1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 255 OF 2005 Jagadish Anant Narvekar ] At present in Nasik Road Central Prison ]..Appellant/ Nasik 422 101 ] Accused versus The State of Maharashtra ]..Respondents Mrs. Rohini Dandekar – Advocate appointed for Appellant/ Accused. Mrs. A. S. Pai - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND A. P. BHANGALE, JJ. DATED : OCTOBER 27, 2010. ORAL JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant/ accused and the learned Additional Public Prosecutor for the respondents – State. 2. The Criminal Appeal is directed against the Judgment and Order dated 6th May 2004 passed by the Additional Sessions Judge, Greater Mumbai, whereby the appellant / accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life. 2 3. The prosecution case in nutshell is as follows:- On the night intervening 17th May 2003 and 18th May 2003 it is alleged that the present appellant committed murder of his aunt Sarita by use of a chopper. The appellant was apprehended on the spot and the weapon of offence i.e. chopper was seized from him on the spot. The Investigating Officer conducted inquest panchnama, spot panchnama and on completion of other formal investigation the charge sheet came to be filed in the competent criminal court. Charge was framed against the appellant which was explained and read over to him. The appellant pleaded not guilty and claim to be tried. 4. The prosecution case is based on the evidence of P.W. 1 Virendra Ramakant Narvekar, P.W. 2 Shyam Ramakant Narvekar and P.W. 3 Subhash Bajrang Dhanawade coupled with the medical evidence in the form of post-mortem report as well as chemical analyser's report. 5. The learned counsel for the appellant has submitted that the evidence adduced by the prosecution is wholly inadequate to prove the charge of murder against the accused beyond all reasonable doubts. It is contended that there are no eye witnesses to the incident in question and the witnesses who are examined by the prosecution i.e. P.W. 1 Virendra and P.W. 2 3 Shyam are highly interested witnesses and therefore their testimony needs to be scrutinized with care and caution. It is further contended that both the witnesses reached the scene of offence after the incident of assault had taken place and therefore their testimony is of no help to the prosecution in respect of the assault alleged to have been committed by the appellant. It is submitted that the prosecution failed to prove any motive for commission of a crime in question. The appellant is related to P.W. 1 and P.W. 2 as well as deceased Sarita and in absence of strong motive, it is difficult to rely on the case of the prosecution to hold that the appellant is the author of the injuries sustained by the deceased. 6. The learned counsel further contended that though there was a blood found on the weapon of offence as well as clothes of the accused, however that was of human origin only and the blood group could not be detected and therefore this cannot be an incriminating circumstance against the appellant, who was admittedly residing in the same house and was present at the time of the incident in the house. It is contended that so far as medical evidence is concerned it only establishes the nature of the injuries sustained by the deceased and probable cause of death. The medical evidence by itself is of no help to establish who is the author of those injuries. It is for the prosecution to adduce independent, cogent and reliable evidence in order to establish who was the author of the injuries sustained by the deceased. In 4 the instant case the evidence available on record is not sufficient to prove the charge of murder against the appellant beyond all reasonable doubts. In the circumstances, the findings of conviction recorded by the trial court are liable to be quashed and set aside. 7. The learned Additional Public Prosecutor on the other hand has supported the judgment and order of conviction passed by the trial court. The learned Additional Public Prosecutor has submitted that the prosecution has examined five witnesses, however, the material evidence is of P.W. 1 Virendra, P.W. 2 Shyam and P.W. 3 Subhash. It is further contended that apart from the ocular testimony of these witnesses there is a medical evidence which corroborates the case of the prosecution and the chemical analyser’s report demonstrates that the weapon of offence as well as the clothes of the appellant were stained with blood of human origin. The learned Additional Public Prosecutor has submitted that at the relevant time the appellant was residing with the prosecution witnesses P.W.1 and P.W2 in the same house. It is contended that the evidence of both these witnesses P.W. 1 and P.W. 2 establishes the presence of the appellant at the relevant time in the room who was armed with weapon of offence i.e. chopper. The testimony of these witnesses further shows that they saw their mother deceased Sarita was lying on the ground in an injured condition. The evidence of panch witness would show that there was a blood on the floor as 5 well as walls of the room. The learned Additional Public Prosecutor has submitted that considering the totality of the evidence adduced by the prosecution coupled with the medical evidence as well as the chemical analyser’s report, the trial court was justified in concluding that the prosecution succeeded in bringing home the guilt of the accused for the offence of murder. 8. We have considered the contentions canvassed by the learned counsel for the appellant and the learned Additional Public Prosecutor for the State and also scrutinized the entire evidence adduced by the prosecution. 9. So far as the evidence of P.W. 1 Virendra is concerned, it has come in his examination-in-chief that the appellant / accused is the cousin of the witness and the deceased Sarita was his mother. The appellant was staying with them in the same house since his childhood. The appellant was addicted to “toddy”; that the appellant was a lazy fellow, did not want to do any job and therefore deceased used to tell him that he must do some job and earn money. On account of this aspect there used to be arguments between the deceased and the appellant. P.W. 1 has stated in his testimony that sometime prior to the incident, the appellant purchased chopper and when he was asked as to why did he purchase the chopper, he informed that he would like to start business of sale of fish. In the examination-in-chief of 6 this witness it has come that on 18th May 2003, this witness, appellant, Sarita (deceased) were sleeping in the house in question. This witness got up from the bed on seeing something unusual happened, at that time the appellant who was awake who pushed this witness towards the bed. This witness switched on the light and saw that his mother Sarita was seriously injured. The appellant tried to attack this witness but he somehow saved himself from the attack and started shouting that his mother was killed. It is the prosecution case that on account of shouts, his father got up, this witness and his father caught hold of the appellant and took away chopper from his hand. Police was contacted. Doctor came and examined Sarita. On examining Sarita doctor declared her dead. While going through the cross- examination of this witness, the material particulars of the prosecution case disclosed by this witness in his ocular testimony are not affected. On the other hand it has come in the cross-examination of this witness that there used to be quarrel because of his laziness and drinking habits. It has also come in the cross-examination that the appellant purchased chopper 4 to 5 days prior to the day of incident. This witness has further stated in his cross- examination that on the day of the incident his younger brother P.W. 2 slapped the appellant/ accused as he abused his mother deceased Sarita. This witness has admitted in the cross that the appellant Jagadish and he slept on the same cot in the night on the day of the incident. This witness has fairly admitted that he did not see the actual assault committed by the 7 appellant. 10. There are no omissions or contradictions brought on record by the defence so far as the evidence of P.W. 1 Virendra is concerned. On the other hand the testimony of this witness appears to be straightforward. This witness has fairly admitted that he did not witness the actual incident of assault which shows that the evidence of this witness is genuine and straightforward. The testimony of this witness clearly establishes the presence of the appellant at the time of assault in the room where the incident had taken place. It is pertinent to note that the appellant was caught red handed by this witness with the help of his father and at that time the appellant was armed with chopper which was seized by this witness. The testimony of this witness demonstrates that when he switched on the light he saw his mother Sarita in an injured condition as well as accused armed with chopper. The evidence of this witness therefore demonstrates the presence of the appellant at the time of the incident who was armed with chopper and deceased Sarita was lying on the ground in a seriously injured condition. It is necessary to consider the other prosecution evidence in order to find out whether the prosecution has succeeded in bringing home the guilt of the accused for commission of murder of Sarita. 11. P.W. 2 Shyam is the younger brother of P.W. 1. He has stated in his 8 examination-in-chief that the appellant at the relevant time was residing with his family. This witness has also stated that appellant was a lazy fellow and did not like to do any job and was also addicted to drink “toddy”. It has come in his testimony that this witness as well as his family members tried to persuade the appellant to do some job and earn some money. This witness has stated that on 17th May 2003 at about 9.00 p.m. appellant came home drunk and abused the mother of this witness Sarita. This witness got angry and slapped the appellant. The appellant became furious and threatened this witness as well as the other family members that he will see them. P.W. 2 has further stated in his examination-in-chief that at about 4.45 a.m. on 18th May 2003 he was woken up by one Poojari, his neighbour and informed him that the appellant has created some problem in his house and therefore this witness rushed towards his house. When he entered in the house he saw his mother Sarita was injured and was lying in the pool of blood. He also saw P.W. 1 Virendra and other family members caught hold of appellant Jagadish who was armed with weapon. He has identified weapon Article ‘1’ as the same weapon which was in the hand of the appellant. While going through the cross-examination of this witness, we have noticed that fact of appellant addicted to drinks has been reaffirmed and the defence could not extract any material which would affect the veracity of the testimony of this witness. This witness in his cross- examination has also fairly admitted that he did not see the actual assault 9 committed by the appellant on his mother Sarita. The totality of the evidence of P.W. 2 Shyam, in our view, is straightforward which establishes presence of the appellant at the time of incident in the house, presence of Sarita (deceased) and the appellant who was caught on the spot by P.W. 1 Virendra and others and was armed with chopper. This witness has also seen his mother Sarita at the relevant time was injured and lying in the pool of blood inside the room. 12. P.W. 3 Subhash is a panch witness examined by the prosecution to prove enquest panchnama, spot panchnama, seizure of chopper and clothes of the appellant / accused. The defence has not cross-examined this witness. The evidence of this witness shows that deceased Sarita suffered only one injury on her neck, there was a blood on the spot as well as on the walls of the room. 13. In the instant case the post mortem report Exhibit 14 has been admitted by the defence. Column 17 of the post mortem report shows that the deceased suffered following external injuries: 1) I/W, 10 cm x 3 cm x muscle deep on rt. side of neck below angle of mandible cutting stereo cho-mastoid muscle x rt. carotid full of clotted blood. 2) Minor failing at meelial end & at chin rt. Side. 10 redish – black coloured 60th edges, clear, sharp acute angle at lateral end. Column 20 of the post mortem report shows that the deceased suffered the following internal injuries: 1) bleeding at rt. Side of LTB & cutting of neck muscle and carotid artery. Congested rt. side.. Almost empty Lt. Side empty P.J. empty The probable cause of death given by the medical officer is Haemorrhagic shock due to stab injury cutting neck vessel. 14. In the instant case the medical evidence corroborates the material particulars of the prosecution case disclosed by P.W. 1 Virendra and P.W. 2 Shyam. The injury caused to the neck resulted in cutting the neck vessel of the deceased and therefore, in our view, could be caused by weapon of offence i.e. chopper. The medical evidence, in our view, is consistent with the case of the prosecution disclosed by the prosecution witnesses. 15. In the instant case, the chemical analyser’s report shows that chopper 11 as well as clothes of the appellant / accused were stained with human blood which further lends support to the prosecution case. It is pertinent to note that the defence taken by the appellant that the injury might have been caused because of the fall of the chopper from the cot on the neck of the deceased is highly improbable. The trial court, in our view, has given proper reasoning for holding that the defence raised by the appellant is wholly improper. 16. For the reasons stated herein above, criminal appeal suffers from lack of merits. Same is dismissed. (D. D. SINHA, J.) (A. P. BHANGALE, J.)