1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 1282 OF 2002 Shivaji @Shiva Shrimant Sonawane ) Hindu, adult, age 21 years, r/o Dnyandeo Jadhav Chawl, ) near Rationing shop, Milind Nagar, Kalyan (W), ) Dist. Thane (At present detained in Kolhapur Prison )...Appellant vs. State of Maharashtra ...Respondent Dr. Yug Mohit Chaudhary for the appellant. Mr.D.P. Adsule, Additional Public Prosecutor, for the State. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. Judgment reserved on: 19th January, 2010 Judgment pronounced on: 17 th February, 2010 JUDGMENT : (Per P.B. Majmudar, J.) This appeal is directed against the judgment and order of conviction passed by the 1st Ad-hoc Additional Sessions Judge, Kolhapur, dated 16th October, 2002 in Sessions Case No. 440 of 2001. The learned Judge has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code (hereinafter “IPC”) for committing murder of one Laxman Chintu Dhanva and sentenced to undergo life imprisonment. The appellant was also directed to pay fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for three months. The appellant was also convicted 2 under Section 452 read with 34 of the IPC and sentenced to undergo rigorous imprisonment for five years and also awarded fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. 2. The aforesaid order of conviction is challenged by the appellant- original accused No.1 by way of this appeal. 3. The trial Court framed charge against the appellant as well as against original accused No.2-Amit Dattatraya Patil, at Exh. 2. As per the charge, on 24th October, 2000, at about 20.45 hrs., in the house of the complaint, Smt. Latika Laxman Dhanva, at Laxmi Bhoir chawl, Room No.5, Milind Nagar, Kalyan (West), within the jurisdiction of Mahatma Phule Chowk Police Station, Kalyan, in furtherance of their common intention the accused entered the house of the complainant and unlawfully restrained the complainant and put the complainant into fear of assault and thereby committed an offence punishable under Section 452 read with Section 34 of the IPC. Secondly, the above named accused, during the course of same transaction and in furtherance of their common intention, committed murder by intentionally or knowingly causing the death of the husband of the complainant viz. Laxman Chintu Dhanva by assaulting him by means of gupti on the vital parts of his body and thereby committed an offence punishable 3 under Section 302 read with Section 34 of the IPC. The accused did not plead guilty to the charge framed. 4. The prosecution case is that Complainant Latika Dhanva resides at Laxman Bhoir Chawl in Milind Nagar area at Kalyan (West). The victim Laxman was the husband of the said complainant. The daughters of the complainant viz. Alka and Anita and her sons Arvind and Manoj were residing jointly. Deceased Laxman was serving as a Gardner-Mukadam in the office of the Kalyan Dombivli Municipal Corporation at Kalyan. At the time of the occurrence, the complainant’s elder daughter Alka, aged about 15 years, was taking education in VIIIth standard in Nutan Vidhyalaya High School at Kalyan. Accused No.1 Shivaji (present appellant) was residing in the chawl which is situate by the side of the chawl in which Complainant Latika was residing. Occasionally, accused Shivaji used to visit the Complainant’s home. After observing the conduct of said Shivaji, Latika warned him not to arrive at her residence on the ground that she is having young daughters. It is also the case of prosecution that about four to five months prior to the incident, deceased Laxman had seen accused Shivaji talking with Alka on the road. At that time Laxman slapped on Shivaji’s face and told him not to meet his daughter again and not to speak to his daughter. The said Laxman learnt that accused Shivaji was clandestinely meeting his daughter Alka and hence on two-three occasions altercation has taken place 4 between accused Shivaji and deceased Laxman. Laxman had warned accused Shivaji not to speak to his daughter and, therefore, Shivaji became furious and was angry with Laxman in view of the same. 5. On 24th October, 2000, at 5.00 p.m. Laxman returned home from his duty. After taking tea, he went to the market for fetching vegetables. At about 8.30 p.m. Laxman, his wife Latika and Alka and Anita were watching T.V. at their home. About 8.30 to 8.40 p.m, accused Shivaji and original accused No.2-Amit Patil suddenly entered the complainant’s room. Accused Shivaji abused Laxman in an indecent language and also asked Laxman as to why he is not allowing him to meet his daughter Alka. Accused rushed towards Laxman to assault him. Latika and Alka went to rescue Laxman but accused Shivaji and Amit pushed aside Latika and Alka. Thereupon, accused Shivaji took out a gupti from his waist and stabbed Laxman on the left side of his stomach. Latika and her daughter tried to apprehend the accused Shivaji and at that time accused No.2 obstructed Latika and Alka from rescuing Laxman. Simultaneously, accused Shivaji again stabbed Laxman on the left side of his stomach with gupti. Laxman received serious injuries and collapsed on the floor. Latika and her daughter shouted loudly for help. The accused thereafter ran way and disappeared in the darkness. Thereafter the complainant and her neighbours took the victim Laxman to a hospital in a rickshaw. The victim was admitted at Rukminibai Hospital at Kalyan. The 5 Medical Officer Dr. Dondiram Gokhale examined the victim Laxman and pronounced him dead. The wife of the victim Latika filed a complaint on 24th October, 2000 at about 20.45 Hrs. at Mahatma Phule Police Station against both the accused. On the basis of the aforesaid complaint, a crime bearing No. I-326/2006 for the offence punishable under Sections 302 and 452 read with 34 IPC was registered against the accused. The police after completing the investigation submitted a charge-sheet and, as pointed out earlier, charge was framed against the appellant and other accused viz. Amit Patil. Since they did not plead guilty, the trial commenced against both the accused. On behalf of the prosecution 15 witnesses were examined. 6. The learned trial Judge held that both the accused entered into the room of the complainant on the relevant day and from the evidence of eye witnesses, it is proved beyond reasonable doubt that accused No.1-Shivaji entered the house with gupti and stabbed the victim. The learned Judge found that as per the evidence on record, the ingredients of Section 452 as well as 34 of the IPC are proved and accordingly convicted the appellant and accused No.2 for the offence punishable under Section 452 read with 34 of the IPC. However, the learned Judge acquitted original accused No.2 Amit Patil for the offence punishable under Section 302 of the IPC and convicted the appellant for the offence punishable under Section 302 of the IPC. . 6 7. The learned counsel for the appellant submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The learned counsel further submitted that the presence of PW1, PW2, PW3 and PW8 at the spot at the relevant time was doubtful and the same is not established in evidence. Learned counsel further submitted that the prosecution has come with two conflicting and contradictory versions about the incident. It is submitted that out of two versions, only one version can be said to be true. It is further submitted that the prosecution version is supported by the evidence of PW1, PW2, PW3 and PW8. According to these witnesses, they have stated that they had seen the incident and they witnessed the incident. It is, however, submitted that the other two independent witnesses examined by the prosecution i.e. PW 12 and PW 14 have deposed in their evidence that when they reached the spot, the deceased was in an injured condition but alive and was resting his back to the wall demanding water and that they gave water to him, put a towel on the wound to restrict the flow of blood and took him to the hospital. They have stated that during the aforesaid time, the deceased was alone at home and no family member of the deceased was present in the house. It is submitted that the aforesaid piece of evidence has been corroborated by other evidence led by the prosecution, such as the presence of the towel, presence of blood on the towel, etc. It is submitted that on the other hand the evidence of the family members, i.e. PW1, PW2, PW3 and PW8 is not believable as they are interested witnesses 7 and their evidence is otherwise not free from doubt. It is submitted that when there are conflicting versions and when it is not possible to accept both the versions that the one which is in favour of the accused should be accepted especially when the witnesses have not been declared hostile by the prosecution and in such eventuality, the evidence of such witness is binding on the prosecution. It is also submitted that PW 12 and PW 14 are independent witnesses and their evidence is required to be preferred as against the evidence of family members. It is submitted that it is not possible to believe that the accused after entering the house of the victim would stab him without any prelude or without any exchange of words. Learned counsel further submitted that the article of clothing found on the person of the deceased by the hospital and subsequently handed over to the police under panchanama at Exh. 11 is a towel which was found by the Chemical Analyser to have innumerable blood stains. It is submitted that neither the presence of the towel among the articles found at the hospital nor the presence of blood stains on the towel has been explained by any of the family members in their evidence. As against that, independent witnesses i.e. PW 12 and PW 14 have stated that when they entered the house of the deceased, they saw the deceased in a wounded condition, they tied the towel to his wounds to stop the blood and took him in a rickshaw to the hospital. It is submitted that this explains the presence of the towel among the articles which were found at the hospital and also the presence of blood stains on the towel bearing the 8 blood group of the deceased. It is submitted that if the family members of the deceased had taken the deceased to the hospital, they would have been able to explain the presence of towel. Learned counsel further submitted that even though the family members have deposed that PW 1 took the deceased to the hospital along with one neighbour, no particulars of such neighbour is given as to who accompanied PW 1 at the time when the victim was taken to the hospital. It is also submitted that though PW 1 claims that she took the deceased to the hospital, her clothes which may have stained with blood have not been seized. It is submitted that as per the case of the prosecution, the deceased had suffered two stab injuries and in that case there is bound to be a lot of blood split at the spot. Yet, only a solitary spot of blood that was dry and faded was found in the house of the victim and that blood has not been shown to belong to the deceased. It is submitted that absence of blood on the spot strongly suggests that the incident did not occur in the house as alleged by the family members. It is submitted that as per the case of the prosecution, the incident occurred after the deceased had returned from work and the family members alleged to have been present at that time in the house. However, they have given different versions about the return of the deceased from his work. It is also submitted that none of the family members has been asked to identify the clothes of the accused. It is submitted that the clothes of the deceased were shown only to PW 8, who was barely about 10 years old at the time of the incident and his presence at the spot has not been mentioned 9 by PW 1, PW2 or PW3. It is submitted that there are omissions and improvements in the say of the witnesses i.e. PW1, PW3 and PW8. It is also submitted that as per the say of PW1, PW3 and PW 8, the accused locked the door from inside which fact has not been mentioned to the police. It is also submitted that the said witness have also not stated before the police that the co-accused caught hold of the deceased and restrained him while he was stabbed by the accused No.1 and the said version is given for the first time before the Court. It is submitted that it is also not possible that the accused who was having intimacy with the girl would enter her house with the sole object of murdering her father. It is submitted that the recovery made on the basis of the disclosure statement of the accused by which gupti is recovered from the grass outside the public toilet can never be said to be reasonable at all as it is nothing but a farce. It is submitted that the I.O. has admitted in his evidence that in none of the remand applications preferred while the accused was in police custody, he has mentioned about the recovery of the clothes and this would show that there was no such recovery made on 27th October, 2000 as alleged by the prosecution. It is submitted that the alleged discovery made on 27th October, 2000 and 30th October, 2000 vide Exhibit 23, 24 , 27 and 28 were a farce and carried out to fabricate the evidence. It is submitted that the alleged recovery of the clothes at the instance of the accused has not been shown to any of the eye witnesses. It is also submitted that the confessional statement relied upon by the prosecution is contradictory in nature. It is 10 submitted that as per the confessional statement recorded at Exh. 44, the accused confessed that the deceased was killed with a kitchen knife. However, as per Exh. 23, the accused confessed that he killed the deceased with a gupti. It is submitted that gupti and knife both are different type of weapons. It is submitted that the so-called confessional statements are not consistent. It is submitted that gupti was recovered from the grass in the area adjoining to the public toilet and it is impossible that a gupti which is 12 inches long could remain undetected for five days at such a public place. It is submitted that when a public place is accessible to all, the recovery of an article from such a public place is not admissible under Section 27 of the Evidence Act. The learned counsel for the appellant has further submitted that, according to the prosecution, the accused’s clothes were recovered from a show case kept in his house but it is not possible to believe that after committing the murder, the accused would try and conceal his blood stained clothes by keeping them in the show case. Learned counsel further submitted that the panchas selected by the police are not the persons who can be said to be independent panchas as they are all connected to the police or the deceased as PW 5 and PW 6 were the colleagues of the deceased and they had visited the hospital and also attended his funeral. It is submitted that PW 4 used to go to the police regularly. It is submitted that the disclosure statement is required to be discarded as there is nothing to connect the accused to the recovery. The learned counsel further submitted that the panchanama prepared is also 11 highly doubtful as there are gaps which have been left in the panchanama for the insertion of the dates, timings, etc. The learned counsel further submitted that the alleged motive attributed is an incident which had occurred about four months prior to the incident as the deceased had slapped the accused and warned him not to meet his daughter again. It is submitted that the motive attributed is, therefore, too stale and insufficient to constitute a motive to murder a person four months later. It is submitted that if really accused wanted to commit an offence because of the alleged incident, there was no reason for him to wait for four months. In the alternative, it is submitted that even if this Court comes to the conclusion that the prosecution has proved its case that it was the accused who had killed the deceased, even in that eventuality it can be said that the accused has committed an offence punishable under Section 304 Part-I or II or Section 326 of the IPC. It is submitted that the doctor has not deposed that the injuries were sufficient to cause death and in the absence of such a finding, the ingredients of Section 302 IPC are not satisfied and in that view of the matter, conviction under Section 302 IPC is not sustainable and the case would fall under Section 326 IPC or 304 Part-II. In order to substantiate his submission, the learned counsel has relied upon the evidence of the doctor by which the doctor has stated that the deceased might have survived if prompt medical treatment was given. It is also submitted that the disclosure statement of accused, which is relied upon by the prosecution, shows that the accused did not carry 12 the weapon with him when he went to the house of the deceased. It is submitted that in any case the incident occurred at the spur of the moment owing to the exchange of words between the victim and the accused. 8. The learned counsel for the appellant has placed on record his written submissions. The learned counsel for the appellant submitted that considering the aforesaid submissions, the appeal is required to be allowed by setting aside the order of conviction or in the alternative the conviction is required to be altered to Section 304 Part II or Section 326 of the IPC. 9. The learned Additional Public Prosecution, on the other hand, submitted that the prosecution has proved its case that it is the accused who committed the alleged offence and the prosecution has proved its case beyond reasonable doubt against the accused. It is submitted that the conviction recorded by the learned trial Judge is based on the evidence of PW1, PW2 and PW 3 who had witnessed the incident in question and their presence in the house is natural as the accused came at the victim’s house at the late evening and at that time naturally the presence of the said witnesses in the house is natural. It is submitted that the said witnesses have given correct description of the incident in question. The learned APP has further submitted that the evidence of the eye witnesses i.e. PW1, PW2, PW3 and PW 8 is consistent with other evidence on record and is not at variance. It is 13 submitted that the weapon in question i.e. gupti was not visible but it was hidden and, therefore, recovery was absolutely proper as it took about five days to find out the said weapon from the place in question. It is submitted that the prosecution has clearly established the motive. It is further submitted that simply because the witnesses are related to the victim, it cannot be said that their evidence cannot be believed or required to be discarded. The learned APP further submitted that the injury in question is proved by medical evidence and the accused inflicted two fatal blows on the stomach of the deceased which resulted into the death of deceased and, therefore, this case squarely falls under Section 302 of the IPC . The murder is committed with the intention and knowledge. It is submitted that since the deceased was against the relationship of accused with his daughter that ultimately the accused committed this heinous crime of murdering the deceased. It is submitted that in view of the overwhelming evidence on record, the prosecution has proved its case against the accused beyond reasonable doubt. It can, therefore, be safely said that the prosecution has proved its case against the accused and the learned trial Judge has rightly convicted the accused under Section 302 of the IPC. Both the sides have also cited various judgments to substantiate their say. 10. We have heard the learned counsel at great length. We have gone through the evidence on record. We have also gone through the written 14 submissions. 11. On behalf of the prosecution, complainant Latika Dhanva was examined as prosecution witness No.1 at Exh. 13. In her evidence she has stated that at the time of incident she was residing at Milind Nagar, Kalyan. She was residing with her daughter Alka, two sons Arvind and Manoj as well as with his deceased husband Laxman. She has stated that her husband was serving at Kalyan Dombivli Municipal Corporation and he used to go on duty at 8.00 a.m. and used to come back about 12 Noon for taking food. At 5.00 p.m. he used to come back after his duty. In her evidence she has stated that before four to five months prior to the incident, her daughter Alka was talking with accused Shivaji and her husband Laxman saw them talking with each other. Her husband warned accused No.1 not to talk with Alka. The witness has further stated that on 24th October, 2000, at 8.00 p.m. accused No. 1 Shivaji came to their house. He closed the door of the house from inside. Accused No.2 Amit Patil was also with accused No.1. Accused No.1 stabbed the deceased on the left side of his stomach. She and her daughter went to rescue Laxman. In her examination, she has stated that the accused stabbed her husband twice. Thereupon her husband fell down. Accused No.2 caught hold of her husband when accused No.1 stabbed her husband. The accused thereafter ran away. In her evidence she has stated that she and one boy removed her husband to the hospital and thereafter she filed a complaint 15 which is at Exh. 14. The said witness has identified gupti by which her husband was stabbed. In the cross-examination she has stated that her room was admeasuring 10’ x 10’. In the cross-examination she has stated that on the date of the incident they were sitting in the said room and because of their shouts some persons gathered outside the house. According to her, about 50 to 60 persons gathered at the time of the incident. She denied the suggestion that there was love affair between her daughter Alka and the accused No.1. 12. The prosecution also examined the daughter of the victim Alka as prosecution witness No.2 at Exh. 15. She has stated in her evidence that she used to see accused No.1 Shivaji on the road and accused No.1 used to smile at her. The said witness has stated that before four to five months prior to the incident, she was speaking with accused Shivaji and at that time her father Laxman came and told accused No.1 that he should not talk to her. Her father gave a threat to accused No.1 that if he again talk with her, he would file complaint against him in the police station. The said witness has stated that the incident took place at about 8.10 p.m. on 24th October, 2000. She sated that accused Shivaji and his friend entered the house. She identified both the accused. In her evidence she has stated that accused No.1 asked her father