1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.447 OF 1994 The State of Maharashtra Appellant Vs. Pratap @ Patya Dnyaneshwar Deshmukh Respondent (Org.accused) Mr.B.H.Mehta, APP for State. None for respondent though served. CORAM: S.S.PARKAR & S.R.SATHE,JJ. October 08 & 11, 2004. ORAL JUDGMENT (PER S.S.PARKAR,J.) 1. This appeal is preferred by the State challenging the judgment and order of the Sessions Judge, Raigad-Alibaug dated 10/5/1994 acquitting the respondent-accused of the offences under Sections 302 and 504 of IPC in Sessions Case No.174 of 1989. 2. The prosecution case briefly narrated is as under: . The incident of assault took place at about 9 p.m. on 10th September 1989 in village Gavan in Taluka Panvel, Dist.Raigad when one Nandkumar Deshmukh was assaulted with a knife in his chest. Deceased Nandkumar was residing with his brother Sudhakar PW 2, their mother and other family members. 2 Respondent-accused is also resident of the same village. The complainant’s sister-in-law i.e. wife’s sister by name Alka was also residing with the family of the complainant for some time. She was at that time taking education in 8th standard in High School at Kopar. Alka had complained to complainant Sudhakar that accused used to tease her and take away her compass box and keep his own pen in her compass. He used to also take away pencil from her compass box. The complainant, therefore, had slapped the accused and complained against him to his father. In the morning of the date of incident i.e. 10th September 1989 at about 9 a.m. Manohar Koli PW 3 had complained to Sudhakar that accused had gone to beat him. Sudhakar Deshmukh, therefore, warned the accused not to enter his courtyard. In the evening on the date of incident when the complainant was returning home from ST stop the accused was staring at him in anger and also muttered some words. At about 8 p.m. on the night of the incident few stones were pelted on the roof of the complainant’s house. He, therefore, called Bhalchandra Deshmukh who was residing in front of his house and asked him to call brothers of the accused. Thereafter brothers of the accused by name Rajendra and Pralhad along with one 3 Shrikant Deshmukh went to see the complainant. Complainant informed the brothers of the accused that that morning accused had gone to beat his servant and in the evening he was uttering some words and staring at him and thereafter stones were pelted on his house and, therefore, they should warn the accused. After the said talk the brothers of the accused left and at 9 p.m. accused came in front of the house of the complainant and was enquiring who had gone to his house to call his brothers. Hearing the shouts of accused deceased Nandkumar and complainant Sudhakar along with their mother came out of their house. The accused assaulted Nandkumar with a knife on the left side of his chest and started running away towards Nhava road. Injured Nandkumar was chasing the accused. Complainant Sudhakar as well as his mother also followed Nandkumar. While running after the accused for some distance injured Nandkumar fell down. Sudhakar lifted Nandkumar and also called people. Therefore, his brother and many persons from the locality gathered there. Nandkumar was taken to the hospital at Panvel where he was declared dead. Sudhakar then went to Panvel Police Station and gave information about the incident which was recorded and is Exhibit 17 on record. The accused went to Jasai 4 Outpost carrying blood stained knife in his hand for the purpose of surrendering to the police. From the said outpost wireless message was sent to Nhava Sheva police station in whose jurisdiction the offence was committed. Even the complaint which was lodged at Panvel police station was sent to Nhava Sheva police station. On receipt of the information on wireless at about 11.45 p.m. entry was made at that police station and jeep was taken to Jasai outpost from where accused was brought to Nhava Sheva police station where he was arrested and the knife and his clothes, which were blood stained, were seized under panchanama. The dead body of Nandkumar was sent for post mortem examination. The clothes of the deceased were attached. Spot panchanama was drawn on the following day and the earth mixed with blood was seized under spot panchanama. All the blood stained articles were sent to the office of C.A. After completion of the investigation charge-sheet came to be filed against the accused and thereafter the case was committed to the Sessions Court, Alibaug. 3. Before the Sessions Court charges were framed for offences under Sections 302 and 504 of IPC to which the accused pleaded not guilty. On behalf of 5 the prosecution 15 witnesses have been examined who are as follows: . PW 1 is Pramod Bagul who was the Circle Inspector who had prepared the map of the place of offence. PW 2 is Sudhakar Deshmukh, the brother of the deceased who was an eye witness to the incident and had lodged his complaint. PW 3 is Manohar Koli who has deposed about the incident which took place in the morning of the day of the incident. PW 4 is Vithoba Mhatre, ASI who was attached to Jasai Outpost on the date of the incident and has deposed about the accused having gone to the said outpost at about 11.45 p.m. on the night of the incident and surrendered himself to the police along with blood stained knife. PW 5 Bhagwan Patil was at the relevant time attached to Uran Police Station who had sent wireless message from wireless van at Jasai. PW 6 is Shivaji Deshmukh who had gone to the place of incident immediately after the incident and saw Nandkumar lying in unconscious condition and heard the persons gathered there saying that the accused had assaulted Nandkumar. PW 7 is Bhalchandra Deshmukh who has deposed about the motive and saw accused running away from the place of incident. PW 6 8 is Shrikant Deshmukh who had seen Rajendra, brother of the accused, beating accused and scolding him in respect of the earlier incident of pelting of stones and immediately thereafter he heard that the accused had assaulted deceased Nandkumar. PW 9 is Laxman Bhagat who has been examined to prove the extra judicial confession made to him by the accused. PW 10 is Alka Bhalerao with whom accused used to play mischief and she had complained about the same to PW 2 Sudhakar. PW 11 is Vijay Deshmukh who had acted as panch for the seizure of blood stained knife and clothes of the accused at Nhava Sheva Police Station under seizure panchanama (Exh. 32). PW 12 is Baban Kadam, Head Constable attached to Panvel Police Station who had recorded the complaint of Sudhakar (Exh.17), made entry in the station diary and informed Nhava Sheva Police Station about the same. PW 13 is ASI Arjun Sathe who was at the relevant time attached to Nhava Sheva Police Station and made entry in the station diary about the receipt of wireless message received from Panvel Police Station as well as the wireless message received from Jasai outpost about the surrender of the accused. PW 14 is Kanhaya Yashvante, the Police Inspector attached to Nhava Sheva Police Station who had investigated the case. 7 Lastly PW 15 is Dr. Kendre who had performed autopsy on the dead body. 4. The trial Judge, instead of considering the entire evidence on record has only considered the evidence of the eye witness and the medical evidence and has concluded that the evidence of the complainant was not believable as an eye witness and given benefit to the accused and acquitted him. The said order of acquittal is impugned in this appeal filed by the State. 5. This appeal was on board for hearing since 6th September 2004. After the admission of this appeal, summons was served on the accused in the month of May 1995 and his statement under his signature was recorded on 15/5/1995 in which he had stated that his financial position is fairly good and he would engage his own lawyer. The said statement was forwarded along with the forwarding letter dated 16/5/1995 by Nhava Sheva Police Station to this Court. The respondent-accused has however not engaged any lawyer in this appeal. The appeal was on board since last five weeks and, therefore, when the matter reached in its serial order in the absence of any other pair in 8 the subsequent matters we had commenced hearing on 8th October 2004. Since the accused was not represented in this case we had gone through the entire evidence on record minutely and also the reasoning of the trial Judge, it being also an appeal against acquittal, and after carefully considering the entire evidence on record commenced the judgment in this case following the ratio of the judgment of a three Judge Bench of the Supreme Court in the case of Bani Singh v. State of U.P. reported in 1996 1996 1996 Cr.L.J. Cr.L.J. Cr.L.J. 3491 (S.C.) 3491 (S.C.) 3491 (S.C.). 6. The trial Court has acquitted the respondent-accused by disbelieving the evidence of eye witness on the ground that the eye witness deliberately changed the scene of offence to show that he was an eye witness to the incident . His evidence is said to be inconsistent with the medical evidence and the trial Court has doubted the possibility of the deceased having been assaulted initially in the courtyard of the complainant. Having disbelieved the complainant Sudhakar PW 2 as an eye witness to the incident the trial Court acquitted the accused without considering the other evidence on record which corroborates the evidence of 9 the eye witness and is independently capable of being the basis for the conviction of the respondent-accused. 7. On behalf of the prosecution firstly evidence has been led to prove the motive against the accused. Secondly there is evidence of eye witness who is complainant Sudhakar, the brother of the deceased. The prosecution has also led the evidence of other witnesses who were residents of the same area where incident took place, who had come on the scene immediately after the incident took place hearing the commotion outside their houses and heard the persons, including the complainant, already assembled there, saying that the accused had assaulted the deceased. Fourthly there is unassailable evidence of the police officers of three police stations, including Jasai outpost where, on the night of the incident, the accused had surrendered along with blood stained knife and blood stained clothes on his person. Since the offence was committed in the jurisdiction of Nhava Sheva Police Station, there is evidence of wireless message having been received by Nhava Sheva Police Station pursuant to which the police officers went in police jeep to Jasai outpost and brought the 10 accused to Nhava Sheva Police Station where he was arrested and the blood stained knife and the clothes were seized under panchanama. On the night of the incident after taking the deceased to the hospital at Panvel where he was declared dead before admission, the brother of the deceased went to Panvel Police Station and gave his complaint against the accused which was transferred to Nhava Sheva Police Station as the offence was committed within the jurisdiction of that police station. There is evidence of wireless message having been sent from Panvel Police Station to Nhava Sheva Police Station about the complaint lodged by PW 2 and the entries are made in the station diary of the respective police stations and the outpost recording the same. As per the CA report (Exh.40) the blood found on the clothes of the deceased was of "B" group which was also found on the clothes of the accused and knife surrendered by him. The said evidence also supports the prosecution case that it was the accused who had committed the murder of the deceased. 8. PW 2 Sudhakar Deshmukh, brother of the deceased who had lodged FIR in this case against the accused on the night of the incident has deposed that 11 he was residing in the village Gavan along with his deceased brother Nandkumar, mother, his wife and wife’s sister Alka. He knew the accused since his childhood who is the resident of his own village. He had married Alka’s sister. Alka was 14 years old and was staying in his house and attending high school at Kopar in 8th standard before the incident. According to him accused used to tease his sister-in-law Alka about which Alka had complained to him. Accused used to take away her compass box and keep his pen in it and sometime take away her pencil from the compass box. Previously on the complaint of Alka, Sudhakar had slapped the accused and had taken the accused to his father who was residing in ST quarters and complained to him against the accused. On 10th September 1989 at 9 a.m. PW 3 Manohar Koli who used to do business in the grocery articles along with the complainant had complained to him that accused had gone to beat him. Sudhakar went out of his house and had warned the accused that if he entered his courtyard it would not be proper for him. Thereafter accused left. In the evening of 10/9/1989 when he was returning home he had seen accused staring at him in anger. At about 8 p.m. on the night of incident some stones were pelted on the roof of his house and, 12 therefore, he asked Bhalchandra Deshmukh, who was staying in front of his own house, to call brothers of the accused by name Rajendra and Pralhad. When both the brothers went to see complainant along with one Shrikant Deshmukh, Sudhakar told them about the morning incident when accused had gone to beat his servant and stones were pelted on his house in the evening and, therefore, he wanted them to warn the accused. Thereafter at about 9 p.m. when he along with his brothers were sitting in their house, accused came in front of their house and was asking who had gone to call his brothers. Hearing the accused Nandkumar went out in the courtyard followed by witness Sudhakar and their mother. The accused immediately stabbed Nandkumar with a knife on the left side of his chest and ran away towards Nhava road. Nandkumar followed the accused. Witness also went after them followed by their mother. After going some distance Nandkumar fell on the ground. Witness gave him support and gave call to other persons in response to which many persons collected there including Moreshwar Deshmukh and Tukaram. Nandkumar was taken to the hospital in the car of one Dilip Deshmukh to Panvel hospital which is about 15 Kms. away from the said village. In the hospital, 13 after examining Nandkumar, doctor declared him dead. The witness went to Panvel police station and lodged his complaint (Exh.17). His evidence about motive has been directly corroborated by other witnesses while his evidence about the assault by accused has been indirectly corroborated by some witnesses to which reference will be made at later stage. 9. As far as motive is concerned the evidence of PW 3 Manohar Koli is led by the prosecution. He has deposed that at about 9 a.m. on 10/9/1989 while going to the house of complainant Sudhakar accused was teasing him and, therefore, he told Sudhakar about it. Sudhakar asked the accused to go away and hence accused left the place. Then there is evidence of PW 7 Bhalchandra Deshmukh who has also been referred to by PW 2 Sudhakar in his evidence. This witness has deposed that his house is hardly 2-3 minutes’ walk away from the house of accused. On the night of incident at about 8 p.m. complainant Sudhakar called him and asked him to call brothers of the accused. Accordingly two brothers of the accused, Pralhad and Rajendra went to the house of Sudhakar. At about 9 p.m. when he heard somebody abusing, he came on the road outside his house. That 14 time he saw accused running away and was being followed by deceased Nandkumar and complainant Sudhakar. Nandkumar fell down near the ground near Datta Mandir and was bleeding from his chest and had become unconscious. Thereafter Nandkumar was taken to the hospital. Thus he corroborates the evidence of complainant Sudhakar that an hour before the incident of assault Sudhakar had sent for the brothers of accused. He had also seen the accused running away at the time of incident followed by injured Nandkumar and complainant Sudhakar. 10. PW 8 Shrikant Deshmukh also corroborates complainant Sudhakar and PW 7 Bhalchandra. He deposed that when he was in the house of Dnyaneshwar Deshmukh for aarti at the time of Ganesh festival, PW 7 had gone there and called Rajendra and Pralhad, brothers of the accused to the complainant’s house. The witness also went to the house of the complainant. In his presence Sudhakar had told Rajendra and Pralhad about the accused having stared at him in anger and pelting of stones on his house. Thereafter both the brothers of the accused went to their house. He has also deposed that when he went out after finishing his meals he saw Rajendra beating 15 accused and asking him not to misbehave. Accused abused his brother Rajendra and went out of his house within five minutes thereafter. At about 9 p.m. he heard that accused had assaulted Nandkumar Deshmukh. Thus the earlier incident which took place between 8 and 9 p.m., i.e. just one and half hour before the incident of assault, is corroborated by the evidence of PWs 7 and 8. 11. The prosecution has also led the evidence of Alka, sister-in-law of complainant Sudhakar. She has deposed that she was residing in village Gavan with PW 2 and his wife and was attending school at Gavan, Kopar. She has also deposed about the accused having snatched her compass box and given her pen which she had disclosed to complainant Sudhakar and on hearing that complainant Sudhakar had beaten accused in the month of April 1989. She was studying in 8th standard in April 1989. After her April examination she had gone back to her own village Nehari and had discontinued education. Thus Alka also corroborates the evidence of complainant Sudhakar about accused teasing Alka. Thus the circumstance of motive has been proved by the prosecution not only by the evidence of complainant Sudhakar but also his 16 sister-in-law Alka and PWs 7 and 8 who were residing in the vicinity of the complainant and the accused. PW 7 had also seen the accused running away immediately after the assault. PW 8 had come out of his house immediately after the incident and heard people saying that accused had assaulted Nandkumar Deshmukh. PW 6 Shivaji Deshmukh who was the resident of village Gavan has also deposed that when he came out after hearing the commotion and went to the spot between 9 and 9.45 p.m. Nandkumar was unconscious and people who had collected there were saying that accused had assaulted him. 12. This evidence is further corroborated by the immediate complaint lodged by complainant Sudhakar which is Exhibit 17. In that complaint all these earlier incidents constituting motive have been mentioned. The complaint also gives the particulars of incident of assault and corroborates the complainant in that respect also. In the complaint there is mention about the accused playing mischief with complainant’s sister-in-law Alka and that he had earlier beaten and warned accused on the complaint of Alka. It also mentions about pelting of stones on the house of the complainant about which he had 17 enquired with the accused. The complainant has then mentioned that about 9 p.m. on the date of the incident accused had gone near the house of the complainant and was abusing him from his courtyard. Therefore, his brother Nandkumar opened the door of the house and went out. He and his mother also followed Nandkumar. Accused stabbed Nandkumar in his chest with knife and when he was trying to run away Nandkumar ran after him to nab him but Nandkumar fell down after going some distance. 13. This evidence of the eye witnesses as regards the assault is also corroborated by the evidence of PW 15 Dr.Kendre who had performed post-mortem on the dead body. Dr.Kendre had found following external injury on the dead body: (1) Stab injury over left chest front upper medial quadrant of breast above transverse line of just nipple to sturnm. It was 1" x 1/4" x cavity deep. It was 2" away mediary from nipple 1-1/4" laterally from central line and 3-1/2" below from medial end of clavicle. Direction of wound was left to right direction. On internal examination he found following injuries: 18 (1) Fracture of lower side of casto-condral junction of 2nd left rib and upper part of left 3rd rib near sternuln. (2) Condition of left lung was ruptured and attached with blood clot over substaternal area with haematoma. (3) Left lung was bluish white. The medial part under sternum attached in clots with haematoma over sub sternal area. (4) Pericardiam ruptured with attached in haematoma with part of both lungs. (5) Heart ruptured over medial middle third (M/3) of anterior surface of left ventricle near inter ventricular, septum with empty heard size of injury was 1/2" x 1/4 m. x total deep. According to the Medical Officer the injured had died within two hours of the last meal and he noticed semi solid contents of food in the stomach. The cause of death given by him is due to shock secondary to rupture of heart due to stab injury. The post mortem report has been produced at Exhibit 45 on record. The age of the injured was about 30 years and he was well nourished. He has also stated that cause of death was due to shock due to loss of blood. He has deposed that it takes some time to cause death after injury and haemorrhage and a person can run upto the distnace of 150 ft. from the place of assault in that condition. In his cross-examination the doctor has stated that right lung was found ruptured and 19 left lung was in normal condition and in case of rupture of lung a person can talk and brain cannot function after complete oozing of blood in which case he cannot talk. He has admitted in his cross-examination that if the lung is ruptured then it will not function with the same efficiency and the heart will not pump the blood to the body if it is ruptured. He has further deposed that with the injury found on the person of the deceased he could run in conscious condition. 14. Above evidence of the Medical Officer corroborates the evidence of eye witness Sudhakar that accused had assaulted deceased on his chest with a knife. However, the trial Court has observed that there is inconsistency in the evidence of the Medical Officer as according to the trial Court if the heart and the lung of a person is ruptured he could not have run about 150 ft. with that injury. According to the trial Court after the knife was pierced into the chest the injured could not have run after the accused for a distance of 154 ft. which is the distance between the courtyard of the complainant and the place where the deceased was lying where considerable blood had oozed out from the injury of 20 the deceased. According to the trial Court the incident must not have taken place in the courtyard of the complainant but somewhere near the place where the deceased was found lying and considerable amount of blood was found. According to the trial Court in that case Sudhakar must not be an eye