1 Cri.Appeal No.362 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.362 OF 2010 1. Bhausaheb s/o Ankush Gade, Age : 23 years, Occu.Agril & Business, 2. Pintu s/o Ankush Gade, Age : 28 years, Occu.Agril & Business, Both R/o Sonari, Tq. Paranda, Dist. Osmanabad ..APPELLANTS VERSUS The State of Maharashtra ..RESPONDENT Mr S.J. Salunke, Advocate for the appellants; Mr S.D. Kaldate, Asstt. Public Prosecutor for respondent - State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 26th July, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellants, who stand convicted for offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.25,000/-, in default to suffer further R.I. for one year, by the Additional Sessions Judge, Osmanabad, by judgment 2 Cri.Appeal No.362 of 2010 dated 17.8.2010 in Sessions Case No.2 of 2010, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.9 Police Head Constable Bharat Gatkul, who was attached to the Ambi police station recorded the complaint of P.W.1 Bhausaheb on 30.9.2009, at about 11.00 p.m., at Exh.22. On the basis of the complaint he registered an offence vide Crime No.19 of 2009 for offence punishable under section 302 read with sec. 34 of the Indian Penal Code. Investigation of the said crime was entrusted to P.W.11 A.P.I. Suresh Shetkar. P.W.11 A.P.I. Shetkar, who was also working at the Ambi police station, had received an anonymous phone call on 30.9.2009, at about 9.45 p.m. intimating that murder of one Raosaheb @ Pappu Hange had been committed at Sonari, Taluka Paranda. He accordingly entered the said information in the station diary and proceeded to the scene of the offence. On the main road of Peth at Sonari he noticed the dead body of deceased Raosaheb lying on the road. The complainant P.W.1 Bhausaheb Hange was also present. He accordingly telephoned the concerned police station and got the crime register number and drew the scene of the offence panchnama in the presence of two panchas at Exh. 28. From the scene of the offence he seized a pair of chappal and blood mixed mud and ordinary mud. Thereafter inquest panchnama of the dead 3 Cri.Appeal No.362 of 2010 body of Raosaheb was performed at Exh.29 in the presence of P.W.4 Gunwant and another panch. The dead body was referred to the Rural Hospital, Paranda for post mortem examination. Thereafter complainant Bhausaheb was referred to the police station for registration of the crime. On 1.10.2009 accused no.1 came to be arrested at 8.00 a.m. in the presence of panchas under arrest panchnama at Exh.34. The accused had sustained an injury to the middle finger of left hand and there were blood stains on his clothes. Clothes on the person of accused no.1 came to be seized under panchnama at Exh.35. Accused no.1 was referred for medical examination and accused no.1 was examined by P.W.8 Dr. Nalawade. P.W.8 Dr. Nalawade states that on 1.10.2009 he examined the accused no.1 at 12.30 p.m. and accused no.1 had sustained an abrasion 2 x 0.5 cm., middle finger of left hand, caused by hard and blunt object within 24 hours, reddish blue in colour. He opined that the nature of the injury was simple. The medical certificate of injury sustained by accused no.1 is at Exh.40. 3. Statements of witnesses came to be recorded and on 3.10.2009, during custodial interrogation, accused no.1 Bhausaheb expressed his willingness to point out the place where the weapons had been concealed. Accordingly, memorandum of accused was recorded in the presence of P.W.5 Sharad at Exh.31. The appellant led the police and the panch near to his house at Sonari and took the police and panch near the water tank near his house where the accused produced two 4 Cri.Appeal No.362 of 2010 weapons; a Kukari and the other a knife from the heap of the coconut waste. The said two weapons came to be seized under panchnama at Exh.32. The aforesaid weapons are Articles 8 and 9. On 4.10.2009 accused no.2 came to be arrested under arrest panchnama at Exh.46. Clothes of deceased came to be seized. The seized property was referred to the Chemical Analyser for examination along with P.W.10 Police Constable Dilip under a requisition. The receipt of the Chemical Analyser is at Exh.46. The C.A. reports are Exhs.12 and 13. The sketch of the scene of the offence came to be drawn by the Circle Officer Ambi at Exh.47. Further to the completion of investigation a charge-sheet against the accused came to be submitted. 4. Post mortem on the dead body of deceased Raosaheb @ Pappu was performed by P.W.7 Dr. Gawali. P.W.7 Dr. Gawali noticed the following injuries :- Stab injuries : 1) Right side of chest below level of clavicle; 2) On both sides of middle of chest at level of nipple (two) (size 4.5 x 1.5 x 1); 3) Central over chest single below level of nipple (3x1.5x1.5 cm) 5 Cri.Appeal No.362 of 2010 4) On both sides below level of nipple upper side of costal cartilage (two 5 x 1.5 x 1.5); 5) Right side of chest at costal cartilage (single 5 x 1 x 1.5); 6) Central and left side of epigastrian (two 5 x 1 x 1); 7) At level of umbilicus on left side (single 2 x 1.5 x 0.5); 8) Left side of chest near shoulder anteriorly (single 4 x 1.5 x 0.5) 9) On lateral side of chest just below axila (single, 4 x 1.5 x 1.5); 10) On lateral side of chest at lower level of nipple (single 5 x 1 x 1); 11) Just above hip bone laterally (single, 4 x 1.5 x 1). There was abdominal content seen hanging outside of wound; 12) Over left elbow sharp incised wound single (7 x 2 x 1); 13) Incised wound over left arm anteriorly ,1.5x1x0.5, single 14) Over back - at level of T 12 to L2; 15) Cut incised wound over left knee (3x1.5x0.5 ) single On internal examination he noticed the following injuries :- Stab injuries as noted above pleura injuries as noted above. Larynx, trachea, bronchi normal. There was stab injury reaching deep to lung at right lung as well as on left lung. Large vessels were collapsed. He opined that all the injuries were ante mortem and cause of death was severe haemorrhagic shock with pneumothorax with terminal cardio respiratory arrest. The post mortem report is at Exh.37. He further 6 Cri.Appeal No.362 of 2010 opined that injuries 1 to 5 and 8 to 10 were sufficient in ordinary course of nature to cause death. 5. On committal of the case to Court of Sessions, Trial Court vide Exh.9 framed charge against the appellants for offence punishable under section 302 read with sec. 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. The Trial Court, upon appreciation of the evidence, convicted and sentenced the appellants as aforestated. 6. In order to effectively deal with the submissions advanced before us by Shri Salunke, learned Counsel for the appellants and the learned Asstt. Public Prosecutor for the respondent - State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Bhausaheb states that he was working as a Manager in the Beer shop of deceased Raosaheb since last six months prior to the incident. According to him, on the day of the incident, i.e. on 30.9.2009, at about 9.30 p.m., accused no.1 came in front of the shop of deceased and he called out the deceased. Accused no.2, brother of accused no.1, also came in front of the shop. Deceased Raosaheb demanded the arrears from accused no.1 Bhausaheb. accused no.1 thereupon asked him of what dues he was making a demand and if the deceased makes the demand again, accused no.1 would not leave him alive. There was 7 Cri.Appeal No.362 of 2010 exchange of words between them on the road. Bhausaheb states that the accused and the deceased were standing at a distance of 5 ft. from the place where he was sitting in the shop. He states that suddenly he heard his employer i.e. deceased Raosaheb stating "I am being killed save me". Bhausaheb accordingly came out of the shop and saw that deceased Raosaheb had been held by accused no.2 while accused no. 1 assaulted deceased Raosaheb with an iron knife which was in his hand. Accused no.2 was exhorting accused no.1 not to leave deceased alive. Bhausaheb states that there was profuse bleeding and on seeing the injuries and the assault he was frightened and, therefore, closed his shop and went to the house of Raosaheb in order to inform the incident to the other family members. On his return he noticed that deceased Raosaheb had fallen dead in a pool of blood in front of Matin Pan Centre, which is at a distance of 10 to 15 ft. from the shop of deceased. Police vehicle arrived at the spot within 5 to 10 minutes and the spot was shown by P.W. 1 Bhausaheb. The police drew the spot and the inquest panchnama and accordingly P.W.1 Bhausaheb proceeded to the police station and lodged his report at Exh.22. 7. In cross-examination P.W.1 Bhausaheb has admitted that deceased Raosaheb was his cousin. The licence under the Shops Act is in the name of one Sadashiv Hange who is father of deceased Raosaheb. Father of deceased Raosaheb used to some times attend the shop. Bhausaheb has stated that he could not state who were the employees 8 Cri.Appeal No.362 of 2010 when the shop was initially opened. P.W.1 Bhausaheb has also stated that he was drawing salary of Rs.2,500/-. P.W.1 Bhausaheb has further stated that apart from him no other person was employed in the shop. He has denied the suggestion that he does the work of collecting milk and supplying it to the dairy. He has further admitted that there may be 20 to 25 credit accounts of the shop. He has further stated that there were dues of Rs.1,600/- payable by accused no.1, which was in respect of purchase of Beer. Bhausaheb, however, could not state the date on which it was purchased by accused no.1, but has stated that it was purchased some time in April, 2009. He has further stated that his house is at a distance of 500 to 600 ft. from the Beer shop. He has admitted that there was one Osmanabad to Bangalwadi S.T. Bus which was the last Bus for going to Sonari. He has denied the suggestion that after departure of that Bus all the shops are closed. He has further stated that his lands are situated at a distance of 2 Kms. and 2000 ft. , respectively from the Beer shop of deceased. He had employed workers to work in those lands. He has further stated that the timings of the Beer shop were from 10.00 a.m. to 10.00 p.m. He has admitted that at the time of the incident no customers were present inside the shop. He has admitted that one Ganesh Hotel was open while other shops were closed. He has admitted that he had not informed nor has he shouted for help. He has denied the suggestion that there was darkness at the scene of the incident. He has admitted that he had not telephoned the police station and the police arrived at the scene at about 10.00 p.m. He does not 9 Cri.Appeal No.362 of 2010 know as to who had informed them. He has denied the suggestion that he was not aware as to who the assailants were, till the panchnamas were drawn. He has admitted not to have stated in his statement recorded under section 164 of the Code of Criminal Procedure that deceased was demanding arrears from accused no.1 and that accused no.1 had asked him of what dues he was demanding payment and if the deceased demanded the dues again, accused no.1 would not leave him alive. Omission has been duly proved that he had not stated that the shop is at a distance of 5 ft. from the road. He has admitted not to have stated that deceased had fallen dead in a pool of blood in front of Matin Pan Centre. He has admitted not to have stated in his statement under section 164 of the Code of Criminal Procedure that he had gone to the house of deceased Raosaheb. However, it appears that in the 164 statement P.W.1 Bhausaheb had stated that he had gone to the house of the deceased for informing the incident. He could not explain as to why it was recorded in his 164 statement that accused no.1 was assaulting deceased with two knives. He has pleaded ignorance about institution of any case registered by the Ambi police station under section 323, 324, 504 read with sec. 34 of the Indian Penal Code. He has pleaded ignorance about the institution of a case under the Prohibition Act against deceased Raosaheb. He has also pleaded ignorance about any case being registered against him under the Prohibition Act or under section 138 of the Negotiable Instruments Act against Babasaheb Hange, brother of deceased. He has pleaded ignorance as to whether 10 Cri.Appeal No.362 of 2010 Raosaheb was prosecuted in the Pardhi murder case and was released on bail by the High Court. He has denied the suggestion that no such incident as stated by him occurred. 8. Shri Salunke, learned Counsel for the appellants has urged before us that the conduct of this witness is extremely unnatural as this witness did not intervene nor had he cried for help. It is further urged before us that P.W.1 Bhausaheb is the cousin of the deceased Raosaheb and is, therefore, an interested witness. It is also urged before us that on account of P.W.1 Bhausaheb being prosecuted in several cases, no reliance ought to be placed upon him. The learned Asstt. Public Prosecutor has supported the findings recorded by the Trial Court. P.W.1 Bhausaheb has clearly stated that on seeing the murderous assault and the profuse bleeding he was frightened and, therefore, closed his shop and rushed to the house of deceased Raosaheb to inform the other family members. We, therefore, do not see anything unnatural in his behaviour either in rushing to the house of deceased Raosaheb, closing the shop or in not informing the police. Even if it is assumed that P.W.1 Bhausaheb was prosecuted in several cases, that would not render his evidence as suspect nor can the evidence of an eye-witness be doubted merely because the eye-witness is being prosecuted in some criminal cases. P.W.1 Bhausaheb has been extensively cross-examined and we have not noticed any admissions being elicited in the cross-examination which would vitally affect the core of his testimony. P.W.1 Bhausaheb has 11 Cri.Appeal No.362 of 2010 immediately lodged the first information report which discloses the names of the accused and despite searching cross-examination P.W.1 Bhausaheb has emerged as a reliable witness. According to us, therefore, implicit reliance can be placed on the testimony of P.W.1 Bhausaheb. 9. Prosecution has also examined P.W.2 Bhagwat as an eye-witness to the incident. P.W.2 Bhagwat states that he knew deceased Raosaheb and also knows the appellants. In respect of the incident, P.W.2 Bhagwat states that at about 9.30 to 9.45 p.m. he was going towards the land after purchasing material from the shop of P.W.3 Ajinath. He heard the shouts as "dying, save me". He accordingly rushed towards the place from which he had heard the cry. He states that there was an electricity light on a pole in front of the Matin Pan Centre and there was also street light. He noticed deceased being caught by accused no.2 and accused no.1 was stabbing deceased with the knives in his hands. Deceased fell on the ground and, therefore, accused no.1 stabbed deceased on his chest and stomach and thereafter pushed deceased by his feet to confirm whether deceased had really died. P.W.2 Bhagwat further states that when accused no.1 saw him, accused no.1 threatened him that in case P.W.2 Bhagwat deposed against him he would also meet with the same fate. He has also identified the two knives Articles no. 8 and 9. 10. In cross-examination he has admitted that he is not educated and 12 Cri.Appeal No.362 of 2010 his house is at a distance of half a kilometer from the village on the Paranda to Anala road. He has admitted that he was prosecuted in one murder case. He could not state as to who the witnesses were in that cases. He could not state if accused no.2 had gone to Pandharpur and was not present in the village on the date of the incident. He has admitted that he did not try to intervene to save the deceased. He has also admitted that he neither cried for help nor did he inform the incident to the police. He has further admitted as follows :- "There were five persons including the deceased, accused and myself present on the spot and one person Bhausaheb Hange was running away." He has admitted that he had not seen any other person. He has also admitted that he could not state if all the hotels and shops in the village are closed after the departure of the Osmanabad to Bangalwadi Bus. He has denied the suggestion that there was darkness. He has then admitted in the cross-examination that he was at a distance of 20 to 25 ft. and no other person was near him. He has admitted about a pending case against him for an offence punishable under sections 147, 148, 149, 324 and 337 of the Indian Penal Code. He has admitted that the police had not arrived at the scene till he was present there and he had learnt about the arrival of the police on the next day. He has admitted not to have stated about the electric wire on the pole in front of the Matin Pan 13 Cri.Appeal No.362 of 2010 Centre and about the street light. Omission has been duly proved that he had not stated in his previous statements that the accused no.1 pushed the legs of the deceased to confirm that he was dead. He has denied the suggestion that he had not witnessed the incident. 11. Shri Salunke, learned Counsel for the appellant has also urged before us in respect of this witness, that this witness was being prosecuted in criminal cases and, therefore, no reliance ought to be placed on the evidence of this witness. Further, it is urged before us that the conduct of this witness is extremely unnatural as he had neither cried for help nor had he intervened. The statement of this witness came to be recorded on the next day of the incident. 12. It is true that this witness has admitted that he was prosecuted in a criminal trial and has also admitted about pendency of a criminal case. However, mere pendency of the criminal case or the fact that this witness was prosecuted in a criminal trial would not axiomatically mean that he is not a reliable witness. Similarly, his not crying for help or not informing the police cannot be said to be a conduct so unnatural as to completely jettison his evidence. Different people react differently towards situation and in the light of the gruesome attack on the deceased, this witness may not have the courage to intervene and help the deceased. Further, this witness was threatened by accused no.1 and we do not find that there are any omissions in respect of the threats 14 Cri.Appeal No.362 of 2010 given by accused no.1. On a careful appraisal of the evidence of this witness, we find the testimony of this witness can certainly be relied upon. In the cross-examination itself it is elicited that P.W.1 Bhausaheb was present and was seen running away from the scene of the offence. The testimony of this witness, therefore, corroborates the evidence of P.W.1 Bhausaheb and we have no hesitation whatsoever in placing implicit reliance on the testimony of this witness. 13. Prosecution has examined P.W.3 Ajinath, who states that he runs a hotel in front of the Matin Pan Centre and knew deceased as well as the accused. He states that he was closing his hotel and he had heard the cries of the deceased and, therefore, came out of the hotel and he noticed that deceased was caught by accused no.2 while accused no.1 was stabbing the deceased with knives. Accused no.1 thereafter saw him and abused him and also threatened that in case he deposed against accused no.1, he too would meet the same fate as that of deceased. In cross-examination he has admitted that he had studied upto fourth standard. He has denied the suggestion that he was not present in the village on 30.9.2009. He has admitted that there were criminal cases filed against him under the Prohibition Act. He has feigned ignorance if a complaint had been lodged by accused no.1 alleging that P.W.3 Bhagwat was doing the business of illicit sale of liquor. He has admitted that deceased is not related to him. He has also admitted that he had not raised cries for help. He has admitted about the presence of P.W.2 15 Cri.Appeal No.362 of 2010 Bhagwat. He has admitted that he was standing at a distance of 20 ft. from the accused and the deceased. He has admitted that he had not informed the police after the arrival of the police. He has denied the suggestion that he had not witnessed the incident. 14. According to us, no reliance can be placed on the testimony of this witness. This witness claims to have been standing at a distance of 20 ft. from the deceased. P.W.2 Bhagwat has clearly admitted that apart from him no one else was present at the scene of the offence and, therefore, P.W.2 Bhagwat has not referred to the presence of P.W.3 Ajinath. We, therefore, find it difficult to believe that P.W.3 Ajinath was present at the scene of the offence and had witnessed the incident. 15. Apart from the evidence of the eye-witnesses, prosecution has relied upon the circumstantial evidence relating to the discovery of the weapons and the seizure of blood stained clothes of the accused. Prosecution has examined P.W. 5 Sharad, a panch witness to the memorandum as well as to the seizure of the clothes. P.W.5 has deposed about the memorandum at Exh.31. According to P.W.5 Sharad, after recording the memorandum, accused no.1 led the police and the panch to his house and accused no.1 entered his house and from one gunny bag full of waste material of coconut, the accused removed two weapons which came to be seized. There were blood stains on those weapons and those weapons accordingly were seized. In cross- 16 Cri.Appeal No.362 of 2010 examination he has admitted that he is not related to the deceased. 16. Mr Salunke, learned Counsel for the appellants has urged before us that no reliance can be placed on the testimony of P.W.5 Sharad and P.W.11 Investigating Officer as there is a marked variance in their evidence in respect of the actual place of seizure of the weapons. According to P.W.5 Sharad, the accused had entered his house and had produced the two weapons from a bunny bag full of waste coconut material, while according to the Investigating Officer the accused had produced the weapons from outside his house from amongst the waste material of coconut. According to us, the aforesaid discrepancy is extremely marginal. Obviously, the panch witness has committed a mistake as in the panchnama which is proved, the