drp {1} Cri. Appeal No.299/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.299 OF 2009 Jabbar Latif Tadvi APPELLANT Age-32 years, Occ-Labourer R/o Rahire, Tq-Jamner Dist-Jalgaon VERSUS The State of Maharashtra RESPONDENT ....... Mr.P.M.Kulkarni, Advocate for the appellant Mr.K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 21 st February 2011 ORAL JUDGMENT (PER A.V.POTDAR, 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.2,000/-, with default stipulation of undergoing further RI for 10 days, has questioned his conviction and sentenced awarded by Additional Sessions Judge, Jalgaon in Sessions Case No.84/2007, vide judgment and order dated 30.05.2009. 2. The prosecution case, as unfolded during the trial, is thus - drp {2} Cri. Appeal No.299/2009 a) PW-7 Deepak Koli, Police Inspector, who was attached to Jamner Police station and was in charge of Pahur police station, had registered an offence at Crime No.55/2002 on 20.05.2002, on the basis of complaint (Exhibit-11) lodged by PW-1 Sumanbai Shankar Patil. Pursuant to the registration of the FIR, PI Koli had visited the Rural Hospital, Pahur, where inquest Panchanama (Exhibit-16), was drawn on the dead body of deceased Shankar Patil. b) Postmortem was conducted by the Medical Officer attached to Rural Hospital, Pahur. During the Postmortem, following injuries were noticed on the person of the deceased Shankar - 1. A loop of small intestine mesentry about 15 cm coming out through about (transverse) 3 X 2 cm would on right spinoumbilical size. Perforation of small intestine about 2 to 3 cm. 2. A loop of omentum about 16 coming out on it side through 4 x ½ cm (obliane) wound above umbilicus (5 cm) 3. It elbow - ½ inch CLW 4. Old scar on right foot. The Medical Officer had noticed that perforation as well as blood was present in perinoteal cavity. The medical officer has opined that the probable cause of death of deceased Shankar is due to terminal cardio respiratory arrest due to hemorrhage due drp {3} Cri. Appeal No.299/2009 to multiple perforation to intestine. Accordingly, PM report (Exhibit-31) was prepared. c) Thereafter, Spot Panchanama (Exhibit-37) was drawn and statements of certain witnesses were recorded by the police. Clothes on the person of the deceased were seized under Seizure Panchanama (Exhibit-19). The appellant had also assaulted his sister Najma, who was sent for medical examination and clothes on the person of Najma were also seized under seizure Panchanama (Exhibit-20). All the police stations were informed about absconding of the appellant with his description, on wireless message (Exhibit-38), however the appellant could not be located despite efforts taken by the police. Accordingly, after completion of the investigation charge sheet was filed against the appellant in his absence, before JMFC, Jamner, who committed the trial to the Court of Sessions. It further appears that the appellant came to be arrested on 11.05.2007, after 5 years of the incident. The appellant shown his willingness and hence his disclosure statement was recorded in presence of Panch witnesses (Exhibit-28). The place shown by the appellant was searched, however the weapon, allegedly used by the appellant, could not be located. Accordingly, Panchanama (Exhibit-29) was prepared. Subsequently, supplementary charge sheet was filed against the appellant and the trial was committed to the Court of Sessions. d) Thereafter, trial court framed charge (Exhibit-2) drp {4} Cri. Appeal No.299/2009 against the appellant for an offence punishable u/s 302 of the Indian Penal Code, however the appellant pleaded not guilty to the charge and claimed to be tried. The prosecution had examined in all 7 witnesses during the trial. The defence of the appellant was of denial. The trial court, after appreciation of the evidence, convicted the appellant and sentenced him accordingly. 3. Before considering the rival submissions advanced by learned counsel for the appellant and learned APP for respondent State, it is necessary to advert to the evidence of material witnesses examined before the trial court. 4. It appears that the conviction of the appellant is based on ocular evidence of 3 eye witnesses and the medical evidence. 5. It is in the evidence of PW-1 Sumanbai Patil, that at the material time she was residing at village Rahire along with her husband Shankar (deceased) and three sons. Her husband Shankar was running a grocery shop. Prior to 10/12 days of the incident, her son Gajanan had gone out of the village for doing work. One Najma, sister of the appellant, had also gone out of the village prior to 10 / 12 days of the incident. She has stated that relatives of Najma were suspecting that Gajanan and Najma both have left the village together. Brother of Najma, appellant was loitering outside their house in search of her son Gajanan. The incident in question took place at about 10.00 p.m. at that time drp {5} Cri. Appeal No.299/2009 Shankar (deceased) and Gopal (PW-3) were sitting on a cot outside their house. The appellant came there and enquired with Shankar (deceased) in respect of whereabouts of Gajanan and was insisting to give phone call to Gajanan, however Shankar could not give call to Gajanan and informed the appellant that he did not know the whereabouts of Gajanan. At that time the appellant took out knife and gave three knife blows on the stomach of Shankar, due to the serious bleeding injuries sustained by Shankar, he had collapsed and expired on the spot. Some persons came at the spot, however within mean time the appellant had fled from the spot. Thereafter, Shankar was taken in a jeep to Rural Hospital, Pahur, where he was declared dead, after medical examination. Thereafter, she lodged complaint (Exhibit-11) in Pahur police station. During the trial she identified the clothes of the deceased produced in the court. She has stated that appellant was absconding for about 5 years and after his arrest her supplementary statement was recorded by the police. The appellant was suspecting that his sister Najma had eloped with her step son Gajanan. Only one omission has been proved in her cross examination that she has not stated in her statement before police that the incident has taken place in summer season and Najma got down in front of her house. She has admitted in her cross examination that she was not knowing as to whether there was any affair between Gajanan and Najma. At the relevant time, she was inside her house and after hearing the hue and cry she came out of the house and saw that Shankar (deceased) was lying. She denied the suggestion that due to drp {6} Cri. Appeal No.299/2009 darkness she was unable to see the incident. According to her, the incident has taken place on the platform of her house. She has denied the suggestion that Shankar (deceased) was going to urinate and as he lost balance, he fall on the firewood and hence had sustained injuries. According to us, evidence given by PW-1 Sumanbai is not shaken even in her cross examination. No omissions or contradictions are brought on record during her cross examination in respect of her version given in complaint. 6. It is in the evidence of PW-3 Gopal, son of the deceased and the complainant that on the day of the incident, on 19.05.2002, at about 10.00 p.m. he and his father were present in front of their house and had sit on a cot at that time the appellant came there and enquired with his father in respect of whereabouts of Gajanan and when his father deceased Shankar could not give whereabouts of Gajanan, appellant took out a knife and stabbed him on stomach. His father had fallen on ground due to the injuries sustained by him. Thereafter some persons from Maruti temple came at the spot, however before they reach at the spot, the appellant had fled away from the spot. Thereafter, Shankar (deceased) was taken to Rural Hospital where he was declared to be dead. The appellant was suspecting that his sister Najma was kidnapped by his brother Gajanan. After the incident, the appellant was absconding for about 5 years. Evidence of this witness, on the point of assault by the appellant on Shankar (deceased) is not shaken even in his cross examination. drp {7} Cri. Appeal No.299/2009 7. Evidence of Nilesh (PW-5) – son of the deceased and the complainant, is on the similar lines of that of PW-3 Gopal. According to PW-5 Nilesh, at the time of the incident he was inside the house, however, when he heard hue and cry outside the house as somebody was making inquiry in respect of whereabouts of Gajanan, he had came out of the house and witnessed that appellant was giving knife blows on the stomach of his father due to which his father had fallen on the ground. In his cross examination defence has brought on record that though there was darkness, yet the entire things were visible. His evidence on the point of assault by the appellant on Shankar is not shaken in his cross examination. 8. PW-3 Gopal and PW-5 Nilesh have fully corroborated the evidence of complainant PW-1 Sumanbai, in respect of assault by the appellant on Shankar (deceased). 9. We have heard learned counsel for the appellant followed by the submissions of learned APP. Learned counsel for the appellant, lay his hand on two points that the Investigating Officer, who had submitted the final charge sheet, was not examined during the trial. However, learned counsel for the appellant was unable to point out to us as to what prejudice was caused to the appellant by non examination of the Investigating Officer. From the evidence on record, it is clear that no omissions or contradictions are brought on record in the evidence of the eye drp {8} Cri. Appeal No.299/2009 witnesses by the way it was necessary to examine the investigating officer to prove the said omissions and contradictions. As no omissions or contradictions have been brought on record, according to us, by non examination of the Investigating Officer no prejudice has been caused to the appellant. Learned counsel for the appellant further urged that the prosecution has also not produced any CA report on record. According to us, by examining the prosecution Witness No.6, Laxman Kumawat, the prosecution had tried to prove the disclosure memorandum (Exhibit-28) given by the appellant. Admittedly, there was no recovery of the alleged weapon in furtherance of the disclosure statement of the appellant. Apart from it the said disclosure statement was made by the appellant after about 5 years of the incident and hence had the weapon been recovered, yet there could have been no blood stains on the same after 5 years. In such circumstances if CA report has not been produced then the same would not cause any prejudice to the appellant. 10. During the course of submissions it is tried to urge that possibility cannot be ruled out that the deceased might have sustained injuries due to fall on firewood, which was kept on the platform of his house. However, careful perusal of the Spot Panchanama does not disclose that any firewood was stored outside the house of the deceased. Learned counsel for the appellant also urged that the motive behind the crime was also not proved. On the contrary, the prosecution case is based on the drp {9} Cri. Appeal No.299/2009 direct evidence of eye witnesses, who have witnessed the assault by the appellant on the deceased, which resulted in his death and the same is fully established from the evidence on record and hence proving the motive behind the crime is immaterial in the present case. 11. Though the learned counsel for the appellant has placed reliance on number of judgments of the Apex Court as well as this Court, yet, according to us, the said judgments are not applicable to the present case and hence, we do not think it necessary to discuss the same. 12. After re-appreciation of the evidence on record, we are of the view that the prosecution has established that the appellant has assaulted Shankar, which resulted in his death and hence the conviction and sentence recoded by the trial court does not require any interference by this Court. 13. Consequently, there being no merit, the appeal is dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel299-09