1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.1063 of 2002 . Anil Kumar Sadashiv Mishra @ Anil Maharaj @ Anil Shalikram .. Appellant v/s. The State of Maharashtra (At the instance of Dindoshi Police Station) ..Respondent Mr.C.K.Talekar for the Appellant. Mr.Hingorani, APP for the State CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 7th December, 2009 JUDGMENT (PER R.Y.GANOO, J.) : 1. The appellant faced Sessions trial being Sessions Case No.1192 of 1998 before the learned Addl. Sessions Judge for Gr. Mumbai, under Section 302 of the IPC and Section 37 r/w. 135(1) of the Bombay Police Act. By judgment and order dated 5.7.2001 passed by the learned Addl. Sessions Judge, (hereafter referred to as the learned trial Judge) the appellant was convicted for the offence under Section 302 of the Indian 2 Penal Code. He was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.2000/-. It was also ordered that in default of payment of fine, the appellant should undergo rigorous imprisonment for 6 months. The appellant was acquitted of charge under Section 37(i)(a) r/w. Section 135(1) of Bombay Police Act. Being aggrieved by the aforesaid judgment dated 5.7.2001, the appellant has filed this appeal. 2. The prosecution case is as under: One person by name Omprakash Mevalal Yadav was residing along with his family in the room at Dadhi Singh Chawl at Shivaji Nagar, Malad (East), Mumbai. He was a contractor for the work of decoration in different functions along with Caterer Banwari. The appellant knew him and his family members as the appellant used to visit house of Omprakash. 3. According to the prosecution on 15.2.1998 at about 9.15 p.m. the appellant visited the house of said Omprakash and asked him to come along with him. Said Omprakash went along with the appellant and the younger brother of Omprakash by name Jayprakash Mewalal Yadav. (P.W.3) followed him. Omprakash asked Jayprakash P.W.3 to go back and hence Jayprakash returned to his house. After sometime Omprakash returned to 3 his house and sat at the entrance of his house. Again after about 15 minutes, the appellant came back and called Omprakash and took him out of the house. Jayprakash P.W.3 followed both of them as he suspected some foul play. Omprakash and the appellant are said to have gone for walk for some distance from the corner of lane near Shiv Hanuman Mandir and then the quarrel ensued between Omprakash and the appellant. It is at this point of time, the appellant is alleged to have given knife blows on the chest and abdomen of Omprakash. who started shouting and eventually he fell down. According to the prosecution, after hearing the shouts, the persons in the locality gathered. The appellant ran away. One person by name Pravin D. Gaikwad P.W.4 and Gopal lifted Omprakash who was lying in a pool of blood and took him to his house and put him on the cot. Thereafter autorickshaw was called and Omprakash was taken to Agarwal hospital. As the doctor was not available he was taken to Dindoshi police station, Police took Omprakash in the police van to Bhagwati hospital at Borivli (West). On enquiry by the police, he informed them that he was assaulted by the appellant. According to the prosecution, on the way Pravin Gaikwad P.W.4 asked Omprakash as to who caused the injuries to him and Omprakash told that on question of payment of money regarding a bicycle the appellant stabbed him with knife. At Bhagwati Hospital 4 Omprakash was examined and treated. However, while under treatment he died. 4. Police Inspector Sunil D. Jadhav, P.W.13 recorded the complaint of Pravind Gaikwad P.W.4, at Exhibit 12. An offence under section 302 of I.P.C. vide C.R.No.70/1998 was registered against the appellant. The police sub-inspector Sunil Jadhav, P.W.13 along with Police Inspector Gaikwad and police staff visited the place of incident and drew scene of offence panchanama at Exhibit 9. In the course of the said panchanama the blood stained earth and sample earth from the place of incident was collected. Blood sheet stained with blood lying on the cot in the room of Omprakash was also collected. Sunil Jadhav PSI, P.W. 13 recorded the statements of various witnesses. One constable brought the clothes of Omprakash from the hospital to the police station, and they were seized under the panchanama at Exhibit 10. In the course of investigation inquest was carried out vide panchanama at Exhibit 5. The dead body of Omprakash was sent for post mortem to Coronar’s Court at Rajawadi on 16.2.1998 at about 6.15 a.m. Dr.S.V.Kachare conducted post mortem and gave his opinion as regards cause of death namely “shock due to haemorrage due to multiple stab injuries in case of assault. Blood for chemical analysis 5 (Unnatural)”. P.M. Report is at Exhibit 23. 5. In the course of investigation the appellant showed to the investigating agency the place of the offence and the shop of Shaukatali P.W.9 wherefrom the appellant is alleged to have purchased the knife which came to be recovered at the instance of the appellant as mentioned aforesaid. Dinesh Maurya, a panch, came to be examined as P.W.12 to prove the said panchanama at Exhibit 28 and 29. 6. The police recorded statements of various persons and after completing the investigation chargesheet came to be filed against the appellant in the court of 24th Metropolitan Magistrate at Borivali, Mumbai on 20.10.1998. Thereafter the case came to be committed to the Sessions Court for trial. 7. The learned trial Judge on 24.8.2000 framed charge against the appellant under Section 302 of IPC and Section 37(1)(ia) r/w. Section 135(1) of the Bombay Police Act, 1951. The appellant pleaded not guilty and claimed to be tried. His defence was of denial and false implication. 6 8. In the course of trial following witnesses came to be examined by the prosecution. Dr.Chandrabhan Yadav is examined as P.W.1. He is the elder brother of Omprakash and he speaks of police informing him about the assault on Omprakash and his death in the Bhagwati Hospital. Ramesh N.Mahimkar, the draftsman attached to P.W.D. Mumbai was examined as P.W.2 as he had drawn sketch on the basis of the scene of offence panchanama. Jay Prakash M. Yadav, P.W.3 is cited as an eye witness. P.W. 4. Pravin Gaikwad is the person who had carried Omprakash to the hospital. He had lodged the FIR to the police which is at Exhibit 12. Deepak Mistry P.W.5 is a panch who had participated in the panchanama as regards recovery of knife at the instance of the appellant being panchanama at Exhibit 13. Shakuntalaben Janabhai Waghela P.W.6 knew Omprakash as well as the appellant. The prosecution has examined this witness in support of its case that the appellant rendered extra judicial confession to her after the commission of the offence. Pravin Kadam P.W.7 Police Sub Inspector was attached to Dindoshi police station on 15.2.1998. This witness is examined by the prosecution to show that he had heard from Omprakash that the appellant assaulted him with knife. P.W.8 Babu Patil, Police Constable was attached to Dindoshi Police Station at the relevant time. This witness is said to have travelled in the police jeep in which Omprakash 7 was carried to Bhagwati Hospital and enquired with Omprakash as to who assaulted him and Omprakash is said to have named the appellant as the person who assaulted him. P.W.9 Shaukatalai Talukdar Shaikh is said to be the person selling articles such as bangles, suri, compass box on the footpath at Malad (East). The prosecution wanted this witness to give evidence to say that the appellant had purchased the knife from him. It is to be noted that according to the prosecution the appellant is said to have pointed out the place where this witness Shaukatali P.W.9 used to carry on his business of selling knife. According to the prosecution the knife purchased was used in the course of commission of offence. Dr.Yogita Kamwani- P.W.10 was attached to Bhagwati Hospital on 15.2.1998 as Casualty Medical Officer. Dr. Yogita had examined Omprakash soon after he was brought to Bhagwati Hospital, and recorded her observations in Casualty Medical Register which is produced and proved by the prosecution through this witness at Exhibit 21. Krishna Anaji Gawade, P.W.11 was working as the Senior Police Inspector on 15.2.1998 at Dindoshi Police Station. The prosecution has examined this witness as he had asked Omprakash as to who was the assailant and Omprakash had answered stating that the appellant had assaulted him with knife. This witness has also given evidence as regards the investigation carried out by 8 him in the present case. Dinesh Maurya-P.W.12 is cited as panch witness in the panchanamas Exhibit 28 and 29 wherein it is mentioned that the appellant pointed out the place of offence as well as the shop where from the knife, Article 1 was purchased. Sunil Jadhav, PSI, P.W.13 is examined by the prosecution to show that he learnt from Omprakash the name of the assailant namely the appellant. This witness has also given evidence as regards the investigation carried out by him. Anil Sonawane P.W.14 is said to be working in Purshottam Tabela at the relevant time where the job of diamond polishing was going on. This witness has been examined to bring on record certain points against the appellant as regards the appearing of the news item in Marathi newspaper wherein it was mentioned that Omprakash was murdered by Anil Kumar Mishra by knife. This witness was also examined to bring on record the whereabouts of the appellant on or after the date of the incident. 9. On perusal of the record it is noticed that the post mortem report was placed before the appellant for admission. The prosecution filed an application under Section 294 of Cr.P.C. at Exhibit 22 and called upon the appellant to admit the post mortem report at Exhibit 23. The appellant admitted the said post mortem report through his advocate. Probably, on 9 account of this, prosecution did not examine Dr.S.V.Kachare or any other medical officer to place before the Court the evidence as regards the injuries suffered by Omprakash and the aspect as regards cause of death. Since the post mortem report at Exhibit 23 has been admitted by the appellant, we see no difficulty in reading the text of it and draw appropriate conclusions to decide the matter. 10. On perusal of the record it is noted that the appellant has admitted the following. Panchanamas on which the relevance was placed by the prosecution and as such the following panchanamas have been marked as Exhibits. These panchanamas therefore can be read in evidence. i) Panchanama dated 16.12.1998 at Exhibit 5 being inquest panchanama ii) Scene of Offence panchanama dated 16.2.1998 at Exhibit 9. iii)Arrest Panchanama, inclusive of panchanama regarding seizure of clothes of the appellant dated 18.7.1998 at Exhibit 10. 11. In the post mortem report at column no.17, following injuries are noted as external injuries. i) I.S.W. is seen on Lt. Precordial region 4cm x 2 cm x 5cm oval shape, 10 horizontal indirection age with in 24 hrs. ii) I.S.W. At ant. of Rt. chest, 3cm below and lat to Rt.Nipple. 4Cm x 2cm x 4 cm oblique in directions age within 24 hrs. Iii) I.S.W. At medial of Lt.upper arm 2cm. Lat to Lt.axillae, 2cm x 2cm x 3cm. Oblique age with in 24 hrs. iv) I.W.S.W. at 2cm below inj. No.iii on Lt. upper arm 2cm x 2cm x ½ cm. Oblique age with in 24 hrs. v) I.S.W. at Lt.axillae, tringular 4cm x 3 cm x 4 cm muscles are ruptured , age with in 24 hrs. vi) I.S.W. at ant. of abdo. Wall on Lt. side 3cm Lt. illic crest 3cm x 2 cm x 7cm intestine coils protuted triangular age with in 24 hrs. vii) lsw at (lt) neck region 3cm x 2cm x 4cm triangular in shape, age with in 24 hrs. viii) lsw at behind (lt) shoulder jt 3cm x 2cm x 1cm oblique age with in 24 hrs. ix) lsw at below inj. No.(viii) 3 cm x 2cm x 1cm horizontal age with in 24 hrs. All the above injuries were found to be ante mortem. 12. No external injuries were noted on the scalp and skull. However 11 brain was noted as congested. So far as Thorax is concerned, on the left side, 5th and 6th rib was shown as ruptured, on right 9th rib fracture . Plura was found to be ruptured on both the sides, Larynx, trachea and bronchi contained white sticky froath, right lung ruptured at lower lobe, left lung ruptured at lower lobe , pericardium Haemorrahages are seen, heart was found to be ruptured and empty. The cause of death was reported as shock due to haemorrhage due to multiple stab injuries in case of assault (Unnatural)”. 13. In the post mortem report there is a specific observation that the external injuries noted by the doctor were “ante mortem”. On consideration of the post mortem report, and in particular the external injuries mentioned at column 17 as above, and cause of death it is apparent that the deceased died a homicidal death. In our view, as the post mortem report came to be admitted by the appellant, the observations made in the post mortem report have gone unchallenged. The prosecution has therefore proved that the death of Omprakash was homicidal. 14. We now turn to the evidence of some of the witnesses to decide whether they are useful to the prosecution or not. P.W.6 Shakuntala 12 Waghela was examined by the prosecution to show that after the incident the appellant came to said Shakuntala P.W.6 and disclosed to her that he had committed murder of Omprakash and the key of his house should be retained by her as he was going away. The appellant has been able to bring on record the omission in the cross examination with reference to what is said to be narrated by said Shakuntala to the police as regards the extra judicial confession said to have been made by the appellant to her. She has admitted in the cross examination that she had not stated before the police at the time of recording her statement that the appellant told her that he had committed murder of Omprakash and therefore keys should be taken from him and he was going away. Reading evidence of this witness as a whole , we are not prepared to accept her testimony to accept the case of the prosecution that the appellant made extra judicial confession to her as regards he having assaulted Omprakash. She has not been able to identify the appellant in the court. The explanation given for this is she had seen him two years back in the police station. If the appellant was residing nearby her house and if the appellant had gone to her house and entrusted keys of his house and had disclosed the vital information as regards he having assaulted Omprakash, certainly Shakuntala ought to have remembered him by face. We are not inclined to accept her evidence and 13 hence we discard the said witness. 15. The prosecution has examined Shaukatali, P.W.9 as the person from whom the appellant is said to have purchased the knife. A perusal of the evidence of this witness would clearly go to show that he could not identify the appellant as the person who had purchased the knife. Even otherwise it is improbable that the person who is selling knife by squatting on the footpath would be able to identify the customer after the period of two years. This witness has frankly admitted that he cannot say as to whether the appellant was the same person who had purchased knife from his shop. He could not say as to whether the knife, Article I was purchased from his shop. In the cross examination this witness has stated as under: “ I was called by the police in the police station. When the accused was brought to my shop by the police, at the same time the accused took the suri at Article 1 from my shop and then he along with the police and suri went away. I cannot say as to which customer had purchased which article from my shop. When I was called by the police in the police station, the accused was not brought before me.” 16. On consideration of the evidence of this witness Shaukatali,P.W.9, it 14 would be difficult to accept the case of the prosecution that the appellant is said to have purchased the knife from Shaukatali, P.W.9. A perusal of the aforesaid quoted portion of evidence of Shakautali P.W.9 indicates that the police had brought the appellant to the shop of Shaukatali, picked up a knife, namely Article 1 and went away. If this evidence is read along with the evidence of Deepak Mistry, panch, P.W.5 as regards recovery of the knife at Exhibit 13, it raises a serious doubt about the genuineness of panchanama at Exhibit 13 by which prosecution wanted to prove that the knife Article 1 came to be recovered at the instance of the appellant. In our view, reading the evidence of Shaukatali P.W.9 and Deepak P.W.5 r/w. Panchanama Exhibit 13 it is unsafe to accept the case of the prosecution that the knife, Article 1 came to be recovered at the instance of the appellant. 17. According to the prosecution, the appellant showed to the police the place of offence and the shop of Shaukatali from which knife, Article 1 was purchased. The panchanama at Exhibit 28 and 29 was proved through panch Dinesh Maurya P.W.12. It is to be noted that the panchanamas Exhibit 28 and 29 were carried out by the prosecution on 19.7.1998 i.e. practically after about five months from the date of the incident. It is worth noting that the place of offence was known to the investigating agency vide 15 scene of offence panchanama at Exhibit 9, which was carried out on 16.2.1998. If the police knew the place of occurrence on 16.2.1998 itself, no importance can be attached to this panchanamas at Exhibit 28 and 29 whereby it is sought to be contended by the prosecution that the appellant knew the place of offence. So far as the evidence as regards the place wherefrom the appellant is said to have purchased the knife, we have discussed the evidence of Shaukatali, P.W.9 and discarded the case of the prosecution that said knife was purchased by the appellant from the shop of Shaukatali P.W.9. 18. We have perused the evidence of Dr.Yogita Kamwani. She was working as Casualty Medical Officer at Bhagwati Hospital on the night of 15.12.1998. She has examined Omprakash when she was admitted at Bhagwati Hospital. She has given minutewise account as regards condition of Omprakash and treatment given to him from the point of admission till his death. We have also seen the entries in the Casualty Medical Register, Exhibit 21 made by her. It is curious to note that though in the post mortem report as many as 9 incised stab injuries being ante mortem injuries are noted, Dr. Yogita could observe only four wounds and she has described those wounds as contused lacerated wounds. She no doubt states that 16 injuries noted by her could be caused by knife and are on vital part of the body and would cause the death of person, considering the variance in the injuries as discussed above, we are inclined to observe that condition regarding the health of Omprakash is not correctly mentioned in Casualty Medical Register, Exhibit 21 particularly when Dr.Yogita P.W.10 has stated in evidence that she had given evidence on the basis of record maintained by her in Casualty Register. The appellant has not been able to get on record detailed evidence as regards inability of Omprakash to speak prior to his admission in the hospital. Hence we are inclined to observe that evidence of Dr.Yogita, P.W.10 does not reflect precise health condition of Omprakash. 19. Now we turn to the evidence placed before the learned trial judge in the nature of eye witness and dying declarations given by Omprakash to various persons. The prosecution has examined P.W.3. Jayprakash, younger brother of Omprakash. Reading his evidence it is clear that on the night of 15.2.1998 Omprakash, said Jay Prakash -P.W.3, his another brother Shiv Prakash and sister Babita were in the house. The parents of these children were out of the house. At that time the appellant came to the house of Omprakash and called him out of the house Jay Prakash, P.W.3 followed 17 him and when this was noted by Omprakash, he asked Jayprakash to go back. Accordingly, Jayprakash came back to the house. After two-three minutes Omprakash came back and sat on the Chautala near the entrance of the house. After some time the appellant again came to the house of Omprakash and called Omprakash and thereafter Omprakash and the appellant left the house. Jayprakash, P.W.3, followed them as they walked together towards Hanuman Mandir. He observed that there was quarrel between appellant and Omprakash. He further saw the appellant giving knife blows on the chest and abdomen of Omprakash. Omprakash started shouting, the persons nearby gathered and the appellant ran away. He has further narrated that Omprakash fell down and thereafter was taken to the room with the help of Pravin Gaikwad P.W.4 and Gopal. Thereafter Omprakash was taken to the Agarwal hospital by autorickshaw. The evidence of Jayprakash P.W.3 shows that he had an occasion to witness the incident viz. appellant giving knife blows to Omprakash. Jayprakash P.W.3 was exhaustively cross examined and perusal of his cross examination would go to show that he confirmed his evidence as regards appellant giving knife blows to Omprakash. He has categorically stated in his evidence that he could see the incident from the distance of about 8 to 9 feet. It is to be noted that the incident has taken place at Bombay in Kurar 18 Village at the spot where there are houses around. An omission was sought to be brought on record as regards the light arrangement at the temple from which light was falling on the area where the incident is said to have been committed. However, the suggestion given by the defence that if the light of the temple would not have been there he would not have been able to see the incident has been denied. This would clearly go to show that there was sufficient light to see the incident. It is also to be noted that the appellant is not a stranger to Jayprakash in as much as he hails from the same locality and there is evidence to show that Jayprakash P.W. 3 knew appellant. Even on the day of the incident, the appellant is said to have visited the house of Omprakash on the two occasions and as such Jayprakash had seen the appellant few minutes prior to the incident and hence there can be no doubt about Jayprakash P.W.3 identifying the appellant as the person who had inflicted blows on Omprakash. This would go to show that the evidence of Jayprakash that appellant gave knife blows to Omprakash is cogent and will have to be accepted. 20. It was argued by learned Advocate Mr. Talekar that after the incident Jayprakash is said to have stayed in the nearby house owned by Lalchand. He also pointed out that in the night police had seen Jayprakash in the house 19 of said Lalchand and it is at that point of time Jayprakash did not inform the police about he having witnessed the incident. Learned Advocate Mr. Talekar had also submitted that no efforts were made by Jayprakash to carry Omprakash to his house and therefore the conduct on the part of Jayprakash was unnatural and