IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.925 of 2005. CRIMINAL APPEAL NO.925 of 2005. CRIMINAL APPEAL NO.925 of 2005. Ramesh Tulsiram Tendulkar Zopada opposite St. Paul Convent High School, Khashaba Jadhav Marg, Parel, Mumbai 400 012 ..Appellant (Original Accused ) versus The State of Maharashtra (at the instance of Bhoiwada Police Station.) ..Respondent Mrs. B.P.Jakhade, advocate appointed for the Appellant Mrs.U.V.Kejriwal, APP for the Respondent State CORAM : Smt.RANJANA DESAI & CORAM : Smt.RANJANA DESAI & CORAM : Smt.RANJANA DESAI & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. JUDGMENT RESERVED ON : 21st August, 2008. JUDGMENT RESERVED ON : 21st August, 2008. JUDGMENT RESERVED ON : 21st August, 2008. JUDGMENT PRONOUNCED ON : 29th August, 2008. JUDGMENT PRONOUNCED ON : 29th August, 2008. JUDGMENT PRONOUNCED ON : 29th August, 2008. JUDGMENT (PER R.Y.GANOO, J.) JUDGMENT (PER R.Y.GANOO, J.) JUDGMENT (PER R.Y.GANOO, J.) 1. The appellant above named faced trial in Sessions Case No.32 of 2001 before the learned Sessions Judge for Greater Bombay (hereinafter referred to as the learned trial Judge) for the -2- charge under Section 302 of I.P.C. The learned trial Judge by his Judgment and Order dated 28.4.2005 convicted the appellant under Section 302 of I.P.C. and sentenced the appellant to suffer rigorous imprisonment for life and also sentenced the appellant to pay fine of Rs.1000/-. 2. Being aggrieved by the aforesaid Judgment & Order dated 28.4.2005, the appellant above named has filed this appeal. 3. The prosecution case in gist is as under": . P.W.1 Mr. Sunil P. Patil was working with a contractor and along with him persons, namely Prabhu, Raju, Satish and Papaya were doing labour job. One Ballu was working as watchman. The appellant was also working as watchman with the same contractor. On the night of 12.7.2000 Sunil Patil - P.W.1, Sunita Sunil Patil - P.W.3 were residing at the spot opposite St. Paul Convent High School, Gate No.1 Khashaba Jadhav Marg, Parel, Mumbai in temporary shed. At about 9.30 p.m. the appellant came near the shed of Sunil-P.W.1 and hurled abuses in filthy language. Sunil P.W.1 came -3- out of the house and appellant caught hold of the collar of Sunil-P.W.1. At that time Sunita -P.W.3 wife of Sunil -P.W.1 intervened and the appellant pushed said Sunita - P.W.3 who collapsed. According to the prosecution, the appellant thereafter left the said place, went inside his shed and Sunil P.W.1 and Sunita P.W.3 were standing infront of their shed. The appellant came running towards Sunil-P.W.1 and Sunita P.W.3 with a knife and at that time Ballu, the watchman intervened to save Sunil-P.W.1. The appellant asked Ballu to leave the place. However, Ballu did not do so. A scuffle took place between Ballu and the appellant and the appellant is alleged to have given two blows with knife to Ballu. Ballu collapsed on the ground and was taken to K.E.M.Hospital with the help of Police Van. Ballu died at K.E.M. Hospital. It is in this circumstances, according to the prosecution, the appellant was responsible for causing death of said Ballu. 4. Sunil, P.W.1 lodged F.I.R. at Exhibit 10 with Bhoiwada Police Station. On the strength of the said FIR crime was registered under Section 302 of I.P.C. vide C.R.No.149 of 2000 against the -4- appellant. Investigation was carried out by the officers of Bhoiwada Police Station and the appellant came to be arrested on 21.8.2000 in connection with the aforesaid incident registered under C.R.No.149 of 2000. On committal of case, the learned trial Judge framed the charge against the appellant under Section 302 of IPC on 11.1.2002 at Exhibit 3. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant was that of denial. 5. The learned Sessions Judge conducted the trial and delivered judgment and Order dated 25.4.2005 as mentioned aforesaid. 6. In the course of trial following witnesses were examined on behalf of the prosecution. Sunil Patil-P.W.1 is cited as eye witness as he has filed FIR at Exhibit 10, P.W.2 Chandrakant Thotam is examined to show as to how Ballu, the deceased was taken from the spot to KEM Hospital with the assistance of Police Constable No.29148. P.W.3. Sunita Patil, wife of Sunil P.W.1 is also cited as eye witness, as according to the prosecution she had chance to see as to how the appellant assaulted -5- Ballu with knife. P.W.4 Sunil Shankar Kadam is from the Forensic Medicine Department of K.E.M. Hospital and has produced carbon copy of post mortem on the dead body of Ballu whose post mortem notes are at Exhibit 16A. The said post mortem was carried out by Dr.H.K.Bakshi who was not alive when the trial commenced. P.W.5 Vitthal Govind Rewale is panch who attended scene of panchanama at Exhibit 28 dated 12.7.2000. P.W.6 Vijay Jankiram Waghmare is the Police Officer who has carried out investigation in this case. 7. Following documents have bearing on the case, namely FIR dated 12.7.2000 filed by P.W.1 Sunil at Exhibit 10, post mortem notes concerning dead body of Ballu at Exhibit 16A, C.A. report regarding blood group and contents of the blood group at Exhibit 20, Inquest panchanama dated 13.7.2000 at Exhibit 26, Scene of Offence panchanama dated 12.7.2000 at Exhibit 28, Panchanama regarding clothes of the accused dated 21.8.2000 at Exhibit 35, C.A. report regarding clothes of the Victim and the appellant are at Exhibit 39. -6- 8. With the assistance of the learned Advocate Smt. B.P.Jakhade, appearing on behalf of the appellant and Mrs. U.V.Kejriwal, learned APP for the State, we have gone through the entire record. 9. Sunil P.W.1 and Sunita P.W.3 are cited as eye witnesses in regard to the alleged incident of appellant stabbing Ballu at the spot disclosed in the scene of offence panchanama at Exhibit 28. The scene of offence panchanama is sought to be proved by the prosecution through P.W.5 Vitthal and we have no hesitation in accepting the said scene of offence panchanama exhibit 28. The post mortem notes are at Exhibit 16A. 10. Learned Advocate Mrs.Jakhade appearing on behalf of the appellant submitted that the court should not accept the evidence of Sunil, P.W.1 and Sunita P.W.3 as trustworthy in view of the omissions rendered by these two witnesses in the course of recording their evidence. She had further submitted that evidence of P.W.1 Sunil should not be accepted as trustworthy because the appellant is falsely implicated by Sunil P.W.1. In so far as evidence of Sunita, P.W.3 learned -7- Advocate Mrs. Jakhade had taken us through the evidence of Sunita-P.W.3 and had drawn our attention to as many as 8 omissions in regard to the incident which have bearing on the veracity on the testimony of Sunita P.W.3. According to Mrs. Jakhade, if those omissions are considered in the proper perspective, Sunita P.W.3 has a tendency to improve here version in the Court and therefore her word becomes doubtful. She therefore submitted that the testimony of Sunita P.W.3 should not be accepted by the Court. 11. Learned Advocate Mrs. Jakhade submitted that if the testimony of Sunita -P.W.3 is not accepted by the Court, the word of Sunil P.W.1 looses its strength and in view of the point of false implication by Sunil P.W.1 of the appellant in the present occurence it would be unsafe to convict the appellant for the charge under Section 302 of IPC. 12. Learned Advocate Mrs. Jakhade further submitted that even if it is accepted for a moment that the word of Sunita and Sunil is to be accepted as regards the allegations levelled against the -8- appellant, considering the medical evidence through Sunil P.W.4 and the manner in which the incident is alleged to have taken place, the conviction of the appellant under Section 302 IPC should not be confirmed and the appropriate inference be drawn so far as the case of the appellant is concerned. She had therefore submitted that the appeal be allowed and the appellant be acquitted of the charge under Section 302 of IPC. 13. Learned Advocate Mrs. U.V.Kejriwal, appearing for the State had opposed the submissions of Mrs. Jakhade and had submitted that there was no reason for Sunil P.W.1 to falsely implicate the appellant as the evidence of Sunil in no uncertain terms goes to show that there was no enemity between them. She had also submitted that evidence of Sunil P.W.1 is cogent and trustworthy. According to her, Sunil P.W.1 was an eye witness and his version is required to be believed because he had stood the cross examination conducted on behalf of the appellant. According to her, evidence of Sunil P.W.1 is trustworthy and if that is considered the case against the appellant is proved beyond shadow of reasonable doubt. -9- 14. Learned Advocate Mrs. Kejriwal submitted that Sunita P.W.3 is the eye witness and in para 14 of her evidence she has stated that she has seen whatever was seen by her husband and that goes a long way to suggest that Sunita P.W.3 had no reason to give false evidence against the appellant and or falsely implicate the appellant in the said incident. Learned Advocate Mrs. Kejriwal submitted that evidence of Sunil P.W.1 and Sunita P.W.3 taken together would clearly go to show that prosecution had proved that the appellant had inflicted knife blows on the person of Ballu and had caused his death and as such the overt act alleged against the appellant is duly proved by the prosecution. 15. Learned Advocate Mrs. Kejriwal submitted that the evidence of Chandrakant P.W.2 shall go to show as to how Ballu was carried to K.E.M. Hospital with the help of police and that supports the case of prosecution which is rendered through Sunil P.W.1 and Sunita P.W.3 and to that extent also the evidence led on behalf of the prosecution that Ballu was carried from the spot to KEM -10- Hospital is properly made out. 16. Learned Advocate Mrs. Kejriwal submitted that Sunil P.W.4 has produced post mortem notes and has narrated the injuries suffered by Ballu and has also given cause of death as haemorrhage and shock following stab. According to her the injuries mentioned in the post mortem notes and confirmed in the evidence before the Court clearly go to show that knife blows were inflicted upon Ballu and the said blows resulted in penetrating injury below left nipple as well as incise wound below the nap of neck being injuries mentioned at serial nos. 3 and 6 at Column No.17 of the Post Mortem notes. She had also drawn our attention to the evidence of Sunil P.W.4, where he has mentioned the cause of death and has further narrated as to how the injuries suffered by the victim were of grievous nature, and that the injury at serial No.3 in column No.17 of the post mortem notes was sufficient to cause death of the person. She had also drawn our attention to the evidence of Sunil P.W.4 who stated that the cumulative effect of the external and internal injury might have caused death of that person Ballu instantly and were no -11- chances of survival. Mrs. Kejriwal submitted that on reading evidence of Sunil P.W.4 it is clear that the appellant who had assaulted Ballu did commit the offence under Section 302 of IPC and therefore the conviction of the appellant rendered by the learned trial Judge was proper. Learned Advocate Mrs. Kejriwal submitted that the learned trial Judge has rightly appreciated the evidence on record and has rightly convicted the appellant under Section 302 of IPC and therefore no interference be done by this Court in its Appellate Jurisdiction and that the appeal be dismissed. 17. We have considered the rival contentions as discussed above, we are inclined to observe that the learned trial Judge has considered the evidence in its proper perspective and has arrived at final conclusion rightly and has rightly convicted the appellant under Section 302 IPC. 18. Evidence of Sunil -P.W.1 clearly goes to show that he was an eyewitness and had occasion to see the incident. Sunil-P.W.1 has in no uncertain terms stated as to how the appellant approached his shed and abused him and as to how the appellant -12- went back to his house and came back with knife and assaulted Ballu when Ballu tried to intervene. Sunil P.W.1 has positively stated that the appellant gave blow of knife at the left side and he gave one more blow on the left side of his back. This would mean that two knife blows were inflicted on Ballu and injuries at serial nos.3 and 6 mentioned in column No.17 of Post Mortem notes can be said to have been caused by the two blows inflicted upon Ballu. Evidence of Sunil -P.W.1 clearly goes to show that he was an eye witness. The appellant was working as watchman and that Sunil-P.W.1, had no enemity with the appellant. On going through the evidence nothing is seen in that behalf. Sunil -P.W.1 in the cross examination has said following words to show as to how the incident took place and that evidence coming in cross examination acquires importance. The relevant evidence is as follows: "It is true that scuffle had taken place between Ballu and Ramesh. When the scuffle took place between Ballu and Ramesh, accused before the Court Ramesh had caught hold of both his hands and then gave a blow -13- of knife to Ballu". An attempt was made by the defence to bring about omission as regards giving of blow on the left side of the stomach. Sunil-P.W.1 has stated in his evidence that he had stated before the Police that Ballu was assaulted at the left side of his stomach by giving blow of knife. Such words were not found in his statement before the police. He could not assign any reason for the same. One can treat this as omission. However, this omission by itself in the absence of any other material is insufficient to say that the evidence of P.W.1 is required to be disbelieved. In our view, Sunil-P.W.1 is an eye witness. He has deposed about the incident. He had full opportunity to see the incident and had no reason to falsely implicate the appellant and his evidence shows that the appellant assaulted Ballu with knife. 19. Then we turn to the evidence of Sunita-P.W.3. Sunita-P.W.3 is the wife of Sunil-P.W.1. and she was in close proximity of Sunil-P.W.1 and her evidence no doubt goes to show that she was an eye witness to the incident. In -14- the examination in chief she has narrated the incident. At the same time, in the cross examination, learned cross examiner could bring on record in all eight omissions and the learned Advocate for the appellant Mrs. Jakhade had argued that on account of these omissions the word of Sunita P.W.3 is required to be disbelieved. It is true that Sunita-P.W.3 had to admit certain things which do not appear in her statement though stated by her in examination in chief and they concerned the following points: (i) Giving abuses by the appellant. (ii) While Sunil and she were taking dinner inside the house, at first she did not open the door. (iii) P.W.1 Sunil ran 4-5 feet away from the appellant. At this juncture itself it is required to be mentioned that the fact that Sunil P.W.1 ran away for some distance is mentioned in the statement as admitted by Sunita P.W.3. The distance in terms of feet is not mentioned in the statement. -15- (iv) Ballu having caught hold of both the hands of the appellant. (v) At the place of St. Paul’s gate appellant caught both the hands of Ballu-watchman. (vi) Appellant before the Court gave blow of knife on the left side of Ballu watchman below the nipple. (vii) After giving blow of knife, appellant ran away from the place and police appeared on the spot and Ballu was taken to K.E.M.Hospital in the van. (viii) She along with Somnath went to the Police Station for informing them about the incident. If one peruses these omissions, which have been brought on record, one will have to come to the conclusion that Sunita-P.W.3 has the tendency to improve at the stage of recording of evidence and -16- to that extent the evidence of Sunita-P.W.3 is required to be viewed with caution. At the same time, Sunita-P.W.3 has answered in the cross examination, after all the ommissions were brought on record as follows: "It is true that whatever was seen by her husband on the date of incident was also seen by me" This would go to show that she was present at the time of the incident. May be that she has not been able to narrate to the police at the time of rendering statement to the police the precise way in which the incident is said to have taken place. Hence prosecution could utilise Sunita P.W.3 to limited extent to say that Sunita-P.W.3 was one person who noticed the presence of the appellant at the spot and Sunita P.W.3 had an occasion to see what happened at the site. It is pertinent to note that Sunil P.W.1 has stated in his examination in chief that appellant hurled abuses while Sunil P.W.1 and Sunita P.W.3 were in the shed and that Sunil P.W.1 came out of the shed and at that time appellant had caught hold of his collar and at that -17- time Sunita P.W.3 intervened and the appellant pushed Sunita P.W.3 and she collapsed. Since evidence of Sunil P.W.1 is not shattered on this point and is being accepted it can be safely observed that Sunita P.W.3 was present over there. The evidence of Sunita P.W.3 which is quoted above, namely whatever was seen by her husband on the date of incident was also seen by her goes to show that she was an eye witness, atleast with reference to the principal part of the incident. In view of the aforesaid discussion, we are inclined to accept the case of the prosecution that the appellant assaulted Ballu with knife. 20. Evidence of Sunil P.W.4 with reference to the post mortem notes at Exhbit 16A goes to show that Ballu had suffered following injuries: 1) Abrasion-left side interior orbital 1.5 x 1 c.m. 2) minor abrasion left side chest in 1st I.C.S. in mid clavicular line 0.5 c.m. diameter. -18- 3) Penetrating injury in mid clavicularline 3 cm. below left nipple in Vth ICS 2.5 cm x 1.5.c.m. x penetrating in thoracic cavity Eliptical shaped, clean cut edges direction obliquely upwards medially. 4) Abrasion in left side below infra scapular border 0.5 c.m. diameter 5) Linear abrasion left flank above superior illac spine 4 c.m. - 0.5 c.m. 6) Incised wound 3 c.m. away at L-1, L-2 level 35 c.m. below the nap of neck - 1.5 c.m. x 2 c.m x muscle deep. Evidence of Sunil-P.W.4 would clearly go to show that the internal injuries are corresponding to the external injuries at serial NO.3 as mentioned above and all external and internal injuries were anti mortem. Sunil, P.W.4 has pointed out that the cause of death mentioned in the post mortem notes is "Haemorrhage and shock following stab as alleged". In paragraph 10 of the evidence of Sunil P.W.4 he has clarified that the injuries mentioned -19- in the post mortem notes could be caused by sharp and pointed weapon and has further observed that injury No.3 i.e. external injury mid clavicular below left nipple is on the vital part of the body and it also relates to internal injury on the lungs and heart. Sunil P.W.4 has stated that the injury No.3 in column No.17 is sufficient to cause death and has further observed that the cumulative effect of the external and internal injury might have caused the death of that person incidently and that there was no chance of survival. Further, going through the evidence of Sunil P.W.4 we are of the view that evidence of Sunil P.W.4 and the facts brought on record through the post mortem notes Exhibit 16A are required to be accepted and if that is done, it is clear that the medical evidence supports the evidence of eye witnesses namely Sunil P.W.1 and Sunita P.W.3. The injuries suffered by Ballu were in consonance with the case of prosecution, namely assault by appellant with a knife. 21. Once it is observed that the evidence of Sunil P.W.1 and Sunita P.W.3 is to be accepted to hold that the appellant had inflicted blows on the -20- person of Ballu and if evidence of Sunil P.W.4 is to be accepted with reference to the nature of injuries suffered by Ballu and the cumulative effect thereof, the only conclusion which can be drawn is viz. the appellant was responsible for causing death of Ballu by inflicting knife blows on him and to that extent the case of the prosecution is proved beyond shadow of reasonable doubt. 22. Learned Advocate Mrs. Jakhade had submitted that prosecution has not been able to bring home the charge under Section 302 of IPC and that submission is required to be rejected. Once it is accepted that the appellant inflicted injuries on Ballu with a sharp edged weapon, namely knife and that the injuries were inflicted on the vital portion of the body, as is evident from the evidence of P.W.4 Sunil, it can be safely observed that the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt for charge under Section 302 of IPC. 23. We have perused the impugned judgment dated 28.4.2005 and we are inclined to accept the view taken by the learned trial Judge which is based on -21- the evidence which is discussed above. In our judgment, the view taken by the learned trial Judge is required to be accepted and hence we observe that the prosecution has been able to prove the guilt of the appellant beyond shadow of reasonable doubt, as regards the charge under Section 302 is concerned. In view of this, the conviction of the appellant for the charge under Section 302 of I.P.C. is proper and no interference therein is required. 24. The learned trial Judge has sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs.1000/-. Keeping in view the provisions of Section 302 of I.P.C. the punishment imposed upon the appellant is proper and no interference therein is required. 25. For the reasons mentioned above, we are inclined to dismiss the appeal and pass the following Order. ORDER . Appeal is dismissed. -22- (Smt.Ranjana Desai, J.) (Smt.Ranjana Desai, J.) (Smt.Ranjana Desai, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)