Cri.Appeal No367/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 367 OF 2009 Gorakh Baburao Munde, Age 29 years, Occu.Service, R/o Wangdari, Taluka Renapur, District Latur ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.M.Godsay, Advocate holding for Mr U.B.Bondar, Advocate for appellant Mr K.G.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 20th January 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- in default of which to undergo further rigorous imprisonment for three months, by the Sessions Judge, Latur, by judgment dated 10.7.2009, in Sessions Case No.83/2008, by this appeal questions the correctness of his conviction and sentence. Cri.Appeal No367/2009 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.9 Dilip Kamble a P.S.I. attached to the Renapur Police Station, was informed by P.I. Rachatkar about some incident of assault, which had occurred at village Wangdari, Taluka Renapur and accordingly, P.W.9 P.S.I. Kamble was directed to visit the scene of the offence. P.W.9 P.S.I. Kamble along with the Police staff reached to the scene of the offence and at the scene of the offence met P.W.4 Laxman, father of deceased Santosh who informed him about the murder of his son Santosh. Accordingly, complaint of P.W.4 Laxman came to be recorded at Exh.26. P.W. 9 P.S.I. Kamble forwarded the complaint of P.W.4 Laxman along with Police Constable Buckle No.777 to the Police Station for registration of the offence. On the basis of the complaint at Exh. 27, P.I. Rachatkar registered an offence vide Crime No.46/2008 for offence punishable under Section 302 of the Indian Penal Code. Investigation of the said crime came to be entrusted to P.W.9 P.S.I. Kamble. P.W.9 P.S.I. Kamble, therefore, drew the inquest panchnama of the dead body of deceased Santosh at Exh. 17 in the presence of panch witnesses and forwarded the dead body of Santosh for post mortem examination along with the requisition at Exh.41. P.W.4 Laxman pointed out the scene of the offence and accordingly, the scene of the offence panchnama at Cri.Appeal No367/2009 3 Exh.18 came to be drawn in the presence of P.W.2 Shivaji. From the scene of the offence sample of blood stains came to be seized along with control mud and small size stones which were found to be smeared with blood. Search for the accused was launched but accused could not be traced. Clothes of deceased Santosh came to be produced by P.W.4 Laxman which came to be seized vide seizure memo at Exh.19. On the same day at about 5.00 to 5.30 p.m. the appellant-accused came to be arrested. Arrest panchnama came to be drawn at Exh.42. At the time of the arrest the injury on the right hand thumb of the accused was noticed. During custodial interrogation the appellant-accused expressed his willingness to point out the place where the knife had been hidden by him. Accordingly, memorandum of the appellant-accused at Exh.30 came to be drawn and the knife Article - 1 came to be seized pursuant to the said memorandum. The appellant-accused had also expressed his willingness to point out the place where his blood stained clothes had been kept by him and accordingly the clothes came to be seized under panchnama at Exh.23. The clothes of the accused seized vide Exh.23 are Article 2 and 3. A Cell phone belonging to the deceased came to be seized on being produced by the brother of the deceased under seizure memo at Exh.20. The said Cell phone contained a SMS alleged to have been sent to the wife of the deceased. Statements of witnesses came to be recorded an Cri.Appeal No367/2009 4 further to the completion of investigation i.e. after referring the property to the Chemical Analyzer, a charge-sheet against the appellant-accused came to be submitted. 3. On committal of the case to Court of Sessions, trial Court vide Exh.3 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The prosecution in support of its case examined nine witnesses. The defence of the appellant-accused was of denial. The trial Court accepted the prosecution case and accordingly convicted and sentenced the appellant. 4. In order to effectively deal with the submissions advanced before us by Mr S.M.Godsay, learned Counsel for the appellant and the learned Assistant Public Prosecutor for the respondent- State, it would be useful to count the case of the prosecution by adverting to the evidence of the prosecution witnesses. 5. The prosecution principally relies upon the evidence of four eye witnesses, viz. P.W.4 Laxman, P.W.6 Ramkishan, P.W.7 Balasaheb and P.W.8 Prakash. P.W.4 Laxman, father of deceased Santosh and the first informant states that the appellant-accused was a resident of the same village. On 16.3.2008 at about 8.15 a.m. P.W.4 Laxman was present near the Zilla Parishad school Cri.Appeal No367/2009 5 and at that time a neighbour by name Pappu Karad informed him that a scuffle was going on between the appellant and the deceased. He, therefore, rushed towards the rear side of the Zilla Parishad school and on the way noticed his brother P.W.6 Ramkishan and his nephew P.W.7 Balasaheb. He, therefore, requested them to accompany him. On reaching behind the Zilla Parishad school they noticed that the accused had caught the deceased by his neck and was giving the blow of knife on the abdomen of the deceased. By the time Laxman and others reached near the deceased. The accused had dealt another blow and thereafter fled from the scene. They noticed that Santosh had sustained bleeding injury and had also noticed that his intestines had protruded out of his stomach. Laxman enquired from Santosh the reason as to why the accused had assaulted him. Upon which Santosh informed him that the deceased had illicit relations with the wife of the accused by name Ranjana. A vehicle was arranged for taking the deceased to the hospital at Latur and accordingly, deceased was taken to the hospital. On way to the hospital, the deceased succumbed to his injuries. Thereafter the report at Exh.26 came to be lodged by P.W.4 Laxman. P.W.4 Laxman has been cross-examined at length. In cross-examination he has admitted that the distance between the tar road in front of his house and the Zilla Parishad school might be about 700 to 800 feet. He has also admitted that while he was Cri.Appeal No367/2009 6 rushing towards the spot, villagers were coming from the other side. He has denied the suggestion that after the assault deceased fell in the premises of the Zilla Parishad school. He has further admitted that at the time of the incident excepting himself, his brother and nephew no one was present at the scene. He has admitted not to have seen any villagers present at the scene. He has denied the suggestion that the deceased was rendered unconscious immediately on sustaining the injuries. He has admitted that none of the eye witnesses had bandaged the wound of the deceased. He has admitted that deceased was lifted and then placed in the vehicle but no blood stains appeared on their clothes. He has denied the suggestion that he is a tutored witness. 5. Though P.W.4 Laxman has been cross-examined in detail, we find that nothing of importance has been elicited in the cross- examination of this witness to doubt his presence at the scene of the offence. The first information report came to be lodged promptly at Exh.26. The evidence of P.W.4 Laxman is amply corroborated by the recitals of the first information report. Additionally, prosecution has examined P.W.6 Ramkishan, uncle of deceased Santosh and brother of P.W.4 Laxman. P.W.6 Ramkishan also states that he had seen P.W.4 Laxman rushing towards the Zilla Parishad school and Laxman had urged P.W.6 Cri.Appeal No367/2009 7 Ramkishan and P.W.7 Balasaheb to accompany him. They accordingly had reached the scene of the offence and had noticed that the deceased was held by the accused and the accused was stabbing the deceased on his abdomen with a knife. A second blow also came to be delivered by the accused. P.W.6 Ramkishan also corroborates P.W.4 Laxman in respect of the oral dying declaration, which deceased Santosh had given to P.W.4 Laxman. P.W.6 Ramkishan has also been cross-examined at length and in the cross-examination has admitted that he was working for Saudagar Karad in his field. He has admitted that he was looking after the cattle and was required to milk the buffalo daily and to supply the milk to the house of his employer. He has admitted that his son Balaji was employed in a motor garage at Kallamb. He has stated that on the day of the incident he along with Balaji was present on the road discussing the arrangement for the marriage of deceased Santosh which was to be solemnised after about three days. He has admitted that he does not remember if there was vehicular and pedestrian traffic on the road. He has admitted that when P.W.4 Laxman came shouting, no one else was present on the road excepting P.W.6 Ramkishan and P.W.7 Balasaheb. This witness also has been cross-examined at length and according to us, the crux of the evidence of this witness has not been shattered at all in the cross-examination. The evidence of this witness amply corroborates the evidence of P.W.4 Laxman. Cri.Appeal No367/2009 8 6. Prosecution has also examined P.W.7 Balasaheb who deposes on line similar to that of P.W.4 Laxman and P.W.6 Ramkishan. Additionally, this witness shows the presence of P.W. 8 Prakash. In any event, this witness has also been examined and nothing of importance has been elicited. 7. We, therefore, find that the evidence of P.W.4 Laxman, P.W. 6 Ramkishan and P.W.7 Balasaheb amply establishes the offence against the appellant – accused beyond reasonable doubt. 8. P.W.8 Prakash claims to be an eye witness to the incident as he claims that he had gone to the scene of the offence for answering the call of nature and on seeing the scene of the incident had hidden himself. However, the presence of this witness is not referred to by P.W.4 Laxman and P.W.6 Ramkishan. According to us, it is extremely doubtful if P.W.8 Prakash was present at the scene of the offence as he being the son of P.W.4 Laxman, P.W.4 Laxman would not have failed to make a reference to the presence of this witness. Even if the evidence of P.W.8 is discarded according to us, there is overwhelming evidence of P.W.4 Laxman, P.W.6 Ramkishan and P.W.7 Balasaheb to prove the offence against the appellant beyond reasonable doubt. Cri.Appeal No367/2009 9 9. The evidence of the Medical Officer, who had conducted the post mortem is equally important. P.W.1 Dr.Karad states that he found one stab injury on the abdomen in between xiphisternum and umbilicus admeasuring 7 cm x 3 cm x 10 cm. He states that he did not find any other external injury and the probable age of injury was 4 to 5 hours, which was caused by sharp and pointed weapon. On internal examination he noticed that the small intestines were protruding out of the abdomen and had also found an injury to the small intestines at two places admeasuring 2 cm x 2 cm x 2 cm at a distance of 3 cms from one another. In addition he also found an injury to the aorta admeasuring 1 cm x 1 cm x 1 cm. He, therefore, opined that cause of death was due to hemorrhagic shock due to the stab injury to abdomen. The post mortem report is at Exh.11. In cross-examination he has admitted that the injury sustained by the deceased could not have been caused by the knife Article – 1. However, it appears that digested food was found in the stomach of deceased and the Medical Officer opined that death must have occurred after six hours of the last meal. Mr Godsay, learned Counsel for the appellant has urged before us that death, in the circumstances, must have occurred in the early part of the morning and not as is claimed by the witnesses. Since there is no evidence in respect of the last meal of the deceased, the eye witness account, which is found by us to be reliable, cannot be brushed aside on the Cri.Appeal No367/2009 10 premises that death must have occurred prior to the time stated by the witnesses. In any event, time of death by the Medical Officer is always by approximation and cannot be perfect over the time stated by the eye witnesses, if the evidence of the eye witnesses is found to be reliable and there is no other evidence to contradict the time stated by the eye witnesses. 10. Mr Godsay, learned Counsel for the appellant has further urged before us that the presence of blood on the clothes of the accused and the discovery of knife is rendered suspicious on account of several factors. According to us, even if that part of the evidence is left out of consideration, there is overwhelming evidence of P.W.4 Laxman, P.W.6 Balkishan and P.W.7 Balasaheb, which establishes the offence against the appellant beyond reasonable doubt. 11. Mr Godsay has also argued that Pappu Karad has not been examined as Pappu Karad was the first person, who had informed P.W.4 Laxman about the scuffle. According to us, since P.W.4 Laxman is an eye witness, non examination of Pappu Karad would not be a factor which would impel the Court to jettison the evidence of the reliable eye witnesses. In any event, no independent witness was available as all the three eye witnesses have categorically stated that apart from them no other witness was present. Cri.Appeal No367/2009 11 12. After considering the rival submissions advanced before us, according to us, prosecution has proved the offence against the appellant beyond reasonable doubt and, therefore, no interference is called for in this appeal. This appeal, therefore, being without any merit is dismissed confirming the conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/367.09criapeal)