1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 162 OF 2005 1. BALKRISHNA KHASHABA MOHITE ) resident of Rajale, Taluka Phaltan, ) At present in Kalamba Central Prison ) Kalamba 416007, Kolhapur ) .. APPELLANT VERSUS THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. S. N. Bhosale for the appellant Mr. Rajesh More, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 17TH AUGUST, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 30TH AUGUST, 2010 JUDGMENT: (Per Smt. Ranjana Desai, J.) The appellant was tried by the Sessions Court at Satara in 2 Sessions Case No. 136 of 2002 for offences punishable under Section 302, 323 and 449 of the Indian Penal Code (“IPC” for short). By the judgment and order dated 20/1/2004 the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to suffer RI for life and to pay a fine of Rs.4,000/-, in default to suffer further R.I. for three years for having committed murder of Sunil Kakade (“the deceased”). The appellant has also been convicted for offence punishable under Section 449 of the IPC and sentenced to suffer RI for three years and to pay fine of Rs. 1,000/-, in default to suffer further RI for one year. The appellant is acquitted of the offence punishable under Section 324 of the IPC. The substantive sentences have been ordered to run concurrently. Being aggrieved by the said judgment and order the appellant has preferred this appeal. 2. It is necessary to give gist of the prosecution case. a) The appellant is a resident of village Rajale, Taluka Phaltan, District Satara. Deceased Sunil was also a resident of the same village. Complainant Dnyaneshwar Kakade, who is the brother of deceased Sunil is also a resident of the same village. 3 b) The deceased and the appellant used to do the work of motor winding in partnership prior to the marriage of the deceased with Rajeshri (PW 9), the daughter of the appellant. While the deceased was working in partnership with the appellant, the deceased and PW 9 Rajeshri fell in love with each other. The appellant was against their marriage, however, the deceased and PW 9 Rajeshri got married in May, 2001 at Panling Temple at village Wavarhire Taluka Man, District Satara. After their marriage they started residing in the house of the deceased at village Rajale. PW 5 Dnyaneshwar Kakade was also residing in the same house along with the deceased with his family. The complainant called a meeting of some respectable persons in the village to impress upon the appellant that there should not be any untoward incident due to the marriage of the deceased with PW 9 Rajeshri. The appellant refused to heed the advice of the respectable persons of the village. In the meeting he declared that he would finish the deceased one day. c) On 30/6/2002 PW 5 Dnyaneshwar returned from Baramati at about 6-15 p.m. The deceased told him that he would bring his clothes from the shop of PW 2 Shankar Dhere. He left the house. Thereafter PW 5 Dnyaneshwar went along with his friend Vikram 4 Kakade and Hanumant Kakade near the shop of PW 2 Shankar Dhere. He was chatting with Vikram Kakade and Hanumant Kakade in front of PW 2 Shankar Dhere’s shop. The deceased was at the shop of PW 2 Shankar Dhere. He was taking delivery of his clothes. PW 2 was tying the clothes for giving the same to the deceased. The deceased gave a loud cry which attracted the attention of PW 2 Shankar Dhere as well as PW 5 Dnyaneshwar and his friends. They saw the appellant dealing knife blows on the abdomen and on the back of the deceased. PW 2 started pushing the appellant outside the shop. While doing that he received injuries on his right hand fingers. PW 5 and his friends rushed towards the shop of PW 2. Seeing them the appellant ran away. The deceased was then taken to the hospital of Dr. Mahamuni, who advised that the deceased should be taken to Phaltan. Thereafter the deceased was taken to the hospital of Dr. Magar at Phaltan by PW 5 Dnyaneshwar and others. Dr. Magar advised that he should be taken to the Government Hospital at Phaltan. The deceased was taken to the Rural Hospital, Phaltan, where PW 6 Dr. Waghmare examined the deceased. PW 6 declared him to be dead. PW 5 Dnyaneshwar lodged his complaint which is at Exh.-26. On the basis of the complaint, investigation was set into motion. After completion of the 5 investigation, the appellant was charged, tried and convicted as aforesaid. 3. In support of its case the prosecution examined as many as 11 witnesses. The prosecution case rests on the eye-witness account of PW 2 Shankar Dhere and PW 5 Dnyaneshwar Kakade. The prosecution also examined PW 9 Rajeshri Kakade, the wife of the deceased. The prosecution examined PW 6 Dr. Waghmare who had done postmortem on the deceased and who had examined PW 2 Shankar Dhere. The details of investigation were given by PW 10 API Tavare and PW 11 PSI Shinde. The appellant pleaded defence of alibi. In support of his case he examined two defence witnesses. They are DW 1Baba Sawant and DW 2 Vithal Shedage. After going through the evidence on record learned Sessions Judge rejected the defence version and held that the prosecution had proved its case beyond reasonable doubt against the appellant. He convicted the appellant as aforesaid and hence this appeal. 4. We have heard Mr. Bhosale, learned counsel, who appears for the appellant and learned APP Shri More. With their assistance we have gone through the record of the case. 6 5. Mr. Bhosale submitted that the prosecution has failed to prove its case beyond reasonable doubt. He submitted that the evidence of the prosecution witnesses does not inspire confidence. The eye- witness account of PW 2 Shankar Dhere is not consistent with eye- witness account of PW 5 Dnyaneshwar Kakade. Counsel submitted that if the incident had taken place in the manner alleged by the prosecution then there should have been bloodstains on PW 2 Shankar Dhere’s clothes. There is no such evidence on record. Counsel submitted that evidence of PW 3 Arvind regarding the seizure of the clothes of the deceased does not inspire confidence. Counsel pointed out that in his evidence PW 3 has stated that he was called to the police station and the police had shown him clothes. The said clothes were then seized. Counsel submitted that, therefore, it cannot be said that under seizure panchnama Exh.-22 the bloodstained clothes of the deceased were seized. The blood group found on the said clothes cannot be said to be the blood group of the deceased. Counsel submitted that, therefore, finding of blood of ‘B’ group on the spear blade allegedly recovered at the instance of the appellant does not help the prosecution case. Similarly finding of blood of ‘B’ group on the shirt of the appellant also does not further the case of the prosecution. Counsel submitted that there is 7 discrepancy as regards the weapon of assault. Some witnesses describe it as a knife and some describe it as an iron spear. Counsel submitted that in the circumstances the appellant should be acquitted of the charges levelled against him. 6. Learned APP on the other hand submitted that the evidence of two eye-witnesses i.e. PW 2 Shankar Dhere and PW 5 Dnyaneshwar Kakade is consistent. The prosecution has proved motive. The weapon of assault i.e. iron spear/knife was recovered at the instance of the appellant. It was found stained with human blood of ‘B’ group which is the blood group of the deceased. Learned APP submitted that the prosecution has led cogent evidence to bring home the guilt to the appellant. He submitted that this court should, therefore, confirm the conviction and sentence of the appellant. 7. PW 6 Dr. Waghmare had done postmortem on the deceased. He has described 6 external injuries suffered by the deceased in the postmortem notes Exh.-29. He has also described the internal injuries and has opined that cause of death was due to injuries to vital organs. He has stated that all the injuries were sufficient to cause death in the ordinary course of nature. When weapon Article 3 8 was shown to him PW 6 stated that injuries found on the deceased could have been caused by the said weapon. It is clear, therefore, that death of Sunil was homicidal. 8. PW 2 Shankar Dhere is the owner of grocery and tailoring shop. He stated that on 30/6/2002 at about 6-45 p.m., while he was in his shop the deceased came to his shop for his clothes. The deceased was standing near the counter. PW 2 was tying the clothes of the deceased. He heard somebody shouting. He saw that the appellant had assaulted the deceased with a weapon like knife on his back and on his abdomen. On seeing this he pushed the appellant outside. While he was pushing the appellant he received injuries on his right hand fingers with knife like weapon which the appellant was holding. When weapon Article 3 was shown to PW 2 he stated that it is the same weapon with which the appellant assaulted the deceased. PW 2 has been cross-examined, however, in his cross-examination he has stood firm. It was argued by learned counsel for the appellant that if PW 2 was tying clothes which were lying on the ground he could not have seen the attack. It is not possible for us to accept this submission. PW 2 has not stated that he was sitting on the ground. When he heard cries of the deceased 9 he looked up and he saw the appellant assaulting the deceased. It is pertinent to note that the deceased had suffered five external injuries. Therefore, the assault lasted for sometime. PW 2, therefore, had sufficient opportunity to see the assault. That there were no bloodstains on his clothes is immaterial. In our opinion, evidence of PW 2 inspires confidence. It is corroborated by the evidence of PW 5 Dnyaneshwar Kakade. 9. PW 5 Dnyaneshwar Kakade is the brother of the deceased. According to him on 30/6/02 he returned from his job at about 5-30 p.m. The deceased told him that he would bring his clothes from the shop of PW 2 Shankar Dhere. The deceased left the house. According to PW 5 he along with Vikram Kakade and Hanumant Kakade went to the shop of PW 2 Shankar Dhere. He was standing in front of the said shop. He saw the deceased in the shop of PW 2. He heard a cry of the deceased. When he looked towards the shop of PW 2 he found that the appellant had assaulted the deceased with a knife. According to him the appellant had dealt a knife blow on the back of the deceased and when the deceased turned around the appellant dealt 5 to 6 knife blows on the abdomen of the deceased. PW 5 has said that Article 3 was the same weapon with which the 10 deceased was assaulted by the appellant. In our opinion, evidence of this witness offers the necessary corroboration to the evidence of PW 2. PW 5 is not shaken in the cross-examination. We have no hesitation in recording that evidence of PW 2 and PW 5 establishes that the appellant dealt knife blows on the deceased in front of the shop of PW 2. 10. The appellant was arrested on 6/7/2002. On his arrest his clothes were seized under a panchnama. It is true that PW 7 Jamil Jameer Tamboli, who is the pancha to the said panchnama, has turned hostile. However, this fact is deposed to by PW 10 API Tavare. According to API Tavare clothes of the deceased i.e. his pant and shirt were seized and there were bloodstains on the shirt of the deceased. We have no reason to disbelieve API Tavare because nothing has been brought on record to show that API Tavare was on inimical terms with the appellant or that he wanted to involve the appellant in a criminal case for some ulterior reasons. In this connection reliance can be placed on the Supreme Court’s judgment in Nathoo Singh v. The State of Madhya Pradesh, AIR 1973 SC 2783 where the Supreme Court has held that mere fact that the witnesses are police officers is not enough to discard their evidence. 11 Where no reason is shown for their hostility to the accused, they can be relied upon. Similar view is taken in Ram Kumar v. State (NCT) of Delhi AIR 1999 SC 2259. 11. PW 1 is Popat Iware. He is a pancha to memorandum Exh.-16 under which the statement made by the appellant that he would discover the weapon which he had kept hidden near a bund of a groundnut field was recorded on 7/7/2002. Pursuant to the said statement the panch witnesses and the police went to the said groundnut field. The appellant took out one iron spear from beneath a bunch of grass by the side of a bund. The said weapon was seized and sealed. Panchnama to the above effect was recorded and it is at Exh.-17. PW 1 has deposed about this discovery. This witness has been extensively cross-examined but he has stood firm in this cross- examination. It is clear from the evidence of PW 1 Popat Iware that on 7/7/02 at the instance of the appellant an iron spear was discovered. We do not find any substance in the argument that there is any confusion about the weapon of assault. Though PW 1 has described it as an Iron spear PW 2 has described it as a weapon like knife and PW 5 has described it as a knife. In order to find out whether there is any wrong identification of weapon, we had a look at 12 Article 3. Article 3 is a spear which resembles a knife. This argument will have to be, therefore, rejected. 12. PW 2 Shankar Dhere had received injuries on the two fingers of his right hand. PW 6 Dr. Waghmare had examined him on 7/1/02 at about 5-30 p.m. According to Dr. Waghmare PW 2 had received abrasion over right ring finger and contused lacerated wound over right little finger. When knife Article 3 was shown to him he stated that the said injuries were possible by the said weapon. Learned Sessions Judge has acquitted the appellant of the offence under Section 324 of the IPC on the ground that the appellant had not intentionally and voluntarily caused hurt to PW 2. This is because PW 2 had received the said injuries while he was pushing the appellant outside his shop. We do not want to express any opinion on this aspect as the State has not appealed against this acquittal. But the fact that PW 2 Shankar Dhere received injuries on the same day is sufficient to establish his presence and that lends great support to the prosecution case. 13. The prosecution has successfully proved the motive. Admittedly the deceased had married PW 9 Rajeshri, daughter of the appellant. 13 The appellant was not happy about this marriage. PW 5 Dnyaneshwar has stated in his evidence that he called for a meeting of respectable persons in the village and impressed upon the appellant that no untoward incident should take place because his daughter had married the deceased. According to PW 5 the appellant attended the meeting but he did not pay heed to the advice. He had declared in the meeting that he would finish the deceased. PW 9 Rajeshri the daughter of the appellant has confirmed this fact. She has stated that the deceased was doing business of motor winding in partnership with the appellant. She has stated that she fell in love with the deceased. According to her they decided to marry but the appellant opposed the said marriage. She has further stated that she and the deceased got married on 14/7/2001 in a temple. They stayed outside the village for 15 days. After their return they started staying in the house of the deceased. She has further stated that PW 5 Dnyaneshwar held a meeting in their house to avoid quarrel between the appellant and her husband i.e. the deceased. According to her the appellant was told not to precipitate the matter but he paid no heed to the advice. On the contrary he declared that the deceased and PW 9 had married against his wishes and, therefore, he will finish the deceased. Evidence of PW 5 and PW 9, 14 therefore, conclusively proves the motive. 14. That takes us to the Chemical Analyzer’s report (C.A’s. Report). The spot panchnama is at Exh.-24. It shows that blood mixed clay and ordinary clay was collected from the scene of offence and sealed separately. PW 8 is PHC Kuchekar who had carried the seized articles to the Chemical Analyzer. Evidence of PW 8 and evidence of PW 10 API Tavare shows that blood mixed clay and ordinary clay which were seized from the scene of offence, clothes which were found on the dead body of the deceased, clothes of the appellant, spear blade/ knife Article 3, sample of blood of the appellant were sent to the Chemical Analyzer. C.A. Report Exh.-38 shows that human blood was found in the blood mixed clay collected from the scene of offence. Human blood was also found on the full shirt, banian and underwear which were found on the person of the deceased. Blood group found on the full shirt of the deceased was of ‘B’ group. Similarly black thread and Tester which were found on the person of the deceased were found stained with human blood of ‘B’ group. The blood group of the deceased was, therefore, ‘B’. C.A. Report Exh.-39 shows that blood group of PW 2 Shankar Dhere is ‘O’. C.A. Report Exh.-38 shows that shirt Article 10 and pant Article 15 11 which were seized from the person of the appellant and spear blade/knife were found stained with human blood. The blood found on the shirt seized from the person of the appellant and on the spear blade/knife was of ‘B’ and ‘O’ antigens i.e. mixture of blood of ‘B’ and ‘O’ group. 15. It is pertinent to note that according to the prosecution it is with weapon Article 3 that the appellant attacked the deceased and injuries were caused to PW 2 because of the brushing of the same weapon against the fingers of PW 2. Therefore, finding of blood of the blood group of the appellant and of PW 2 on the said spear blade/knife is a circumstance which establishes the use of the said weapon by the appellant in the manner alleged by the prosecution. 16. It is true that C.A. Report Exh.-41 shows that blood group of the appellant also is ‘B’. However it is not the case of the appellant that he had received any injury at the time of the incident. Therefore, the fact that his blood group tallies with the blood group of the deceased does not help him. The C.A. Reports, therefore, provide additional incriminating evidence against the appellant. 16 17. It was argued that evidence of PW 3 Arvind, who is a pancha to the panchnama under which clothes of the deceased were seized does not inspire confidence. It is not possible to accept this submission. It is true that PW 3 has omitted to say that the said clothes were seized from the person of the deceased. But he has stated that they were seized in his presence. He has proved panchnama Exh.-22. It cannot be said, therefore, that the seizure is sham. 18. The appellant has examined two defence witnesses. DW 1 is Baban Sawant. This witness only deposes about the good financial condition of the appellant. DW 1 has stated that the appellant is a permanent resident of Rajale and he is not addicted to any vices. That, in our opinion, has no relevance to the prosecution case. The eye-witness account of PW 2 and PW 5 and evidence of PW 9 Rajeshri to the effect that the appellant was opposed to the marriage of PW 9 with the deceased and he had publicly declared that he will not spare the deceased conclusively prove the prosecution case against the appellant. That his financial condition was good and that he did not have any vices, would, therefore, pale into insignificance. DW 2 is one Mr. Vithal Shedage. He is examined to prove defence 17 of alibi. Admittedly he is related to the appellant. He stated that on the date of incident he started his agricultural operation in the field of the appellant at about 1 O’clock, in the afternoon. He continued the said work till 8 p.m., and during the said period the appellant was with him in the field. He has admitted in the cross-examination that the appellant owns one acre of agricultural land and it takes 3 to 4 hours for doing agricultural work with the tractor in one acre of land. Therefore, if the agricultural operation started at 1 clock in the afternoon it would be over by 5 p.m. There was no question of the appellant being in the field along with DW 2 till 8 p.m. This story is hard to digest. The incident took place at 6-45 p.m. It is difficult to believe that at that time the appellant was in the field doing agricultural work. It is pertinent to note that DW 2 has stated that after returning from the field he along with the appellant went to Phaltan to see the deceased and reached there at about 8-30 p.m. but by that time the deceased had succumbed to the injuries. However, the defence has not suggested this case to PW 5 Dnyaneshwar. Learned Judge has rightly concluded that the appellant has not established the defence of alibi. Evidence of DW 2 does not inspire confidence. 18 19. In the ultimate analysis, therefore, we are of the opinion that the prosecution has proved its case beyond reasonable doubt against the appellant. The appellant has rightly been convicted. No case is made out for interference with the impugned judgment and order. The appeal is dismissed. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 19 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 162 OF 2005 BALKRISHNA KHASHABA MOHITE .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. S. N. BHosale for the appellant Mr. Rajesh More, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 30TH AUGUST, 2010 OPERATIVE PART OF THE JUDGMENT: For the reasons recorded separately in the Judgment, this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 20