-1- MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.651 OF 2006 Javed Rashid Tamboli ) Age 20 years, Occ. Ricksaw ) Driver, R/o. Lalnagar, Behind ) Ichalkaranji Nagarpalika School ) No.12, Ichalkaranji, ) Dist.Kolhapur at present lodged ) in Kolhapur Central Prison, ) Kolhapur. )..APPELLANT )(ORI.ACCUSED 1) Versus State of Maharashtra )..Respondent Mr. Shekhar Ingawale, for the Appellant Mr. P.S. Hingorani, APP for Respondent State CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 29th April,2008 DATED: 29th April,2008 DATED: 29th April,2008 ORAL JUDGMENT (PER F.I. REBELLO, J.) ORAL JUDGMENT (PER F.I. REBELLO, J.) ORAL JUDGMENT (PER F.I. REBELLO, J.) . The Appellant was accused No.1 before the trial Court, being charged for an offence punishable under Section 302 read with 34 of I.P.C. along with -2- his brother Salim Tamboli. The trial Court by judgment and order acquitted his brother Salim Tamboli, but convicted the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Rs.200/-, in default to suffer R.I. for 15 days. 2. The case of the prosecution was that the Appellant along with Salim Tamboli, on 30th September, 2004 at about 10.00 p.m. near Government water tap of Eastern side of Ichalkaranji Nagar Palika in Lal Nagar area, individually or jointly in furtherance of common intention of both caused the death of Dhanaji Bhise aged about 19 years by giving sword blow. 3. At the hearing of this appeal on behalf of the Appellant learned Counsel submits that considering the evidence of P.W.1 and P.W.5 who are supposed to be eye witnesses it is apparent that they are put up witnesses on account of the political connections of the deceased. It is further submitted that the Panchanama of recovery of knife as also clothes suffers from various defects and as such that evidence ought not to be entertained. It is also submitted that in the absence of the clothes and the knife being sealed -3- the C.A. report also ought not to be considered. It is, therefore, submitted that the appellant be acquitted and his conviction and sentence be set aside. 4. We have heard learned Counsel for the appellant. We may firstly consider the eye witness evidence of P.W.1 and P.W.5 as to whether it is credit worthy. . P.W.1 is Sunanda Sidhram Lalla. In her evidence she has deposed that at 10.00 p.m. on the fateful day she was talking with the deceased Dhanaji Bhise outside their house near Government water tap. Deceased Dhanaji Bhise was her neighbour. Similarly, the house of the Appellant Javed Tamboli and his brother Salim Tamboli is infront of her house. While sitting there she saw Javed Tamboli coming from the back side of Dhanaji Bhise and inflicting sword blow on the neck of Dhanaji Bhise, on the right side. Salim Tamboli came on the spot after the incident. Dhanaji Bhise fell on her lap and blood fell over her saree and hands. Javed Tamboli and Salim Tamboli then ran away. She identified the sword Article 9 as the sword which was in the hand of Javed. She also identified her clothes as having been worn on the date of incident. She was under a state of -4- confusion and her brother and sister in law admitted her in I.G.M. Hospital, Ichalkaranji. Her statement was also recorded before the Magistrate, apart from statement recorded by the Police. After she was admitted in the hospital Police had come on that night for enquiry and enquired about the death of Dhanaji Bhise. Shri Dhumal and Shri Patil the Police personnel who had come to see her, recorded the statement on the date of the incident which was not read over to her but her thumb impression was obtained on the same. She also deposed that as a bed, she used to use a piece of gunny bag which she had spread on the tar road by the side of the said water tap. She denied that electric lamp was not available on the spot of incident. According to this witness the Appellant by holding the handle of the sword, by both his hands, inflicted blow in vertical downward direction. Two blows were inflicted. The second blow was slightly above the first blow. Dhanaji fell down and the injury on his neck was towards upper side. He did not show any movement and she was sure that he was dead. After the incident she was shouting for a long time. The persons gathered on the spot lifted Dhanaji and put him in the rickshaw and he was taken to hospital. The time between the incident and the shifting to the hospital was half an hour. After the incident she felt giddiness and could not understand how much -5- time was taken to go to hospital. . The evidence of this witness was sought to be assailed firstly on the ground that in her evidence she has stated that the statement was recorded on the very first day and, the prosecution has not produced this statement. The prosecution has examined P.W.12-Suresh Kondiba Dhumal, I.O., who has deposed to the effect that he had not recorded the statement of Sunanda on 1st October, 2004 though he had questioned her as he found that she was answering in a frightened state. In our opinion considering the incident took place infront of her and she was shifted to the hospital, the explanation by I.O. that he did not record the statement though questioned as she was frighten state is understandable. The witness was admitted in the hospital on 30th September, 2004 and discharged on 4th October, 2004. Her statement was recorded after 3 days of the incident. The evidence of Dr.Prakash Tukaram Jadhav was also relied upon to discredit the witnesses. Learned Counsel also tried to make much of the contention that this witness in her cross examination had stated that the accused inflicted the contused lacerated wound towards right side of neck and this is not borne out by the medical examination. This, it is pointed out shows that the presence of the witness at the scene of incident is -6- doubtful. We may at this stage point out that the learned A.P.P. has pointed out to the evidence of P.W.3-Mahesh Sadashiv Kengar that the gunny bag on the spot was attached. In the C.A. report so far as this item is concerned it is at Item No.1. It shows human blood group "AB". The blood of the deceased from the cloth of the deceased is identified as "AB" at Item No.5 of the C.A. report. The learned A.P.P. relied on Item Nos. 10 and 11 the saree and the petticoat which has been attached under a Panchanama as having been worn by this witness. It has been taken on record as Exhibit 66/C. On those articles also human blood of"AB" group was found. The other argument advanced was that the witness did not disclose the name of the accused. We may at once point out here that the witness in her statement has deposed to the effect that she saw the appellant use the sword on the deceased. On that very date immediately aftder the incident she was admitted to the hospital on account of gastritis. She has deposed to the fact that she felt giddy after seeing the incident. She was not aware when she was shifted to the hospital and from the evidence of the I.O. it will be seen that at the time when he questioned her she was in frightened condition. It has come in the evidence of P.W.3 that she informed him that it was the accused who had killed the deceased with the sword. -7- It has also come on record that she regained consciousness after saline was administered after admission to the hospital. . We see no reason to disbelieve this witness who was then aged about 50 years, illiterate and a neighbour of both the deceased and the accused appellant. Her clothes with the blood group AB of the deceased were attached which clearly show her presence at the spot when the incident took place. Apart from that as pointed out above the gunny bag which she used to sleep, was found with the blood group of the deceased. Nothing has come on record as to why she would falsely depose against the Appellant. In our opinion, therefore, we find no reason to disbelieve the evidence of this eye witness. 5. The next eye witness to the incident is P.W.5-Sachin Prakash Bande. According to this witness, who can be described as a chance witness, on the day of incident at about 10.00 p.m. he had seen the deceased and Sunanda siting and talking to each other. He had seen the accused assaulting the deceased by sword on the right side of his neck and that he fell on the lap of Sunanda. According to this witness he was not able to see thesight of blood and, therefore, returned to his house and -8- slept there. According to this witness he had narrated the incident to his grand mother. Therefore, after the incident apart from telling his grand mother he remained in the house and did not leave the place. This, however, is contrary to the evidence of P.W.8 who was examined as a Panch witness. In his cross examination he has deposed that P.W.5 was present at the spot when deceased was kept in the rickshaw. The other aspect of the matter is till the complaint was filed by P.W.2-Sandip Bhise it appears that nobody was aware as to who had committed the offence. To our mind even if this witness could not bear to see the blood atleast at the time the deceased was shifted considering the commotion outside in the normal course he ought to have come out and informed others about the incident if his version is to be believed. Apart from that it is also impossible to presume that the grand mother to whom he had disclosed the incident would not go out and disclose this incident. In our opinion considering that the conduct of the witness is contrary to what the conduct of a normal person who observes a crime being committed, serious doubt is created of the veracity of the evidence of this witness. It will not be, therefore, proper to rely on the evidence of this witness. -9- 6. We then have the evidence of Dr. Prakash Tukaram Jadhav, P.W.6. In his evidence he has deposed that on examination of the body of the deceased he found a contused lacerated wound towards right side of neck admeasuring 26 CM x 7 CM x 8 CM. On account of that injury the mandible bone and hyoid bone were fractured. Carotid artery, external and internal jugular vein were cut and sterno cleido mastoid muscles sterno hyoid muscles were cut. These injuries were anti mortem and it was possible due to a sharp and cutting weapon including Article 9, which were shown to the witness. According to this witness death was homicidal. . We may only point out from this evidence that the Appellant had sought to point out considering the evidence of P.W.1, that the injury is not possible due to vertical blow of the sword. In our opinion if we consider the evidence of P.W.1 considering her age and her deposition though it states that the Appellant held the handle of the sword by both his hands and inflicted vertical blow in downward direction, at the same time the evidence of this witness must be accepted to the extent that the accused had held the sword by both his hands The witness could have been confused by the manner in which the sword was used considering that it was night time. In our opinion this in no way can -10- result in holding that the injury was not occasioned by the sword. Death, therefore, was homicidal and considering the C.A. report of blood on the sword the injury had been caused by the sword. 7. We then have the arrest panchanama which is proved through the evidence of P.W.7-Navnath Gopal Parmaj, who has deposed to the fact that the accused was arrested on 1st October, 2004 at 17 hours. To avoid repetition we may point out that through the evidence of this witness it has also come on record that at that time the clothes were on the body of accused and police had carefully examined the clothes on the body of the accused, but had found no stains on the clothes of the accused. It may be mentioned that the shirt worm by Javed was of chocolates colour and the pant was of grey colour. In the context the evidence of Panch P.W.7 for the arrest Panchanama deposing that no blood stains were seen on occasions examinations can be explained. The attachment of the clothes of the accused is proved through P.W.4. . Based on the statement of the appellant, recovery was effected and P.W.3 - Mahesh Sadashiv Kengar is a Pancha for the same. According to this witness he was called to the Police Station at 2.30 p.m. At that time the accused was present at the -11- Police Station and in his presence had informed that he had hidden the sword in drainage situated near the gymnasium. On reaching the spot the accused entered in drainage and from the drainage took out one sword and handed over the same to the police. The Police seized and prepared Panchanama and obtained the signature of Panchas. In cross examination it is brought on record that the sword was taken from open drainage and sand from drainage was sticking with the sword. No blood was spotted on the sword. P.W.4-Datta Mahaling Mane the other Panch was also examined and from his evidence it has come on record that on that day Police prepared a total of 3 Panchanams. First was prepared in between 2.15 p.m. to 2.30 p.m. and the second was prepared at about 8.30 p.m.The third was prepared at about 9.45 p.m. . This recovery was sought to be assailed on various grounds including that it was recovered from an open place. In our opinion the objection is unfounded. Though P.W.3 has deposed that the panchanama was recorded at 2.30 p.m. through the evidence of witness P.W.4 the same has been explained. The sword was recovered at the instance of the accused from the place which only the accused would have known. The C.A. report in respect of this sword which was Item No.9 shows that the blood -12- was human blood and of the group "AB". That the Pancha could not notice blood would be of no consequences considering that the C.A. would use scientific method to detect blood on the sword. The C.A. report has gone unchallenged. It is, therefore, established that the sword was the sword which was used for the assault on the deceased. 8. Through the evidence of P.W.4-Datta Mahaling Mane. The prosecution has attached the clothes and other articles of the deceased Dhanaji Bhise. Datta M. Mane has deposed that he was available for the Panchanama, as Friday was holiday and 3 Panchanamas were prepared in between 2.15 p.m. to 2.30 p.m. The cloths belonged to the deceased is established by the C.A.’s report being items 5 and 6 which were identified as having blood group "AB" which is the blood group of the deceased. . Through the evidence of Suresh Kondiba Dhumal, P.W.12 the prosecution has established the various Panchanamas, the recovery of clothes of the accused as also the sword. . All the evidence was put to the Appellant under Section 313 of the Cr.P.C. His only answer -13- was that he does not know. Even to the question as to whether he wants to say anything about death of Dhanaji he answered that he does not want to say anything. 9. From the evidence which we have set out earlier it would be clear that P.W.1 was at the spot of the incident when the accused assaulted the deceased with the sword. We have no reason whatsoever to disbelieve the witness as she was a neighbour of both the Appellant and also the deceased. Nothing has been brought in her cross examination to discredit this witness. The presence, therefore, of the Appellant at the spot and his assault on the deceased is established. Through the evidence of P.W.6-Dr. Prakash Tukaram Jadhav it has been established that death occurred on account of the injuries sustained by the deceased which was possible due to the sword. That death is homicidal is, therefore, established. The sword has been recovered at the instance of the accused. The recovery of sword has been established through the evidence of P.W.11 and P.W.15. The blood stains on the sword have been established through the C.A.’s report. What is crucial is that the sword which is Exhibit 9 was found stained with human blood of "AB" Group. There may be some minor lacuna in so far as sealing of the packet containing the sword. In the -14- instant case, however, we find that recovery was made on the very next day of the incident and the sword was wrapped in paper and signed by the Panchas and thereafter sent to the C.A. and which was received on 26th October, 2004. The clothes of the accused have also been attached and that recovery has been established through P.W.4. Blood stains were found both on the shirt and pant and that is established by P.W.4. It is true that evidence of P.W.7 at the time of arrest Panchanama it was mentioned that no blood stains were seen. However, on Exhibit 12 which is the shirt which was of chocolate colour there was only one blood stain and it is possible that it may have escaped the attention of the Panchas. Though again there is some discrepancies in the Panchanama of attachment of the pant and the number of blood spots, the C.A. report shows that the blood found was of the group "AB" which blood group belongs to the deceased. There is nothing on record which will indicate that his clothes were substituted by the Police. In our opinion, therefore, it is clear that it was the Appellant who assaulted the deceased with a sword, which ultimately resulted in the death of the deceased Dhanaji. 10. We, therefore, do not find that the judgment of the trial Court suffers from any legal infirmity. -15- The conviction of the appellant under Section 302 as also the fine imposed is confirmed. Appeal accordingly dismissed. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)