1 Criminal Appeal No.246 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.246 OF 2010 Ramdas Baburao Jaunjal, Age-38 years, Occu-Nil, R/o.Babardi, Tq.Shrigonda, Dist. Ahmednagar APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.P.D.Bachate, learned counsel for the appellant. (Appointed) Mrs.S.D.Shelke, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/06/2011 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. The appellant, who stands convicted for an offence punishable u/s.302 of The IPC and sentenced to imprisonment for life and to pay fine of Rs.200/-, in default of payment of fine to undergo further RI for one month, by the 2nd Ad-hoc Additional Sessions Judge, Ahmednagar, by judgment dated 24/12/2002, in Sessions Case No. 142/2002, by this appeal, questions the correctness of his conviction and sentence. 2 Criminal Appeal No.246 of 2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.No.4 Shivaji Mohan Nangare, A.S.I., who was attached to Shrigonda Police Station, on 13/07/2002 recorded the complaint of P.W.No.3 Jalindar Tukaram Ghodake at Exh.28 in respect of death of Rupali by her brother in law i.e. the appellant. On the basis of the aforesaid complaint, offence vide Crime No.180/2002 u/s. 302 of The IPC came to be registered. P.W.No.4 A.S.I. Nangare Shivaji immediately informed P.W.No.9 Rajendra Narhari Padval, P.S.I. attached to the Shrigonda Police Station in respect of the registration of offence. P.W.No.9 P.S.I. Rajendra Padval, who was attached to the Shrigonda Police Station, was informed on telephone about the murder at village Baburdi. The villagers informed P.W.No.9 P.S.I. Rajendra Narhari Padval that the accused was lying near the primary school with injuries. P.W.No.9 Rajendra Padval accordingly went to the primary school and noticed the accused and thereafter immediately shifted him to the Shrigonda Rural Hospital alongwith Head Constable. The right hand of the accused was cut and was dangling on the skin. The accused also had injuries on the other hand. He then proceeded towards the scene of the offence and noticed the dead body of Rupali. The inquest panchnama came to be drawn at Exh.41 and the dead body was referred for post mortem examination. Scene of the offence panchnama came to be drawn at Exh.37 in the presence of P.W.No.6 Vishwanath and another panch. From the scene of the offence, ordinary mud and blood stained mud 3 Criminal Appeal No.246 of 2010 and pair of chappals came to be seized. Clothes of deceased came to be seized in the presence of panchas at Exh.31 and in the presence of P.W.No.5 Prakash. Similarly the clothes of accused came to be seized vide Exh.32. On 24/07/2002, the accused was brought to Shrigonda Police Station from Ahmednagar Civil Hospital and came to be arrested under arrest panchnama at Exh.33. The right palm of the accused was amputated and the accused had injuries to his other hand. During custodial interrogation, the accused expressed his readiness to point out the place where the axe was hidden by him. Accordingly memorandum at Exh.34 came to be drawn. The accused led the police and the panch and produced an axe Article 9 which had been concealed behind the cactus plant. The axe came to be seized vide Exh.35. The seized property was referred to the Chemical Analyser for examination. As per the report of the Chemical Analyser at Exh.46, the clothes on the person of deceased Rupali were stained with blood of ‘O’ group. The clothes of the accused were also stained with blood of ‘O’ group. The axe which was recovered, was also found stained with blood of ‘O’ group. However, as per the report of the Chemical Analyser, the blood group of the accused was determined as ‘O’. Un-disputedly, at the time of his arrest, the accused had injuries on his person and was wearing the same clothes which came to be seized subsequently. 3. On committal of the case to the Court of Sessions, Trial Court framed charge against the appellant accused for an offence 4 Criminal Appeal No.246 of 2010 punishable u/s. 302 of the I.P.C. The accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 9 witnesses. The defence of the appellant accused is of denial. He has stated that the eye witness namely P.W.No.8 Asha was deposing as per the dictates of P.W.No.3 Jalinder Tukaram Ghodake. Apart from the bald denial, the accused has not taken any specific defence. 4. In order to effectively deal with the submissions advanced before us by Shri.P.D.Bachate, learned counsel appointed on behalf of the appellant, and the learned A.P.P. for respondent State, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.No.3 Jalindar Tukaram Ghodake, father of deceased Rupali states about Rupali being married to P.W.No.7 Yashwant, who is brother of the appellant accused. P.W.No.3 Jalindar states that the appellant accused was given in adoption to his uncle since the uncle had no children. P.W.No.3 Jalindar further states about being informed about the incident and going to the house of Rupali and noticing Rupali lying dead. He states about P.W.No.8 Asha disclosing to him about the accused inflicting injuries by an axe to Rupali. P.W.No.8 Jalindar states thereafter that he had proceeded to the police station where he had lodged his complaint. Jalindar has also stated that after the accused had killed Rupali, brother of the accused had caused injuries to the hands of the accused. In cross examination, omission has been duly proved that he had not stated 5 Criminal Appeal No.246 of 2010 in his previous statement that brother of the accused had caused injuries to the accused. Nothing of importance has been elicited in the cross examination which would cast any reflection upon the credibility of this witness. 6. P.W.No.7 Yashwant Baburao Jaunjal, husband of deceased Rupali also deposes about the appellant accused nurturing a grudge against Rupali and him principally as P.W.No.3 Jalindar had secured employment for P.W.No.7 Yashwant. P.W.No.7 Yashwant has clearly admitted that the accused was studied upto B.A.B.Ed. and consequently the appellant accused is better qualified than P.W.No.7 Yashwant. P.W.No.7 Yashwant states that thereafter the accused harboured grudge against him and deceased Rupali. P.W.No.7 Yashwant deposes about the incident about 1 ½ months earlier to the present incident wherein the appellant accused had rushed at deceased Rupali brandishing an axe. P.W.No.7 Yashwant states that because of employment, he was residing in the village and his wife Rupali and children were residing in the village, in the family house. P.W.No.7 Yashwant states that on holidays, he used to come. In respect of the incident, he states that he had gone to the market and had learnt that the appellant accused had killed his wife and therefore had returned home and had seen Rupali lying dead with injuries. In cross examination, nothing of substance has been elicited in the cross examination. He has admitted in cross examination that he had not actually witnessed the incident. 6 Criminal Appeal No.246 of 2010 Curiously, this witness, in his examination in chief also does not mention that he had witnessed the incident. 7. The entire prosecution case revolves round the evidence of P.W.No.9 Asha. P.W.No.9 Asha states that deceased Rupali was her cousin. She has admitted that P.W.No.3 Jalindar had settled her marriage. She states that on the day of the incident at about 9.00 a.m., deceased Rupali had invited P.W.No.8 Asha for snacks/ breakfast at her house. Accordingly, P.W.No.8 Asha had gone to the house of deceased Rupali. Deceased Rupali had stated that she would first wash the utensils and thereafter they would have snacks/ breakfast. Accordingly, deceased Rupali and P.W.No.8 Asha were cleaning the utensils. A cow possibly belonging to the appellant accused had strayed near them and accordingly deceased Rupali had tied the cow to a berry tree. It appears that the appellant accused, being aggrieved by the treasure of a cow to a berry tree, came to the scene of the incident i.e. the place where the ladies were cleaning the utensils, armed with an axe. It appears that the accused had surreptitiously carried the axe. The accused questioned Rupali as to why she had treasure his cow. Rupali however did not reply. The appellant accused thereafter immediately dealt blows of axe on the neck and face of Rupali. Rupali immediately fell down. P.W.No.8 Asha states that on seeing the incident, she shouted and the accused had rushed at her brandishing the axe. The accused thereafter went away. P.W.No.8 Asha states about the recording of the panchnamas 7 Criminal Appeal No.246 of 2010 and the investigation carried out by the police. 8. In cross examination on behalf of the appellant accused, Asha has admitted that her marriage was settled by P.W.No.3 Jalindar. She has admitted that her relations with Jalindar were good. She has further denied the suggestion that she was under the dictates of P.W.No.3 Jalindar. She has also admitted that the Jalindar has good political and social connections. An answer is elicited in the cross examination that P.W.No.8 Asha was knowing the name of the appellant/accused. Thereafter a suggestion was put to Asha, which was denied by her that she was not knowing the name of the appellant accused. The appellant accused is the brother in law of deceased Rupali. P.W.No.8 Asha has admitted that she was on visiting terms to the house of Rupali. Asha and the appellant accused are residents of same village. Though Asha may not know either the accused or his wife, intimately yet Asha was aware about the appellant accused, who was brother in law of Rupali and Asha was also knowing his name. In cross examination, P.W.No.8 Asha has admitted that her statement was recorded by the police on the next day. 9. Shri.P.D.Bachate, learned counsel for the appellant has urged before us that the conviction of the appellant accused rests on the solitary testimony of P.W.No.8 Asha. It is also urged before us that the evidence of the solitary witness should be of such quality as to 8 Criminal Appeal No.246 of 2010 inspire confidence of the Court for its acceptance. It is urged before that that in the light of the fact that P.W.No.8 Asha was not knowing the accused, a conviction ought not to be based upon the testimony of P.W.No.8 Asha. The learned A.P.P. has supported the findings recorded by the Trial Court. 10. It appears that the conviction can be based on the testimony of a solitary eye witness. The quality of the evidence of the eye witness should be such as to inspire the confidence of the Court for its acceptance. In other words, the testimony should be of sterling quality. The testimony should also be un-blemished and in fact should leave no room to doubt about the truthfulness of the evidence of the witness. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Shivaji Sahabrao Bobade and another versus State of Maharashtra, (1973) 2 Supreme Court Cases 793. Similarly a reference may usefully be made to the judgment of the Supreme Court in Yakub Ismailbhai Patel versus State of Gujarat (2004) 12 Supreme Court Cases 229. In the present case, we find that the testimony of P.W.No.8 Asha inspires confidence. P.W.No.8 Asha has been subjected to lengthy cross examination, but nothing of importance has been elicited in her cross examination. Un-disputedly, the appellant accused and P.W.No.8 Asha were residents of the same village. P.W.No.8 Asha may not intimately know the appellant accused but has clearly stated that she was knowing the name of the appellant accused. The incident had 9 Criminal Appeal No.246 of 2010 occurred in broad day light i.e. at about 9.00 a.m. P.W.No.8 Asha has identified the appellant as the assailant. There is nothing in the cross examination which would indicate that P.W.No.8 Asha could not have seen the appellant accused and therefore the identification of the appellant in the Court is suspect. We find that though no test identification parade may have been held, the conviction of the appellant accused, on the strength of the testimony of P.W.No.8 Asha is not vitiated. We therefore find that implicit reliance can be placed on the testimony of Asha. 11. Prosecution has examined P.W.No.5 Prakash who has proved the memorandum at Exh.34 and panchnama of seizure of an axe Article 9 at Exh.35. The Investigating Officer has also deposes about the discovery of the axe. As pointed out by us above, the report of the Chemical Analyser at Exh.46 shows that the clothes of the deceased and the clothes of the accused and the axe were stained with blood of ‘O’ group. However, the blood group of the appellant accused is also ‘O’. The appellant accused had sustained injuries and therefore finding of blood of ‘O’ group on his clothes would not be incriminating factor. The Investigating Officer has proved the report lodged by the wife of the appellant at Exh.52 which shows that she had lodged the report alleging that brother of the appellant accused had inflicted the injuries to him with a sword on account of murder of Rupali. Rest of the contents of the report obviously would not be admissible in evidence. The appellant accused has not stated in his 10 Criminal Appeal No.246 of 2010 statement u/s. 313 of the Cr.P.C. that he had sustained the injuries in the incident or that on account of the injuries, he could not wield the axe and therefore could not have caused the injuries. In cross examination, it is no doubt suggested to the witnesses but the aforesaid suggestion has been denied. No specific defence has been taken by the appellant accused. In that light of the matter therefore, according to us, the prosecution has proved the offence against the appellant accused beyond reasonable doubt. 12. Resultantly, there being no merit in the criminal appeal, criminal appeal no. 246/2010 is dismissed, confirming the conviction and sentence of the appellant. Fees payable to Shri.P.D.Bachate, learned counsel appointed for the appellant, quantified at Rs. 5,000/-. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 246-10