1 Appeal393.04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.393 OF 2004 KJ 1 Shri Kirloskar Nirgel Shinde ) Aged about 28 years, Occupation Agricultural ) Labour, residing at Siddheshwar Kuroli, Taluka ) Khatav Dist. Satara ) At present in Kalamba Central Prison, ) Kolhapur, Dist. Kolhapur ) 2 Shri Nitin @ Nantaj Nirgel Shinde ) aged about 25 years, Occupation Agricultural ) Labour, residing at Siddheshwar Kurli, Taluka ) Khatav, Dist. Satara ) At present lodged at Satara District Central ) Prison, Satara, Dist. Satara. )..Appellants Vs. The State of Maharashtra ) At the instance of Vaduj Police station, Vaduj ) Taluka Khatav, Dist. Satara )....Respondent ---- Shri Kuldeep S.Patil for the appellants. Mrs. V.R.Bhosale APP for the respondent/State. ---- 2 Appeal393.04.sxw CORAM : P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ DATE : 21.7.2011 ORAL JUDGMENT :- ( PER : MRS.MRIDULA BHATKAR,J) 1 This appeal is directed against the judgment of conviction dated 7.2.2004 passed by the IIIrd Additional Sessions Judge, Satara. Accused nos.1 & 2 are convicted under Section 302 read with 34 of the IPC for life imprisonment. The incident of murder of one Raje Khan has taken place at Vaduj on 13.10.2001 at 3.45 P.M. Daughter of complainant Sharad Bhosale was married to one Pavnya and it is alleged that accused no.2 Nantaz Shinde had killed Pavnya, 1 & ½ years prior to the date of the incident. Accused no.2 wanted to marry Swati. However, complainant Sharad Bhosale was not ready to perform marriage of his daughter Swati with accused no.2 who had killed his son-in-law. There were criminal cases pending against PW-2 complainant and he had come to the Court at Vaduj to attend the court date on 13.10.2001. After attending court date he along with his wife went to see a movie in the theatre and thereafter at around 3.30 to 3.45 P.M he was in the 3 Appeal393.04.sxw house of his sister Sangita PW-3 along with his wife. Accused nos. 1 & 2 arrived there and they picked up quarrel with the complainant as accused no.2 wanted to marry Swati. Accused no. 1 tried to take away Swati by pulling her. Complainant opposed it and in that fight, Raja Khan real brother of PW-2 intervened. Accused nos.1 & 2 pulled Raje Khan. Accused no.1 was carrying knife and accused no.2 took knife from their other brother Atun. Both the accused nos.1 & 2 stabbed Raje Khan in the chest, underarm and on the forearm and ran away. Raje Khan died on the spot. PW-2 Sharad Narayan Bhosale went to Vaduz police station immediately, gave complaint against the accused nos.1 & 2. Police registered FIR at C.R.No.88 of 2001 at Vaduz police station and registered offence under Section 302 read with 34 of the IPC against accused nos.1 & 2. Raje Khan was taken to the hospital. He was found dead. Post mortem was conducted on him by PW-4 Dr.Dilip Ramchandra Chavan. Police drews inquest panchanama and spot panchanama. They seized clothes of the deceased under panchanama. They recorded statements of witnesses. However, they could not arrest accused nos.1 & 2 as both were absconding. 4 Appeal393.04.sxw Police could not arrest accused no.1 till June-2002 and accused no. 2 till December-2002. Accused no.1 was arrested in theft case by police and then he was transferred in the present case. Accused no.2 was arrested in December-2002. Police thereafter carried out further investigation and filed charge-sheet against the accused. 2 After committal of this case, Sessions Judge framed charge simplicitor for the offence of murder under Section 302 read with section 34 of the IPC. Accused were tried and trial was concluded in the conviction of both the accused. 3 Being aggrieved with the said judgment and order, accused filed this appeal. 4 In this case, prosecution has relied on two eye witnesses i.e PW-2 Sharad N.Bhosale and PW-3 Sangita Shivaji Ghadge. Evidence of these two eye witnesses is challenged by the learned Counsel appearing for the defence on various grounds. Learned Counsel pointed out that the evidence of the PW-2 and PW-3 5 Appeal393.04.sxw cannot be believed as evidence suffers from contradictions, hence inconsistent. It is argued that PW-2 Sharad Narayan Bhosale has given number of admissions on the point of previous rivalry between the two families i.e family of the deceased and family of the accused. PW-2 has admitted that there were many criminal cases including of murder pending against him and his other family members including deceased Raje Khan. He admitted that whenever any offence is registered and if family of the deceased are interrogated, they used to involve the family members of the accused in the offence and vice-versa. The family members of the complainant and the deceased were falsely roped in by giving their names to the police by the family of the accused. Learned Counsel further submitted that at the time of the incident, accused no.2 had shown his desire to marry Swati and the resistance on the part of the father of Swati was the reason for the complainant to be more vindictive towards the accused. Thus, there is every reason for false implication of the accused by the complainant. Learned Counsel further submitted that accused nos.1 & 2 are innocent and because of this previous rivalry, they are falsely implicated by PW-2 6 Appeal393.04.sxw Sharad Bhosale. 3 It was further submitted that on the point of evidence of the spot of the incident, there are variations in the evidence of PW-2 Sharad Bhosale and PW-3 Sangita Ghadge. PW-3 who is a sister of PW-2 and the deceased, has shifted the spot of the assault in front of his house whereas PW-2 has deposed that incident has taken place behind the hospital. On the basis of admissions of the witness it is doubtful whether deceased Raje Khan was in the prison at the relevant time or not. He submitted that there was strong motive for the PW-2 and PW-3 to involve accused. Their testimonies are not to be considered as reliable and to be dis- carded. He further submitted that evidence of discovery panchanama of knife article-8 which was found at the instance of accused no.1 marked at Exh.37 and Exh.38 so also discovery panchanama Exh.42 of Article-9 knife which was at the instance of accused no.2 are also not reliable as the knives were found after 10 to 12 months after the incident and they were shown as blood stained. Learned Counsel argued that the prosecution ought to 7 Appeal393.04.sxw have examined Atun who was allegedly present at the time of the incident and as per the case of the prosecution from whom accused no.2 has taken knife to kill the deceased. It was argued that non examination of Atun is fatal to the prosecution. 4 Learned APP opposed this appeal on the ground that evidence of the two eye witnesses is unshaken and sufficient to prove offence of murder against accused nos.1 & 2 so the judgment and order passed by the Sessions Court is to be confirmed. 5 We have gone through the evidence of all the witnesses and the judgment of the Sessions Court. It is true that there are admissions given by PW-2 Sharad Bhosale about the family enmity between the families of accused and the deceased. Evidence of PW-2 discloses that criminal cases including cases of the murder, were pending against PW-2, deceased Raje Khan and also against accused persons. These families belong to very poor trible community who are known as `Fase-pardhi’ in Maharashtra. 8 Appeal393.04.sxw People in this community earn their livelihood mainly by looting and robbing people and they are always involved in the criminal activities. Thus for them, having criminal record is common. The fact that Pavnya, husband of Swati was killed and thereafter accused no.2 wanted to marry Swati and they were pursuing PW-2 for the same, is not disputed. On this background, evidence of PW-2 and PW-3 and also evidence of defence witnesses is scrutinized. 5 PW-2 Sharad Bhosale and PW-3 Sangita Ghadge both have stated that incident of murder of Raje Khan has taken place on 13.10.2001 at around 2.45 P.M. PW-3 Sangita has deposed that her house situated at back side of one hospital. Spot panchanama Exh.29 dated 14.10.2001 reveals that the incident has taken place behind a Vaternary hospital near the slum. PW-3 Sangita was residing in one of the huts in that hutment area. PW-2 complainant has deposed that he had come to Vaduz from Ghadgewadi to attend court date and after attending court date, he along with his wife went to see a film at around 12’ O clock. 9 Appeal393.04.sxw Thereafter when he was with his sister Sangita, daughter Swati, accused nos.1 & 2 arrived there and they picked up quarrel on the issue of marriage of accused no.2 with Swati. He has specifically stated that at that time Raje Khan tried to intervene and therefore both the accused pulled him. Accused no.1 was carrying knife and accused no.2 demanded knife from his other brother Atun and both of them inflicted stab wounds on the person of Raje Khan. PW-3 Sangita sister of the deceased and complainant has fully corroborated in all the material details in respect of the arrival of accused nos.1 & 2 and intervening Raje Khan and assault by accused nos.1 & 2 on Raje Khan with knife. The incident has taken place at 3.45 P.M in broad day light. Complainant PW-2 Sharad Bhosale and PW-3 Sangita were acquainted with the accused nos.1 & 2. Hence, the identity of the accused was confirmed. In the cross-examination of both the witnesses, defence could seek admissions as stated above about the previous family enmity and could successfully bring some discrepancies in the evidence of both the witnesses. However, these discrepancies are not material and they only lead to some innocuous confusion. 10 Appeal393.04.sxw It was an aborted attempt to create confusion in respect of the presence of PW-2 Sharad Bhosale at the time of the incident, before the Court. However, PW-2 gave FIR to Vaduj police station not only on the same day but immediately after the incident that incident has taken place at 3.45 P.M, the offence was registered at 4.30 P.M by Vaduj police station. In the FIR, PW-2 has given all the details, how the incident has taken place and has mentioned the names of PW-1 and PW-2 wherein the act of stabbing deceased with knives is attributed to accused nos.1 & 2 by him. Thus, FIR corroborates the evidence of PW-2 and according to us, this is a clinching evidence against the accused nos.1 & 2. 5 The prosecution, has established, with the help of PW-4 Dilip Chavan Medical Officer, that deceased succumbed to death on 13.10.2001. He died due to the stab injuries. Post mortem Exh.25 reveals that stab wounds were found on the left side of the chest, underarm, forearm and these injuries were sufficient to cause death of deceased Raje Khan. Thus ocular evidence of PW-2 and PW-3 on the point of the incident i.e assault with knives on the 11 Appeal393.04.sxw body of Raje Khan is corroborated with the medical evidence and Exhibit-25 post mortem notes. Thus the evidence of the prosecution establishes presence of PW-2 Sharad Bhosale and PW-3 Sangita Ghadge at the time of the incident and also prosecution has successfully proved that accused nos.1 & 2 have assaulted with knife to the deceased. 5 Further, PW-9 Padmakar Bhaskar Ghanwat Investigating officer, has deposed that accused no.1 and accused no.2 were not arrested though their names were disclosed in the FIR because they were not traceable. The witness deposed that accused no.1 was not traceable till Jule-2002, accused no.1 was arrested in some other case in June-2002 and thereafter was transferred in the present case in July-2002. Accused no.2 was absconding and he was found in December-2002. The abscondence itself otherwise is not a circumstance against the accused but it is always to be assessed along with other evidence. Thus the fact that both the accused were not traceable is also one of the incriminating circumstance against the accused considering the proved evidence 12 Appeal393.04.sxw of the eye witnesses. The prosecution has tendered evidence of the two witnesses i.e PW-7 Anna Yeshwant Jadhav and PW-8 Deepak Sarjerao Jadhav on the point of discovery panchanama. Accused no.1 showed the place where he had buried knife article-8 and the memorandum was drawn on 19.7.2002 marked as Exhibit-37 and Exhibit-38. PW-8 Deepak Jadhav has deposed about the disclosure made by accused no.2 by showing the place where article-10 & article-10 were kept by him, said panchanama is marked as Exh.42. Both the witnesses have stated that knives were recovered from the house at Siddheshwar Kuruwali and knife was buried in a plastic bag and it was taken out. This knife was discovered at the instance of accused no.1. Article-9 was recovered from Kuruwali. It was kept in a similar condition i.e wrapped in a plastic bag and it was buried in the house. Both the places were not accessible to the public. The prosecution could not dis-lodge the evidence of these two panch witnesses and the panchanamas were proved by the prosecution. 6 Accused have examined two defence witnesses i.e DW-1 13 Appeal393.04.sxw Jayshri Sharad Bhosale and DW-2 Swati Pavnya Shinde. These two witnesses have deposed that at the time of the incident, they were not present. They also state that PW-2 Sharad Bhosale was also not present and none of them have seen any incident of assault much less accused stabbing Raje Khan on that day. It was submitted that DW-1 Jayshri is a wife of PW-2 Sharad Bhosale and DW-2 Swati is a daughter of PW-2 Sharad Bhosale. Though these two defence witnesses did not support the testimony of PW-2 Sharad Bhosale and they tried to demolish his evidence, this evidence is not a credible evidence. People from this community live in poverty. DW-2 Swati Pavnya Shinde was widow and accused no.2 was interested to marry her. DW-1 & DW-2 might have been won over by the accused. Learned Sessions Judge has considered this possibility and has rightly held that the evidence of these two defence witnesses could not damage evidence of PW-2 Sharad Bhosale and PW-3 Sangita Ghadge. Moreover, person who died i.e. Raje Khan was closely related to PW-2 and PW-3. He was brother of PW-2 and PW-3, so naturally, PW-2 and PW-3 were more concerned and were more aggrieved due to the death of their 14 Appeal393.04.sxw brother. DW-1 Jayashri Bhosale and DW-2 Swati Shinde were not so closely related to the deceased and therefore, they could have been agreed to come forward as defence witnesses and helped the accused. 7 Considering all these factors and especially unshaken evidence of the eye witnesses, we are of the opinion that appellants have no case and the finding of the learned Sessions Judge that both the accused are guilty of committing offence of murder is legal and we confirm the sentence awarded by the learned Sessions Judge. Hence, Appeal is dismissed. (MRS.MRIDULA BHATKAR,J) (P.B.MAJMUDAR,J)