drp {1} Cri. Appeal No.206/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.206 OF 2010 Bhimrao s/o Kadaji Tayde APPELLANT Age-46 years, Occ-Nil R/o Ukadgaon, Tq-Ghansawangi, Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mrs.R.R.Mane, Advocate for the appellant (Appointed) Mr. S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By the present appeal, the appellant has questioned the correctness of his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs. 1000/-, in default to suffer SI for 3 months, awarded by Sessions Judge, Jalna, vide judgment and order dated 28.04.2010 rendered in Sessions Case No.64/2009. drp {2} Cri. Appeal No.206/2010 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) Police Head Constable, Shaikh Kayyum Shaik Abdulla, who was attached as on duty PSO in Ghansawangi police station, recorded complaint (Exhibit-15) of Baburao Waghmare (PW-1) on 18.12.2008. An offence at crime No.119/2008 came to be registered on the basis of the complaint (Exhibit-15) u/s 302 of the Indian Penal Code, against the appellant. Investigation of the said crime was taken over by PSI Abarao Nalawade (PW-10), who prepared spot Panchanama (Exhibit-24) so also inquest Panchanama (Exhibit-17), on the dead body of Chhaburao, which was identified by PW-1 Baburao. Plain soil and blood mixed soil was collected from the spot, so also the blood found on the ground was collected by cotton swab. b) The Dead body was, thereafter, forwarded for Postmortem examination. Dr.Shankar Tambre (PW-2) conducted postmortem examination on the dead body. The Medical Officer had noticed following external injuries on the dead body- 1. CLW at the base of neck right side oval shape 0.5 x 1 cm. 2. Incised wound on the right palm, right thenal area having size 4 x 0.3 cm. It was oblique. 3. Stab wound below right lower rib, biconvex in shape having drp {3} Cri. Appeal No.206/2010 size 3 x 0.6 cm. It was oblique. 4. Stab wound above right anterior superior iliac spine having size 3 x 0.7 cm. I have observed abrasion from right lower chest to lower abdomen they were oblique approximately 16 cm. 5. Stab injury right side of scortum having 3 x 0.3 cm. The medical officer also noticed stab injury on wall of the abdomen below right ribs and above anterior superior iliac spine. Dark red fluid of approximately 1 liter was present in stomach. Partly digested food was found in the large intestine. Bleeding wound was found around right kidney, stab injury on right kidney upper lobe 3 x 0.3 cm and stab injury on right testis 2.5 x 0.2 cm was also noticed. According to the medical officer the cause of death was due to shock due to hemorrhage due to injuries to vital organs. Accordingly, Postmortem report (Exhibit-21) was prepared. The medical officer had also collected blood sample of the deceased. c) PW-10, PSI Nalawade, thereafter recorded statements of complainant, wife of the deceased and some other witnesses. The appellant was put under arrest on 18.12.2008 vide arrest Panchanama at Exhibit-37. Clothes on his person, Pant (Article-6) and Shirt (Article-5) came to be seized under Panchanama (Exhibit-34). drp {4} Cri. Appeal No.206/2010 d) While in custody, the appellant made a disclosure statement on 19.12.2008 (Exhibit-26-A), which lead to discovery of one knife (Article-1), which was hidden below one big wooden log, which came to be seized under Panchanama (Exhibit-26). The seized property was sent to CA. In due course CA reports (Exhibit-19 and Exhibit-20) were received. On completion of the investigation charge sheet came to be filed against the appellant before JMFC, Ghansawangi. e) On being committal of the case to the Court of Sessions, trial Court framed Charge (Exhibit-6) against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution examined in all 10 witnesses. The defence of the appellant was of total denial and his false implication due to political rivalry with PW-9 Sarpancha of the village. On appreciation of the evidence, and mainly relying on the evidence of 3 eye witnesses, medical evidence and the evidence of recovery of weapon coupled with the evidence of PW-9 Dattatray Taur, trial court convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code and sentenced him accordingly. 3. In order to effectively deal with the submissions advanced before us by Mrs.Mane, learned counsel appointed on behalf of the appellant and learned APP on behalf of the respondent State, it may be useful to advert to the evidence of drp {5} Cri. Appeal No.206/2010 material witnesses examined before the trial court. 4. It transpired from the evidence of PW-1 Baburao that he is real brother of deceased Chhaburao and was residing at Ghanegaon. He has stated in the evidence that the day of the incident was Wednesday, a weekly bazar day of Kumbhar Pimpalgaon. His mother so also his brother (deceased) were residing at Ukadgaon. On receipt of a message that his mother was sick, he had gone to Ukadgaon and reached there at about 5.30 p.m. He met his mother and assured her to take to the doctor on next day. In order to take some money from his brother, he intended to visit his house, which is 40/50 feet away from the house where his mother stayed with his grand mother. While he was proceeding to the house of Chhaburao (deceased), wife of Chhabu, Meerabai met him and informed that a quarrel had taken place between the appellant and Chhabu. On receipt of this information, both of them rushed to the spot and saw that quarrel was going on between the appellant and Chhaburao (deceased). On seeing the assault on Chhaburao he had raised an alarm for help and on hearing his shouts Tarachand, Sanjay, Panduran and Laxman had rushed to the spot. He saw that the appellant took out a knife from his pocket and inflicted knife blows on the person of his brother on his stomach, buttock, thighs and below the neck. Due to the injuries Chhaburao felled down and became unconscious. Thereafter, he went to arrange for a vehicle to shift Chhaburao to hospital, however, when he returned with the drp {6} Cri. Appeal No.206/2010 vehicle, Chhaburao was no more. Thereafter, he went to Ghansawangi police station and lodged the complaint (Exhibit-15). On inquiry, Meerabai had told him that the appellant and the deceased quarreled on a petty issue as the appellant wanted Meerabai to prepare food for him, which she as well as the appellant denied and hence the appellant was enraged and took out quarrel with the deceased. He identified the knife (Article-1) before the Court. In his cross examination, he has stated that the house, where his mother was staying, is at the distance of 40/50 feet from the house of the deceased, which is at 2 to 3 minutes walking distance. He and his brother used to bear the expenses of his mother, who was staying with his grand mother. He has candidly admitted that the relations between the appellant and the deceased were cordial like brothers and both of them were helping each others on all counts. He has further stated that generally he used to visit Ukadgaon to see his mother twice a month, however, at that time, since his mother was sick, he used to visit Ukadgaon twice a week. It is also brought in his evidence that the appellant was accused in a murder case of his own brother, however, was acquitted. He has also admitted at the time of quarrel, the appellant was standing in the court yard, while the deceased was standing near furnace. An attempt was made to bring omission on record that he has not specifically mentioned in his complaint that the appellant gave knife blow on the buttock, below neck and on thighs of the deceased, however, he has clarified that as he was in shock when he lodged the complaint at midnight, but, he had drp {7} Cri. Appeal No.206/2010 disclosed the same in his supplementary statement recorded after some hours of the incident. An attempt is also made to bring on record that there was load shedding in the village, however this attempt failed as according to this witness, there was no load shedding at the relevant time and lights were on. Though he has admitted that there was no electrical meter in the house of Chhaburao, yet has stated that Chhaburao had obtained electric supply from his neighbour. According to us, evidence of this witness in respect of actual assault by the appellant on Chhaburao, is absolutely not shaken even in his cross examination. There is no material on record to suspect the veracity of this witness. The incident occurred at about 9.30 p.m. on 17.12.2008 and within hours the complaint was lodged by PW-1. 5. Though PW-5 Sanjay Taur has corroborated the evidence of PW-1, in his examination in chief, yet in para 8 of his cross examination he has stated that he had rushed to the spot after hearing shouts of a female “save save” and when he reached at the spot he saw that Chhaburao was lying in injured condition, however wife and brother of Chhaburao were not weeping. According to him, blood was oozing from the injuries sustained by Chhaburao. It was suggested to this witness in the cross examination that there was load shedding in the village at the material time, however, he has clarified that lights were on at the material time and though there was no electrical meter in the house of the deceased, yet electricity was available in his house. drp {8} Cri. Appeal No.206/2010 The admissions given by this witness create doubt as to whether really PW-5 had witnessed the incident of assault or not. 6. PW-7 Pandurang has stated in his evidence that he along with others was standing on the road and at about 8 to 9 p.m. on the day of the incident they heard shouts from the house of Chhabu. He also saw that Meerabai was proceeding towards gaonthan and had immediately returned along with PW-1 Baburao and both of them were running to the house of Chhaburao. On hearing the shouts “save save”, all of them had rushed to the house of Chhaburao and saw that the appellant was inflicting knife blows on Chhaburao and when the appellant saw them approaching, he had ran away. He has further deposed that Baburao (PW-1) was asked to arrange for a vehicle to shift Chhaburao to hospital, however till Baburao return with the vehicle, Chhaburao was dead. He has also stated that the appellant was an accused in murder of his own brother. He has further stated that they had heard shouts from the distance of 50 feet. This witness is cross examined at length. We have carefully gone through the entire cross examination of this witness. Surprisingly, even in his marathon cross examination other than the fact that there was no electrical meter in the house of Chhabu, nothing is brought on record to discard his testimony in respect of assault by the appellant on the deceased. There is no challenge at all to the evidence of this witness in respect of assault by the appellant on the deceased. There is absolutely no cross drp {9} Cri. Appeal No.206/2010 examination on this aspect. This witness though admits that there was no electrical meter in the house of Chhaburao, yet asserts that there was no power cut and lights were on at the time of the incident. Considering the evidence of this witness so also his cross examination, there is no hesitation in our mind to accept the evidence of this witness, which corroborates the evidence of PW-1 Baburao and gets support from the medical evidence. 7. Learned counsel for the appellant contends that as per the story of the prosecution the incident was witnessed by in all 7 witnesses, including the wife of the deceased, but she is not examined by the prosecution and only three witnesses, out of 7, are examined and hence adverse inference ought to have been drawn against the prosecution. It is further urged that in view of the admissions given by PW-5 Sanjay, he cannot be termed as eye witness to the incident as according to him he had reached at the spot after the incident was over. It is also urged that there is variance in the evidence of PW-1 Bajirao and PW-7 Pandurang as to when Meerabai shouted for help. In the premise, it is urged that the evidence of the eye witnesses be discarded. It is further urged that Dr.Shankar Tambre, PW-2 was not attached to Kumbhar Pimpalgoan Primary Health Center at the relevant time, but was attached to Ranjani PHC and as no requisition was sent to him, his contention that he had performed the postmortem on the dead body of Chhaburao appears to be unnatural and therefore, evidence of PW-2 also needs to be discarded. It is further urged drp {10} Cri. Appeal No.206/2010 that prosecution had examined PW-4 Rajendra and PW-9 Dattatray to prove the memorandum of disclosure statement allegedly made by the appellant (Exhibit-26-A), which resulted into recovery of knife, however careful scrutiny of the evidence of these witnesses reveals that the knife was recovered from a place, which is accessible to all and hence it cannot be inferred that the knife was recovered from the place, which was within the exclusive knowledge of the appellant only. It is further urged that the witness to the Spot Panchanama, PW-3 has not supported the prosecution case and hence the spot Panchanama so also the seizure Panchanama in respect of seizure of clothes of the deceased was proved through PW-6, which appears to be unnatural. In the premise, it is urged that the evidence relied upon by the trial court to base the conviction of the appellant is not trustworthy and hence requested to extend benefit of doubt to the appellant and acquit him of the offence with which he was charged. 8, Per contra, learned APP supported the impugned judgment of conviction. 9. After cautious consideration of the rival submissions we are not in agreement with the submission advanced by learned counsel for the appellant that it was necessary to examine all the eye witnesses to the incident. For, law requires quality and not quantity and truthfulness and creditworthiness of the witnesses. Though in view of the admissions given by PW-5 Sanjay in his drp {11} Cri. Appeal No.206/2010 cross examination, it cannot be accepted that he had witnessed the incident of assault, yet evidence of PW-1 Baburao and PW-7 Pandurang has to be accepted. Firstly on the ground that the evidence of PW-7 in respect of the incident that the appellant had inflicted knife blows on the deceased, is nowhere challenged in his cross examination and hence has to be accepted. Secondly, evidence of PW-7 Pandurang fully supports the testimony of PW-1 Baburao on all material particulars. 10. We are afraid to accept the submissions of learned counsel for the appellant that there is variance in the evidence of PW-1 Baburao and PW-7 Pandurang as to when shouts was given by the female and who was that lady. According to us fact remains that on hearing the alarm PW-7 Pandurang and others had rushed to the spot. The little variance as to who had shouted, makes no difference and does not creates doubt about the creditworthiness of these witnesses. Furthermore, evidence of these witnesses is supported by the medical evidence of PW-2 Dr.Shankar, who has conducted postmortem on the dead body and had noticed 5 injuries on the person of the deceased. Admittedly, death of Chhaburao was instantaneous, the incident occurred at 9.30 p.m. and within some hours the compliant was lodged with the police. The entire cross examination of PW-2 Shankar was around the aspect that he was not attached to PHC Kumbhar Pimpalgaon but was attached to PHC Ranjani and hence it is urged that evidence of PW-2 need not be accepted. However, PW-2 has made it clear that drp {12} Cri. Appeal No.206/2010 on that day the Medical Officer, PHC Kumbhar Pimpalgaon was not available and hence a request letter was sent to PHC Ranjani and on the instructions of his seniors, he had performed the postmortem. We do not find anything unnatural or suspicious about the conduct of PW-2. In substance, evidence of sustaining injuries by the deceased, as given by PW-1 Baburao and PW-7 Pandurang is fully supported by the medical evidence given by PW-2 Dr.Shankar. Apart from it, PW-1 Baburao and PW-7 Pandurang had also identified the Article-1, as the same knife used by the appellant as a weapon of assault on the deceased. Moreover, PW-2 Dr.Shanakar had opined that the injuries found on the person of the deceased can be possible by the knife (Article-1). 11. Though we do not accept the evidence in respect of recovery of knife from the place as shown in recovery Panchanama (Exhibit-26), yet the oral testimony of PW-1 Baburao and PW-7 Pandurang is direct evidence about the assault on Chhaburao by the appellant, which has resulted into his instantaneous death. In the premise, though the evidence of recovery is discarded, yet it would not affect on the merits of the case of the prosecution. 12. Though the defence is taken by the appellant that he is falsely implicated in the present offence due to political rivalry, yet admittedly PW-1 Baburao, brother of the deceased is a poor agricultural labour and has nothing to do with the local politics as he does not reside in the village where the incident has occurred. drp {13} Cri. Appeal No.206/2010 Apart from it, in view of the financial and social background of the deceased and the complainant PW-1 Baburao, they had nothing to do with the politics and hence, the defence of the appellant that he was falsely implicated due to political rivalry, cannot be accepted. In view of the direct evidence of eyewitnesses, which is supported by the medical evidence, according to us, there is no merit in the appeal. We also do not find any fault with the finding recorded by the trial court in arriving at the conclusion that the appellant is guilty of the offence punishable u/s 302 of the Indian Penal Code. In the premise, the appeal ought to fail. 13. Consequently, the appeal, which is sans merits, stands dismissed. Before parting with the judgment we would like to thank the learned counsel appointed on behalf of the appellant for the able assistance provided by her during the hearing of the appeal. We quantify the fees payable to learned counsel appointed on behalf of the appellant at Rs.5000/-. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel206-10