1 mss APEAL+72 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 72 OF 2006 RAJESH RAMPRASAD KAHAR @ ) RAJESH SHETTY ) Presently at Kolhapur Central Prison at ) Kalamba – 416 007 ) .. APPELLANT Vs. THE STATE OF MAHARASHTRA ) Dadar Police Station, ) .. RESPONDENTS Mr. Abhaykumar Apte, appointed Advocate for the appellant Ms. P. H. Kantharia, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATE ON WHICH THE JUDGMENT IS RESERVED : 29TH APRIL, 2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 29TH APRIL, 2011 JUDGMENT: (Per Smt. Ranjana Desai, J.). The appellant was tried by the Sessions Court for Greater Bombay in Sessions Case No. 476 of 2005 for offence punishable under Section 302 of 2 mss APEAL+72 the Indian Penal Code (“IPC”). In short the case of the prosecution is that the appellant committed murder of one Devdas Kamble on 29/2/04 at about 1 a.m. by throwing a stone on him when he was sleeping on the footpath by the side of Government Technical School, Veer Savarkar Marg, Dadar (West) Mumbai. The said Devdas is referred to as “the deceased” or “Devdas” for convenience. By his judgment and order dated 21/9/2005 learned Sessions Judge convicted the appellant for offence under Section 302 of the IPC and sentenced him to suffer RI for life and to pay a fine of Rs.1000/-, in default to suffer RI for 3 months. Being aggrieved by the said judgment and order, the appellant has preferred this appeal. 2. It is necessary to give a gist of the prosecution case. One Radhabai Devdas Kamble then aged 32 years was residing by the side of Government Technical School footpath, Veer Savarkar Road, Dadar (West) Mumbai. She lodged a complaint in Dadar Police Station on 29/2/2004 contending that she was residing at the above address along with her husband i.e. the deceased and minor son Baba. Prior to coming to reside at the above place, the complainant was residing at Mahakali Zopadpatti at Dadar along with her other family members in a kachcha hut. The said hut was demolished by the Municipal Corporation and hence she was residing at 3 mss APEAL+72 the above mentioned address. She and the deceased used to collect scrap in Dadar as well as Worli area and other places. They used to sell plastic scrap at Parel and maintain themselves out of the money earned from the said sale. Elder brother of the deceased by name Babu Kamble was residing at Premnagar Zopadpatti, Worli Naka along with members of his family. They used to know one person by name Shetty (the appellant herein) for last about three years. According to the complainant on 27/2/2004 at about 7 pm or so the complainant and the deceased went to a scrap pot near Ravindra Natya Mandir in order to collect scrap. While the complainant and the deceased were collecting scrap, a quarrel took place between the deceased and Shetty (hereinafter referred to as “the appellant”) near the scrap pot on account of collection of scrap from the scrap pot. At that time the deceased and the appellant were under the influence of liquor. The appellant told the deceased not to collect scrap from that place. He also threatened the complainant and the deceased. The complainant and the deceased did not take the threat seriously. They did not lodge any complaint. On 29/2/04 at about 1 a.m. the appellant under the influence of alcohal came at the place where the complainant and the deceased were sleeping with a big stone in his hand. He started abusing them in a loud 4 mss APEAL+72 voice, hence the complainant got up from her sleep. Since the deceased was not keeping well he was sleeping. All of a sudden the appellant threw a stone on the head of the deceased and started running in the direction of Kirti College. The complainant started chasing him but she could not locate him. After sometime, the complainant came near the deceased and saw that blood was oozing out of his head injury. She went to police outpost near Siddhi Vinayak Mandir and narrated the incident to the police personnel. The police accompanied the complainant to the spot of incident. The police took the complainant and the deceased in a van to the Sion hospital where he was declared dead before admission. Thereafter the complainant lodged her complaint at the Dadar Police Station. It is at Exh.-8. On the basis of the complaint, the investigation started. The appellant was not traceable. Efforts were made by the police to trace him. On 15/5/05 one informant gave information to PW 8 PI Pimpale that the appellant was residing at Karpur area in Ahmedabad. He was traced and brought to Bombay and was arrested on 17/5/05. Arrest panchnama is Exh.-23. After completion of the investigation the appellant came to be charged as aforesaid. 3. In support of its case the prosecution examined PW 1 Smt. Radha Devdas Kamble, wife of the deceased, PW 2 Mohammed Hasin Qureshi, the scrap dealer, PW 3 Anil Shankar Ingale, PW 4 Yallappa Dattu Saudagar, 5 mss APEAL+72 PW 5 Moreshwar Gopal Thakur, who acted as panchas, PW 6 PSI Jaywant Pandurang Sankpal, who conducted a part of the investigation, PW 7 Dr. Raghavendra Ramdular Vishwakarma, who conducted postmortem of the deceased and PW 8 PI Ramakant Rajaram Pimpale, who carried out further investigation of the case after it was handed over to him. Defence of the accused was one of denial. According to him he was falsely implicated in the case by the police. After perusing the evidence on record, learned Sessions Judge convicted and sentenced the appellant as aforesaid. 4. We have heard at some length Mr. Abhaykumar Apte, learned counsel appearing for the appellant, who submitted that PW 1 Radha Kamble, the wife of the deceased cannot be called an eye-witness because according to her she and the deceased were sleeping and she got up when she heard the sound of stone being thrown. It is not possible to believe that she could have seen the incident. Counsel submitted that PW 1 has admitted that she was drunk when the incident took place. Therefore, it is doubtful whether she was in a position to observe the incident properly. Counsel submitted that the entire prosecution case rests on the evidence of PW 1, wife of the deceased She is an interested witness and, therefore, conviction cannot be based solely on her testimony. Her evidence is not corroborated by any other evidence. Counsel submitted that there is no other evidence on record 6 mss APEAL+72 which inspires confidence and, therefore, conviction be set aside and the appellant be released forthwith. 5. Learned APP Ms. Kantharia, on the other hand submitted that the prosecution has established its case beyond reasonable doubt. PW 1 Radha Kamble’s evidence inspires confidence. Even if it is assumed that she was drunk, it cannot be inferred that she would not have been able to see her husband being brutally attacked by the appellant. She in fact ran to catch the appellant. There is also a previous history of quarrel. Learned APP submitted that reliance can safely be placed on her evidence. Learned APP further submitted that the appellant was absconding for a long time. Adverse inference, therefore, needs to be drawn against the appellant. Learned APP submitted that the order of conviction and sentence warrants no interference. 6. PW 7 Dr. Raghavendra Vishwakarma had done postmortem on the the deceased. Dr. Vishwakarma found following external injuries on the deceased: i) Contused lacerated wound on right brow 6.5 cm x 0.8 cm. ii) Contused lacerated would over right xygomatic arch- 0.8 cm. X 0.6 cm. 7 mss APEAL+72 iii) Contused lacerated wound below lower lip, right part - 2.5. cm. X 1 cm. All the above referred three injuries were ante mortem in nature. He found following internal injuries on the deceased. i) Fracture dislocation of upper central incisors and right canine. ii) Multiple fractures of the right maxilla resulting in deformity, the face is compressed on right side. According to Dr. Vishwakarma, the cause of death of the deceased was, Craniocerebral injuries due to heavy blunt impact in a case of assault. He has produced postmortem notes which are at Exh.-19. When stone Art. 3 was shown to him he stated that external as well as internal injuries sustained by the deceased would have been caused by the stone. His cross- examination has not affected his version in the examination-in-chief. Therefore, it is clear that death of Devdas was homicidal. 7. PW 1 Radha Kamble has stated that the deceased was her second husband. She has two sons from him. They used to collect scrap, sell it and live on the money earned from the same. According to her the appellant 8 mss APEAL+72 was known to them for three years. He used to come to their house in Mahakali Zhopadpatti at Worli. The appellant also used to collect scrap. According to her on 27/2/04 a quarrel took place between the appellant and the deceased, when she and the deceased were sitting near a scrap pot situate at Siddhi Vinayak Mandir. The appellant questioned the deceased as to why he was taking out scrap from the said scrap pot. The deceased told the appellant that he was not collecting scrap from that pot but he was collecting the scrap by taking round in the area. A scuffle took place between the deceased and the appellant. Thereafter the appellant ran away. According to PW 1 on the next day i.e. on 28/2/04 she and the deceased went to Elphinston Road to tell the scrap dealer to whom they used to sell the scrap about the quarrel which had taken place between the appellant and the deceased. At that time the appellant was also sitting there. The scrap dealer tried to mediate in the quarrel and told them not to quarrel. PW 1 has further stated that in the night she and the deceased went to sleep near Kirti College. At about 01.30 a.m. in the night of 29/2/04 the appellant came with a stone and threw it on the head of the deceased, who was sleeping. The appellant ran away. After hearing the sound she got up from her sleep. She followed the appellant in the direction of Agar Bazar, however, she could not find him. She came back to the deceased who had received bleeding injury on his head. She then took her son with her and went to the 9 mss APEAL+72 police out post near Siddhi Vinayak Temple and brought the police to the deceased. All of them took the deceased to Sion Hospital where he was declared dead. Thereafter she went to Dadar Police Station. Her complaint was registered which is at Exh.-8. She has identified her thumb impression on Exh.-8. According to her on 17/5/05 police called her to the police station and showed her the appellant. She identified him as the accused. She identified the clothes of the deceased when shown to her as the clothes which the deceased was wearing at the time of the incident. When stone Art. 3 was shown to her she stated that it is the same stone which was used by the appellant to assault her husband. She has been extensively cross- examined. She has stated that at the time of incident the deceased was not drunk. She has admitted that she was under the influence of liquor. According to her the electric poll was at a distance of 7 to 8 feet from the place where the incident had taken place. Though in the examination-in- chief she has stated that she and her husband were sleeping and she woke up after she heard the noise, in the cross-examination she has clarified that her husband was sleeping but she was not sleeping. She was sitting near him. According to her the appellant came from the back at about 1.30 a.m. in the night. He threw stone on the head of the deceased and ran away. She has also confirmed in the cross-examination that on the next day she and the deceased had gone to the scrap dealer to tell him about the quarrel which 10 mss APEAL+72 had taken place between the deceased and the appellant. She has denied that she was deposing against the appellant because a quarrel had taken place between the deceased and the appellant on 27/2/04 and she was harbouring a grudge against the appellant. 8. Though this witness was cross-examined at length, we find that the basic story of the prosecution has remained intact. At one place she has stated that a quarrel took place between the deceased and the appellant four days back. But she has also deposed about the quarrel which had taken place between the two a day prior to the incident in question. There is nothing inconsistent about this. She is consistent about her visit to the scrap dealer with the deceased after the quarrel between the deceased and the appellant and the presence of the appellant at the scrap dealer’s shop. PW 2 Mohamed Qureshi the scrap dealer has corroborated her on this aspect. It is true that she has referred to PW 2 Mohammed Qureshi as Zakir. But that appears to be an inadvertent error committed by her. PW 2 Mohammed Qureshi has not been asked any question about this discrepancy. In our opinion, this is a minor discrepancy which does not make PW 1 an unreliable witness. 9. It is pointed out that in the examination-in-chief PW 1 has stated that 11 mss APEAL+72 she and the deceased were sleeping; that she got up from her sleep after hearing sound of stone being thrown and that she saw the appellant running away. However, in the cross-examination she has stated that the deceased was sleeping and she was sitting by his side. It is argued that this inconsistency makes her claim that she had seen the appellant throwing a stone on the deceased suspect. We are unable to draw such a conclusion. Assuming PW 1 was sleeping and she got up after she heard the sound of stone being thrown, in our opinion, she had sufficient opportunity to see the appellant running away from the scene of offence. In fact according to her she ran after him up to Agar Bazar but she could not catch him. She has stated that at the back of the place where they were sleeping building work was going on and except the deceased and her there was nobody around. Therefore, if the appellant was seen running from the scene of offence after stone was thrown on the deceased, none else could be held responsible for the said stone throwing and murder except the appellant. It is pertinent to note that she has stated that she knew the appellant for about three years. She has further stated that there was electric pole at the scene of offence. It was 7 to 8 feet away and there was enough light. Therefore, there can be no mistaken identity. Assuming she was drunk, it is difficult to come to a conclusion that she would not be able to remember the incident in which her husband was brutally murdered. 12 mss APEAL+72 10. Having carefully read the evidence of PW 1, we find no hesitation in placing reliance on it. Being his wife her presence near the deceased at night time is natural. Her conduct needs to be appreciated. Immediately after the incident she rushed to the police and lodged her complaint naming the appellant as the accused. It must be remembered that she is an illiterate scrap picker. Allowance will have to be made, therefore, for minor discrepancies in her evidence. We are of the opinion, that PW 1 Radha is a reliable witness. 11. PW 2 is Mohammed Hasin Qureshi, the scrap dealer. His shop is situated at Sayani Road, opposite Crown Mill, Dadar (west). He has stated that he knows PW 1 Radha Kamble and the appellant. According to him she and the deceased used to come to his shop to sell scrap. The appellant also used to come to his shop to sell the scrap. He identified the appellant in the court. According to him on 28/2/04 PW 1 and the deceased as well as the appellant came to his shop to sell scrap at about 9 a.m. He was told about the quarrel which had taken place in the night of 27/2/04 between the appellant and the deceased. He tried to mediate between the appellant and the deceased and told them not to quarrel. According to him on 29/2/04 he came to know about the incident. He was called by the policet on 1/3/04. His statement came to be recorded. He has been cross-examined but in the 13 mss APEAL+72 cross-examination his evidence has remained firm. Evidence of this witness gives support to the evidence of PW 1. The case of PW 1 that there was a quarrel on the previous day is supported by PW 2. It is true that PW 1 has referred to this witness as Zakir. But no question is asked to this witness about this discrepancy. As already noted by us, we do not attach much importance to this minor discrepancy. Evidence of PW 2 supports the prosecution case that the relations between the appellant and the deceased were strained. 12. PW 3 Anil Ingale is the pancha to spot panchnama Exh.-11. He has stated which articles were seized from the scene of offence. Amongst things which he has referred to as having been recovered from the scene of offence is the stone Art. 3. In the panchnama Exh. 11 the said stone is described as a stone having blood stains. Clothes of the deceased were taken charge of under Inquest Panchnama dated 29/2/2004 Exh. 15, drawn by PW 6 PSI Sankpal. They were bloodstained. They were dried at the Dadar Police Station and thereafter sealed. This sealing was recorded under panchnama Exh.-13. PW 4 Yallappa Saudagar is the pancha to the said panchnama. PW 5 Moreshwar Thakur is the pancha to the inquest panchnama Exh.-15. He has stated that clothes of the deceased which were taken charge of by the police were stained with blood. Evidence of panchna witness can be safely 14 mss APEAL+72 relied upon because the cross-examiner has not created any dent in it. 13. PW 6 PSI Jaywant Sankpal has given the details of the investigation carried out by him. He has recorded the complaint of PW 1 which is at Exh. 8. He had drawn Inquest Panchnama Exh.-15, Spot Panchnama Exh.-11 and panchnama Exh.-13 under which clothes of the deceased were sealed after they were dried. He has stated that he tried his level best to search for the appellant in the nearby area, but he could not trace him. He, therefore, came back to the police station and made station diary to that effect. He has stood firm in the cross-examination. 14. PW 8 PI Ramakant Pimpale is also part of the investigating team. He has given the details of the efforts made by the police to find the appellant. According to him during investigation it was revealed that the appellant was residing at Karpur, Ahmedabad in Gujarat State. On 18/8/04 he personally visited Karpur area of Ahmedabad but he could not trace the appellant. On 15/5/05 one informant phoned him from Ahmedabad and told him that the appellant was residing in Karpur area of Ahmedabad. He, therefore, sent a special team of police constables to Karpur area. The police team met the informant and the informant pointed out the appellant to them. The police team phoned him and gave him information. As directed by him the 15 mss APEAL+72 appellant was brought to him on 17/5/05 at Bombay. On the same day he called PW 1 Radha Kamble to the police station. She identified him as accused Shetty, the appellant. He then prepared arrest panchnama, Exh.-23. He has stated that he sent all the seized articles to the Chemical Analayzer. He has produced the forwarding letter which is at Exh.-21 and the Chemical Analyzer’s report dated 7/8/04, which is at Exh.-22. He has been cross- examined. His cross-examination has not affected the credibility of the prosecution case. It may be noted here that the Chemical Analyser’s report does not help the prosecution much except that it states that the stone Art. 3 was stained with human blood. 15. In our opinion, the evidence adduced by the prosecution clearly establishes that it is the appellant who killed the deceased by throwing a stone on him. As, we have already noted, we find no difficulty in relying on the evidence of PW 1 Radha Kamble, the wife of the deceased. Her evidence is supported to a large extent by PW 2 Mohammed Qureshi, the scrap dealer. PW 2 Mohammed Qureshi, the scrap dealer is an independent witness who has no axe to grind against the appellant. He has supported the case of PW 1 that a day before the incident in question there was a quarrel between the appellant and the deceased. He tried to mediate between the two and told them not to quarrel. Motive is, therefore, established. PW 8 PI 16 mss APEAL+72 Pimpale’s evidence discloses that the appellant was absconding after the incident and was traced in Ahmedabad almost one year after the incident. Against the background of other circumstances, the fact that the appellant was absconding is relevant. It is an incriminating circumstance against the appellant. In the ultimate analysis, we are of the opinion, that learned Sessions Judge has rightly convicted the appellant under Section 302 of the IPC and sentenced him to life imprisonment. No interference is necessary with the impugned judgment and order. The appeal is dismissed. (CHIEF JUSTICE) (SMT. RANJANA DESAI, J.) 17 mss APEAL+72 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 72 OF 2006 RAJESH RAMPRASAD KAHAR @ RAJESH SHETTY .. APPELLANT Vs. THE STATE OF MAHARASHTRA ) .. RESPONDENTS Mr. Abhaykumar Apte, appointed Advocate for the appellant Ms. P. H.Kantharia, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATED: 29/4/2011 OPERATIVE PART OF THE ORDER: For the reasons separately recorded in the oral judgment, this court has dismissed the appeal. (CHIEF JUSTICE) (SMT. RANJANA DESAI, J.)