{1} Cri. Appeal No.357/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.357 OF 2010 Arjun @ Pappya Kachru Unawane APPELLANT Age-26 years, Occ-Labourer R/o Adgaon, Tq & Dist-Beed VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Police Station, Pimpalner, Dist-Beed ....... Mr.N.B.Suryawanshi, Advocate for the appellant Mr.S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 22 nd July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer Imprisonment for Life and to pay a fine of Rs.500/- in default, to undergo further RI for 6 months awarded by Additional Sessions Judge-I, Beed vide judgment and order dated 25.08.2010 rendered in Sessions Case No.63/2009, by this appeal impugns his {2} Cri. Appeal No.357/2010 conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) PW-8 API Masudkhan, attached to Pimpalner police station, had received a message during the night between 29th and 30th March 2009 in respect of murder of Mahadeo (deceased). Thereafter, PW-8, API Masudkhan reached to the scene of offence during the night itself and drew the inquest Panchanama (Exhibit-29) on the dead body and spot Panchanama (Exhibit-19) was also drawn. Thereafter, the dead body was sent for postmortem examination. On the basis of complaint (Exhibit-25) lodged by PW-2 Dropadabai, an offence at Crime No.34/2009 came to be registered u/s 302 of the Indian Penal Code against the appellant. b) Dr.Suvarnamala, PW-4, conducted the postmortem on the dead body and noticed that left temporal bone, left parietal bone and right parietal bone of the head of the deceased were fractured. During the internal examination, the medical officer noticed Haematoma under scalp over left temporo parietal region of size 9 x 6 cm, continued fracture of left and right temporal bones of skull and fracture base of skull anterior and middle cranial fossa so also the brain matter was lacerated at fracture site with haematoma. The medical officer noticed semi digested food {3} Cri. Appeal No.357/2010 material in the intestine. According to the medical officer, the cause of death was head injury and the death might have been caused approximately 4 / 5 hours after the last meal. Accordingly, Postmortem report (Exhibit-31) was prepared. According to the medical officer, if a big stone (Article-1) is banged on the head, then the said injury is possible. c) Thereafter, statements of certain witnesses were recorded. On 01.04.2009 the appellant himself appeared before the police and he came to be arrested vide arrest Panchanama (Exhibit-44). Clothes of the deceased were seized under seizure Panchanama (Exhibit-27) so also clothes of the appellant came to be sized vide Panchanama (Exhibit-28). The seized property was sent for chemical examination. Subsequently, CA reports (Exhibit-46 and 47) were received. On completion of the investigation charge sheet came to be filed against the appellant before the Chief Judicial Magistrate, Beed. d) On committal of the trial to the court of Sessions, trial court framed charge (Exhibit-10) against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. Prosecution, in support of its case, examined in all 8 witnesses. Prosecution has also relied on the documentary evidence collected during the investigation. As the Panchanama of seizure of clothes of the deceased (Exhibit-27), Panchanama of seizure of clothes of {4} Cri. Appeal No.357/2010 the appellant (Exhibit-28) so also inquest Panchanama (Exhibit-29) are admitted by the appellant, the same were exhibited u/s 294 of the Criminal Procedure Code. The defence of the appellant was of total denial and alibi. On appreciation of the evidence on record, trial court convicted and sentenced the appellant as aforestated. 3. For better appreciation of the submissions advanced before us by Mr.Suryawanshi, learned counsel for the appellant and Mr.Tambe, learned APP for respondent State, it would be appropriate to refer to the evidence of material witnesses examined before the trial court. 4. The conviction of the appellant is based mainly on the evidence of PW-2 Dropadabai, PW-3 Uddhav Mhaske, PW-5 Chandkhan Pathan and PW-6 Salar Pathan. 5. It transpired from the evidence of PW-2 Dropadabai, the first informant, that the deceased Mahadeo was her son and the appellant is her nephew. She was residing with her son (deceased) and daughter in law. On the night of 29.03.2009 after finishing her dinner, while she was sitting on cot, the appellant had came there and on inquiry he had informed that he had came there casually and left thereafter. Thereafter, she had slept on the platform of their house. Around 1.30 am she heard sound of something fallen and she woke up and caught shirt of the appellant, who was trying to flee, however, she could not caught {5} Cri. Appeal No.357/2010 hold of him and the appellant was successful in fleeing. She noticed that blood was oozing from the nose, ear and mouth of the deceased who had slept on the same platform and one big stone was lying by his side. Thereafter she raised alarm for help and on hearing her shouts, PW-3 Uddhav, PW-6 Salar and others reached at the spot. She states that her daughter in law, i.e. wife of the deceased, is dumb. On inquiry by the persons who had come, she informed that the appellant threw the stone on the deceased. She has stated in her evidence that some days prior to the incident, the appellant had tried to outrage modesty of the wife of the deceased and on that count there was altercation between the deceased and the appellant. In her cross examination she states that the appellant resides near her house and he is a habitual drunkard. The appellant is a vagabond and wanders in the village. There is compound wall to the court yard of her house. Though she admits that there was no electric connection in her house, yet she has stated that the street lights were on outside her house. She denies that stone kept on the roof of her house had fallen on the deceased due to storm. She admits that the dispute between her son and the deceased was settled by the neighbours. It was tried to suggest to her that she woke up from the sleep on hearing loud sound and had not seen the assailant, however she states that after hearing the sound, she woke up and tried to catch the appellant who was fleeing from the spot. The police had been to the spot on the same night and she had disclosed them the incident. Her complaint was recorded after last rites were performed on the dead body. The only {6} Cri. Appeal No.357/2010 omission has been brought in her cross examination that it does not find place in the complaint (Exhibit-25) that she had caught shirt of the appellant and she had informed the police about the previous incident. 6. PW-3 Uddhav, states that his house is situated on the opposite side of the house of the deceased and in the night between 29th and 30th March 2009, on hearing shouts, he had proceeded to the house on the deceased and had noticed that the appellant was fleeing from the spot. After he reached at the spot, PW-2 Dropadabai had informed him that the appellant threw a stone on the deceased. He noticed that blood was oozing from the nose and ear of the deceased. At the same time, PW-6 Salar also came there. The deceased died on the spot. It is brought in his cross examination that when he reached at the spot, PW-2 Dropadabai was shouting that she caught the appellant but he ran away. He has further admitted in the cross examination that though the police had enquired, he had not disclosed the incident to the police. Omission is duly proved in his cross examination that it does not find in his police statement that he saw the appellant running. Contradiction is also proved in his further cross examination that he had not informed the police that the complainant had informed him the cause of assault by the appellant. From the omissions proved in his cross examination, we are of the view that this witness cannot be relied upon on the point that he had immediately reached at the spot and saw the appellant {7} Cri. Appeal No.357/2010 running away from the spot. 7, It is in the evidence of PW-5 Chandkha that his house is situated on the southern side of the house of the deceased. He knew both, the appellant as well as the deceased. He states that on the day prior to Gudipadwa, quarrel had taken place between the appellant and the deceased as the appellant had tried to outrage the modesty of the wife of the deceased. He had witnessed the said quarrel and was amongst the persons who had settled the same. In respect of the incident, he states that at about 1.30 am to 1.45 am he woke up from sleep for urination and when he was returning to bed he saw that the appellant was brisking on the road and he was coming from the house of the deceased. He identified the appellant in the street lights. At that time he heard shouts of PW-2 Dropadabai from the close proximity. When he reached at the spot, he saw that PW-3 Uddhav and PW-6 Salar were already present there. At that time PW-2 Dropadabai informed them that the appellant banged a stone on the deceased and fled from the spot. Nothing of substance has been elicited in his cross examination to discard his testimony. 8. Evidence of PW-6 Salar is on the similar lines as that of PW-5 Chandkha. He states about seeing the appellant from the distance of 20 feet when the appellant was brisking from the spot. He states about presence of PW-3 Uddhav and others. He also states about the previous incident of outraging of modesty of the {8} Cri. Appeal No.357/2010 wife of deceased by the appellant. Additionally, he states that after the quarrel between the appellant and deceased was settled, the appellant had extended threats to the deceased of dire consequences. Though this witness has been cross examined at length, yet nothing of significance has been elicited in his cross examination. 9. In the light of the evidence discussed above, we have heard learned counsel for the appellant followed by the submissions of learned APP for respondent State. Learned counsel for the appellant has urged before us that from the testimony of PW-2 Dropadabai it is clear that she woke up from sleep after hearing the sound and saw the appellant fleeing from the spot and hence she cannot be termed as an eyewitness to the incident. It is further urged that though PW-2 and other witnesses state that a stone weighing about 20 to 25 kg was banged by the appellant on the deceased, yet the medical evidence given by PW-4 Dr.Suvarnamala is conspicuously silent about noticing any external injury on the person of the deceased. It is further urged that had the stone of such a big size been banged on the head, the skull of the deceased must have been smashed or at least some visible injury must have been caused to the deceased. In the premise, according to the learned counsel for the appellant, the evidence of the eye witnesses that the appellant banged a stone of 20 to 25 kg on the deceased, is not acceptable. It is further urged that in view of evidence of PW-7 Kacharu, who had seen the {9} Cri. Appeal No.357/2010 appellant sleeping nearby temple, the evidence of PW-3 Uddhav, PW-5 Chandkha and PW-6 Salar cannot be accepted on the point that the appellant was last seen together with the deceased. Therefore, learned counsel for the appellant urged for acquittal of the appellant by allowing the appeal. Per contra, learned APP supported the findings arrived at by the trial court while convicting the appellant and urged for dismissal of the appeal. 10. Nothing has been brought in the cross examination of PW-4 Dr.Suvarnamala that the head injury noticed on the person of the deceased is not possible due to assault with a stone or that if the stone is banged then the skull should be smashed or at least visible injury should be noticed. In fact, there is no scale to measure the force behind the blow. At the same time though defence of alibi is taken by the appellant the same is not probabilized by him. Be that as it may, according to PW-2, Dropadabai, the incident occurred at about 1.30 am and though evidence of PW-3 is not reliable, yet PW-5 Chandkha and PW-6 Salar have clearly established that they had seen the appellant coming from the house of the deceased at about 1.40 am on 30.03.2009, which is not shaken even in their cross examination, hence, the evidence of PW-2 is corroborated and supported by PW-5 and PW-6. The appellant has not explain his presence noted by these three witnesses at the relevant time at the spot. 11. Learned counsel for the appellant placed reliance on {10} Cri. Appeal No.357/2010 the observations of the Apex Court in “Sk.Yusuf V/s State of West Bengal” 2011 ALL MR (Cri) 2365 (SC) regarding circumstantial evidence and theory of last seen near the place of incident. In the said judgment, there was no evidence as both the deceased and the appellant were seen together at the place of occurrence or nearby in close proximity of time and hence it is held by the Supreme Court that the last seen together theory cannot be invoked. However, in the case in hand, evidence of PW-2 Dropadabai, PW-5 Chandkha and PW-6 Salar clearly establish that they had seen the appellant brisking from the spot soon after the incident. Thus, in the instant case presence of the appellant, at the spot at the relevant time, is not only marked by one but by three witnesses. In such circumstances the ratio of the said judgment would not be applicable to the present case. 12. Learned counsel for the appellant further placed reliance on the judgment of the Supreme Court in “State of U.P. V/s Awdhesh” AIR 2009 SC (Supp) 1116. The evidence before the Apex Court was not free from doubt as against this in the case in hand, it is clearly established that the appellant is the culprit who has caused injuries to the deceased, which resulted in his death. The evidence in the present case is not doubtful, but it is sufficient to establish the guilt of the appellant. In such circumstances, therefore, the ratio of the judgment cited by learned counsel for the appellant would not be applicable to the present case. {11} Cri. Appeal No.357/2010 13. Considering the defence of alibi, taken by the appellant, we may usefully refer the observations of the Supreme Court, in “Amarsing Mannasingh Suryawanshi V/s State of Maharashtra” 2008 AIR (SC) 479. The Apex Court, in the said judgment has observed thus - “35. There cannot be any doubt whatsoever that the appellant had not been able to prove his alibi. He did not examine any witness to support his case. He did not offer any explanation whatsoever as to why for about a month he was absconding. In a situation of this nature where admittedly the husband, wife and children were residing in one room, the prosecution having been able to prove that apart form the minor children, at the time of occurrence it was he and the deceased alone who were residing in the house, it was for the appellant to prove that how the deceased had met her death. This aspect of the matter was considered by this Court in Raj Kumar Prasad Tamarkar V. State of Bihar and Another (2007) 1 SCALE 19.” 14. Though the appellant has taken the stand of alibi in his say filed at Exhibit-49, yet, evidence of PW-2 Dropadabai, PW-5 Chandkha and PW-6 Salar, clearly establishes presence of the appellant at the spot at the material time. Though it is not necessary to examine any witness in defence, yet the accused has to probabalise his plea of alibi, which does not appear from the perusal of the evidence of the prosecution witnesses. On the contrary, the guilt of the appellant stands established from the evidence of prosecution witnesses. Additionally, motive behind the {12} Cri. Appeal No.357/2010 commission of the offence has also been sufficiently established from the evidence of PW-2 Dropadabai, PW-5 Chandkha and PW-6 Salar that the appellant had tried to outrage the modesty of the wife of the deceased, who is dumb, some days prior to the incident and during the quarrel, the appellant had threatened the deceased with dire consequences. This motive has been established from the evidence of the eye witnesses, which has not been challenged by the appellant nor the same has been shaken in their cross examination. In the light of above discussion, we are of the considered view that the charge of murder stands proved against the appellant beyond reasonable doubt. We do not find any fault with the reasoning recorded by the trial court while convicting the appellant. 15. Consequently, the appeal, which is devoid of any merit, stands dismissed confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel357-10