cause of death was head injury (unnatural). The age of these injuries was within 24 hours of the examination. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3 apeal 390-05.doc 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After considering the defence of the accused and after going through the entire evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. The prosecution case is mainly based on the ocular evidence of three eye witnesses i.e the complainant PW 1 Armagam, his wife PW 6 Perimi and PW 4 Baban Jadhav who also used to sleep on the said open space. The complainant PW 1 Armagam has stated that on 05.02.2004, he went to sleep at night. He got up at 05.00 a.m the next day. He went to answer the call of nature. Thereafter, he went to fetch water. His wife who was expecting at that time, had some pain in her abdomen, hence the complainant asked her if she wanted tea. As he was taking out money, he noticed that the accused was holding a stone and he was about to hit it on the head of Raju who was sleeping on the open space. The 4 apeal 390-05.doc complainant shouted "ay ay" but the accused struck Raju with that stone on his head. Raju sustained bleeding injury on the head. Meanwhile, because of shouting, number of persons gathered at the spot. Some of them held the accused. PW1 then went to Kasturba Marg Police Chowky and informed police about the incident. The police rushed to the spot. Raju was taken to Bhagvati Hospital where he was declared dead. PW 1 Armagam has identified the appellant as the person who assaulted Raju and he has identified the stone (Article 1) as the one with which the accused assaulted Raju 5. PW 6 Perimi who is the wife of the complainant PW 1 Armagam has stated that her husband i.e PW 1 got up at 5.30 a.m. At that time, she was experiencing some problem in her abdomen, hence, her husband gave her water and made preparation for tea. He was having some money with him and just as he went out, he started shouting "aay aay". The accused hit one person who was sleeping with a stone. On account of the assault, the victim started bleeding. The accused was prevented from going anywhere by the people and they tied up the accused and made him sit there only. Soon thereafter, 5 apeal 390-05.doc the police van arrived there and the accused was taken away by them. 6. PW 4 Baban Jadhav has stated that Raju was sleeping near the place where he was residing on the open space in front of Bhor company. On 06.02.2004 at about 06.00 a.m., he heard a noise. He saw the accused hitting Raju who was sleeping with a stone. Raju suffered head injury. The accused Paneer was caught by the people. Soon thereafter, police van arrived. Nothing has been elicited in cross-examination of any of the three eye witnesses so as to disbelieve their testimony. Nothing has been brought on record to show that any of these three witnesses had any enmity or grudge against the accused so as to implicate him falsely. 7. Learned advocate for the appellant submitted that the incident occurred in the early hours of the month of February, hence, at that time, it would be dark and in such case, it would not be possible for any of the witnesses to see who was the assailant. In order to support this contention, learned advocate has drawn our 6 apeal 390-05.doc attention to the evidence of PW 1 Armagam who has stated that "It is true that at about 05.00 a.m., it is dark everywhere." However, it is nobody's case that the incident had occurred at 05.00 a.m. In fact, PW 1 Armagam has stated that he got up at 05.00 a.m. thereafter, he went to answer the call of nature, he then went to fetch water. His wife who was expecting, at that time had some pain in her abdomen, hence, PW 1 Armagam asked his wife if she wanted tea. As he was taking out money, he saw the accused holding a stone and the accused was about to hit it on the head of Raju. The evidence of PW 6 Perimi shows that the incident had occurred sometime after 05.30 a.m. The evidence of PW 4 Baban shows that the incident had occurred at about 06.00 a.m. Though it has come on record that the sun rises at about 07.00 a.m., we find that much capital cannot be made from the said fact because according to the witnesses, the incident had occurred at about 06.00 a.m. At that time, it was pre-dawn, there was some light on account of day break. PW 4 Baban has specifically stated that the distance between where he was sleeping and where Raju was sleeping was 25 to 30 ft He has specifically stated that it was not very dark and 7 apeal 390-05.doc some light was there because the day was breaking at about 06.00 a.m. Moreover, it has come in the evidence of PW 6 Perimi that Raju was sleeping at a distance of about 20 ft from where she was sleeping. Thus, the complainant and his wife were able to see the accused from a distance of about 20 ft. It cannot be lost sight of that the accused was well known to the complainant and other witnesses. It has also not been suggested to any of the witnesses that it was very dark at the time of incident, hence, that it was not possible for any of the witnesses to know the identity of the assailant. From the evidence of these three witnesses, we are of the opinion that the prosecution has succeeded in proving that it was the appellant who caused injury to Raju with stone which resulted in the death of Raju. 8. PW 7 Dr. Sane who conducted postmortem on dead body of Raju has stated that the injuries sustained by Raju could be caused by stone (Article 1) if the assault was made by the said stone on sleeping person. According to the Doctor, the injuries were sufficient in ordinary course of nature to cause death. Dr. Sane has categorically denied that such injuries could be caused 8 apeal 390-05.doc by fall from a height of 5 feet as suggested by the defence. Looking to the injuries sustained by Raju and the evidence of Doctor, we have no manner of doubt that the death was homicidal in nature. 9. When there is ocular evidence on record, motive pales into insignificance. However, yet the prosecution has brought the motive on record through the evidence of PW 5 Kulandewas Arjun. PW 5 Kulandewas was also residing on the open space near Bhor Company. He has stated that he knew the accused as well as deceased Raju. On the night between 5th and 6th February 2004, he along with the accused and deceased were sitting around the fire. The accused gave bidi to all of them. Thereafter, accused and Raju got into a quarrel which initially started in good humour. During the quarrel, Raju abused the accused on his mother. At about 2.00 to 2.30 a.m., Raju and the accused went to their respective places for sleeping. While leaving, Raju threatened the accused that he would see the accused the next day. At about 5.00 a.m., this witness went to fetch water. When he returned back sometime after 05.30 a.m., he saw that Raju was bleeding. Thus, the prosecution has also 9 apeal 390-05.doc proved the motive for the incident through the evidence of PW 5. 10. Looking to all the evidence on record, we find that there is sufficient material to connect the appellant with the crime, hence no case is made out for interference. In the result, we do not see any merit in this appeal and the same deserves to be dismissed and it is accordingly dismissed. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA,J ] 10 apeal 390-05.doc 11