1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.566 OF 2008 Rama Bhika Rathod, Age : 45 years, Occ. Labour, R/o Village Damhari, Tq. & Dist. Jalna ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mrs S.T. Kazi, Advocate (appointed) for the appellant; Mr K.B. Choudhari, A.P.P. for the respondent - State. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 26th August, 2010 ORAL JUDGMENT (PER P. V. HARDAS, J.) 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.1,000/-, with a default condition of undergoing further R.I. for one month in the event of non 2 payment of fine, by the Additional Sessions Judge, Jalna, by judgment dated 14.8.2008, in Sessions Case No.2 of 2008, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary in brief are stated thus :- P.W.9 Nagu Rathod, a Police Constable attached to Police Station Maujpuri, was on duty at Ramnagar point during night of 22.9.2007. After doing the patrolling duty he went to the Police Out Post at Ramnagar at about 3.00 a.m. P.W.6 Ramesh, P.W.8 Dhananjay and other 10 to 12 persons produced the appellant in the Police Out Post. The appellant/accused was armed with an axe which was blood stained. P.W.9 Police Constable Rathod then went to Kasturi hotel and noticed injured Bharat lying there. Thereafter father of injured Bharat , Gangaram and P.W.1 Prakash took Bharat to the hospital while the appellant/accused was then taken to the Maujpuri police station and handed over to the Police Station Officer. P.W.11 Vishwanath Bhise, who was attached to police station, Maujpuri recorded the complaint of P.W.1 Prakash at Exh.14. Signature of P.W.1 Prakash was then obtained on the printed first information report at Exh.15. On the basis of the first information report at Exh.14, P.W.11 Police Head Constable Bhise registered an offence vide Crime No.88 of 2007 under section 302 of the Indian Penal Code and handed over the investigation to P.W.12 A.P.I. Thakurwad. P.W.12 A.P.I. Vijaykumar Thakurwad who was attached to 3 police station as an A.P.I., was entrusted with the investigation of Crime No.88 of 2007, registered under section 302 of the Indian Penal Code. He accordingly seized the axe which was possessed by the appellant/accused under seizure memo at Exh.26 in the presence of panchas. He thereafter proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.27 in the presence of the panch witnesses. From the scene of the offence he seized one torn stomach, pair of chappal and two cotton swabs stained with blood under the said scene of the offence panchnama. Thereafter he proceeded to the General Hospital at Jalna and drew the inquest panchnama at Exh. 21 of the dead body of Bharat, who had succumbed to the injuries sustained by him. Thereafter the clothes on the person of deceased which were stained with blood came to be seized under seizure memo at Exh.22 in the presence of the panchas. The accused was formally arrested and the clothes on his person i.e. Manila, which was found to be stained with blood, came to be seized under seizure memo at Exh.38 in the presence of panchas. The arrest panchnama of the appellant/accused is at Exh.39. Statements of the witnesses came to be recorded. The dead body of deceased Bharat was referred for post mortem examination and post mortem examination came to be conducted by P.W.13 Dr. Uday Paritkar. P.W.13 Dr. Paritkar noticed the following external injuries :- 4 1) Lacerated wound, 1 cm x 1/2 cm x 1/2 cm., oblique irregular, 15 cm. above right eye-brow 2) Below above wound 2 cm. x 1/2 cm. x 1/2 cm. oblique irregular, lacerated, 12 cm. above right eye-brow 3) Lacerated wound at right eye-brow, destructing orbital cavity maxillary bone, eye ball protruding outside, 6 cm x 3 cm., approximately 3 cm. in depth 4) Lacerated wound 1 cm x 1/2 cm x 1/2 cm below eye ball, horizontal in direction. On internal examination he noticed fracture of the skull at the site of injury no.1, 2 and 3 which was irregular with brain matter protruding out. He, therefore, opined that cause of death of deceased Bharat was cardio respiratory arrest due to shock due to multiple head injuries. The post mortem report is at Exh.54. Thereafter he had been served with a requisition on 27.9.2007 in respect of examination of the weapon, i.e. axe which was seized from the possession of the appellant/accused. He accordingly opined that the injuries sustained by deceased Bharat were possible by the weapon which was shown to him. His report is at Exh. 55. 3. Further to the completion of the investigation, a charge-sheet against the appellant/accused came to be filed. 5 4. On committal of the case to Court of Sessions, the Trial Court vide Exh.4 framed charge against the appellant/accused for offence punishable under section 302 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The prosecution mainly relied upon the evidence of P.W.1 Prakash, P.W.4 Dilip, P.W.6 Ramesh and P.W.8 Dhananjay to establish that it was the appellant/accused who had committed the aforesaid offence. The Trial Court accepted the evidence of these witnesses and accordingly convicted and sentenced the appellant as aforestated. 5. This appeal came to be presented by the appellant through jail and accordingly we had appointed Advocate Mrs S.T. Kazi to represent the appellant in this appeal. We have accordingly heard the learned Counsel appointed on behalf of the appellant and Shri K.B. Chaudhari, learned A.P.P. on behalf of the respondent. In order to appreciate and effectively deal with the submissions advanced before us by the learned Counsel appointed on behalf of the appellant and the learned A.P.P., it would be useful to refer to the prosecution evidence. 6. P.W.1 Prakash, brother of deceased Bharat states that he runs a hotel named as Kasturi on the Mantha highway at Ramnagar. He further states that he had taken a room on rent behind the hotel where he along with his wife, his father and his brother was residing. In the said hotel 6 they served snacks and he and his father were looking after the said hotel. Deceased Bharat, brother of P.W.1 Prakash, was also assisting in the running of the said hotel. At night his father and Bharat used to sleep in the said hotel. The appellant/accused was an employee who was employed in the said hotel and was receiving monthly salary of Rs. 2,700/-. P.W.4 Dilip was also a servant employed in the said hotel. On 21.9.2007, at about 6.00 p.m. the accused had come to the hotel and had demanded Rs.5,000/- from P.W.1 Prakash. P.W.1 Prakash declined to give the aforesaid amount to the accused on the ground that an amount of Rs.2,500/- was already outstanding against the accused. The accused on being informed that he would not be receiving the money, tried to convince P.W.1 Prakash to advance Rs.5,000/- by stating that the accused would not flee away. Deceased Bharat told the accused that he was consuming liquor, whereupon the accused again pressed P.W.1 Prakash for advancing Rs.5,000/- to him and thereafter extended the threat by saying that if the amount was not given it would not augur well for P.W.1 Prakash. Deceased Bharat slapped the accused and drove him out of the hotel. Thereafter the accused threatened P.W.1 Prakash that since the accused had been removed from his service he would kill them within two days. Thereafter Bhagwan Ghule and P.W.4 Dilip Chungade took the accused out of the hotel by pacifying him. In respect of the incident P.W.1 Prakash states that on 22.9.2007 he along with his brother had watched a cricket match on television in the shop of one Rajesh Raut. After watching the match both of them returned to the 7 hotel and thereafter P.W.1 Prakash went to the room which was taken on rent while Bharat slept on the platform situated near the hotel. On the next day at about 3.00 a.m. while he was coming to the hotel, on account of the fact that it being Ramzan season and when he had reached the Manegaon road, he heard the shouts of some persons that a thief had been caught. He accordingly accompanied those persons and noticed that P.W.6 Ramesh, P.W.8 Dhananjay and one Shrimant Shinde had caught the accused near Panchvati Sweet Mart. At that time the accused was possessing an axe which was blood stained and his clothes were also blood stained. The accused is alleged to have confessed in front of the people who were present there that as Bharat had not given money to him he had killed him. The accused further stated that if Prakash had been present there he would have killed Prakash also. P.W.1 Prakash accordingly immediately rushed to his hotel and noticed his brother Bharat lying injured on the platform. Deceased Bharat requested P.W.1 Prakash to save him. Accordingly P.W.1 Prakash called his father Gangaram from out of the hotel and thereafter questioned Bharat as to what had happened. Bharat is alleged to have informed P.W.1 Prakash that he was awakened by the accused by giving Bharat a kick and thereafter the accused had questioned Bharat as to why the amount was not given to him. While Bharat was attempting to stand the accused dealt blows of axe on his head and thereafter fled from the scene of the offence. Deceased Bharat requested P.W.1 Prakash not to spare the accused and to shift him to the hospital. 8 Accordingly Bharat was taken to the hospital where the Medical Officer pronounced him dead. P.W.1 Prakash thereafter lodged his report at the police station Maujpuri. In cross-examination he has admitted that his hotel is situated near the square and many vehicles used to pass by the said road throughout the night. He has also admitted that in front of his hotel, hotel of one Joshi is also situated. He has admitted that the accused was employed as a Cook and on the day of the incident the accused was not working in the hotel. He has denied the suggestion that deceased Bharat had sustained injuries in a vehicular accident as a result of which he had died. He has denied the suggestion that he was deposing falsely that he had seen the accused armed with an axe which was blood stained. He has then denied the suggestions which were put to him in respect of the incident. Apart from this, there is no effective cross-examination whatsoever to discredit what this witness has deposed. 7. P.W.4 Dilip, an employee in his hotel also states that he along with deceased Bharat used to sleep in front of one cloth shop during the night. He then deposes about the accused coming to the hotel and demanding Rs.5,000/- and thereafter threatening P.W.1 Prakash with dire consequences. He states that on the next day he along with P.W.1 Prakash and deceased Bharat had watched a cricket match and thereafter he had gone to sleep on the platform along with Bharat while P.W.1 Prakash had returned home. He states that about 3.00 a.m. he 9 had heart the voice of Bharat and, therefore, he was awakened. He had seen that Bharat was injured and had sustained bleeding injury on his head. He states that in the meantime P.W.1 Prakash and his father arrived there and they questioned Bharat as to what had happened and Bharat had told them that the accused had assaulted him by an axe. Bharat was thereafter shifted to the hospital where he succumbed to the injuries. He has admitted that he had worked in the hotel of P.W.1 Prakash for about a month. He has also admitted that hotel of one Joshi is situated in front of the hotel of complainant and that hotel used to remain open throughout night. He has also admitted that the hotel of P.W.1 Prakash is near a square and there is traffic during the night. He has denied the suggestion that he was not employed in the hotel and has also denied the suggestion that he was deposing falsely. 8. In respect of these two witnesses, Mrs S.T. Kazi, learned Counsel appointed for the appellant has urged before us that it is extremely doubtful if P.W.4 Dilip was present along with deceased Bharat on the platform. The learned Counsel for the appellant has pointed out to us that according to P.W.1 Prakash, deceased Bharat used to alone sleep on the platform in front of the hotel while P.W.4 Dilip states that he along with deceased Bharat used to sleep on the platform. It is further urged before us that it is curious that this witness was not awakened till deceased Bharat had sustained four injuries by an axe and this witness does not depose about having seen the accused fleeing from the scene of the 10 offence. It is further stated that this witness has been examined merely to corroborate the oral dying declaration alleged to have been made by deceased Bharat to P.W.1 Prakash. The learned A.P.P. has urged before us that P.W.4 Dilip is an witness of sterling quality and his evidence has been rightly accepted by the Trial Court. According to us no reliance at all can be placed on the testimony of P.W.4 Dilip. It is, indeed, curious till deceased Bharat sustained four injuries this witness was not awakened on account of cries of deceased Bharat who was sleeping near him. It is, indeed, curious that he does not state about either having seen the accused inflicting the injuries or having seen the accused fleeing from the scene of the offence. In fact, this witness claims that he was blissfully unaware about the incident till Bharat had sustained the injuries. Therefore, according to us, no reliance at all can be placed on the testimony of P.W.4 Dilip and as has been rightly urged before us on behalf of the appellant, the evidence of this witness deserves to be ignored. 9. Prosecution has then examined two witnesses who had chased the accused and had apprehended him. Those witnesses are P.W>6 Ramesh, who claims to be running a Tea House in Ramnagar square. He states that hotel of P.W.1 Prakash is opposite his Tea House. He states that on the day of the incident at about 11.00 p.m. the accused had come to his hotel possessing an axe and had questioned him as to whether P.W.6 had seen deceased Bharat. On P.W.6 Ramesh 11 answering in the negative, the accused had stated that he would kill Bharat and Prakash if they were found. At that time P.W.6 Ramesh noted that accused had consumed liquor. At about 2.00 a.m. the accused had again come to his hotel and after about five minutes or so the accused started running. Shrimant Shinde, servant of P.W.6 Ramesh informed him that some one was running away and accordingly he and Shrimant chased and accosted him in front of Panchvati Sweet Mart and brought him to the hotel. He has identified the accused as the same person who was apprehended possessing an axe. P.W.6 Ramesh when asked him as to why he was armed with an axe and the accused is alleged to have stated that he had committed murder of Bharat. The accused thereafter is alleged to have stated that he would kill Gangaram and Prakash if they were found. Meanwhile P.W.1 Prakash came to his hotel and then the accused was taken to the Police Out Post and handed over to police. Bharat was seen lying in front of the cloth shop in a pool of blood. He was shifted to the hospital where he was pronounced dead. In cross-examination he has admitted that his relations with P.W.1 Prakash were good. He has denied the suggestion that the accused had not come to his hotel on the day of the incident and has also denied the suggestion that he along with his servant and others had not apprehended the accused. 10. Prosecution has also examined P.W.8 Dhananjay, who is said to be another person who had assisted P.W.6 Ramesh in apprehending the 12 accused. He states that he runs a Pan Shop at Ramnagar and knew the accused as well as deceased Bharat. He states that on the day of the incident he had watched a religious programme near the Maruti temple and had returned back to the Gajanan Tea House for taking tea. At about 2.45 to 3.00 a.m. P.W.6 Ramesh and his servant Shrimant were also present in the Tea House and they had noticed one person running away from the Tea House. He also joined P.W.6 Ramesh and his servant Shrimant in chasing the said person and accordingly were successful in apprehending the said person in front of Panchvati Sweet Mart. That person was seen possessing an axe which was blood stained. The person who was apprehended stated that he had killed Bharat and had also stated that he would kill Prakash and Gangaram if they were found. He has identified the accused as the said person who was apprehended in front of Panchvati Sweet Mart. In cross-examination he has denied the suggestion that he had not gone to the Tea House for taking the tea and that he was deposing falsely. 11. Mrs Kazi, learned Counsel appointed on behalf of the appellant has urged before us that it is extremely doubtful if P.W.8 Dhananjay had accompanied P.W.6 Ramesh in apprehending the appellant/accused. It is stated that P.W.6 Ramesh does not show the presence of P.W.8 Dhananjay and consequently P.W.8 Dhananjay has been examined by the prosecution as a witness who has obliged the prosecution in deposing about the extra-judicial confession. 13 12. Perusal of evidence of P.W.1 Prakash indicates that P.W.8 Dhananjay was one of the persons who had apprehended the accused. Similarly, perusal of evidence of P.W.9 Police Head Constable also indicates that P.W.8 Dhananjay was amongst the persons who had produced the appellant/accused in the Police Out Post. Therefore, according to us, merely because his presence is not referred to by P.W.6 Ramesh, it would not necessarily lead to an inference that P.W.8 Dhananjay was not present and was not one of the persons who had chased the appellant/accused and had apprehended him. 13. The case against the appellant/accused rests on circumstantial evidence. The circumstances which can be culled out from the evidence of the witnesses are :- (i) The strained relations between the appellant/accused and deceased Bharat and P.W.1 Prakash; (ii) The appellant/accused had gone to the hotel of P.W.6 Ramesh and had inquired about the whereabouts of deceased Bharat and Prakash and appellant/accused stating that he would kill both of them if they were found; 14 (iii) Appellant/accused fleeing from near the scene of the offence and being apprehended with blood stained axe and blood stained clothes; (iv) The report of the Chemical Analyser showing that the axe which was seized from the possession of the appellant/accused was stained with blood of "O" group, which was the group identified that of belonging to deceased Bharat; (v) Extra-judicial confession alleged to have been made by the accused that he had killed Bharat and that he would kill Prakash and Gangaram if they were found. 14. According to us, no reliance at all can be placed upon the oral dying declaration alleged to have been made by deceased Bharat to P.W. 1 Prakash. Deceased Bharat is alleged to have sustained four injuries and as per the medical evidence the injuries were grievous and he had died on account of cardio respiratory arrest. Bharat was pronounced dead on being taken to the hospital and in such situation, therefore, it has been rightly urged before us by the learned Counsel appointed on behalf of the appellant that the evidence in respect of the oral dying declaration appears to be doubtful. We have, therefore, no hesitation in rejecting the aforesaid piece of evidence i.e. of oral dying declaration. However, as pointed out by us above, the circumstances adumbrated above by us 15 have been clearly proved and the circumstances so proved form a complete chain, which excludes every hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. We, therefore, have no hesitation in holding that the prosecution has proved the offence against the accused beyond reasonable doubt. 15. Learned Counsel appointed for the appellant has placed reliance on the Division Bench judgment of this Court in Madhukar Ramsingh Alkari vs. State of Maharashtra, 2007 ALL MR (Cri) 3182, to urge before us that before relying on the oral dying declaration it must be shown that the declarant was physically fit to make a statement. It must further be shown that exact words of the deceased are reproduced and the statement does not suffer from any infirmity. We have already held in the foregoing paragraphs that we do not find that the oral dying declaration of the deceased can be relied upon. 16. Learned Counsel for the appellant has further placed reliance on the judgment of Supreme Court in Dagadu Dharmaji Shindore vs. State of Maharashtra, 2005 ALL MR (Cri) 1450, that before the extra- judicial confession could be relied upon the provisions of section 164 of the Code of Criminal Procedure ought to be complied with. The ratio of the aforesaid judgment, in our opinion, cannot be pressed into aid in the present case as the confession in the said case was made in the presence of police and as such was completely hit by section 27 of the 16 Evidence Act. In the present case the extra-judicial confession is made by the accused to the witnesses. The witnesses were not unknown to the accused and the accused on the previous evening had been proclaiming that he would commit murder of deceased and his brother. In such circumstances, we do not find it improbable that the accused on being apprehended by the witnesses had confessed to them that he had committed murder of deceased Bharat. Accordingly, there being no merit in the appeal, the appeal deserves to be dismissed. 17. Before parting with the judgment, we wish to place on record our appreciation for assistance rendered by the learned Counsel appointed on behalf of the appellant in deciding this appeal. We appreciate the tremendous efforts of the learned Counsel appointed on behalf of the appellant and we accordingly quantify the fees payable to the learned Counsel appointed on behalf of the appellant at Rs.5,000/-. 16. Appeal is accordingly dismissed confirming the conviction and sentence of the appellant. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria566.08