1 Criminal Appeal No.175 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.175 OF 2010 Vijay Kisan Waghmare, Age-34 years, Occu-Labourer, R/o.Kanegaon, Tq.Lohara, Dist.Osmanabad APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.K.S.Bhore, learned counsel for the appellant. Mr.N.R.Shaikh, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 04/07/2011 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of The IPC and u/s. 307 of The IPC and sentenced to imprisonment for life and to pay fine of Rs.2,000/- in default of which to undergo further RI for 6 months and RI for 5 years and to pay fine of Rs.1,000/- in default of which to undergo further RI for 3 months, with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Omerga, by judgment dated 08/12/2009 in Sessions case No.16/2007, by this 2 Criminal Appeal No.175 of 2010 appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus - P.W.No.7 Ahmed Shaikh, an A.S.I., who was attached to Police Station Lohara, on 21/01/2007, referred deceased Sudam and his sister P.W.No.2 Nanda to the Primary Health Center for medical examination. Deceased Sudam and P.W.No.2 Nanda Waghmare were examined by P.W.No.10 Mangesh, a Medical Officer, who was attached to the Primary Health Center at Lohara. P.W.No.10 noticed the following external injury on the person of P.W.No.2 Nanda i.e. CLW, size 3 x 3 x 3 cm over right cheek. He had noticed the following external injuries on the person of deceased Sudam - 1. CLW size 2 x 2 x 1 cm over right eyebrow. 2. CLW size 2 x 1 cm over right shoulder. Looking to the nature of the injuries sustained by deceased and P.W.No.2 Nanda, P.W.No.10 Dr.,Mangesh Kshirsagar referred both the patients to the Civil Hospital, Osmanabad for further treatment and management. Deceased Sudam and P.W.No.2 Nanda were examined by Dr.Kamble (P.W.No.11), who was working as a casualty Medical Officer at Civil Hospital, Solapur on 21/01/2007. He noticed the following external injuries on the person of Nanda. 1. CLW on right eye to middle of right ear, right cheek 4 x ½ x ½ 2. CLW ½ inch below to right eye, below right eye, 1 x ¼ x ¼ 3 Criminal Appeal No.175 of 2010 The certificate issued in respect of injury sustained by Nandabai is at Exh.52. P.W.No.7, A.S.I.Shaikh as per the directions of his superiors, proceeded to the Civil Hospital at Solapur and recorded the statement of deceased Sudam at Exh.28. On questioning deceased Sudam, he found that deceased Sudam was in a fit condition and therefore did not consult any medical officer. Statement of deceased Sudam came to be recorded at Exh.28. On the basis of the statement of deceased Sudam at Exh.28, P.W.No.12 Police Head Constable Datta Harbore who was posted as a Head Constable at Police Station, Lohara, registered an offence vide Crime No.8/2007 u/s. 326, 323 of The IPC. The investigation came to be entrusted to P.W.No.12 Datta Harbore. He accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of witnesses at Exh.55. He recorded statements of about 7 witnesses and on 25/01/2007, recorded the statement of the brother of the accused namely Sanjay. Meanwhile, deceased Sudam who had been admitted in the hospital at Solapur, succumbed to his injuries on 26/01/2007 at about 1.50 a.m. He accordingly handed over investigation to P.W.No.13 P.I. Suresh Kale. P.W.No.13 P.I. Suresh Kale, who was posted as Police Inspector at Police Station Lohara, received investigation of the said crime on 28/01/2007. He accordingly recorded statements of witnesses and arrested the accused on 26/02/2007. During custodial interrogation, the appellant accused expressed his desire to point out the place where the weapon i.e. the sickle was concealed. The memorandum 4 Criminal Appeal No.175 of 2010 accordingly came to be recorded in the presence of panchas at Exh. 40. The accused had led the police and the panchas to his residential house and produced a sickle which has been concealed by him under the hay. The said sickle came to be seized vide seizure memo at Exh.41. The said sickle is Article 4. Seized articles came to be forwarded to the Chemical Analyser on 15/03/2007 alongwith the requisition at Exh.60. The report of the Chemical Analyser at Exh.33 shows that no blood was detected on the sickle. It also appears that, pursuant to the arrest of the appellant accused, a memorandum u/s. 27 of The Indian evidence Act came to be recorded and secondly clothes of the appellant accused came to be seized. The report of the Chemical Analyser shows that the clothes were stained with blood of ‘O’ group. Obviously, cloths had been seized after about 2 months of the incident. Further to the completion of investigation, a charge sheet against the appellant accused came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh. 5 was framed by the Trial Court for an offence punishable u/s. 302, 307 of The IPC. The Trial Court accepted the evidence of the prosecution and accordingly convicted and sentenced the appellant. The entire prosecution case revolves round the evidence of P.W.No.2 Nanda, who is an injured eye witness and Exh.28 Dying declaration of deceased Sudam, recorded by P.W.No.7 A.S.I. Ahmed Shaikh. In order to appreciate and deal with the submissions advanced before 5 Criminal Appeal No.175 of 2010 us by the learned counsels for the parties, it would be appropriate to deal with the evidence of these 2 witnesses. 4. P.W.No.2 Nanda states that she was married to her husband about 16 years prior to the incident. She states that she had been residing at Pune in the Kothrud area while the appellant accused, who is her brother in law, was residing in Hadapsar area. She states that the appellant accused used to frequently come and visit her even after the death of her husband. In respect of the incident, she states that she had come to the village on account of a certain religious festival. On the date of the incident, she was residing in the house of her in laws. She states that in the night, she slept on the cot alongwith her brother deceased Sudam. She further states that during the night, the appellant accused dealt a blow of sickle to her brother on his forehead, above the right eye and thereafter also assaulted her. She has also stated that in the afternoon, the appellant accused had come and had demanded Rs.80/-, which was paid by P.W.No.2 Nanda. She states that she and her brother had sustained bleeding injuries, but since it was night, they had not taken any steps. Thereafter, her brother telephoned his in laws and his in laws reached the village at about 7.00 a.m. Thereafter, Sarpanch was contacted and then they proceeded to Police Station, Lohara. She states that they were examined in the Primary Health Center and were then referred to Civil Hospital at Solapur where her brother expired. In cross examination, she has admitted that she 6 Criminal Appeal No.175 of 2010 had not stated in her previous statement that her brother sudam had telephoned his in laws. Similarly, she has admitted that she had not stated in her previous statement that the accused used to daily visit her house after consuming liquor even after the demise of her husband. She has admitted not to have stated in her previous statement that she had informed her maternal brother about the behaviour of the appellant/accused. Apart from these omissions, no substantial dent has been made in the cross-examination. The appellant/ accused, who was her relative, has been identified by her as the assailant who had come to the house and had delivered blows of sickle to her brother Sudam as well as assaulted her. The identification of the appellant/accused is not seriously challenged in the cross examination. In fact nothing worthwhile has been elicited in the cross examination, which would in any manner, affect her credibility. We, therefore, find that implicit reliance can be placed on the testimony of P.W.No.2 Nanda, who is an injured eye witness. 5. Dying declaration of deceased Sudam came to be recorded by P.W.No.7 A.S.I. Ahmed Shaikh. A.S.I. Ahmed Shaikh states about referring the 2 injured to the Primary Health Center, and thereafter proceeding to Solapur for recording their statement. He has admitted that he had recorded the statement of Nanda as well as of deceased Sudam. He has stated that he noticed that deceased Sudam was in a fit condition to give his statement and accordingly no opinion of the Medical Officer was solicited. On this aspect, there is 7 Criminal Appeal No.175 of 2010 virtually no cross examination and thus there is no challenge. Though this witness has been cross examined at length, nothing substantial has been elicited in the cross examination to affect the credibility of this witness particularly in respect of the recording of statement of deceased Sudam at Exh.28. Statement of deceased Sudam has been held admissible by the Trial Court u/s. 32(1) of The Indian Evidence Act as a dying declaration. The statement of deceased Sudam at Exh.28, which is a dying declaration and on the basis of which, the offence was registered, implicates the appellant accused to the hilt. Thus coupled with the evidence of P.W.No.2 Nanda, statement of Sudam at Exh.28, establishes the offence against the appellant accused beyond reasonable doubt. The reasoning of the Trial Court therefore for convicting the appellant accused can not be faulted with. 6. We have heard the learned counsel for the appellant as well as learned A.P.P. for State and with their assistance we have perused the evidence of the prosecution witnesses. According to us, the prosecution has proved the offence against the appellant accused beyond reasonable doubt. The appellant accused effected an entry in the house of the in laws of Nandabai at mid night and inflicted injuries to deceased Sudam and P.W.No.2 Nanda. The appellant/ accused, who was the relative of P.W.No.2 Nanda, has been identified by deceased Sudam as well as P.W.No.2 Nanda as the assailant. The aforesaid identification has not been challenged at all. We however 8 Criminal Appeal No.175 of 2010 find that no implicit reliance can be placed upon the discovery of the sickle as well as the clothes of the appellant accused. Even if that part of the evidence is left out of consideration, the evidence of P.W.No.2 and P.W.No.7 A.S.I. Shaikh Ahmed clearly establishes the offence against the appellant accused. Deceased Sudam had died on account of the internal fractures, which he had sustained on account of the external injuries. The intention to commit the murder of Sudam is writ large. Apart from that, the appellant accused has caused voluntary injuries which were sufficient in ordinary course of nature to cause death and therefore the appellant/accused would be liable to be punished for an offence punishable u/s. 302 of The IPC. Similarly, no interference is called for in respect of the conviction and sentence of the appellant for an offence punishable u/s. 307 of The IPC. 7. We, therefore, find that the present appeal, which is without merit, deserves to be dismissed and is accordingly dismissed confirming the conviction and sentence. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 175-10