Cri.Appeal No.300 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.300 OF 2010 Rafiq @ Raju s/o Chandsab Sayed, Age 34 years, Occupation Agriculture, R/o Hanmatwadi (Hadoli), Taluka Nilanga, District Latur .. APPELLANT (Orig.Accused No.1) VERSUS The State of Maharashtra .. RESPONDENT Smt. S.S.Jadhav, Advocate for appellant Mr S.K.Tambe, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 19th July 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, 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 to undergo further imprisonment for two months, by the Additional Sessions Judge, Nilanga, by judgment dated 17.4.2010, in Sessions Case No.27 of 2008, by this appeal questions the correctness of his conviction and sentence. Cri.Appeal No.300 of 2010 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.13 P.S.I. Ashok Nalamwar was holding the charge of Aurad Police Station in the night between 25.5.2008 and 26.5.2008. On 26.5.2008 at about 00.30 hrs., a person came in the police station with an auto-rickshaw bearing Registration No.MH-24-L-9532. The said person disclosed his name as Rafiq alias Raju son of Chandsab Sayed. The said person has been identified as the appellant and confessed before P.W.13 P.S.I. Nalamwar regarding committing murder of deceased Balu. The appellant informed P.S.I. Nalamwar about the place where the dead body was lying. The information communicated by the appellant was recorded in the station diary, the extract of which is at Exh.64. P.W.13 P.S.I. Nalamwar took the appellant along with him in a jeep and the exact place where the dead body was lying was shown by the appellant. The relatives of the deceased were brought at that place and they accordingly identified the dead body as that of deceased Balu. P.W.1 Tanaji accordingly lodged his report at Exh.21 on the basis of which an offence vide Crime No.30 of 2008 was registered. The investigation of the said crime was entrusted to P.W. 13 P.S.I. Nalamwar. The appellant/accused came to be formally arrested at about 5.00 a.m. under the arrest panchnama at Exh.60. P.W.13 P.S.I. Nalamwar proceeded to the scene of the offence and drew the inquest panchnama of the dead body of deceased Balu at Exh.28. A request was addressed to the Medical Officer at Exh.61 for Cri.Appeal No.300 of 2010 3 performing the post mortem. The scene of the offence panchnama thereafter came to be drawn in the presence of panch witnesses at Exh.27. Clothes on the person of the appellant, which were found to be stained with blood, came to be seized in the presence of panchas at Exh.62. The auto-rickshaw also came to be seized under seizure memo at Exh.63. During custodial interrogation, on 27.5.2008, the appellant/accused expressed his willingness to point out the place where a knife was hidden. Accordingly, memorandum at Exh.36 came to be drawn. The appellant led the Police and the panch near the scene of the offence and at a distance of 100 feet from the scene of the offence, the accused produced a knife, which had been concealed from beneath the loose stone of a wall. The said knife came to be seized under seizure memo at Exh.27. Clothes of deceased came to be seized under seizure memo at Exh.39. Original accused No.2, who came to be acquitted by the trial Court, was arrested under arrest panchnama at Exh.65. Statements of witnesses came to be recorded and the seized property came to be forwarded to the Chemical Analyzer along with the request at Exh.70. The Chemical Analyzer’s report discloses that the knife, which was recovered from the appellant/accused was found stained with the blood group matching that with the deceased. No blood stains were, however, detected on the clothes of the appellant. Further to the completion of investigation, a charge-sheet against the appellant/accused came to be filed. Cri.Appeal No.300 of 2010 4 3. On committal of the case to Court of Sessions, trial Court vide Exh.5 framed charge against the appellant and another accused for offence punishable under Section 302 read with sec.34 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. The trial Court upon appreciating the evidence of the prosecution convicted and sentenced the appellant as afore-stated. 4. Before we deal with the submissions advanced before us by Smt.S.S.Jadhav, learned Counsel for the appellant and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Tanaji, uncle of deceased Balu states that on 25.5.2008, Balu had come to his house from Nilanga at about 7.30 p.m. and had brought mutton with him and requested P.W.1 Tanaji to cook the same. Rukhminibai, mother of deceased Balu had gone to village Khadosa and returned back at 8.00 p.m. and was accordingly informed by Tanaji. After the mutton was cooked, P.W.1 Tanaji and mother of deceased Balu waited for the arrival of Balu but since he did not come, Rukhminibai requested Tanaji to search for Balu. Tanaji accordingly searched for Balu and was informed by P.W.3 Balu Birajdar that he had seen deceased Balu and the appellant/accused proceeding in the auto-rickshaw. P.W.3 Balu further disclosed that he was asked to alight from the auto-rickshaw and had accordingly returned back to his house. Tanaji accordingly informed Rukhminibai as to what P.W.3 Cri.Appeal No.300 of 2010 5 Balu had told him. Since Balu did not return, P.W.1 Tanaji went in search of Balu again and contacted one tailor, who informed him that deceased Balu and the appellant/accused had gone together in the auto-rickshaw. Tanaji thereafter went to the house of the appellant and asked about the whereabouts of deceased Balu to father of the appellant. However, Tanaji did not receive any information but a small girl informed Tanaji that the appellant had not returned along with his auto-rickshaw. Tanaji accordingly went home and informed Rukhminibai. At about 2.30 in the morning, the Police had come to the house of Tanaji accompanied by Police Patil and enquired about deceased Balu. Tanaji informed the Police that deceased Balu and the appellant had gone together in the auto-rickshaw of the appellant. Tanaji and Rukhminibai then accompanied the Police to a place on the Halgare to Tambarwadi road and identified the dead body of deceased Balu. Tanaji thereafter lodged his complaint at Exh.21. In cross- examination, he was confronted with portion marked “A” in his previous statement, which he denied to have stated. As per portion marked “A” in the statement, Tanaji had stated that when he had gone to the house of the appellant, he had seen all the ladies sitting together. Omission has been duly proved that he had not stated in his previous statement about a young girl informing him that the appellant had not returned home along with his auto-rickshaw. Cri.Appeal No.300 of 2010 6 6. Prosecution has examined P.W.2 Rukhminibai, who deposes on similar lines as that of P.W.1 Tanaji. However, in cross-examination omission has been elicited that she had not stated in her previous statement about informing the Police and the Police Patil that deceased Balu was taken by the appellant and another accused at 7.30 p.m. in his auto-rickshaw. Nothing of substance has been elicited in the cross-examination of P.W.2 Rukhminibai. 7. Prosecution has also examined P.W.3 Balu, P.W.4 Vaijnath and P.W.5 Digamber to establish that deceased was last seen alive in the company of the appellant. P.W.3 Balu states that deceased Balu had told him that the appellant had invited him for a party and, therefore, asked P.W.3 Balu to accompany him. Thereafter deceased Balu and P.W.3 Balu boarded the auto-rickshaw of the appellant. However, the appellant requested P.W.3 Balu to alight from the auto-rickshaw and accordingly, P.W.3 Balu returned home. He states that P.W.1 Tanaji enquired about deceased Balu and he informed P.W.1 Tanaji about deceased Balu going in the auto-rickshaw of the appellant towards Madansuri. In cross-examination it has been elicited that he had learnt about the illicit relations between deceased Balu and wife of the appellant. He has admitted that he had no personal knowledge. He has further cemented his examination-in-chief by stating in the cross- examination that deceased Balu went in the auto-rickshaw of the appellant. He has further admitted in the cross-examination that deceased Balu had not invited him to attend the party at his residence. Cri.Appeal No.300 of 2010 7 He has admitted that the appellant had taken deceased Balu for a party. 8. P.W.4 Vaijnath states about seeing the appellant and deceased in a Beer Shoppe at Madansuri drinking liquor. He had questioned deceased Balu as to why he had come there and Balu had replied that he had come casually. In cross-examination he has admitted that he had entered inside the Beer Shoppe. He was confronted with portion marked “A” from his previous statement wherein he had stated that he was standing near the Beer Shoppe. 9. P.W.5 Digamber, the owner of the Beer Shoppe also states about the presence of appellant and deceased Balu in his Beer Shoppe and consuming liquor. In cross-examination he has denied to have stated portion marked “A”, “B” and “C” from his previous statement. The aforesaid contradictions pertain to the accused, who has been acquitted. He was confronted with portion marked “B” from his previous statement, which is to the effect that deceased Balu did not drink Beer but drank liquor from a small bottle which he had brought along with him. The aforesaid contradiction, according to us does not, in any manner affect the credibility of this witness. 10. P.W.3 Balu, P.W.4 Vaijnath and P.W.5 Digamber have been cross- examined at length on behalf of the appellant/accused. Nothing of substance has been elicited in their cross-examination, which would in Cri.Appeal No.300 of 2010 8 any manner affect their credibility. The three witnesses have emerged unscathed at the close of the cross-examination and, therefore, we find that implicit reliance can be placed on the evidence of these three witnesses in respect of the deceased being last seen alive in the company of the appellant/accused. 11. Post mortem on the dead body of deceased Balu came to be performed by P.W.8 Dr.Makrand Jadhav. He noticed the following external injuries. (i) Stab wound over front of neck. Deep. penetrating from right to left. Piercing thyroid cartilage with fracture of hyoid bone. Size 7 x 5 cm on right side, 3 x 4 cm on left side of neck; (ii) Stab wound over left thorax 4 cm below left nipple, 3 cm lateral to body of sternum (midline). The entry wound is punctured incised wound, elliptical in shape. It is 3 x 1 cm on skin surface. It is horizontal. There is no abrasion or bruising at the wound margin. The track is 5 cm deep, evenly cut directed from right to left, front to back and angulated slightly downward. The track perforates the left chest wall through 6th intercostal space, perforating left lung, the pericardial sac and penetrating the heart, perforating the ventricular wall Cri.Appeal No.300 of 2010 9 (left ventricle). Entire wound track is infiltrated with blood and around 1000 ml of liquid and clotted blood found in the right chest cavity. No exit wound; (iii) Stab wound over epigastric region above 9 cm to umbilicus 2.5 x 1 cm over skin surface. The track is 3 cm deep evenly cut directed from slightly left to right. The track perforate the abdominal wall and penetrate liver. The entire wound track is infiltrated with blood and blood clots and around 800 – 1000 ml blood found in the peritoneal cavity. No exit wound. He has opined that all the injuries were ante mortem and on internal examination, noticed that larynx trachea was perforated on the right and left side. The left lung was also perforated as well as the pericardium and the heart. The abdomen walls were perforated at the epigastric region and there was a perforated injury to the liver. P.W.8 Dr.Makrand Jadhav, therefore, opined that cause of death was haemorrhagic shock due to injury to heart due to stab injury over left chest along with stab injury over throat and abdomen. The post mortem report is at Exh.43. He has further admitted that the injuries could be caused by knife, Article 12, which was seized on the basis of the disclosure statement of the appellant. Cri.Appeal No.300 of 2010 10 12. P.W.9 Shaikh Quasim, P.W.10 Mohan Khurde, P.W.11 Tabassum, wife of the appellant did not support the prosecution and were declared hostile. Even P.W.12 Mahendra, a panch to the seizure of clothes of the appellant/accused did not support the prosecution. 13. The evidence against the appellant/accused consists of circumstantial evidence. Deceased was last seen alive in the company of the appellant/accused and this fact has been deposed to by P.W.3 Balu, P.W.4 Vaijnath and P.W.5 Digamber. The dead body of deceased Balu was discovered on the basis of the information given by the appellant/accused. Knife, Article 12 came to be recovered on the basis of the memorandum of the appellant/accused and the knife was found stained with blood “A” group, which matched that of the deceased. The aforesaid circumstances, therefore, in our opinion clearly complete the chain, which excludes every hypothesis of the innocence of the accused and unquestionably points to the guilt of the appellant/accused. Thus, the only inference that is possible on the basis of the proved circumstances is that it is the appellant and the appellant alone who has committed the crime. 14. We have given our anxious consideration to the submissions advanced before us by Smt.S.S.Jadhav, learned Counsel for the appellant and the learned Assistant Public Prosecutor and according to us, prosecution has proved the case against the appellant beyond reasonable doubt. We cannot find fault with the reasoning of the trial Cri.Appeal No.300 of 2010 11 Court in convicting the appellant/accused. Resultantly, this appeal being sans merit deserves to be dismissed. 15. Accordingly, Criminal Appeal No.300 of 2010 is dismissed confirming the conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/300.10criapeal)