1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1436 OF 2003 RACHANDRA SHRIRANG KARE .. APPELLANT Vs. THE STATE OF MAHARASHTRA . .. RESPONDENT Mr. Arfan Sait, appointed advocate for the appellant Mr. V. B. Konde Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 16TH JUNE, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 23RD JUNE, 2010 JUDGMENT: (Per Smt. Ranjana Desai, J.) The appellant was tried in the Court of Sessions for Greater Bombay in Sessions Case No. 608 of 2001 for offence under Section 302 of the Indian Penal Code (“IPC” ). By the impugned judgment 2 and order learned Sessions Judge has convicted him for offence punishable under Section 302 of the IPC and sentenced him to suffer life imprisonment. Being aggrieved by the said judgment and order the appellant has preferred this appeal. 3. It is necessary to begin with the facts of the case. Pw 3 Jatin Kenia was carrying on transport business. His office was situated at Masjid. He was residing at Malad. He had about four trucks including Truck No. MH-04-P-4144. Deceased Dilip was working as a driver with PW 3 and the appellant was working as a coolie with him. The trucks of PW 3 used to be parked near the Municipal School adjacent to Zakaria Road Malad. PW 1 Anandrao and PW 2 Govind Jadhav, the appellant and the deceased used to reside in the locality adjacent to the said Municipal School. 4. The incident in question took place sometime between 7-45 p.m. on 26/1/01 and 8-30 a.m. on 27/1/01. On 27/1/01 PW 3 Jatin Kenia had gone to the place where his trucks used to be parked. He gave direction to some drivers and cleaners to take trucks for transportation. Thereafter again at about 7 to 7-30 p.m. he visited the said place. He was accompanied by one Ramesh Shinde. At 3 that time the appellant came there and asked him to give him some amount or a hammer. When PW 3 made inquiry as to why he was making such a request the appellant is said to have informed him that the deceased who was drunk had demanded money from him for liquor and had beaten him. According to PW 3 he advised the appellant not to quarrel with the deceased, he gave him some money and he left the place. PWs 1 and 2 used to sleep on road by the side of Zakaria Road, Malad. On 26/1/01 at about 9 p.m., they saw the accused wandering on Zakaria road with a hammer in his hand. On 27/1/01 at about 7-30 a.m. PW 3 again visited the same place where trucks used to be parked. He noticed a dead body in the cabin of the truck bearing MH-04-P-4144. He reported the matter to the Malad Police Station. PW 7 Maheshkumar Thakur, PSI attached to Malad Police Station recorded the complaint of PW 3 Jatin Kenia which is at Exhibit-9. On the basis of the said FIR offence was registered and investigation was started. The appellant came to be arrested on 29/1/01. After completion of the investigation the appellant came to be charged as aforesaid. 5. In support of its case the prosecution examined as many as 10 witnesses. Apart from PW 3 Jatin Kenia, the prosecution examined 4 PW 1 Anandrao and PW 2 Govind Jadhav, who had seen the appellant moving around with the hammer. PW 5 Akbar Ansari is a pancha to the panchnama under which the clothes of the appellant were seized. PW 6 Prakash Shinde was examined to prove postmortem notes. PW 7 is Mr. Thakur, who has proved the arrest panchnama. PW 8 Mr. Solanki is a pancha to panchnama of the recovery of bloodstained hammer at the instance of the appellant. PW 9 and PW 10 are investigating officers Mr. More and Mr. Rajan respectively. The defence of the appellant was one of denial. In his statement under Section 313 of the Code of Criminal Procedure the appellant stated that the police have falsely involved him. 6. We have heard Mr. Arfan Sait, learned counsel appearing for the appellant. He submitted that PW 1 and PW 2 have merely stated that they had seen the appellant moving about with a hammer. They have not stated that they had last seen the appellant with the deceased. Therefore, their evidence is of no use to the prosecution. Mr. Sait submitted that PW 3 Jatin Kenia’s evidence does not inspire confidence. It is unlikely that the appellant, if he wanted to kill the deceased would ask for a hammer from his employer. Mr. Sait submitted that clothes of the appellant which were allegedly seized 5 under panchnama Exh.-13 were not properly sealed. Hence the seizure of the clothes of the appellant will have to be kept out of consideration. 7. Mr. Sait submitted that that PW 8 Mr. Solanki, who is a pancha to the panchnama under which hammer was allegedly recovered at the instance of the appellant, has stated that the hammer was recovered from a gutter. Counsel submitted that the appellant was arrested on 29/1/01 and the alleged recovery is effected on 1/2/01 i.e. almost 2 days after the arrest of the appellant and after about 4 days from the date of the incident. Counsel submitted that the gutter was situated in an open place. It was a dry gutter. The place was easily accessible to anyone. Such recovery does not inspire confidence. Counsel submitted that this court should not take it into account as a circumstance against the appellant. Counsel submitted that PW 8 has not stated that there were bloodstains on the hammer and the Chemical Analyser’s report states that the blood group of the bloodstains found on the hammer could not be ascertained. The alleged recovery of hammer, therefore, according to Mr. Sait cannot be used against the appellant. Mr. Sait submitted that this is a fit case where order of conviction and sentence should be set aside. 6 8. Mr. Sait submitted that in any case, if this court comes to the conclusion that the appellant has dealt blows with a hammer on the deceased, the appellant be convicted for offence under Section 304 Part II of the IPC and not under Section 302 of the IPC. Counsel submitted that the appellant has committed the offence on the spur of moment in a fit of anger. PW 3 Jatin Kenia has stated that the appellant told him that the deceased beat him and asked for money. Therefore, it is the deceased who had given him provocation. Counsel submitted that the appellant has no antecedents and when the offence was committed, he was 29 years of age. Counsel pointed out that the appellant is in jail for nine years and this fact may also be taken into consideration. 9. Learned APP on the other hand submitted that the appellant is guilty of a very gruesome crime. The bloodstains found on his clothes were human and of group AB. The evidence indicates that the blood group of the deceased was AB. This circumstance clearly establishes the guilt of the appellant. Learned APP submitted that on the hammer also bloodstains were found. Learned APP submitted that no interference is necessary with the impugned order. 7 10. PW 3 Jatin Kenia the owner of the truck has no reasons to falsely implicate the appellant. According to him the deceased had worked with him as a driver. According to him the appellant was working as a coolie on his truck. He has stated that on 26/1/01 he had gone to the place where his truck was parked. It was 7-30 p.m. The appellant who was present there asked for money or a hammer. He further told PW 3 that the deceased who was drunk had beaten him up and had demanded money for consuming liquor. According to PW 3 he gave Rs.30/- to the appellant and told him not to fight with the deceased. He then left the place. PW 3 has further stated that on 27/1/01 at about 7-30 a.m. he had gone to the same place. He found dead body of the deceased in the cabin of his truck. He then reported the matter to the police. His FIR is at Exh.-9. He has been cross-examined. However, in the cross-examination he has reiterated the same reason. It is clear from the evidence of PW 3 that the appellant entertained a grudge against the deceased. He had asked for hammer or money from PW 3. This version of PW 3 will have to be kept in mind while dealing with the other evidence. 11. PW 1 and PW 2 also work as coolies with the Transport Agency of PW 3. They reside in the same area of Malad. There can, 8 therefore, be no doubt that they knew the appellant. They have stated that on 26/1/01 they had seen the accused moving around with hammer in his hand. It is contended by Mr. Sait that PW 1 does not refer to PW 2 and, therefore, this story is concocted. It is not possible for us to accept this argument. PW 1 and PW 2 and the appellant used to work in the same area. They used to work with PW 3’s Transport Agency. Therefore, there is nothing unusual, if they were to see the appellant moving around with a hammer. It is not necessary that they would see each other on the same day. It is pointed out that statements of these witnesses came to be recorded on 29/1/01 after the arrest of the appellant. In our opinion, this circumstance does not have any adverse impact on the prosecution story because the delay is only of two days. Besides PW 1 and PW 2 work as coolies. They reside on footpath. They have no fixed residential address. Time taken by the police to record their statements, therefore, cannot be taken as a circumstances against the prosecution. 12. PW 5 Akbar Ansari is the pancha to Exh. 13 under which the clothes of the appellant were taken charge of. PW 5 has stated that the clothes of the appellant i.e. shirt and pant were stained with 9 blood. Chemical Analyser’s report Exh.-22, Exh.-23 and Exh.-24 have been brought on record by PW-10 PI Yeshwant Rajan. Exh.- 23 which is the Chemical Analyser’s report dated 6/7/01 indicates that the clothes of the appellant were found stained with human blood. Their group could not be identified. In our opinion, this is an incriminating circumstance. The appellant has not been able to explain as to how his clothes were stained with human blood. 13. PW 9 is Mr. Vilas More, the investigating officer who has drawn the panchnama Exh.-19A under which at the instance of the appellant hammer Article-1 was recovered. His evidence is consistent with the evidence of PW 8 Mr. Solanki, who is a pancha to panchnama to Exh.-19-A. From the evidence on record, it is, therefore, clear that it is the appellant who dealt blow with hammer on the deceased and killed him. 14. We are unable to accept Mr. Sait’s submission that the appellant can be held guilty only of an offence under Section 304 Part II. PW 6 Dr. Shinde, who has done postmortem on the deceased stated that the deceased had suffered two injuries on his head. There was skull fracture. Dr. Shinde has given cause of death 10 as head injury. He has stated that the brain matter was lacerated and there was a depressed fracture of skull. This is not a case of single blow. The appellant dealt two blows on the deceased on a vital part of his body i.e. the head. It is, therefore, not possible for us to hold that he had no intention to kill the deceased. We were informed that the appellant was also under the influence of alcohal. The appellant’s conduct cannot be condoned because he was under the influence of alcohal. There is no evidence of a sudden quarrel. On the contrary after the quarrel was over the appellant asked for hammer as he wanted to attack the deceased. In our opinion, the prosecution has proved its case beyond reasonable doubt. No interference is necessary with the impugned order. There is no merit in the appeal. The appeal is, therefore, dismissed. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J 11 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1436 OF 2003 RAMCHANDRA SHRIRANG KARE .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENTS Mr. Arfan Sait, appointed advocate for the appellant Mr. V. B. Konde-Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 23RD JUNE, 2010 OPERATIVE PART OF THE JUDGMENT: For the reasons recorded separately in the Judgment, this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 12