- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.8/2009 Erun Elichand Chavan, age 25 yrs., occu.labour, r/o Ajnale Pardhi Vasti, Tq. & Dist.Dhule. ...Appellant.. (Org.accused no.1) Versus The State of Maharashtra. ...Respondent... ..... Shri R.C. Patil, Advocate for appellant. Shri B.V. Wagh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 01.10.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of - 2 - Rs.10,000/- with a default condition of undergoing further rigorous imprisonment for six months in the event of non payment of fine, by the Principal Sessions Judge, Dhule, by judgment dated 21.11.2008, in Sessions Case No.1/2008, by this appeal questions the correctness of his conviction and sentence. 2] Facts in brief as are necessary for the decision of this appeal may briefly be stated thus: PW 7 Police Sub Inspector Pandurang Khedkar recorded the complaint of PW 3 Billu at Exhibit 59. On the basis of the aforesaid complaint, offence vide Crime No.314/2007 came to be registered. Accordingly, investigation was entrusted to PW 7 PSI Khedkar. He accordingly proceeded to the scene of the offence and drew the scheme of the offence – panchanama in the presence of panchas at Exhibit 67. From the scene of the offence, he seized one steel glass, blood mixed soil and control soil. Thereafter, he drew the inquest panchanama of the dead body of deceased Jain in the presence of panchas at Exhibit 44. The dead body of deceased Jain came to be referred for post mortem examination and the post mortem came to be conducted by PW 1 Dr.Ajit Patil. PW 1 Dr.Patil noticed the following external injuries: [1] Stab injury over chest Rt. Side of chest Rt. Side of chest 5 cm. Medical to Rt. Nipple slightly oblique alleptical upper end 2 cm. Lateral to midline and 7.6 cm. Below Rt. clavicle 11 cm. In length, 4.5 cm. Maximum breadth and cavity deep with ribs 4,5,6 on right side cut - 3 - through and through, underlying muscles cut, oozing of blood present both ends tampering. [2] Linear abrasion over Rt.cheek 2 in numbers 1 cm. X 2.00 cm. Each reddish in colour. [3] Linear abrasion over neck right side 2.5 cm. X 0.2 cm. oblique. [4] Linear abrasion over right fore arm laterally 6 cm. x 0.2 cm. reddish. [5] Contused abrasion over Rt. Thumb posterolaterally 0.6 x 0.3 cm. reddish. On internal examination, he noticed ribs 4,5 and 6 cut on right side through and through. There was a tear to the pleura and the right lung and the antermedio aspect of right middle lobe 1.6 cm. x 0.3 cm. x 0.8 cm. There was also a tear to the pericardium and there was an incised wound over the right atrim anteriolaterally 1.8 cm. x 0.2 cm. x cavity deep. He, therefore, opined that cause of death was shock and haemorrhage following injuries to heart and right lung due to stab injury over chest. The post mortem report is at Exhibit 43. The clothes of the deceased came to be seized in the presence of panchas vide seizure memo at Exhibit 45. Statements of witnesses came to be recorded. At the behest of the other accused Sanunsari Lalbhau @ Ambilal Chavan, a stick came to be seized. Accused no.1 i.e. the appellant came to be arrested and expressed his willingness to point out the place where the knife was hidden and accordingly memorandum at Exhibit 73 came to be drawn. The appellant took the police and the panch to village Ajnale and produced a knife hidden in a tin box, which came to be seized - 4 - in the presence of panchas at Exhibit 74. The seized articles were forwarded to the Chemical Analyser along with the requisition and the Chemical Analyser’s reports are at Exhibits 75 to 82. Further to the investigation, a charge-sheet against the appellant came to be filed. The trial Court vide Exhibit 10 framed charge against the appellant and other five accused for offence punishable u/s. 147, 148, 149 r/w 302, 323 r/w 149 and 504 r/w 149 and 506 r/w 149 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. 3] Prosecution in support of its case examined seven witnesses. PW 2 Gyandeo, PW 4 Anita, PW 5 Gajarabai and PW 6 Rajesh did not support the prosecution and were declared hostile. The pivot of the prosecution case revolves around the testimony of PW 3 Billu. 4] In order to appreciate the submissions advanced before us by Shri R.C. Patil, learned counsel for the appellant and learned APP for the State, it would be useful to refer to the evidence of PW 3 Billu. PW 3 – brother of deceased Jain states that he was residing along with his parents, his brother Jain and his wife Anita. He states that they were all agriculturists. He further states that Anita was residing with his brother deceased Jain though she was not married to him. He states that on 30.9.2007 at about 7 p.m., accused no.1 Erun had assaulted his brother Jain with a knife on the chest. He states that the accused had entered his house and had caught the hand of wife of deceased Jain. Deceased Jain had accordingly questioned as to why the - 5 - appellant had held hand of his wife and as a result of the questioning by the deceased, there was a quarrel between the deceased and the appellant. The appellant went to his house and returned back with a knife and stabbed his brother deceased Jain. PW 3 Billu further states that his brother Jain was referred to the hospital where he succumbed to his injuries and thereafter the police had recorded his complaint at Exhibit 59. In cross-examination, omission has been duly proved that he had not stated in his report that the appellant had entered his house and had caught the hand of wife of the deceased. Omission has also been proved that he had not stated in his report that his brother Jain had questioned the appellant as to why he had caught the hand of his wife and a quarrel ensued thereafter. An omission has also been duly proved that he had not stated that accused no.2 Patthya had held the deceased Jain. This witness has been cross-examined at length, but nothing of importance has been elicited in the cross-examination to doubt that it was the appellant, who had stabbed the deceased Jain. 5] The conviction of the appellant rests on the sole testimony of this witness as none of the other prosecution witnesses namely PW 4 Anita – wife of deceased Jain, PW 5 Gajarabai – mother of deceased Jain and PW 6 Rajesh, supported the prosecution. It is true that conviction can be based on the sole testimony of an eye witness, provided the testimony is of such a quality as would inspire the confidence of the Court for its acceptance. We have perused the testimony of PW 3 Billu and we do not find any infirmities in his testimony for rejecting the same. - 6 - PW 3 Billu is a natural witness, who was residing in the house and according to him, it was the appellant, who had stabbed deceased Jain. 6] Shri R.C. Patil, learned counsel for the appellant, has urged before us that PW 3 Billu is an interested and related witness. According to the learned counsel for the appellant, he is interested because he had lodged the first information report and also that he is a relative of deceased Jain. Reliance is placed by the learned counsel for the appellant on the judgment of the Supreme Court in Prem Narain & another V/s State of M.P. (2007 Criminal Law Journal, 774). In the aforesaid judgment, the Supreme Court found that there was a variance in between the testimony and the recitals in the first information report of the wife of the deceased, who was the sole witness. The Supreme Court, therefore, found hat no reliance could be placed on the testimony of wife of the deceased. The Supreme Court further observed that though independent witnesses were available, statements of the said independent witnesses had not been taken. In that background, the Supreme Court acquitted the accused therein. The ratio of the aforesaid judgment, in our opinion, is not applicable to the facts of the present case. 7] In the present case, even if the improvements made by PW 3 Billu in his evidence are left out of consideration, the other part of his evidence clearly establishes complicity of the appellant in the commission of the crime. Additionally, we find that the appellant has discovered a knife with which he is alleged to have - 7 - stabbed the deceased Jain. In such circumstances, therefore, according to us, there is overwhelming evidence in support of the case of the prosecution and the prosecution has proved beyond reasonable doubt that it was the appellant, who had stabbed deceased Jain. 8] Thus, there being no merit in the appeal, the same is dismissed confirming the conviction and sentence of the appellant. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/cr1101026