Cri. Appeal No. 17/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 17 OF 2010 Rajendra @ Bhimashankar s/o. Balaji Khajindar, Age 36 yrs., Occu. Agril., R/o. Kasba Old, Jalna, Tq. & Dist. Jalna. ....Appellant. Versus The State of Maharashtra Through Police Station Ambad, Tq. Ambad, Dist. Jalna. ....Respondents. Mr. V.D. Sapkal, Advocate for appellant. Mr.K.G. Patil, APP for respondent/State. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 18/04/2011 Delivered On : 27/04/2011 ORAL JUDGMENT : [ PER T. V. NALAWADE, J.] 1. This appeal is filed against the judgment and order of Sessions Case No. 78/2009 which was pending in the Court of Ad-hoc Additional Sessions Judge, Jalna. By the decision dated Cri. Appeal No. 17/2010 2 22.12.2009 the Trial Court has convicted and sentenced the present appellant, who was accused No. 1, for the offences punishable under sections 302 and 201 of Indian Penal Code. 2. In short, the facts leading to the institution of the appeal can be stated as follows :- (a) The deceased Balasaheb Pandhare was resident of village Dhondrai, Tahsil Gevrai, District Beed. Appellant/accused is resident of Jalna city, District Jalna. Few months prior to the date of incident as the accused married with a girl from Dondrai, the deceased became acquainted with the accused. Out of this acquaintance, the deceased gave a hand loan of Rs. 70,000/- to accused. This transaction was known to the relatives and friends of deceased from Dhondrai. (b) On 29.11.2008 at about 9.00 p.m. the deceased contacted accused from coin box of one Shabbir Shaikh of Dhondrai. The deceased demanded back the aforesaid amount from the accused and this conversion was heard by Shabbir Shaikh and also a friend of the deceased viz. Advocate Shri. Meghade (PW 3). These two persons learnt that the accused had called the deceased to Jalna on Cri. Appeal No. 17/2010 3 the next day for collecting the money. (c) On 30.11.2008 at about 6 to 6.30 p.m. the deceased left Dhondrai for Jalna. Advocate Meghade met the deceased when the deceased left for Jalna. Arjun Gadhekar (PW 2) is the resident of village Parner, Tahsil Ambad, District Jalna. He owns a shop near a Petrol Pump which is situated near Parner Phata on Ambad Jalna road. Arjun does the work of removing punctures of tires in his shop. At about 11.30 a.m. of 30.11.2008, the date of incident, Arjun noticed that a black yellow taxi bearing No. MH-25/B-212 came from Ambad side and stopped at the distance of around 100 to 125 fts. from his shop. Three persons alighted from this taxi jeep and quarrel started among these persons. Due to the noise of quarrel, the attention of Arjun (PW 2) was drawn to them. Arjun knew the appellant/accused and also the accused No. 2 as the accused No. 2 was working as a driver of accused No. 1. Deceased Balasaheb was however not known to Arjun. Arjun noticed that during quarrel accused No. 1 gave blows of knife to the deceased and when the deceased collapsed, accused Nos. 1 and 2 left the spot in the same taxi. (d) Like Arjun some other persons noticed the incident and they Cri. Appeal No. 17/2010 4 rushed towards the spot. Somebody from them contacted Ambad Police Station and reported the incident to police. PSI Repe (PW 7), who was attached to the Police Station rushed to the spot. From a chit which was found in the clothes of deceased, Repe learnt the name of deceased and also telephone number of Umrao Pandhare (PW 4), resident of Dhondrai. Repe contacted Umrao and learnt that Umrao was uncle of deceased. Repe gave the news about the incident to Umrao and then Umrao, Advocate Meghade and few other persons left for Jalna Civil Hospital where the dead body was shifted. They were contacted at about 12 noon. The enquest panchanama came to be prepared in the hospital at about 12.30 noon. (e) After seeing the dead body, Umrao, Advocate Meghade and others went to the spot of offence. At the spot of offence, they met Arjun (PW 2) and four other eye witnesses. From them the persons of village Dhondrai learnt that accused Nos. 1 and 2 had assaulted Balasaheb by using knife and they also learnt about the number of taxi used by accused Nos. 1 and 2. Umrao gave report about the incident to police and crime at Cr.No. 167/2008 came to be registered by PSI Repe. Cri. Appeal No. 17/2010 5 (f) API Shri. Dilpak (PW 12) was attached to the Police Station and he took over the investigation of the case. He prepared spot panchanama by visiting the spot. He took over the sample of earth mixed with blood. On the same day he arrested both the accused. Injuries were found on the right thumb and right index finger of appellant/accused No. 1. On 30.11.2008 itself the taxi was traced out as its number was known. Blood stains were found on a door of the taxi and by using cotton, the blood was collected from the taxi. Panchanama of this incident was also prepared. (g) The statements of all the eye witnesses and other persons came to be recorded on the next day of incident. During the course of investigation, on the basis of statement given by accused No. 1 under section 27 of the Evidence Act, a knife came to be recovered from a well. The accused also showed the spot where he had burnt his blood stained clothes. In subsequent statement accused disclosed that he had kept handkerchief having blood stains in his house. From there mobile and handkerchief came to be seized in presence of panch witnesses. (h) Post Mortem (PM) was also conducted on the dead body of Balasaheb. Doctor gave opinion that death was caused due to Cri. Appeal No. 17/2010 6 hoemorrhagic shock due to injuries to vital organs like lung, liver and spleen by sharp edged weapon. Clothes of deceased, ash collected during investigation, the weapon and other articles came to be send to the CA Office. Blood was detected on the knife. After completion of investigation, Shri. Dilpak filed chargesheet in the Court of Judicial Magistrate, First Class, Ambad against the appellant and accused No. 2. The charge was framed for the aforesaid offences and also under section 34 of IPC. The accused pleaded not guilty. In all 12 witnesses came to be examined in the Trial Court. 3. The record shows that the accused has not disputed that Balasaheb died homicidal death. The relevant record like inquest panchanama and the written defence under section 313 of Criminal Procedure Code show that the nature of the death of Balasaheb is not disputed. The defence has admitted the arrest panchanama of accused/appellant and the panchanama of seizure of clothes of deceased. The Trial Court has believed the evidence of eye witness Arjun (PW 2). The Trial Court has also believed the evidence of discovery of weapon under section 27 of the Evidence Act. The Trial Court has held that there was motive for crime as stated by the witnesses. The Trial Court has further held that Cri. Appeal No. 17/2010 7 present appellant destroyed some evidence and he attempted to conceal the murder. In the appeal both sides are heard. The points raised by both sides are being discussed alongwith the evidence. 4. There is both direct and circumstantial evidence in the present case. The main witness of prosecution is Arjun (PW 2) who is natural witness as he owns a shop which is situated in the vicinity of the spot of offence. He has deposed that at about 11 to 11.30 a.m. when he was present in the shop one black yellow taxi (jeep) bearing No. MH-25/B-212 came from Ambad side and stopped at the distance of 100 fts. from his shop. He has deposed that two persons who had came in the taxi like accused Nos. 1 and 2 were known to him, but the third person, the deceased, was not known to him. He has deposed that as quarrel started among them, his attention was drawn there and he noticed that accused No. 1 gave three knife blows on the neck, ribs and abdomen of the deceased. He has deposed that after the assault, the assailants left the spot in the same taxi and the injured was lying there. He has deposed that he and other eye witnesses rushed to the spot and one of them reported the incident to police on phone. He has deposed that in his presence police shifted the deceased to Jalna Civil Hospital. Cri. Appeal No. 17/2010 8 5. Arjun (PW 2) has further stated in the evidence that on the same day relatives of deceased met him on the spot and he narrated the incident to them. He has specifically stated in the evidence that one uncle of deceased had come to him for making inquiry. He has deposed that his statement was also recorded by the police. 6. The cross examination of Arjun (PW 2) shows that not a single contradiction in relation to his police statement is pointed out by the defence. He has admitted during his cross examination that after four days of incident he was called by police for interrogation. That does not mean that his statement was also recorded after four days. It is brought on record during cross examination that he was there when information was given to police about the incident on phone about the incident. It is also brought on record during cross examination that he started towards the spot of offence after noticing the assault and he could see number of taxi when he was at the distance of 50 fts. from the taxi. He has given names of two witnesses like Arun Hire and Santhosh Khare. These two persons belong to his village. He has deposed that there were two more eye witnesses, but they were not Cri. Appeal No. 17/2010 9 from his village and they were not known to him. He has also given evidence that the spot of offence is situated at the distance of around 100 to 125 fts. from his shop. It is brought on record in his evidence that he knew accused No. 1 for four to five years and he knew accused No. 2 as accused No. 2 is of his village. He has stated in the evidence that the incident was going on for about five to seven minutes. 7. The evidence of Arjun (PW 2) has the corroboration of evidence like the evidence of spot panchanama and medical evidence. The witness Sambhaji Sakhare (PW 6) has given evidence on spot panchanama and the said panchanama is proved which is at Exh. 32. There is also evidence of Investigating Officer (IO) Shri. Dilpak (PW 12) on the spot panchanama. In the cross examination of the panch witness, it is brought on record that the distance between the spot of offence and the shop is around 100 to 125 fts. The panch witness has however admitted that there are 5 to 6 shops between the shop of Arjun and the spot of offence. The panch witness has admitted that the deceased was brother of his wife. Though this witness is close relative of the deceased, only due to this circumstance, his evidence cannot be discarded. The shop owners were probably eye witnesses and they could not have been Cri. Appeal No. 17/2010 10 used as panch witnesses. These days police face lots of problems for collecting the panch witness. There is the evidence of Investigating Officer Shri. Dilpak (PW 12) also on the spot panchanama and so the evidence of Sakhare (PW 6) can be used in this case. 8. Shri. Dilpak, IO, (PW 12) has admitted in the cross examination that the distance between the shop of Arjun (PW 2) and the spot of offence is around 1000 fts. Thus, there is inconsistency in the evidence given on the distance by IO, panch witness and PW 2. Unfortunately the map of scene of offence is not produced on the record. In any case due to this distance the evidence of PW 2 - Arjun cannot be discarded. The spot panchanama shows that there was virtually pool of blood on the sidepatti of road and there were marks of tire of jeep. There is the evidence which is being discussed afterwards to show that the blood was found on a door of the jeep, of which number was noted by PW 2. When the shop of Arjun was situated in the vicinity of spot of incident, he was bound to rush to the spot after hearing the noise of quarrel. It was day time. Due to nature of occupation of Arjun, it was obvious for him to note and remember the number of jeep. Further the evidence of Arjun that he knew both the accused Cri. Appeal No. 17/2010 11 for few years prior to incident is not seriously disputed by the defence. 9. In the cross examination of Arjun (PW 2) he has admitted that the deceased was his distant relative. Exact relation of deceased with Arjun is not brought on the record. It is only brought on the record that deceased was of Mali caste and the witness is also of Mali caste. The aforesaid evidence showing that Arjun did not know the deceased prior to incident, is sufficient to hold that Arjun is not interested witness. There is one more circumstance against the accused on this point. In the cross examination of Arjun it is brought on the record that the wife and the brother of accused No. 1 had taken Arjun to Jail to have his meeting with accused No. 1. The defence has further suggested that witness had demanded Rs. six lacs to turn hostile. This suggestion is denied, but the witness has admitted that he was taken to Jail. The record shows that even when there were four eye witnesses, the prosecution faced difficulty in bringing two witnesses to the Court. Out of two witnesses, who came to the Court, one was not supporting the State and so he was discharged. This circumstance and also other evidence showing that some evidence is destroyed, Cri. Appeal No. 17/2010 12 need to be kept in mind while appreciating the evidence of Arjun. The circumstance brought on record during cross examination in respect of visit of Arjun (PW 2) to Jail is not helpful to the defence, but it is creating a probability that an attempt was made to tamper with this evidence. 10. The evidence of Arjun (PW 2) shows that he narrated the incident to complainant Umrao (PW 4) and also to others on the same day. In view of the aforesaid evidence, there was no problem to identify the accused Nos. 1 and 2. The evidence of Repe (PW 7) PSI shows that police learnt about the incident due to phone call and he also learnt about the number of taxi which was used by accused persons. Repe has deposed that after learning about the incident he contacted the complainant (PW 4) on phone and he gave news about the incident to complainant. He has deposed that the number of taxi was also given by him to PW 4. The taxi involved in the incident was traced out on the same day. The suggestion is given to Repe in the cross examination that after learning the number of the vehicle, the names of the owner and driver were transpired. 11. Umrao (PW 4) has given evidence that he and other persons Cri. Appeal No. 17/2010 13 including Advocate Shri. Meghade first visited the Government Hospital and then they went towards the petrol pump, towards the spot of offence. He has deposed that Arjun (PW 2) and others informed him about the incident and they gave taxi number. Advocate Shri. Meghade has also given similar evidence. PW 2 has given evidence that after learning about the particulars of the incident, he went to the police station and gave report which is at Exh. 29. 12. The aforesaid evidence and the circumstances show that police and other witnesses had learnt about the incident, about the use of taxi bearing aforesaid number, about the names of assailants even before giving of report to police. This part of evidence is relevant under section 6 of the Evidence Act. The statement of Arjun (PW 2) came to be recorded on 1.12.2008, late by one day. But, due to circumstance that his name is mentioned in FIR, Exh. 29, this delay is not fatal to the prosecution. These days people do not come forward willingly to help police and if there are circumstances like the present case, police cannot be blamed for late recording of the statement of witness like Arjun. In such cases, the evidence can be closely scrutinized and it can be seen as to whether there is corroboration of circumstantial evidence to the Cri. Appeal No. 17/2010 14 evidence given by such witness. 13. The evidence of spot panchanama discussed already shows that it is consistent with the evidence given by Arjun (PW 2). There was a pool of blood on the spot of offence and there was blood in the vicinity of the spot. There were also marks of tire of jeep. These circumstances are consistent with the story given by Arjun. They also show that the assault took place on this spot. Dr. Rajendra Shejule (PW 11) conducted PM examination on the dead body. He has deposed that there were four incised wounds on neck, abdomen, clavicle region and shoulder. He has deposed that there was one stab wound on right infra scapular region and the second stab wound was on left iliac crest. Doctor has deposed that the surface injuries had caused injuries to internal organs like lung, liver and spleen. Doctor has given evidence that these injuries are sufficient in ordinary course of nature to cause death. As the defence has not disputed the nature of death, this evidence needs no more discussion. This evidence is not inconsistent with the evidence of Arjun. 14. It was argued for the defence that Arjun (PW 2) has stated in the evidence that three blows of knife were given, but the medical Cri. Appeal No. 17/2010 15 evidence shows that atleast five blows were given. The evidence of Arjun shows that only after hearing altercation, his attention was drawn to the spot of offence and when assault started he rushed towards the spot. Before his reaching the spot, the accused left the spot in his taxi. The aforesaid evidence shows that Arjun was at the distance of more than 125 fts. from the spot when the incident started and in view of these circumstances, it was not possible for a person like Arjun to count the number of blows. In ordinary course when there is such assault, the blows are given in quick succession, so it is not possible to eye witness, watching the incident, even from close distance, to count the number of blows. So this Court holds that only due to aforesaid so called inconsistency, evidence of Arjun cannot be discarded and it needs to be further held that the medical evidence is consistent with the evidence of Arjun. This Court holds that the evidence of Arjun is reliable and conviction can be based on this evidence. 15. For defence, case reported as 1994 AIR SCW 2298 (Mani Ram and others Vs. State of U.P.) was cited. The facts of the reported case show that as per the eye witness there were multiple gun shots from the back side of the deceased, but the medical evidence showed that all the injuries were on front side of the body. Cri. Appeal No. 17/2010 16 In view of this peculiar circumstance, the Apex Court held that there was inconsistency in the medical evidence and the evidence of eye witness. The facts of each criminal case are always different and so this Court holds that this reported case is of no use to the defence. 16. In the three cases cited for defence like 1999 CRI.L.J. 1936 (Audumbar Digambar Jagdane and another Vs. State of Maharashtra), AIR 1971 SC 804 (Balkrushna Swain Vs. The State of Orissa) and AIR 1976 SC 2488 (State of Orissa Vs. Mr. Brahmananda Nanda) a discussion is made about the effect of delay caused in disclosure made by the witness about the incident. In those cases when the delay was caused, it was held to be fatal to the prosecution case. It is already observed that in such cases a close scrutiny of evidence needs to be done and if there is corroboration to the version of eye witness, his evidence cannot be discarded. The facts of present case are altogether different. 17. For defence, one more case reported as 2005 CRI. L.J. 2152 (Hem Raj and others Vs. State of Haryana) was cited. In this case when a material witness who could have been called as independent witness, was not examined and the benefit of this Cri. Appeal No. 17/2010 17 circumstance was given to defence. There was one more circumstance that eye witness who was related to deceased was not found reliable. There was doubt about his presence on the spot. Thus, the facts of this reported case were different. 18. Arrest panchanama, Exh. 12 is admitted by defence and it shows that on the day of incident at about 23 hrs. when the accused was arrested, injuries were found on right thumb and right index finger. They were fresh injuries. In the present case the accused has taken a defence of total denial and so it was necessary for him to explain the circumstance in view of the provisions of section 106 and 114 of the Evidence Act. If a sharp edged weapon is held in hand and the weapon is used to assault somebody, such injuries can be caused in ordinary course and so the explanation from the accused was necessary. As there is no explanation, the circumstance can be used against the accused. It was submitted for defence that the Trial Court ought to have put this circumstance to the accused under section 313 of Cr.P.C. and as the circumstance was not pointed out, it cannot be used against the accused. This Court has no hesitation to hold that in view of the provisions of section 294 of Cr.P.C. and sections 17 and 58 of the Evidence Act, it was not necessary for the Trial Court to put this circumstance to Cri. Appeal No. 17/2010 18 the accused under section 313 of Cr.P.C. Such facts which are admitted need not be proved in criminal case also. It is only a circumstance which is relevant and it is not offence itself. 19. For defence, on the circumstance like presence of injuries on the person of accused, the case reported as AIR 1992 SC 1878 (State of M.P. Vs. Gopi and others) was cited. The facts of the reported case show that the defence had admitted the presence and further defence of exercise of right of private defence was taken. Similarly, in the reported case as 2000 ALL MR (Cri) 1847 (Kashinath Ramchandra Patil & Anr. Vs. The State of Maharashtra) both the sides had sustained injuries and the presence was admitted by the defence. One side had taken the defence of exercise of right of private defence. Thus, the facts of these reported cases were also different. Thus, these two cases are of no use to the defence. 20. The defence has not disputed that accused No. 1 was known to the deceased due to the fact that a girl from village Dhondrai is given in marriage to the accused. For giving evidence of other circumstances like deceased had came towards Jalna to