1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.730 OF 2006 Suresh Balappa Kamble ..Appellant Age : 19 yrs, Occu : Nil R/o.Gandhi Nagar, Above Ambedkar Nagar, Rabale, Diva Naka, Navi Mumbai District Thane V/s. The State of Maharashtra ..Respondent Mr.P.V.Dhopatkar, Advocate, for appellant Mr.P.S.Hingorani, A.P.P, for the State WITH CRIMINAL APPEAL NO.1323 OF 2007 Mahesh @ Balu Shivaji Chavan ..Appellant Convict No.C-14543 Yerwada Central Prison Pune – 411 006 V/s. The State of Maharashtra ..Respondent Mr.Machindra Deshmukh, Advocate, for appellant Mr.P.S.Hingorani, A.P.P, for the State 2 CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 2ND JULY, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The appellants have challenged their conviction and sentence in Session Case No.212 of 2004 recorded by 4th Ad-hoc Additional Sessions Judge, Thane dated 23rd June, 2005 whereby the appellants were directed to undergo rigorous imprisonment for life with fine of Rs.5000/- for the offence punishable under Section 302 read with 34 of the Indian Penal Code, they were directed to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1000/- for the offence punishable under Section 324 read with 34 of the Indian Penal Code. The appellants were held guilty for the offence punishable under Section 323 read with 34 of the Indian Penal Code and convicted and sentenced to suffer rigorous imprisonment for three months each and to pay fine of Rs.500/- each, with default clauses. The appellants were acquitted of the offence punishable under Section 393 read with 34 of the Indian Penal Code. 3 2. Yadav Maruti Rathod and his brother Mahadeo Maruti Rathod after finishing their respective works were proceeding together at around 9.30 P.M towards their house. While they reached near Nipaan Tekadi, Rabale, Diva Naka one of two persons (the appellants herein) standing namely Suresh demanded Tobacco from Mahadeo (deceased) to which negative response from him. Consequently, Suresh dealt a slap to Mahadeo. This was naturally questioned by the complainant and his brother. Accused No.1 Mahesh took out the knife and assaulted to Mahadeo at his neck. The complainant raised shouts and went to rescue his brother. However, after such assault to Mahadeo the accused Mahesh started beating complainant and assaulted at the back side of the complainant due to which he too suffered bleeding injuries. There was no response to the shouts of the complainant. He lift his brother and put him on his back and started taking him to the side of their house. However, after some distance the complainant couldnot bear the burden and lost his energy and he too collapsed. The matter was reported to police by carrying Mahadeo though he was in collapsed state. Before admission at hospital the Medical Authorities declared Mahadeo 4 dead. The complainant was also medically examined. F.I.R giving description of the accused persons was recorded. Complainant informed police that both the assailants were from area of Ambedkar Nagar and as such he knows them but not by their names and addresses. On the strength of the F.I.R investigation in Crime No.I- 46/2004 was carried by P.W.12 P.I.Dattatraya Krishnaji Ghule and Spot Panchanama was drawn. 3. The inquest on the dead body was completed (Exh.12 admitted). The dead body was sent for Post Mortem examination. The accused/appellants were apprehended from their native place on 14th February, 2004 as in the statement of the witnesses their names also reflected. At the instance of accused No.1/appellant Mahesh his T Shirt and Knife was recovered. The apparels of deceased, complainant and accused Suresh were also seized. All the items were sent under forwarding letter dated 20th February, 2004 (Exh.15 admitted). 4. Charge sheet was filed before the learned Metropolitan 5 Magistrate, thereafter, the matter was committed to Sessions Court. The charge below Exh.3 was explained to both the accused/appellants. They denied the particulars by their respective pleas. Their defence is of total denial, claiming that they are falsely implicated. During the trial accused did not adduce any defence evidence. 5. In order to establish the guilt of the accused, prosecution has examined P.W.1 Namdeo Vitthal Bhalerao (Exh.18), panch for Spot Panchanama. P.W.2 Yadav Maruti Rathod (Exh.22) is the brother of the deceased and eye witness. P.W.3 Ramrao Maruti Rathod (Exh.24) is the brother of the deceased and also the complainant. He went with P.W.2 to the spot and the deceased and complainant were carried to police station. In the presence of P.W.3 and P.W.4 the complainant made immediate disclosure of the incident. P.W.5 (Exh.29)Devendra Mappanna Belutkar is the friend of accused No.1 to whom the accused made extra judicial confession immediately after the incident and borrowed his shirt. P.W.6 Dr.Bhushan Vilasrao Jain (Exh.31), Medical Officer conducted Post 6 Mortem on the dead body. P.W.7 Dr.Vilas Shrihari Bhalerao (Exh.37) examined the accused and issued Medico-Legal Certificate (Exh.38). P.W.8 Suman Harishankar Mane (Exh.44) resides near by the place of incident, she witnessed the scuffle. However, except admitting the incident she has turned hostile. P.W.9 Yakub Ismail Khan (Exh.45) acted as panch in respect of memorandum and recovery panchanama. P.W.10 Gopal Krishna Paste (Exh.53) is the Executive Magistrate who conducted Test Identification Parade (Exh.54). P.W.11 Nilkanth Pilaji Jadhav (Exh.55) is the panch for seizure of apparels and knife of the accused under Panchanama (Exh.56 & Exh.57). P.W.12 P.I. Dattatraya Krishnaji Ghule (Exh.60) carried investigation. 6. The death of Mahadeo is basically not in dispute. In view of the admission of Inquest Panchanama Exh.12 and in the light of Post Mortem at Exh.32. P.W.6 Medical Officer noticed following injuries on the dead body of Mahadeo Maruti Rathod. The stab injury over left supra clavicular region just above 7 upper border of clavical situated at the distance of 8 cm from sternal notch and 10 cm from tip of left shoulder. The injury was of the size of 3.5 x 2 cm – cavity deep directing downwards medially. Blood was oozing out of the injury. Both the margins were clean cut. The said injury was ante mortem. On internal examination of the dead body P.W.6 noticed a corresponding injury of 4 cm. cut fracture over upper border of left clavical situated at the distance of 4.5 cm. from sternal end. Infilteration staining of blood was seen at the fractured margins. Plura was cut, cavity contained 1000 c.c.blood. Left lung showed penetrating injury over apical lobe – of the size of 2.0.5 cm and 4 cm deep. 7. In the opinion of P.W.6 probable cause of death of deceased was Haemorrhagia shock due to stab injury to left lung. The Post Mortem Notes are proved by P.W.6. In his opinion, the knife at Article 16 could be the probable weapon used in the incident. The accused/appellant have also not seriously disputed about the 8 homicidal death of Mahadeo Maruti Rathod and hence, we hold that the deceased met homicidal death. The learned defence counsel faintly argued that injured could have survived had he got immediate medical treatment. However, we do not endorse this proposition, as the deceased had breath his lost at the spot. He was motionless due to which complainant had to leave him and rush to call his brother for assistance. 8. The defence raised following points :- (a) testimony of the panch P.W.9 relating to recovery of knife, is doubtful. (b) the injuries which were on the person of the accused are not explained by the prosecution. (c) the accused/appellants had no intention to commit offence. (d) the Test Identification Parade conducted by P.W.10 is not in conformity to the guide lines as referred in Criminal Manual. The panch attending parade was to be examined. Alternatively Mr.Deshmukh solicited, considering nature of single injury to the deceased and there being no pre-meditation, the case of accused will come within the bracket of Section 304 Part II of the Indian Penal Code. 9 9. The eye witness Yadav Maruti Rathod has lost his brother. He has no reason to grind any vengence against the accused. On the fateful night at 9.30 P.M when he along with the deceased were moving towards their house the accused Nos.1 and 2 who were already standing at the road near Nipaan Tekadi intercepted them and demanded Tobacco from Mahadeo, denial from Mahadeo has resulted in a accused No.1 dealing slap. The accused/appellant Mahesh assaulted Mahadeo with knife. P.W.2 proceed forward to assist his brother. However, in the process he too was assaulted by the accused Mahesh at the back side. Since both the brothers had bleeding injuries, they could not apprehend the accused. P.W.2 was more concern about well being of his brother and he lift Mahadeo on his shoulder and started taking him to the side of his house. However, Mahadeo became very weak he slept down on the shoulders. P.W.2 had given description of the assailants to the police and had showed the place of incident. In fact, the F.I.R disclosed that P.W.2 knew accused persons being residing in Ambedkar Nagar by their faces but could not know their respective names. He has even 10 stated that he will be able to identify them. On this count evidence of P.W.2 basically inspires confidence about his pre-acquaintance to the accused persons by their faces and not by their names. The incident has occurred within a span of one to two minutes. Therefore, it is difficult for anybody including P.W.2 to give accurate account of the events in the same sequence as they occurred, as he was more concerned to health of his brother. P.W.2 indeed has suffered injuries at his back side which are proved by P.W.7 Dr.Vilas Bhalerao by Certificate at Exh.38, the injuries are stab wound at left scapular region 3 cm x 1.5 cm. The injury is by a short weapon and correspond to the testimony of P.W.2 of assault by accused No.1. In fact, there is no material to draw any adverse inference to the testimony of P.W.2. His simple narration is not coated with any distortion or venom against accused. 10. In the cross examination of P.W.3 and P.W.4 it is tried to be impressed, by suggesting, they knew names of assailants/accused as on 11th February, 2004. However, factually it is incorrect, the witnesses, during their statement under Section 161 of the Criminal 11 Procedure Code dated 14th February, 2004 were told the names of suspects by police, it was not personal knowledge of witness but an information received from the Investigation Officer. Such aspects cannot be twisted beyond logical ends P.W.3 and P.W.4 have a very limited role to play as they rushed to spot at the instance of P.W.2 and noticed Mahadeo profusely bleeding and was in unconscious condition. 11. P.W.5 is friend of accused. Mahadeo came to his house in the night of 10th February, 2004 at 10.00 P.M and demanded a shirt to wear and in the process conveyed he had a quarrel at Nipaan Tekadi. The shirt (Article 14) had the tailor making “DEWA” and having seized during Panchnama at the instance of Mahesh, the witness identified his shirt. 12. Attack to conducting Test Identification Parade in jail by P.W.10 does not attract much importance, as we find, the Test Identification Parade Memo, signed by panch and P.W.10 Special Executive Magistrate is in conformity to the guidelines in Criminal 12 Manual Chapter I paragraph 16(3). There is no rule of law that examination of panch of Memo (Exh.54) is imperative and binding. In fact, the recitals in Memo are proved by Special Executive Magistrate (P.W.10) a independent authority, unconcerned with prosecution agency. The parade is held in reasonable time on 23rd February, 2004 after arrest of accused/appellants. It is difficult to digest that prosecution evidence relating to Identification Parade held by P.W.10 needs rejection as it creates doubt and slighest doubt gives benefit to accused. In fact, the arguments that P.W.10 does not specify precautions taken, during parade are correctly repelled by the learned trial Judge. 13. The ocular narration of P.W.2 about accused No.1 assaulting deceased with knife and then stabbing him is undisputedly established. He has identified accused in parade (Exh.54) and also in Court on 27th December, 2004, hence, there is no question of any lacuna or a inherent wedge in his narration. 14. The extra judicial confession made by accused to his friend 13 P.W.5 while collecting the shirt assumes importance to the factors of quarrel at Nippan Tekadi at 9.30 P.M, between accused and others. 15. The knife and T shirt is established to be recovered at the instance of accused Mahesh on 15th February, 2004 in presence of P.W.9 recorded under Panchnamas at Exh.Nos.46 & 47. The accused alone had knowledge as to placement of these articles and he lead Panch and I.O near Ashwin querry and then from hillock, the T Shirt was seized. He led the witness in upward direction near by temple and from near a high tension tower after searching in the grass he recovered the knife. There is nothing to show, said place was frequented by public in general. Merely because the recovery is made from near querry near the High tension line would not vitiate the recovery. It was accused No.1 alone who knew the place where incriminating article was concealed or thrown and in natural course, it is bound to remain out of visibility of others. The place of concealment obviously was not visible to others. The T Shirt and knife had human blood. The apparels of accused- full bush shirt, half pant, full pant had human Blood while at his half pant, the human 14 blood of 'B' origin is detected (Exh.62). Though, Blood Group of accused No.1 Mahesh is 'B' (Exh.68). However, he has not offered any explanation nor he had suffered any bleeding injury. Thus, these articles also corroborate to the testimony of P.W.2. P.W.9 confirmed accused No.1 Mahesh making disclosure statement. Hence, no doubt can be cast on his saying in cross, he has no talk with accused, as there could not be general/casual talk with accused No.1. We do not find any irregularity in the seizure process contemplated under Section 27 of the Indian Evidence Act. We hold that both accused were present in the said night when accused No.1 Mahesh hit deceased and P.W.2. 16. Now, turning to the role of accused No.2 Suresh, it is restricted to slapping P.W.2 and deceased. He had no knowledge that accused No.1 had a knife with him and that he would deal a fatal blow to deceased. He did not share common intention with accused No.1. 17. P.W.2 has lodged his report without any delay, there was 15 no reason for him to falsely describe or identify accused. The accused Nos.1 and 2 were standing at the place at 9.30 P.M with a view to commit robbery, but they could not succeed in the attempt. That apart, there is no positive evidence from P.W.6 to throw light on modus of the accused. 18. The accused No.1 knew that inflicting knife blow at left side of deceased will damage vital parts of body and indeed, due to such brutal assault deceased suffered reputure of lung over apical lobe of the size of 2.05 cm and 4 cm deep and cut to veins. There was fracture over upper border of left clivical and infilteration staining of blood was seen at the fractured margins sufficient to take toll of his precious life. The accused No.1 intentionally dealt the assault, as P.W.2 or deceased did not obey his command to give Tobacco. We find, the ingredients as specified in Section 300 of the Indian Penal Code are fully covered in this case. The accused No.1 cannot get concession that he had a sudden fight with deceased or that he had no intention. If indeed he had no such intention, why accused No.1 carried a knife is a unexplain affair by him. There was no overtact by 16 P.W.2 or by deceased to cause sudden provocation to the accused No.1 Mahesh. It is not that accused No.1 Mahesh assaulted deceased alone but he stabbed P.W.2 at his back side, to cause bleeding injury. We do not find any informity in the findings recorded by learned Judge, to the extent of accused No.1 Mahesh. 19. In the result, we pass the following order. (i) The conviction of the accused/appellant in the present appeal No.1323 of 2007 is confirmed. (ii) The conviction and sentence of the appellant in Criminal Appeal No.730 of 2006, under Section 302 as also under Section 324 of the Indian Penal Code is set aside. The conviction under Section 323 is confirmed. (iii) As the accused No.2 who is appellant in Criminal Appeal No.730 of 2006, have already undergone the sentence, he be released forthwith if not required in any other case. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)