1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 213 OF 2009 Charansing @ Chnya s/o Indersing Kadewale Age 36 years, Occ. Nil at present in Central Jail Nasik R/o. Tirupati Nagar, Dhanegaon Tq. and District Nanded ...Appellant Versus The State of Maharashtra Through Police Station Nanded (Rural) District Nanded (Copy to be served on .Public Prosecutor, High Court at Bombay Bench at Aurangabad) ..Respondent ..... Smt. Bharti B. Gunjal, advocate for the appellant (appointed) Mr. N.R. Shaikh, A.P.P. for respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 11.08.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 13.08.2010 JUDGMENT (PER SHINDE, J.) 1 This appeal is filed challenging the final judgment and order dated 28.11.2008, passed by the Additonal Sessions Judge, Nanded 2 in Sessions Case. No. 76 of 2008, by which the appellant-accused is convicted for the offence punishable under Section 302 of IPC and is sentenced to undergo R.I. for life and to pay a fine of Rs.1000/-, i/d to undergo further S.I. for two months. 2 The brief facts of the case are as under:- One Sunita Pawar, PW 1, daughter-in-law of Vitthal Pawar (hereinafter for the sake of brevity referred to as the ‘deceased”) resides at Tirupatinagar, Dhanegaon alongwith her family members i.e. her husband, brother-in-law, mother-in-law. The appellant (accused) Charansingh resides near house of PW 1 Sunita. Accused owns a auto rickshaw. At the time of Dasara festival, Ankush, brother- in-law of PW 1 Sunita, had taken the Auto Rickshaw of accused for plying. While running the said Rickshaw by Ankush, the rickshaw met with an accident and it got damaged. Accused had demanded an amount of Rs.4000/- towards the damage caused to the Rickshaw from deceased. Part amount of Rs.2000/- was given to the accused. However, accused all the while was raising quarrel on account of balance amount of Rs.2000/- and was threatening of dire consequences. On 6.1.2008, in the evening time, deceased, PW 1 Sunita, her mother-in-law Gangabai (PW 4) and father-in-law Vitthal, were at their 3 house. Accused came to their house armed with a knife and demanded Rs.2000/- from deceased. He was abusing the deceased. PW 1 and PW 4 requested the accused not to raise quarrel. Accused was convinced and sent back. After some time, again accused came to the house of PW 1 Sunita with a “Katti” and he gave a blow of Katti on the left side of chest of deceased. Due to which deceased sustained injury. PW 1 Sunita and PW 4 Gangabai shouted loudly saying that deceased was assaulted by accused. On hearing this, neighbours gathered at the spot of incident. Meanwhile, husband and brother in law of Sunita returned to the house. Deceased was lying on the ground. The police came to the spot and deceased was taken to the hospital. They also took the accused to another Rural hospital for treatment. PW 1 Sunita lodged the complaint Exh.18 to police station, Nanded (Rural) alleging that accused committed murder of her father- in-law Vitthal Pawar by Katti. The Police of Rural police station, Nanded registered crime for the offence punishable under Section 302 of I.P.C. and P.S.I. Haribhau Rathod, PW 8 took over the investigation. Inquest panchnama Exh.24 was drawn on the dead body of Vitthal was referred to post mortem examination. PW8 Mr. Rathod, visited the place of occurrence and prepared the spot panchnama Exh.20. Katti was lying on the spot and blood stained soil and simple soil were seized from the place of occurrence. Statement of witnesses were recorded. The blood stained 4 clothes were seized at Exh.31. After post mortem examination, all seized articles were sent to the office of Chemical analyzer Aurangabad for analysis and report is submitted. Office copy of the report is at Exh.32. On receiving the post mortem report and on completion of investigation, PW 8 submitted the charge sheet against the accused and registered the offence under section 302 of I.P.C. and Section 4/25 of the Arms Act and under Section 135 of Bombay Police Act to the Court of learned J.M.F.C. Nanded. Since the offence under Section 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to the Court of Sessions at Nanded vide Section 209 of Cr.P.C. Charges at Exh.13 has been framed against the accused for the offence punishable under section 302 of I.P.C. and Section 4/25 of the Arms Act and Section 135 of Bombay Police Act. Charges were read out and explained to the accused. He pleaded not guilty. Plea of the accused has been recorded at Exh.14. The defence of the accused was that of total denial. According to him, he is falsely implicated in the case as he had filed a complaint against husband of PW 1 for the offence punishable under section 307 of I.P.C. Accused did not adduce any evidence in his defence. The learned Sessions Judge, after hearing the parties and after recording the evidence, has convicted the appellant-accused Charansingh for the offence punishable under section 302 of I.P.C. 5 and sentenced him to suffer R.I. for life and to pay fine of Rs.1000/-, i/d to undergo further S.I. for two months. 3 Learned counsel appearing for the appellant-accused (appointed) submitted that evidence of PW 1 and PW 4, who claim to be eye witnesses, suffers from material contradictions. Both these witnesses are interested witnesses and their evidence cannot be relied upon and the same should not have been taken into consideration. One of the witness stated that weapon used for commission of alleged offence is manufactured by the family of the witnesses as they being blacksmith. However, another witness does not say so. Therefore, in respectful submission of the counsel for the appellant, the evidence of PW 1 and PW 4 is not reliable. It is further submitted that though independent witnesses were available, however those were not cross examined by the prosecution. Panch witness on the inquest panchnama has not supported the prosecution case. It is further submitted that between narration made in the complaint and evidence led before the Court by PW 1, there are material contradictions. It is further submitted that one Parubai had given information to the Police Officer and the said information itself should have been construed as First Information Report, and in view of the information given by Parubai, first in time, by telephonic message to the police, the complaint lodged by PW 1 Sunita could not have been considered. It is further submitted that in statement under Section 313 of Cr.P.C., the 6 accused stated that since he has lodged complaint against the husband of P.W.1 Sunita, the complaint in question filed against him is false. Learned counsel further submitted that the evidence of eye witnesses is required to be scrutinized minutely by this Court. In support of her contention, learned counsel for the appellant placed reliance on the reported judgment of this Court in the case of Badam Singh Vs. State of Madhya Pradesh, reported in AIR 2004 SC 26 and more particularly para 16 of the said judgment to contend that merely because the eye witnesses have deposed in favour of the prosecution, that itself is not sufficient to upheld the conviction unless their evidence is scrutinized minutely. Learned counsel further submitted that looking into the nature of injuries and quarrel took place between the appellant and deceased, the case in hand is not covered under section 300 of I.P.C. According to the learned counsel, looking to the facts of entire incident, the injuries sustained by the deceased and the complaint filed by the appellant accused against the husband of PW 1, the case of the appellant would fall under one of the exception of Section 300 of I.P.C. In support of her contention she placed reliance on the reported judgment of this Court in the case of Pappu @ Hari Om Vs. State of Madhya Pradesh, reported in 2009 ALL MR (Cri) 2181 (S.C.) and also the judgment of the Hon’ble Supreme Court in the case of Ramesh Kumar Toni Vs. State of Haryana, reported in 2009 (13) SCC 401. Learned counsel invited our attention to the evidence of PW 1, PW 4, PW 8 and the Evidence 7 of Medical Officer and submitted that the appellant is entitled for benefit of doubt Therefore, learned counsel would submit that the impugned judgment and order may be set aside and the accused appellant should be acquitted from the charges levelled against him. 4 On the other hand, learned A.P.P. appearing for the State placed reliance on the evidence of PW 1 and PW 4 and submitted that there is direct evidence in the matter in the nature of eye witnesses, Medical evidence corroborates with the version of eye witnesses, and therefore, the case in hand squarely falls under Section 300 and the trial court has rightly convicted the appellant under Section 302 of I.P.C. It is further submitted that merely because the other witnesses are not examined by the prosecution would not affect the prosecution case. Learned A.P.P. further submitted that other neighbouring witnesses had come on the spot after hearing the shouts of PW 1 and PW 4. PW 1 and PW 4 being family members of deceased have witnessed the incident and therefore, their evidence is important. Learned A.P.P. also invited our attention to the post mortem report and submitted that if the injuries mentioned in column Nos 17 and 20 are taken into consideration, it is clear that the injuries are on vital part. Learned A.P.P. further submitted that there are more than one injury. The appellant accused came prepared and therefore, he does not deserve any leniency. Learned A.P.P. therefore, would submit that the appeal is devoid of any merit and the same be dismissed. 8 5 With the assistance of the learned counsel appearing for the appellant and the learned A.P.P. for the respondent-State, we have seen entire evidence brought on record. The date of incident is 6.1.2008. The incident has occurred at the evening time. The appellant, who is original accused is Charansingh @ Chanya s/o Indersingh Kadewale. The name of victim is Vitthal Kashinath Pawar. The complaint is lodged by PW 1 Sunita on 6.1.2008 which is at Exh. 18. Prosecution has examined other witnesses. PW 1 Sunita Ramesh Pawar, who is complainant. PW 2 is Bhagwan Vyankatrao Shinde, who is panch witness, PW 3 is Harcharansingh Inshwarsingh Khalsa, who is also panch witness. PW 4 is Gangabai Vitthal Pawar, wife of deceased Vitthal Pawar. PW 5 is Shri Basare who is also treated as panch witness. PW 6 Balaji Kashiram Pawar blacksmith. PW 7 Dr. Madhukar Kashinath Hatte, Medical Officer, PW 8 Haribhau Patru Rathod. We find that the defence which is taken by the accused is that he filed complaint against the husband of PW 1 and therefore, a false complaint has been filed against him. PW 1 Sunita Ramesh Pawar in her examination in chief has stated that deceased was her father-in-law. The family was residing together consisting herself, her husband, mother-in-law, deceased father-in-law and her son. He further deposed that she knows the accused present before the Court. House of the accused is adjacent to her house. Ankush, is brother of her husband. Accused was plying auto rickshaw. On the date of 9 Dasara, accused parked his rickshaw near her house. Anuksh was plying the said rickshaw. Rickshaw was dashed. Ankush sustained injury due to dash. Rickshaw was also got damaged. Accused was demanding an amount of Rs.4000/- towards the costs of damages. Despite the amount of Rs.1000/- was paid, the accused was demanding Rs.4000/- and on account of that he was raising quarrel with her father-in-law on account of non payment of the same amount. 6 On the date of the incident, her in-laws returned to home, from Wajegaon. They all were present in the house. It was about 7.00 p.m. The accused came there holding a Khanjar with him and he came to their house with that Khanjar and demanded the amount. But deceased requested him not to raise quarrel and that the amount would be paid on one or other day. Accused was convinced and was returned to his house. However, after some time, accused again came to the house of this witness with a Katti. Her father-in-law was in the house. Accused gave blows of Katti on the chest of father-in-law of PW 1. Father-in-law sustained bleeding injures. It is further stated that she herself and PW 4 raised shouts. On hearing the shouts, neighbours gathered at the spot of incident. One lady amongst the persons gathered on the spot, who is residing in neighborhood had informed the police on which police came to the spot. This witness took her father in law to the hospital. This witness called to the police from hospital and lodged report. This witness has identified the thumb 10 mark on the report which was shown to her. She has stated that the contents of the report was read over to her and same are true and correct. She further stated that said report is at Exh.18. Her father-in- law expired in the hospital. The dead body was thereafter referred to the post mortem examination. This witness has stated that she can identify the “Katti” if shows to her. According to her, father-in-law died due to Katti blow given by the accused. She has categorically stated that the accused had committed murder of her father-in-law. The dispute was on account of amount of damages caused to the Rickshaw of the appellant-accused. This witness has identified the weapon ‘Katti’ used by the accused at the time of incident and clothes of her father-in-law, which were on his person at the time of incident. Katti (Article 1), Shirt (Article 4), banyan (Article 5), under pant (Article 6) and pant (article 7) were shown to her and she had identified them. (Emphasis supplied). In her cross examination, she has specifically denied the suggestion that her husband had assaulted the accused with knife or Khanjir. She has specifically denied that her husband was holding the Katti at the time of this incident. She has specifically denied that her husband was not present at the spot at the time of scuffle between accused and her father-in-law. He reached the spot immediately after the incident. The evidence of this witness has remained intact in the cross examination. 11 7 PW 2 Bhagwan Shinde, who is witness to the panchnama of spot, seizure of Katti and soil from the spot of incident. He has denied the suggestion in cross examination that panchnama was already written by police, before he reached to the spot. He specifically stated that the panchnama at Exh.20 was prepared in his presence. The evidence of P.W.3 is at Exh.21. This witness has not supported the prosecution story. 8 Evidence of P.W.4, Gangabai Vitthal Pawar is at Exh.22. In her examination in chief, she stated that her husband Vitthal Pawar was blacksmith. Ramesh, Pralhad and Ankush are her sons. She had identified the accused, who was present before the Court. She has further stated that the accused resides near her house. According to this witness, incident occurred before Dasara festival. According to this witness her husband (deceased) took auto rickshaw of accused for her son Ankush. Auto Rickshaw was taken from accused prior to Dasara festival. Auto Rickshaw met with an accident and therefore, the same was damaged. The accused was demanding an amount of Rs.4000/-. This witness further stated that she had given an amount of Rs.1000/- and also given her marriage string (Mangalsutra) to the accused. Accused, even thereafter continued to demand the amount towards damages and was abusing the family members of this 12 witness. It is further stated that the accused again came to their house and was demanding Rs.1,400/-. The amount of Rs.1,400/- was paid to the accused and requested him to put the end to the dispute. She further stated that on the date of incident, accused came to the house of this witness in the evening at about 6.00 p.m. Accused was demanding money from her husband. Accused was having a knife in his hand. This witness and other family members requested the accused and drove out him from their house. Accused went to his house and again came from his house with a Katti. This witness has further deposed that the accused gave a blow of Katti on the left shoulder of her husband and another blow on left side of chest of her husband. Her husband fell down. He sustained bleeding injuries. This witness has further stated that the neighbourer informed the police on telephone. Police came to the spot. Her husband was taken to the hospital. This witness has further stated that she can identify Katti, if shown to her. (Emphasis supplied). In the cross examination of this witness, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness, careful perusal of the cross examination of this witness would show that her evidence in examination in chief has not shattered in any way in the cross examination. 13 9 The evidence of PW 5 Shrihari Bhaurao Solanke, is at Exh.23. This witness has stated that he saw the dead body of his father-in-law. The clothes from the person of that dead body were stained with blood. There was bleeding injury on the left side of the chest and left shoulder near the neck. The police prepared panchnama. He put his thumb mark on the said panchnama. This witness has stated that the panchnama was read over to him is the same. Contents of the same are true and correct. The panchnama is at Exh.24. Nothing has been brought on record in the cross examination by the defence so as to disbelieve the evidence of this witness. 10 Evidence of P.W.6 Balaji Kashiram Pawar is at Exh.25. He has stated in his examination in chief that deceased Vitthal was his brother. He was residing at Tirupati Nagar. He knew the accused present before the court. He resides near the house of Vitthal Pawar. Vitthal was also black smith and he has four sons. He received message on telephone about the death of Vitthal. He went to the spot at Tirupatinagar and saw the pool of blood at the spot. He saw the dead body of Vitthal in the hospital. The evidence of this witness supports the contention of the prosecution about the death of deceased and spot of incident. This witness has also stated before the Court that the wife of his brother told him that she had paid Rs. 2000/- to Rs.3000/- to the appellant, towards the damages caused to his rickshaw. 14 11 The evidence of PW 7 Dr. Madhukar Kashinathrao Hatte is at Exh.27. He performed post mortem examination between 7.00 a.m. to 8.00 a.m. on 8.1.2008. On examination he found following external injuries on the person of Vitthal Pawar: i) Stab injury over upper part of left chest anteriorly, 9 cms x 3 cms x 15 cms in dimension, spindle shaped, caused due to pointed doubled edged weapon. Age of injury was within 24 hours. ii) Fracture of third rib anteriorly, iii) Left hemothorax, 2.8 ltr. blood iv) Left lung was punctured. The wound was in apical lobe, collapse of left lung. v) Pericardium was punctured at left side. Heart punctured, wound in left atrium. In para 3 of his evidence, this witness has stated that,”in my opinion, the cause of death is shock due to hemothorax and injuries to lung and heart . He has further stated that post mortem report shown to him before the court bears his signature. The contents thereof are true and correct and post mortem report is at Exh.28. He has also 15 issued provisional certificate about the cause of death. The said certificate is at Exh.29. He has further deposed that, “the injury shown in column No.17 of post mortem report is possible by means of Katti, if it is sharp. The said injuries is possible by means of Katti (Article 1), now shown to me.” In his cross examination, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness. (Emphasis supplied). We have also noticed that the injuries mentioned in column No. 17 of the post mortem report. It is stab injury over upper part of left chest anteriorly, 9 cms x 3 cms x 15 cms in dimension, spindle shaped, caused due to pointed doubled edged weapon. Age of injury was within 24 hours. We have also carefully perused the injuries mentioned in column No.20 of post mortem report, which are as follows:- i) Fracture of 3rd rib anteriorly, i) Left hemothorax, 2.8 ltr. blood iii) Left lung was punctured. The wound was in apical lobe, collapse of left lung. iv) Punctured, wound in left atrium. 16 The post mortem report shows that the probable cause of death is, “shock due to haemothorax and injuries to lung and heart” (Emphasis supplied). 12 The evidence of PW 8 Haribhau Patru Rathod, is at Exh.30. In his examination in chief, he stated that he received the investigation of crime No. 7 of 2008 from Police Station, Nanded (Rural) on 7.1.2008. Inquest panchnama was drawn in the hospital. Inquest panchnama at Exh.24 shown to him before the Court, is the same, which bears his signature and those of panch witnesses. He further stated that he visited the place of occurrence and prepared the spot panchnama. He further stated that it was at Tirupati Nagar, Dhanegaon. He further stated that one blood stained Katti was lying on the spot. It was seized. Similarly, there were blood stains on the ground and therefore, the blood stained soil and simple soil were seized from the spot. Spot panchnama Exh.20 shown to him is the same. Katti (Article 1) shown to him is the same which was seized from the spot. This witness has further stated that the blood stained clothes of deceased were seized after post mortem examination. Katti, blood stained clothes, blood stained soil and the simple soil were sent to office of C.A. Aurangabad for analysis and report. Seizure panchnama of the clothes bears his signature and those of panch witnesses. Contents thereof are true and correct. The panchnama is at Exh.31. The blood stained clothes Articles 4, 5, 6 and 7 shown to him are the same. This witness has 17 further stated that office copy of the letter addressed to C.A. Aurangabad bears his signature and the said letter is at Exh.32. It is further stated that he recorded the statements of the witnesses. Postmortem report was received by him from Medical Officer. The accused was arrested and he is the same person who was present before the court. This witness has further stated that after completion of investigation charge sheet was filed. This witness has specifically stated that on investigation it is transpired that the accused committed murder of Vitthal Pawar by means of Katti due to dispute on account of payment of damages caused to auto rickshaw of the appellant- accused. We have also seen the cross examination of this witness. On behalf of the defence, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness. 13 With the assistance of the learned counsel appearing for the appellant as well as the learned A.P.P. we have carefully gone through the impugned judgment of the trial Court. The learned Sessions Judge in para Nos. 14 to 17 has taken into consideration the evidence of PW 1, PW 4 and PW 6. The learned Judge has observed in the said paragraphs that merely because PW 1 and PW 4 are relatives of the deceased, the same cannot be a ground to disbelieve and discard their testimony.