Cri.Appeal 607/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.607 OF 2009 Devchand Dhondibhau Hande, Age 53 years, R/o Vankute, Taluka Sangamner, District Ahmednagar ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.T.Shelke, Advocate for appellant Mr D.V.Tele, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 28th February 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant/original accused No.4, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo simple imprisonment for three months, by the Additional Sessions Judge, Sangamner, by judgment dated 31.10.2009, in Sessions Case No.23 of 2008, by this appeal questions the correctness of his conviction and sentence. Cri.Appeal 607/2009 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. On 3.2.2008, Gulab who had sustained injuries was examined by P.W.7 Dr.Bhandari, who pronounced him as dead. Accordingly, dead body of Gulab was shifted to the Civil Hospital and meanwhile P.W.1 Lahu son of Gulab attended the Sangamner Taluka Police Station and recorded his complaint at Exh.31 which came to be recorded by P.W.11 Police Head Constable Ashok Deshmukh. On the basis of the said report at Exh.31 offence vide Crime No.37 of 2008 came to be registered under Section 302, 323, 504 read with Sec.34 of the Indian Penal Code. Injured Lahu was referred to the Cottage Hospital, Sangamner for medical examination. Lahu and the other injured came to be examined by P.W.9 Dr.Ghogare, who noticed the following external injuries. 1. Small abrasion over left shoulder, 1 cm dia; 2. Abrasion over neck on right lateral aspect of size 2 cm x 0.5 cm Duration of the injuries was more than 6 hours. Injuries were caused by hard and blunt object He opined that the injuries were simple in nature and were possible by an iron rod Article – 2. He had accordingly issued the Cri.Appeal 607/2009 3 certificate at Exh.45. Injured Pandurang i.e. P.W.12 and P.W.8 Ravindra were examined by P.W.14 Dr.Chabukswar, who noticed the following injury on the person of P.W.12 Pandurang. Multiple scratches over right forearm, medial aspect four in number, length 4 cm each, caused by hard and blunt object within 48 hrs from examination, simple in nature; The medical certificate of P.W.12 Pandurang is at Exh.63. He examined Ravindra and noticed the following external injuries. 1. Abrasion over left elbow 2 x 2 cm 2. Abrasion over left calf area 2 x 1 cm 3. Blunt trauma over back at the level of iliac crest. The medical certificate of Ravindra is at Exh.65. The investigation of the said crime came to be entrusted to P.W.19 P.S.I. Shaikh Nazir. Inquest panchnama of the dead body of deceased Gulab came to be conducted in the presence of P.W.2 Eknath at Exh.33. The scene of the offence panchnama at Exh.36 came to be drawn in the presence of P.W.3 Shivaji. The sketch of the scene of the offence came to be drawn at Exh.83. Statements of witnesses came to be recorded and search for the accused was instituted. On 3.2.2008 all the accused came to be Cri.Appeal 607/2009 4 arrested and clothes on their person came to be seized vide seizure memo at Exh.78 in the presence of P.W.18 Prakash. The arrest panchnamas of the accused are at Exhs.69 to 72. The blood sample of the accused came to be obtained by the Medical Officer on 4.2.2008. During custodial interrogation on 5.2.2008 the appellant/original accused No.4 expressed his willingness to point out the place where the weapons i.e. stick and knife were hidden. The memorandum at Exh.67 came to be recorded in the presence of P.W.15 Balasaheb. The appellant/accused led the Police and the panch to his house and produced the weapons i.e. one stick, an iron rod and a knife which came to be seized vide seizure panchnama at Exh.68. The dead body of deceased Gulab was referred for post mortem examination and post mortem came to be conducted by P.W.9 Dr.Ghogare. P.W.9 Dr.Ghogare noticed the following external injuries. 1. Incised wound on scalp at rt. frontal bone area lateral to midline of size 1.5” x 2 cm x bone deep. Margins of wound were sharp and clean suggestive of injury caused by hard and sharp object; 2. Incised wound on rt. parietal bone on posterior side near posterior fontanel on rt.side of size 1.5 inch x 2 cm x bone deep with sharp and clean edges suggestive of injury caused by sharp and hard object; Cri.Appeal 607/2009 5 3. Stab wound on lateral aspect of chest below axilla in sixth intercostal space of size 1.5” x 2 cm x 3” with clean sharp edges suggestive of injury caused by sharp and hard and long object. He also noticed fracture of the 6th rib on right side below mid-axillary area. He also noticed an incised wound on the scalp at right frontal bone area lateral to midline of size 1.5” x 2 cm x bone deep involving all layers of scalp upto the periosteum of skull bone, and incised wound on right parietal bone on posterior aspect near posterior fontanel on right side of size 1.5” x 2 cm x bone deep. The stab wound was also noticed on the right lateral side of the chest in mid-axillary line at the level of 6th intercostal space causing fracture of rib in mid-axillary place. There was presence of haemothorax on the right side. There was also injury to the lower lobe leading to haemothorax penetrating of sharp and hard object i.e. stab wound of size of 2 to 3 cm diameter extending to injury antero lateral surface of lower lobe of lung leading to incised wound of lung about 10 cm long x 1 cm x 1.5 cm. He, therefore, opined that death was due to haemorrhagic shock due to injuries to vital organs (lung). The post mortem report is at Exh.44. The seized property was referred to the Chemical Analyzer and was carried to the Chemical Analyzer by P.W.16 Head Constable Bansi along with the requisition at Exh.75. Cri.Appeal 607/2009 6 The report of the Chemical Analyzer indicates that the knife produced by the appellant and the clothes of the appellant were stained with blood of “A” group which matched that of the deceased. Further to the completion of investigation a charge- sheet against the appellant and ot6her accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.11-A framed charge against the appellant and other accused for offence punishable under Section 504 read with sec. 34, Section 323 read with sec.34 and Section 302 read with sec. 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. The trial Court after appreciating the evidence acquitted accused 1 to 3 while convicting the appellant as aforestated. 4. Prosecution has examined P.W.1 Lahu, P.W.4 Arun, P.W.6 Dhondibhau, P.W.8 Ravindra, P.W.10 Babaji, P.W.12 Pandurang, P.W.13 Ankush as eye witnesses to the incident. P.W.1 Lahu, son of deceased Gulab and an eye witness to the incident states that on 2.2.2008 at about 8.30 p.m. while he and his father were returning home, they heard quarrel between Chandrakala and accused No.3 and 4. When the accused saw the deceased and P.W.1 Lahu they made gestures at them. Immediately Lahu and his father questioned the accused as to why they were abusing Cri.Appeal 607/2009 7 him. The accused assaulted Lahu and his father. Because of the intervention of others, P.W.1 Lahu and his father returned home. On the next day, i.e. on 3.2.2008 at about 7.30 a.m. P.W.1 Lahu, deceased Gulab and P.W.6 Dhondibhau went to the house of P.W. 4 Arun and informed him about the quarrel of the previous evening. P.W.4 Arun advised them to settle the dispute amicably and questioned the accused as to why they had abused and assaulted Gulab and Lahu. Accordingly, P.W.1 Lahu, P.W.4 Arun, P.W.6 Dhondibhau went in the village and in front of the old office of the Grampanchayat they noticed accused 1 to 3 standing there. Lahu and others went towards them and P.W.4 Arun questioned the accused about the reason for abusing and assaulting Gulab and Lahu. Accused 1 to 3 replied that they would behave in the manner, which please them. The accused also asked P.W.4 Arun as to why he was pleading on behalf of his cousin. Meanwhile accused No.2 gave a push and the other accused asked the accused not to allow them to go scot-free. Accordingly, accused No.2 and the other accused began to assault deceased Gulab. Meanwhile, the appellant/accused No.4 Devchand arrived at the scene brandishing the knife and stabbed deceased Gulab. The other accused meanwhile had also assaulted P.W.1 Lahu. Injured Gulab fell on the ground in a pool of blood and was lifted and taken to the hospital where the Medical Officer pronounced him dead. Thereafter he was shifted Cri.Appeal 607/2009 8 to the Cottage Hospital at Sangamner. P.W.1 Lahu thereafter proceeded to the Police Station and lodged his report at Exh.31. P.W.1 has been cross-examined at length. In the cross- examination he has admitted that when the incident was going on his brother Ankush and his cousin Ravindra were in the village. He has also admitted that his paternal uncle Yogesh was also present in the village. He has admitted that not many villagers had gathered on the day of the incident, especially when the incident was going on and apart from the witnesses who were present, no one else was present at the scene. He has further admitted that after the incident had commenced, accused No.4 arrived there after about 10 to 15 minutes. Minor omissions have been elicited in the cross-examination of this witness, which in fact, do not affect the merit of his deposition. In re-examination he has admitted that accused Sahebrao had inflicted the wound on his head after the incident. The accused accordingly cross- examined this witness and the following admission is elicited in the cross-examination: “ It is true to say that after the incident all the accused ran away. Till that point of time, Sahebrao had sustained no injury.” Cri.Appeal 607/2009 9 5. The evidence of P.W.1 Lahu is amply corroborated by the recitals of the first information report at Exh.31. Though P.W.1 Lahu has been cross-examined at length nothing of importance has been elicited in his cross-examination, which would in any manner reflect upon his credibility. P.W.1 Lahu is an injured whose presence at the scene of the offence is natural. Moreover, the evidence of P.W.1 Lahu is further corroborated by the evidence of P.W.4 Arun and P.W.6 Dhondibhau. These witnesses have also been cross-examined but nothing of importance has been elicited in their cross-examination to doubt the presence of the witnesses at the scene of the offence. The evidence is further corroborated by the testimony of the other eye witnesses, who have remained unshaken despite searching cross-examination. 6. Mr Shelke, learned Counsel for the appellant has urged before us that the witnesses have suppressed the genesis of the incident. It is urged before us that on account of the quarrel which had taken place between the accused and the deceased on the previous evening the complainant party had come armed and therefore, were the aggressors. It is further stated that the complainant party was armed with weapons like iron rod etc. and had inflicted injury to Sahebrao which is borne out from the arrest panchnama which records that Sahebrao had sustained an injury on his head. The learned Assistant Public Prosecutor has urged Cri.Appeal 607/2009 10 before us for dismissal of the appeal and has also urged before us that the defence of the accused has not been probabalised by the accused. 7. It is true that the arrest panchnama of the appellant certainly indicates that at the time of the arrest accused No. 4/appellant had sustained an injury. However, there is no evidence whatsoever to even remotely indicate that the injury had been sustained by the accused during the incident. In fact, the cross-examination and particularly the answer elicited in the cross-examination of P.W.1 Lahu clearly indicates that Sahebrao had not sustained any injury in the incident. Lahu has admitted that the accused fled from the scene of the incident immediately after the assault and till that point of time Sahebrao had not sustained any injury. If this is the incident elicited in the cross- examination, according to us the accused have miserably failed in their attempt at probabalising their defence that the complainant party were aggressors and had qua inflicted injury to Sahebrao. Presence of injury to Sahebrao by itself would not be a pointer that the injury had been sustained to Sahebrao during the incident. The accused has to probablise his defence that he had sustained the injury in the incident. The accused having failed in this attempt, cannot capitalise on the fact that the arrest panchnama shows the presence of an injury to accused Sahebrao. Cri.Appeal 607/2009 11 The trial Court has acquitted the other accused in respect of the charges, which had been framed against them. The State has chosen not to file any appeal. In the present appeal, therefore, we are required to consider the evidence insofar as it implicates the appellant/accused No.4. 8. Original accused No.4 arrived at the scene after the incident had commenced and had inflicted injuries to deceased Gulab by a knife. We have already adverted to the evidence of the Medical Officer in respect of the number of injuries sustained by deceased Gulab. All the injuries were on vital part of the body and deceased Gulab ultimately died on account of haemorrhagic shock. It is urged by Mr Shelke, learned Counsel for the appellant that the appellant had inflicted only one injury on the vital part and, therefore, the offence would be one punishable under Section 304 Part II of the Indian Penal Code. It is further urged before us that the accused had inflicted injury in the hit of the quarrel and, therefore, the case of the appellant would be one falling under Part II of Section 304 of the Indian Penal Code. We are unable to agree with the said submission. The accused/appellant had launched an unprovoked attack on deceased. The appellant had arrived at the scene after the incident had begun. There is no evidence on record to indicate that the complainant party were aggressors and had inflicted any Cri.Appeal 607/2009 12 injury. In fact, the complainant party had gone to the accused to question them the reason for assaulting them on the previous evening. It appears that without any provocation the accused had abused and assaulted Gulab and Lahu on the previous evening. This part of the evidence of the eye witnesses has virtually gone unchallenged. In that light of the matter, therefore, the assault by appellant/original accused No.4 cannot be justified in any manner. The appellant had stabbed the deceased repeatedly and all the stab injuries are on the vital part of the body. There is massive natural damage caused on account of the stab injuries to deceased. Deceased had ultimately died on account of the haemorrhagic shock. Apart from the fact that the appellant/accused had voluntarily inflicted an injury and the injury, which had been inflicted was sufficient in ordinary course of nature to cause death, the appellant cannot be said to have inflicted injury in a sudden quarrel. There was no quarrel, which was going on and which involved the appellant/accused. In such circumstances, therefore, according to us the plea of the appellant/accused that offence would be one which would be punishable under Part II of Section 304 of the Indian Penal Code is unsustainable. 9. Apart from the evidence of the eye witnesses the circumstantial evidence also corroborates their version. The Cri.Appeal 607/2009 13 clothes on the person of the accused came to be seized under a seizure memo and the report of the Chemical Analyzer indicates that the clothes of the appellant were stained with blood “A” group i.e. the blood group of deceased Gulab. The knife, which came to be discovered at the house of the appellant/accused was also found stained with blood of “A” group. In such circumstances, therefore, according to us there is overwhelming evidence which establishes the offence against the appellant/accused beyond reasonable doubt. In this circumstance, therefore, according to us there is no merit in the appeal. 10. Criminal Appeal No.607 of 2009 is dismissed confirming the conviction and sentence of the appellant. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/607.09criapeal)