1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 290 OF 2008 1 Vijay Ramkrushna Gaikwad, age 22 years, occ. Business, r/o Ambika Nagar, Dhule ...Appellant (Orig. Accused No. 1) VERSUS 1 The State of Maharashtra, 2 Kamalbai w/o Barku Pawar, age 40 years, occ. household, r/o Swami Narayan Colony, Dhule ...Respondents (No.2 Orig. 1st Informant) ..... Shri Joydeep Chatterjee, advocate for the appellant Shri S.D.Kaldate, APP for respondent no.1/State Shri N.B.Suryawanshi, advocate for respondent no.2 ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 08.03.2010 DATE OF PRONOUNCING THE JUDGMENT : 11.03.2010 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 The challenge in this appeal is to the conviction and 2 sentence inflicted upon the appellant (original accused no.1) by judgment and order dated 17.6.2008, rendered by the Additional Sessions Judge-3, Dhule in Sessions Case No. 27 of 2008, convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.20,000/- with default condition for non- payment of fine to suffer further R.I. for four months. 2 The factual matrix of the prosecution case, which can be unfolded is as under :- It is the case of the prosecution that the victim Utkarsha Barku Pawar was residing along with his family members in Swami Narayan Colony near Priti Sudhaji High School, Dhule and PW6 Smt. Kamalabai is his mother and PW8 Gaurav Pawar is his brother. It is alleged that on 8.9.2007 at about 6.30 p.m. appellant (original accused no.1) along with acquitted accused nos. 2 to 5 came in front of the house of PW6 Smt. Kamalabai and the appellant herein gave call to Utkarsha from out side, and therefore, he came out along with PW6 Smt. Kamalabai and appellant herein asked Utkarsha as to why he gave abuses to him and threatened him that he would kill him. Hence, PW6 Smt. Kamalabai told Utkarsha that appellant herein was not a good boy and asked him to come inside 3 the house and dragged him into the house. However, mean while, appellant herein took out a knife from his waist from the clothes and stabbed on abdomen of Utkarsha forcefully at the right side and thereby he sustained severe injury and fell down. Hence, PW6 Smt. Kamalabai cried and her another son PW8 Gaurav and neighbourers rushed to the spot of incident and some of the people caught hold of appellant herein at some distance from the spot itself and took him to police station Azadnagar and some of the people removed injured Utkarsha to the Civil Hospital, Dhule by auto rickshaw. PW6 Smt. Kamalabai also reached to the hospital and the police personnel recorded her statement and same was treated as the first information report and offence was registered under C.R. No. 178 of 2007 under Section 307 of the Indian Penal Code (Exh.43). 3 It is also the case of the prosecution that PW11 Ashok Mahire was attached to Azadnagar police station as Police Sub- Inspector at the relevant time and further investigation of C.R. No. 178 of 2007 was handed over to him on 8.9.2007 and he received the first information report Exh. 43 and other papers accordingly. The appellant herein was already brought by some persons to the police station, and therefore, PW11 PSI Mahire referred him to the Civil Hospital, since he also had sustained injuries to the fingers of his right hand, as well as appellant herein was arrested under 4 panchanama Exh. 40 and his clothes were seized under panchanama Exh. 37. Police Constable Sonwane produced knife in sealed envelope, which was handed over to him by the Medical Officer and same also was seized under panchanama Exh. 41. 4 It is further the case of prosecution that injured Utkarsha succumbed to the injuries in the hospital during treatment at about 10.00 p.m. on 8.9.2007, and therefore, offence was altered and Section 307 of the Indian Penal Code was incorporated under the afore said C.R. No. 178 of 2007. Moreover, the clothes of the deceased produced by the complainant PW6 Smt. Kamalabai were seized under panchanama Exh. 39. PW11 PSI Mahire conducted the inquest panchanama in presence of panch PW3 Pandurang Choudhary on the dead body on 9.9.2007, which is marked as Exh. 34 and the said body was sent for postmortem purpose. PW1 Dr. Ramesh Gadhari performed the postmortem on the said dead body on 9.9.2007 and produced the postmortem notes at Exh. 29-A. 5 The prosecution case further recites that PW11 PSI Mahire recorded the statements of the witnesses and drew the spot panchanama in presence of Panch PW4 Santosh Mistri, which is marked at Exh. 36. Moreover, he also gave letter for drawing the sketch of the spot. He also obtained the postmortem report and 5 injury certificate of appellant herein from the Civil Hospital, Dhule Exh. 32, respectively. Moreover, PW11 PSI Mahire also sent the muddemal articles, such as knife, clothes of accused, clothes of deceased and blood sample of appellant herein to the office of Chemical Analyser at Nasik along with requisition letters Exhs. 27 and 28. Accordingly the chemical analysis reports were received which were marked Exhs. 56 to 59 respectively. 6 The prosecution case further reflects that accused nos. 2 to 5 have obtained necessary bail from this court and after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Dhule and since the offence was exclusively triable by the Court of Sessions, the Chief Judicial Magistrate committed the said case to the Court of Sessions, Dhule. Accordingly, the Additional Sessions Judge-3, Dhule framed the charge against the accused persons at Exh.12 under Sections 147, 148, 302 r/w 149 of the Indian Penal Code. 7 To substantiate the charges levelled against the accused persons, the prosecution has examined in as much as 11 witnesses as mentioned below. PW1 Dr. Ramesh Kashinath Gadhari, who performed the postmortem on the 6 dead body of Utkarsha on 9.9.2007 and produced the postmortem notes at Exh. 29-A. PW2 Dr. Sushant Sukhdeo Mahale, who examined the appellant herein and issued the injury certificate Exh.32. PW3 Pandurang Chunilal Chaudhari, panch to inquest panchanama Exh.34. PW4 Santosh Pandurang Mistri, panch to spot panchanama Exh.36. PW5 Pandit Gangadhar Shende, panch to arrest panchanama and seizure of clothes – turned hostile. PW6 Smt. Kamalabai Barku Pawar, complainant, mother of victim Utkarsha and eye witness. PW7 Bhura Natthu Vadar, brother of PW6 Smt. Kamalabai and eye witness – disbelieved by the Trial Court. PW8 Gaurav Barku Pawar, brother of deceased Utkarsha and eye witness – disbelieved by the Trial Court. PW9 Kishore Narayan Mali, who took the assailant appellant herein to Azadnagar police station from the spot of incident. PW10 Deepak Dnyaneshwar Shendge, eye witness – turned hostile. PW11 P.S.I. Ashok Punaji Mahire, investigating officer. 8 The defence of the accused was of total denial. The 7 appellant herein submitted written statement while recording his statement under Section 313 of the Code of Criminal Procedure and stated that he and the complainant had pigs and there was dispute between them. On the date of incident, an altercation took place between him on one part and the victim Utkarsha and his brother Gaurav on the other. Gaurav attacked on him with knife and thereupon he tried to ward off the blow and thereby injury was sustained on the fingers of his right hand and by that time Utkarsha was standing behind him. When Gaurav tried to give another blow, he sat down and blow was struck to the abdomen of Utkarsha and accordingly the appellant herein submitted that he has been implicated falsely in this case and claimed to be innocent. 9 After scrutinizing and appreciating the evidence on record, the learned Trial Judge convicted the appellant and sentenced the appellant for the offence punishable under Section 302 of the Indian Penal Code; whereas acquitted accused nos. 2 to 5 from the charges levelled against them. Being aggrieved and dissatisfied by the said judgment and order, rendered by learned Additional Sessions Judge-3, Dhule on 27.6.2008, in Sessions Case No. 27 of 2008, the appellant has preferred the present appeal praying for quashment thereof. 8 10 In order to deal with the submissions advanced by the learned counsel Shri Chatterjee for appellant and learned A.P.P. for the respondent effectively, we feel it necessary to advert to the material evidence adduced and produced on record and in the said context, coming to the deposition of PW6 Smt. Kamalabai Pawar, first informant, at the first instance, she stated that deceased Utkarsha was her son and she was residing along with her husband, younger son PW8 Gaurav, Bhushan and deceased Utkarsha, Shrikant and Anant,etc. She knows accused no. 1 since he used to come in the area and remained with the boys and used to pick up the quarrels with them. She further stated that the incident took place on 8.9.2007 at about 6.30 p.m. in front of her house. Accused no.1 along with four other persons came in front of her house and accused no.1 gave call to her son Utkarsha who was inside the house and gave abuses to him. Thereupon Utkarsha as well as PW6 Smt. Kamalabai came out of the house. Accused no.1 asked Utkarsha why he gave abuses to him and threatened him that he would kill him. Hence,PW6 Smt. Kamalabai asked her son Utkarsha to come inside the house and while she was driving her son inside the house, accused no.1 took out the knife from near his waist from the clothes and stabbed on the abdomen of Uktarsha forcefully and thereby Utkarsha sustained severe injury and fell down. When PW6 Smt. Kamalabai was crying, her another son PW8 9 Gaurav and neighbourers arrived on the spot. Some of the people caught accused no.1 at some distance of the spot itself and some people removed her son Utkarsha to the Civil Hospital, Dhule by auto rickshaw and some people took accused no.1 to the police station Azadnagar. PW6 Smt. Kamalabai further stated that she also went to the hospital where police personnel recorded her first information report at Exh.43. 11 During cross-examination, PW6 Smt. Kamalabai stated that the incident occurred within five minutes, but after the incident she did not chase all the accused and her son PW8 Gaurav chased all the accused. She also stated that she neither tried to leave her injured son nor took him on the lap, but sat near him. It was canvassed by learned counsel for the appellant that the said conduct of PW6 Smt. Kamalabai appears to be unnatural. However, learned A.P.P. rightly pointed out that since her another son PW8 Gaurav chased all the accused and since PW6 Smt. Kamalabai was aged, she did not run after the accused and it was not possible to leave her injured son nor it was possible to take him on the lap, and therefore, she sat near him, and there is nothing unnatural in the said conduct of PW6 Smt. Kamalabai. 12 PW6 Smt. Kamalabai further stated in the cross- 10 examination that after operation at about 8.00 p.m. to 9.00 p.m. the doctor took out a knife from the abdomen of her son and till that time she had not gone to Azadnagar police station and at about 11.00 p.m. she went to home on the said date i.e. 8.9.2007. She also stated that the first information report was lodged against accused no.1 only and since her mental condition was not proper, she could not lodge the first information report. She further stated that PW8 Gaurav came outside the house after stab injury was sustained by Utkarsha and said statement of PW6 Smt. Kamalabai itself leads to the position that PW8 Gaurav was not eye witness to the occurrence of the incident. She also stated that prior to the incident altercation had taken place between deceased Utkarsha and accused over pigs and on that ground scuffle took place between accused no.1 and her two sons. The accused put up his case and defence to PW6 Smt. Kamalabai that during scuffle her son PW8 Gaurav took out knife and during that scuffle tried to assault accused no.1 by knife and accused no.1 managed to ward off the said blow by right hand and thereby sustained injury on his finger of right hand and further while her son PW8 Gaurav tried to deal another blow of knife upon accused no.1 while deceased Utkarsha was behind him, accused no.1 bent and bowed down and the blow gave by PW8 Gaurav was hit on the abdomen of deceased Utkarsha, but same was denied by her. 11 13 Considering the testimony of PW6 Smt.Kamalabai, it is amply clear that she witnessed the occurrence of the incident vividly and categorically stated that the incident occurred on 8.9.2007 at about 6.30 p.m. and accused no. 1 and four other persons came in front of their house and gave call to her son Utkarsha as well as abused him and thereupon Utkarsha came outside the house as well as PW6 Smt. Kamalabai also came outside the house and accused no.1 took out the quarrel with deceased Utkarsha and gave abuses to him and threatened him that he would kill him, and therefore, PW6 Smt. Kamalabai asked deceased Utkarsha to come inside the house and while she was dragging him inside the house, accused no.1 took out his knife from the waist from clothes and stabbed in his abdomen forcefully and thereby he sustained severe injury and fell down and said categorical narration of the occurrence of the incident involving accused no.1 with the crime has not been shaken in the cross-examination. As stated herein above, the alleged unnatural conduct of PW6 Smt. Kamalabai has been rightly explained by learned A.P.P. and even assuming for the sake of assumption without admitting, the said conduct of PW6 Smt. Kamalabai to be unnatural, it will not have any bearing on the very occurrence of the incident. Moreover, although accused no.1 put up his case to PW6 Smt. Kamalabai by way of suggestion, same 12 was categorically denied by her. 14 Besides that, there is nothing in the cross-examination beneficial to the case of accused no.1 and the testimony of PW6 Smt. Kamalabai in respect of very occurrence of the incident involving accused no.1 therein has not been shattered in the cross- examination, and therefore, same is required to be accepted and consequently the same is required to be believed. 15 That takes us to the testimony of PW1 Dr. Gadhari, wherein he stated that he along with Dr. A.G.Pathak conducted autopsy on the dead body of Utkarsha Pawar in between 10.30 to 11.30 a.m. On 9.9.2007 and on external examination, he found the following injuries. “ One verticle stitched wound in midline of abdomen, measuring 23 cm in length, and stiches were 16 which were intact. No evidence of infection on opening stiches found. One stitch present on right side of abdomen in eppigastic region, situated one cm. lateral to midline. On opening that stitch, stab wound noted of size 2 cm. x 0.75 c.m. X cavity deep. Margines clean cut. One margine sharp. Bleeding was present. The injury can be possible by sharp edged weapon. “ He also stated that evidence of surgical drain was present in right 13 iliac fossa. The injuries were ante mortem and fresh, probably caused by sharp edged weapon having long blade and point. Injury no. 2 can be possible by assault by sharp and pointed weapon. He further stated that on internal examination, they found in the wall of abdomen evidence of surgical intervention, evidence of stab injury and evidence of surgical drain in peritoneal cavity as well as found 100 ml. Of blood and blood clots and they also found three mops in abdominal cavity kept at the time of surgery to prevent excessive bleeding. He further stated that in lesser omentums there was evidence of suturing, stitches were intact and liver was pale. In portal vein, there was evidence of suturing and stitches were intact. On opening stitches, stab injury was found to portal vein. They also found haematoma 50 grams of blood and blood clots around pancreas. Around right kidney they found haematoma and stab wound. Internal organs were pale. There was also evidence of penetrating wound to the body of T-12 vertebra on its anterior aspect on right side of length 0.5 cm. and depth 0.5 cm. Tract of knife from right side of abdomen, epigastric region, abdominal muscles and peritoneum, lesser omentum, ported vein Body of T12 vertebra. The depth of injury was 18 cms. They preserved blood for grouping. In their opinion, the probable cause of death of the deceased was hemorrhagic shock due to stab injury described in column no.17 and 21 of the postmortem report. He 14 further stated that the said injuries were sufficient in the ordinary course of nature to cause death. Accordingly, he issued postmortem report which is marked Exh. 29-A. He further stated that injury no.2 from column no.17 and associated internal damage mentioned in column no.21 and 22 were sufficient in the ordinary course of nature to cause death. He also stated that injuries noted in column nos. 17, 21 and 22 of the postmortem report are possible by knife article 1 which was shown to him in court. 16 During cross-examination PW1 Dr. Gadhari stated that before the death of deceased, operation was conducted of stab injury. He further stated that it is not necessary that after operation the mops are to be taken out because mops can be kept inside to prevent excessive bleeding. Injury no.1 shown in column no.17 of postmortem report was surgical incised wound which was stitched. The injuries noted in column nos. 21 and 22 in postmortem report, if a person is stabbed on stomach, and half of the knife plerad inside, and injured thereafter fell down from the stomach side, such types of injuries cannot be possible. 17 Accordingly, the testimony of PW1 Dr. Ramesh Gadhari and postmortem notes Exh.29-A clearly establish that deceased Utkarsha met with homicidal death and cause of death was 15 hemorrhagic shock due to stab injury described in column no.17 and 21 of the postmortem notes. Moreover,it is also amply clear that the injuries caused to deceased were on vital part of the body by way of knife and could be caused by knife article 1 and injury no. 2 from column no.17 and associated internal damage mentioned in column nos. 21 and 22 were sufficient in the ordinary course of nature to cause death and pertinently the depth of the said injury was 18 cms., which itself reflects that heavy force was applied while causing the said injury. Thus, the intention of accused no.1 causing the stab injury to deceased Utkarsha can be very well gathered from the situs of the injury i.e. abdomen, weapon used while causing the said injury i.e. knife article 1 and force applied therefor and nature of the injuries as mentioned herein above. 18 Coming to the evidence of PW2 Dr. Sushant Mahale, who stated that he was attached to the Civil Hospital, Dhule as Casualty Medical Officer and on 8.9.2007 while he was on duty one Vijay Ramkrushna Gaikwad i.e. accused no.1 herein was brought by police personnel of Azadnagar police station in an injured condition at 7.45 p.m. On examination, he found, the patient had 3 incised wounds over mid pharynx region of 3, 4 and 5th fingers of right hand and it was oozing and the said injury was caused by sharp object which was simple in nature caused within 6 hours 16 approximately. He also stated that if an assailant has used a knife article 1 shown to him for stabbing another person, such type of injury can be possible by sharp side near handle. He further stated that he issued the injury certificate which is marked Exh. 32. 19 In cross-examination PW2 Dr. Mahale stated that such type of injury can be possible by the act of assailant to index finger. He further stated that if a person prevents the blow of knife with right hand the injury noted in Exh. 32 can be possible. 20 Turning to the evidence of PW9 Kishor Mali, who stated that he knows the complainant and her family members and on 8.9.2007 around 6.30 p.m. he came at home from the field. The house of the complainant is situated on the left side of his house in the same colony. He further stated that he heard shouts from women of the locality, and therefore, rushed to the post and found injured Utkarsha was lying on the ground having knife in his abdomen and the people were running and he caught the assailant boy and took the assailant to police station Azadnagar and identified the said assailant as accused no.1 in court. During cross- examination, he stated that the injured was ground facing towards earch and accused no.1 was caught near the school Priti Sudhaji and the distance between spot of the incident and school is 200 17 feet. He further stated that when accused no.1 was caught, there were injuries on his right hand fingers. He further stated that when the persons apprehended accused no.1 and inquired with him how he sustained the injuries on his right hand fingers, he told that PW8 Gaurav assaulted by knife. 21 On the background of the material evidence, learned counsel Shri Chatterjee appearing for the appellant submitted that accused no.1 has filed written say while recording his statement under Section 313 of the Code of Criminal Procedure, wherein he took specific defence that the complainant and accused no.1 were dealing in the business of pigs and a dispute had cropped up between them, and hence, talks took place between accused no.1 and Utkarsha and his brother PW8 Gaurav and thereupon PW8 Gaurav dealt knife blows upon accused no.1, but he tried to ward off it by his right hand and thereby sustained injuries to the fingers of his right hand and Utkarsha was standing behind accused no.1 and when PW8 Gaurav dealt another blow upon accused no.1, accused no.1 bowed down to save himself and the said blow dealt by PW8 Gaurav was hit on the abdomen of Utkarsha who was standing behind him, and thereby he fell on the ground. 18 22 Learned counsel Shri Chatterjee for the appellant invited our attention to the testimones of PW2 Dr. Mahale, who issued the injury certificate (Exh.32) in respect of injuries sustained by accused no.1 as well as to the testimony of PW9 Kishor Mali who also stated that when he caught hold of accused no.1 on the spot of the incident, he found the injuries to the fingers of his right hand. He therefore submitted that the said testimonies probablise the defence taken by accused no.1 and therefore, urged that accused no.1 is entitled for the benefit of doubt. 23 Learned A.P.P. countered the said arguments vehemently and submitted that PW6 Smt. Kamalabai, who is the complainant and an eye witness to the occurrence of the incident, who categorically narrated the occurrence of the incident in detail, involves accused no.1 in the crime. Learned A.P.P. also canvassed that PW8 Gaurav Pawar i.e. brother of deceased Utkarsha is also an eye witness to the occurrence of the incident, but unfortunately he was not relied upon by the learned Trial Judge, and hence, submitted that after re-appreciating his evidence he also can be believed to connect accused no.1 with the crime. 24 As regards the defence put forth by accused no1, learned A.P.P. submitted that accused no.1 sustained injuries on his fingers 19 of right hand during the altercation and not as stated by accused no.1 in the written say while recording his statement under Section