drp {1} Cri. Appeal No.71/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.71 OF 2010 Uttam Govind Chavan APPELLANT Age-47 years, Occ-Labour R/o Limbota, Laman Tanda Tq-Parli-Vaijnath Dist-Beed VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellant Mrs.S.D.Shelke, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 8 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default of which to undergo further RI for 6 months, by the Ad Hoc Additional Sessions Judge, Ambajogai, vide judgment and order dated 30.12.2009, in Sessions Case No.52/2009, by this appeal questioned the correctness of his conviction and sentence. drp {2} Cri. Appeal No.71/2010 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - PW-6 Raosaheb Shirsath, PSI, who, on 06.04.2009, was attached to police station Parali (R), received, complaint of PW-1 Mohan and on the basis of the said complaint registered an offence vide Crime No.70/2009 u/s 302 r/w 34 of the Indian Penal Code. The complaint of PW-1 Mohan is at Exhibit-19. After registration of the offence, investigation thereof came to be transferred to PW-8 Vijay Pawar, who was working as Dy.S.P. at Ambajogai Division. PW-8, Dy.S.P. Pawar received the case diary of the aforesaid crime and accordingly visited the scene of offence on 06.04.2009 and drew the scene of offence Panchanama at Exhibit-25. From the scene of offence one knife (Article-4) and one stone came to be seized under the said Panchanama. Clothes of the deceased Sumanbai came to be seized vide seizure Memorandum at Exhibit-24, in the presence of Pancha witnesses. On 07.04.2009, statements of witnesses came to be recorded and the accused came to be arrested. Seized articles were referred to the Chemical Analyzer for examination vide memorandum at Exhibit-35. The report of the CA indicates that knife was found stained with human blood, however the blood group could not be determined. Similarly, clothes of the appellant were found stained with human blood, but the group could not be determined. Further to the completion of the investigation, a charge sheet against the present drp {3} Cri. Appeal No.71/2010 appellant and his wife came to be filed. 3. Dead body of deceased Sumanbai was referred for Postmortem examination and the Postmortem on the dead body came to be performed by PW-5 Dr.Sandip Ghuge. PW-5 Dr.Ghuge noticed the following external injuries on the dead body of Sumanbai. 1. Stab wound (Penetrating) over chest, right side para sternal region, 2 cm from sternum, fourth inter costal space, deep in to thoracic cavity. Edges sharp, shape elliptical, dimensions 2 x 1 cm. 2. Stab wound over left side of chest, intra mammary region, mid clavicular line, in to 5th inter costal space deep in to thoracic cavity. 3. Scratch Abrasion of size 4 x 2 cms back side para spinally. On internal examination, he noticed the following injuries. 1. Penetrating wound (stab) in fourth inter costal space, para sternal region. 2. Penetrating wound (stab) in 5th inter costal space, mid clavicular line. He also noticed that a penetrating wound had ruptured the right lung. He had also noticed pericardium penetration or drp {4} Cri. Appeal No.71/2010 ruptured of pericardium. There was penetration of left ventricle Haemothorax blood around 250 to 400 ml was found in the thoracic cavity. He opined that all the injuries were ante mortem and further opined that the deceased had died due to cardiac Tamponade due to injury to left ventricle. 4. On committal of the case, to the Court of Sessions, the trial court, vide Exhibit-9, framed charge against the appellant and his wife, for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. The entire prosecution case revolves round the testimony of two eye witnesses namely PW-1 Mohan and his son PW-7 Rahul. In order to appreciate and effectively deal with the submissions advanced before us by the learned counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 5. PW-1 Mohan, husband of the unfortunate Sumanbai, states that on the day of the incident, he had gone for answering a call of nature. Since he was late in returning back, his wife, Sumanbai, had suspected that PW-1 Mohan had gone to the house of the appellant for consuming liquor. It appears that PW-1 Mohan was addicted to liquor and would surreptitiously slip out of the house in order to consume liquor. Sumanbai accordingly came to the house of the appellant and noticed her husband, PW-1 Mohan there. PW-1 Mohan explained to Sumanbai that he had not come drp {5} Cri. Appeal No.71/2010 to the house of the appellant for consuming liquor and took back is wife Sumanbai to home. After PW-1 Mohan and deceased Sumanbai had crossed some distance, original accused No.2, Parubai and the appellant rushed to the scene of the offence and accused Parubai caught hair of Sumanbai while son of the appellant brought a knife and handed over the same to the appellant. The appellant, thereafter, dealt two blows of knife on the chest of Sumanbai. Sumanbai accordingly felled on the ground and subsequently was shifted in an auto rickshaw to the hospital. The appellant was also taken to the hospital in the same auto rickshaw. The medical officer examined Sumanbai and declared her as dead. The first information report at Exhibit-19 came to be lodged by PW-1 Mohan. 6. PW-1 Mohan has been cross examined at length and it has been elicited that after answering the nature’s call he had gone to the house of the appellant as the house of the appellant was on way to the house of PW-1 Mohan. PW-1 Mohan has further admitted that he had talked with accused for about 2/3 minutes and immediately his wife had arrived. He has admitted that no quarrel had taken place between accused and deceased prior to the present instance. He has admitted that he used to intermittently visit the house of the appellant for consuming liquor. He has admitted that one Sagarbai and Kalabai had arrived at the scene of offence immediately after Sumanbai had fallen on the ground. He has admitted that the incident occurred all of a sudden and drp {6} Cri. Appeal No.71/2010 thereby the neighbours could not assemble at the scene of the offence. In cross examination he has admitted that the appellant had sustained injury to his head as he had banged his head against a wall. He has further admitted as true that the appellant was taken in the same auto rickshaw to the hospital in which Sumanbai was taken. He has, however, denied the suggestion that his relatives, who had assembled there, had assaulted the appellant and during the said assault Sumanbai had accidentally sustained the injury. In further cross examination he has admitted as true that on Sumanbai coming to the house of the appellant, she had noticed the appellant. He has further admitted that his wife Sumanbai had come to the house of the appellant after about half an hour. He has also admitted that the residents of the locality had completely destroyed the house of the accused. 7. Upon perusal of the examination in chief and the cross examination of this witness, we find that the evidence of this witness is most natural. Though he has been cross examined at length yet nothing of importance has been elicited from his cross- examination, which would, in any manner, reflect the falsity of the evidence of this witness. Evidence of this witness stands amply corroborated by the recitals of the first information report, which was lodged immediately. The appellant in his statement recorded u/s 313 of the Criminal Procedure Code, also does not deny his presence at the scene of the offence. The appellant has offered no explanation, whatsoever, as to the manner in which he had drp {7} Cri. Appeal No.71/2010 sustained the injury. The appellant just denies the incident i.e. infliction of injury to the deceased. 8. Prosecution has examined PW-7 Rahul, who is a child witness. Curiously, presence of PW-7 Rahul is not referred to by his father PW-1 Mohan. Statement of PW-7 Rahul came to be recorded on the next day of the incident. In his cross-examination PW-7 Rahul has admitted that the appellant had sustained an injury by a crowbar /iron rod. Vital omissions in respect of the prosecution case have been elicited in the cross examination of PW-7 Rahul. Upon overall appreciation of the evidence of PW-7 Rahul, according to us, no reliance, whatsoever, can be placed on the testimony of PW-7 Rahul. 9. Learned counsel for the appellant has urged before us that in the event PW-7 Rahul is not relied upon, the only witness available for sustaining the conviction is PW-1 Mohan and evidence of PW-1 is woefully short of inspiring confidence of the Court and accordingly the appellant would be entitled to be given benefit of doubt. Learned APP supported the finding of guilt arrived by the trial court and has urged for dismissal of the appeal. 10. It is true that conviction can be rested on the sole testimony of a witness. The evidence, however should be of such quality as would inspire confidence of the Court for accepting the same. In other words, evidence should be of sterling quality. PW-1 drp {8} Cri. Appeal No.71/2010 Mohan has been cross-examined at length and as pointed out by us above, nothing of importance has been elicited from his cross examination, which would even remotely indicate that he is not the witness of truth. There are no contradictions and omissions in his evidence on material aspects of the prosecution case, which would create doubt about his veracity. In such circumstances, therefore, we do not agree with the submissions advanced before us by the learned counsel for the appellant that no reliance, at all, can be placed on the testimony of PW-1 Mohan for sustaining conviction. We find the testimony of PW-1 to be reliable and confidence inspiring and in such circumstances, according to us, full reliance can be placed on the testimony of PW-1 Mohan for sustaining conviction, though we may have disbelieved the testimony of PW-7 Rahul. In such circumstances, therefore, according to us, no fault can be found with the reasoning of the trial court in arriving at the finding to guilt. The conviction of the appellant, therefore, can be sustained on the basis of the testimony of PW-1 Mohan. 11. Accordingly, since we do not find any merit in the present appeal, the present appeal is dismissed confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel71-10