1 APEAL 952.04.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 952 OF 2004 Shrihari Rajlingam Guntuka, Indian, Adult, Resident of 77/134, P.V. Marg, Worli, Mumbai – 400 013. ... Appellant. V/s. The State of Maharashtra (N.M. Joshi Marg Police Station C.R. No.434/92). ... Respondent. ALOGWITH CRIMINAL APPEAL NO. 805 OF 2006 Suryakant Maruti Kirve Age about 31 yrs., Occu. Mill Worker, Resident of 135/88 Madhusudan Mill Chawl, P.B. Marg, Worli, Mumbai – 400 0413. ... Appellant. V/s. The State of Maharashtra. ... Respondent. Mr. Parvez Memon for the Appellants. Ms. P.S. Hingorani, APP for the State. CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATED : 21st JULY 2011. PRONOUNCED ON : 28th JULY 2011. JUDGMENT (PER CHANDIWAL, J.) :- On 24th July 2004, learned Additional Sessions Judge at Mumbai convicted Accused to suffer R.I. For life and to pay fine of Rs.5,000/- with default clause for offence under Section 302 r/w. 34 of I.P.C., in Sessions Case No.159 of 2003. 2 APEAL 952.04.sxw Facts :- 2. On 11th November 1992 in the afternoon, Sandeep (deceased) saw Accused Shrihari with a lady Kanchan coming out of a public toilet. Deceased questioned the Accused and situation got worse. The altercation reached to peak in anger to Accused. 3. In the same night, deceased, Suryakant, elder brother of deceased with 5-6 youths were playing carom and few were watching. The incident in the afternoon was renewed in discussion, which ignited anger of Accused. Accused went home come prepared with a deadly weapon chopper, his friend Isril (absconded accused) was also arrived with deadly weapon chopper/big knife. Accused challenged deceased and suddenly attacked/assaulted deceased at his head and chest. To avert the situation complainant Suryakant (PW-1) tried to drive the Accused, However, PW-1 suffered attack by blunt side chopper by Isril (absconded Accused). Both accused ran away towards Gopal Nagar. Since Sandeep (deceased) had profused bleeding, Raju gave support to deceased at hospital, he was declared dead. It was a homicidal death due to fatal injuries at chest and head. 4. FIR of Suryakant was recorded. Inquest on the dead body was drawn. Postmortem was carried. Spot panchnama drawn. Statement of 5-6 eye-witnesses and few others was recorded and charge-sheet was filed before the learned Metropolitan Magistrate, Dadar on 2nd February 1993. The 3 APEAL 952.04.sxw learned Metropolitan Magistrate committed case to the Sessions Court. However, thereafter Accused No.2 absconded and on 25.9.2002 his case was put in dormant file. Charge below Exhibit 3 was explained to Accused, he did not plead guilty and desired trial. 5. The accused claimed innocence, he did not assault deceased Sandeep. Somebody else has assaulted deceased. 6. We have heard respective Counsel and read the evidence. Perused the record. 7. On overall assessment of the evidence and submissions, it is not in dispute that deceased Sandeep and the Accused – Appellant Shrihari were residing in the same locality/chawl knew each other. Witnesses are known to each other including the Accused – Appellant and the deceased. 8. The death of Sandeep to be homicidal is proved by the Medical Officer (PW-5) Dr. Walter and by PW-1 brother of the deceased. The deceased had stab injury at his heart which had dragged towards middle right and slightly backward and had entered thoracic cavity between lower border of the left clavicle and the upper border of the first rib. It perforated the apex of the left lung (which had consequently collapsed). The Medical Officer opined cause of death was haemorrhagic shock as a result of perforating stab injury of the left lung. According to him, injury no.4 was sufficient in ordinary course 4 APEAL 952.04.sxw to cause death. Thus, death of Sandeep was homicidal. 9. Prosecution has examined PW-1 Suryakant Maruti Kirve (brother of deceased), who kept enduring the torch of truth and to book the culprit the Accused – Appellant by standing affront to his FIR. 10. The other eye witnesses PW-2 Sanjay Ashok Takle, PW-3 Ajit Maruti Raut, PW-4 Satish Ashok Takle, PW-6 Kiran Arun Gawde, residing in the said chawl and allegedly were present at the time of the incident did not support the prosecution. However, PW-2 accepted that the complainant (PW-1) called taxi to ensure shifting of deceased in hospital. PW-2 narrates, deceased though was seriously injured did not tell him name of the assailants nor he has seen anybody assaulting the deceased. 11. Even if PW-2, PW-3, PW-4 and PW-6 did not point finger to the Accused – Appellant as an assailant, however, they did not dispute about the incident having taken place and Sandeep was assaulted to death in their presence. 12. PW-1 Suryakant states that on 11.11.1992 at around 11.00 p.m. he was watching boys playing carom in the compound of the chawl with his brother Sandeep, Rajendra Zagde, Sanjay Takle. Shrihari, Accused – Appellant had talk with Sandeep. Shrihari left the place angrily went to his residence and return within 5 minutes with some unknown 5 APEAL 952.04.sxw person (absconding accused). PW-1 was coherent of the manner in which Sandeep was assaulted brutally by whipping of chopper by Accused – Appellant at his chest and head. PW-1 could not save his brother as the absconding accused assaulted PW-1 by blunt side of the chopper at his head. Since Sandeep bleed profusely, he shouted ‘Mala jorat lagaley, ikade ye’ (I have suffered seriously follow me). Consequently, PW-1 alongwith PW-2 caught hold Sandeep, put him in a taxi and moved to KEM Hospital, where on admission, doctor informed that he was dead. In the cross-examination he was asked about topography of the chawl, the number of rooms, the location of toilet blocks, stair case, etc. He informed that carom was played on 7.30 p.m. On the date of incident, 7/8 persons were playing carom at around 11.00 p.m. The bulb had a cover. The light would be only below the bulb and not above it on account of the cover. He disputed there was no fight between Sandeep and absconding accused. The incident has taken place in a very short spell of time. He disputed, he was not present at the time of incident or that he was away when Sandeep shouted for help. He informed, there was sufficient light to identify a person. KEM hospital is at a distance of 10 minutes from the house and by calculation, according to him, they may have reached hospital at 11.15 p.m. His statement was recorded before the inquest panchnama. Thus, evidence of PW-1 unshakenly illustrate to the role of the accused having stabbed his brother, by preparing to commit murder. 6 APEAL 952.04.sxw 13. The learned defence Counsel submits “there was no motive in accused – Appellant assaulting the deceased”. The motive has become un-consequential as owing to the morning events of Sandeep questioning accused to be in toilet with the named lady. Based on such moment they had hot exchange near the carom at around 11.00 p.m. which outraged feeling of accused, he calculatedly went home, brought deadly weapon chopper and stabbed Sandeep aiming at his chest and head. These activities of the accused – Appellant were with his cautious knowledge he had intention to eliminate the deceased and he knew the consequences of such brutal attack on deceased with a deadly weapon like chopper (a big knife). 14. The learned Counsel for the Accused – Appellant invited our attention to the Judgment in the matter of Vaidelu Thevar V/s. State of Madras [AIR 1957 SC 614(1)]. The Hon’ble Lordships have observed that oral testimony of a sole witness is to be classified into three categories viz. (1) wholly reliable, (2) wholly unreliable, (3) neither wholly reliable nor wholly unreliable. The Lordships observed in the first category of proof, the Courts should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of case, that the Court has to be circumspect and has to look 7 APEAL 952.04.sxw for corroboration in material particulars by reliable testimony, direct or circumstantial. 15. In the said Judgment, the Apex Court observed, “no particular number of witnesses shall, in any case, be required for the proof of any fact” has enshrined the well recognized maxim that “evidence has to be weighted and not counted”. 16. In the matter of Himanshu Singh Sabharwal V/s. State of M.P. And Ors. Reported in (AIR 2008 SC 1943), the Hon’ble Apex Court explained concept of fair trial and powers under Section 311, 406 of Code of Criminal Procedure. In paragraph 8 it is observed as under :- “8. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over riding duty to maintain public confidence in the administration of justice – often referred to as the duty to 8 APEAL 952.04.sxw vindicate and uphold the ‘majesty of the law’. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trail is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.” 17. In the present case, the incident has taken place on 10.11.1992. After committal, the accused successfully dragged the same even after examination of the evidence of PW-1. The Roznama illustrate that on number of occasions the matter was adjourned. The witnesses were required to call on warrant. It is more than clear, the accused and the hostile witnesses recorded above, being of the same locality were probably greased and hence, did not venture in tune 9 APEAL 952.04.sxw with their statement recorded under Section 161 of Cr.P.C. They showed intellectual fatigue to events. 18. It is well recognized principle that evidence of conviction can be based solely on the evidence of single witness provided, such witness inspires confidence. PW-1 is a natural witness, his presence is established as he too suffered injuries, certified by Medical Officer (PW-8) even though in the evidence, he did not re-collect his suffering of injuries. His presence is also established by narration of PW-2 and PW-3. He was watching carom with his brother and the named persons while others were playing. The evidence of PW-1 need not be discarded only on the ground that he is brother of the deceased, nor can be said to be in conflict with his FIR. It also does not create violence against standard norms of appreciation nor he has crossed limits to falsely implicate the Accused – Appellant. It is a matter of record, he had no inimical terms with Accused – Appellant. 19. The incriminating weapon, the chopper was recovered at the disclosure statement of the accused under Section 27 of the Evidence Act. Though the witness for recovery of chopper is disputed by the panch, however, same has been coherently proved by the investigator and the panchnama. The injury suffered by PW-1 is established by Dr. Alpana (PW-8), who has brought the official record of particular entry effected in the night of 11.11.1992 – 12.11.1992 at 12.57 p.m. 10 APEAL 952.04.sxw 20. PW-9 Vijay Ganpat Parab was examined to establish seizer of the clothes of the accused (Exhibit 26). He did not support the prosecution. Nothing incriminating indeed was found on the apparels of the accused. PW-10 Shivram Bhagwan Bargaje, Senior Police Inspector was the Investigator. He had arrested accused persons at their native place at Mandal, District Karimnagar on 17.11.1992. This also indicate the mind set of the accused as after the commission of offence, they sneak from Mumbai and trailed at said place. The panchnama of seizer of chopper is at Exhibit 28-A and 29-B. These articles were forwarded to the C.A. under forwarding letter (Exhibit 30) on 23.12.1992. The C.A. reports are at Exhibit 31. The blood group of Sandeep (deceased) could not be determined as results were inconclusive so far as the seized items are concerned, on the blade of the chopper there was presence of human blood though the AB grouping was inconclusive. The full pant, full shirt, jangya have human blood with AB grouping which was connecting with the blood group of the deceased. There is no explanation as to how on the seized chopper, there was human blood found seized under a discovery statement made by the accused. 21. The above discussion illustrate, that the evidence of PW-1 could not be shattered on any count, he remained faithful to the events. 22. It seems that the Accused – Appellant has persuaded PW-1, the Complainant to move this Court to drop the 11 APEAL 952.04.sxw prosecution recorded in terms of conviction. The Complainant belatedly says in his Appeal that his evidence or the FIR was based on tutoring by Police. 23. In the result, Appeal lacks merit. Dismissed. 24. The Appeal of the Complainant - Suryakant Kirve is disposed of. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.)