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2005 DIGILAW 480 (BOM)

Tulshiram Gosavi Saykhede v. State of Maharashtra

2005-04-07

D.D.SINHA, S.T.KHARCHE

body2005
Judgment D. D. SINHA, J. ( 1 ) HEARD Mr. Daga, the learned Counsel for the Appellant and Mr. Ahirkar, learned Additional Public Prosecutor for the Respondent-State. ( 2 ) THE Appeal is directed against the judgment and Order, dated 16th July, 2001, passed by Additional Sessions Judge, Yavatmal, in Sessions Trial No. 166 of 1998, whereby the appellant is convicted for the offence punishable under Section 302, Indian Penal code, and sentenced to suffer Rigorous imprisonment for Life and to pay a fine of rs. 1,000-00, in default of payment of fine, rigorous Imprisonment for one month. Similarly, the Appellant is also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous Imprisonment for six months. The trial Court directed that the substantive sentences shall run concurrently. ( 3 ) THE prosecution case, in nutshell, is as follows :- the alleged incident of assault took place on 13th June, 1998 in front of the house of the appellant at about 9. 00 a. m. , in the morning at village Belora. The house of deceased Dattu was adjacent to the house of the Appellant. It is the case of the prosecution that on the day and time of the incident, the present appellant was talking loudly and was saying things, which had no specific meaning. Deceased Dattu and his mother were going to their field by the road, which was by the side of the house of the appellant - Tulshiram. Deceased Dattu asked tulshiram, the present appellant, why was he talking loudly. Tulshiram immediately thereafter pulled deceased Dattu and assaulted him by inflicting blows by means of a knife and Sattoor (chopper ). The mother of the deceased, namely bhagubai (PW 2), intervened to prevent assault on her son Dattu. The appellant - Tulshiram also assaulted her and she also sustained injury. Lalita (PW 1) lodged an oral report (Exh. 12), on the basis of which an offence came to be registered vide Crime No30/1998 vide printed fir (Exh. 13 ). PSI Sayyad Habibur Raheman (PW 8) went to the spot of incident and in presence of Panchas recorded the Spot panchanamas (Exhs. 32 and 33 ). The Inquest panchanama was drawn on the dead body of deceased Dattu vide Exh. 22. The dead body was sent to Medical Officer for post-mortem examination. 13 ). PSI Sayyad Habibur Raheman (PW 8) went to the spot of incident and in presence of Panchas recorded the Spot panchanamas (Exhs. 32 and 33 ). The Inquest panchanama was drawn on the dead body of deceased Dattu vide Exh. 22. The dead body was sent to Medical Officer for post-mortem examination. The samples of earth and earth mixed with blood were collected from the spot in presence of Panchas vide Seizure Memo (Exh. 34 ). Mr. Raheman arrested accused No. 1 - Tulshiram on 13th June, 1998 vide Arrest panchanama (Exh. 25 ). On 13th June, 1998, psi Raheman attached the clothes of deceased after post-mortem examination vide Seizure memo (Exh. 56) and recorded the statements of witnesses. On 15th June, 1998, the investigating Officer attached both the weapons i. e. , knife (Suri) and Sattoor (chopper) and blood stained shirt of appellant Tulshiram at the instance of appellant vide his Memorandum statement (Exh. 30) and Panchanama (Exh. 30- a ). The Muddemal property was forwarded to the Chemical Analyser for analysis and the reports received from Chemical Analyser are exhs. 64, 65 and 66. On completion of investigation, charge-sheet was filed against the appellant and one other co-accused - Annaji gosavi Saykhede for the offences punishable under Sections 302 and 307 of the Indian Penal code and the charge was framed for offences punishable under Section 109, read with sections 302 and 307 of Indian Penal Code against the appellant and the co-accused. The same was explained and read over to them. Both of them denied the charge and claimed to be tried. The defence of the appellant was that of denial. The Trial Court acquitted the co- accused-Annaji Gosavi Saykhede of the offences punishable under Section 109, read with Sections 302 and 307 of the Indian Penal code and the prosecution has not preferred any appeal against the Judgment and Order of acquittal and, therefore, in the instant case we are only concerned about the validity of the conviction of the present appellant under sections 302 and 324 of the Indian Penal Code awarded by the Trial Court. ( 4 ) MR. ( 4 ) MR. Daga, learned Counsel for the appellant, submitted that in the instant case, the evidence of eyewitnesses - Bhagubai (PW 2), Padmakar (PW 3) and Bhulabai (PW 4) adduced by the prosecution was one and the same against the appellant as well as the co-accused and when the such evidence of the prosecution is disbelieved against the co-accused - Annaji, the same also ought to have been disbelieved against the present appellant. It is contended that so far as evidence of bhagubai (PW 2) is concerned, she is the mother of deceased Dattu. She has admitted in her cross-examination that no idea as to who pulled her son Dattu and who assaulted him. She has also admitted in her cross- examination that she had no idea by which weapon she was assaulted on her head. Mr. Daga, learned Counsel, therefore, contended that in view of the admissions given by bhagubai (PW 2) in her cross-examination, her presence on the scene of offence is doubtful and, therefore, her testimony ought to have been discarded by the Trial Court. ( 5 ) MR. Daga, learned Counsel for the appellant, further contended that so far as evidence of Padmakar (PW 3) and Bhulabai (PW 4) is concerned, there are material omissions in the testimonies of these witnesses and, therefore, it is unsafe to rely on the evidence of such eye-witnesses. It is further contended that Bhulabai (PW 4) is the elder sister of deceased Dattu and her testimony as well as the testimony of Bhagubai (PW 2), who is the mother of deceased Dattu, are of interested witnesses and in absence of any independent evidence as well as in view of the shortcomings in their testimonies, it is unsafe to rely on the evidence of these witnesses. ( 6 ) MR. Daga, learned Counsel for the appellant, submitted that since the evidence of eyewitnesses is not trustworthy and truthful, the conviction awarded to the appellant on the basis of the said evidence is unsustainable in law, particularly when other circumstantial evidence brought on record by the prosecution is inadequate to prove the charge of murder against the appellant and, therefore, the judgment and Order impugned in the present appeal is liable to be quashed and set aside. ( 7 ) MR. ( 7 ) MR. Ahirkar, learned Additional public Prosecutor, on the other hand, supported the finding of conviction and contended that the prosecution examined three eye-witnesses in the present case and the testimonies of all these three eye-witnesses are not only consistent with each other, but they are also corroborated by the medical evidence of Dr. Shirish (PW 5), coupled with the report of the chemical Analyser, which reveals that the article knife had blood of 'a' group and article sattoor (chopper) was stained with human blood. The blood group of deceased was 'a'. Additional Public Prosecutor further contended that there is a discovery by appellant under section 27 of Sattoor (chopper) having human blood as well as on shirt having blood stains of 'a' group. It is, therefore contended that these are the additional circumstances, which connect the appellant Tulshiram with the crime in question. It was submitted that the evidence adduced by the prosecution is sufficient to prove the charge of murder against the appellant beyond all reasonable doubts and, therefore, the conviction awarded by the Trial Court for the offence punishable under Section 302 as well as Section 324 of the Indian Penal Code is sustainable in law, since the appellant also caused serious incised wounds on the person of Bhulabai (PW 4 ). ( 8 ) WE have given our anxious though to the various contentions canvassed by the respective counsel. In the instant case, thought the prosecution has examined number of witnesses to prove the charge against the appellant, however, the material evidence is of bhagubai (PW 2), Padmakar (PW 3) and bhulabai (PW 4), who are the eyewitnesses to the incident. It is, no doubt, true that Bhagubai (PW 2) is the mother of deceased Dattu and bhulabai (PW 4) is the elder sister of deceased. However, it is well settled that the versions of close relatives of the deceased need not be discarded only on the ground that they are interested in the prosecution and related to the deceased, if their evidence, otherwise, is cogent, truthful and consistent with the material particulars of the prosecution case and, therefore, the contention canvassed by Mr. Daga, learned Counsel for the Appellant, in this regard, is devoid of substance and, therefore, is rejected. Daga, learned Counsel for the Appellant, in this regard, is devoid of substance and, therefore, is rejected. ( 9 ) BHAGUBAI (PW 2), who is examined by the prosecution as an eye-witness to the incident, in her deposition she has stated that the incident took place in the morning. The appellant was in his own house and was loudly saying some meaningless things. Deceased dattu and this witness were going to their field by the way which passes by the side of the house of the Appellant. Deceased Dattu asked the appellant as to why was he talking loudly. On that, the appellant pulled Dattu inside his house and started assaulting him with knife. This witness also stated that the present appellant assaulted her with the weapon on her head. She also identified Articles 11 and 12 to be the same weapons, with which assault was committed by the appellant. In the cross-examination of this witness, there is nothing worthwhile to discredit her testimony so far as the assault committed by the Appellant on deceased Dattu by means of a knife is concerned. However, so far as her testimony in respect of the assault committed by the appellant on her person is concerned, the admission given by this witness in her cross-examination that she had not seen the appellant while assaulting on her head is not consistent with the prosecution case disclosed by her in her Examination-in-Chief. However, that by itself is not sufficient to discard the testimony of this witness in respect of the assault committed by the appellant by means of a knife on the person of deceased Dattu. ( 10 ) ANOTHER eyewitness - Padmakar (PW 3), in his deposition, has specifically stated that the appellant on the day of incident, at the relevant time, was in his house and was talking something meaningless. At that time, deceased dattu and his mother were proceeding by the way which passes by the side of the house of the appellant. Deceased Dattu asked Tulshiram as to why was he talking loudly. On that, tulshiram pulled Dattu in his house and closed the door. Mother of Dattu started knocking the door. At that time, the door was opened deceased Dattu came out from the door. There was a knife embedded in the stomach of Dattu. Deceased Dattu asked Tulshiram as to why was he talking loudly. On that, tulshiram pulled Dattu in his house and closed the door. Mother of Dattu started knocking the door. At that time, the door was opened deceased Dattu came out from the door. There was a knife embedded in the stomach of Dattu. Appellant also came out of the house with sattoor (chopper) and again assaulted deceased Dattu on mandible region and on hand. This witness has further stated that the appellant assaulted the mother of deceased dattu also on her head. This witness has specifically stated that Bhulabai (PW 4), after hearing commotion, came on the scene of offence and sustained injury on her hand. He has further deposed that the appellant threatened these witnesses and told them not to come near. This witness has also identified the big knife (Art. 11) and Sattoor (Art. 12) to be the weapons used in the assault by the appellant. While going through the cross-examination of this witness, there is an omission in the police statement of this witness brought on record by the defence. However, when we consider the evidence of this witness in totality, coupled with the evidence of other eyewitnesses and other corroborative circumstances brought on record by the prosecution, the omission, in our view, is inadequate to discredit the ocular testimony of this witness. The prosecution has examined bhulabai (PW 4) as an eye-witness to the incident and in her deposition, she has specifically stated that on the day of incident at about 9. 00 a. m. , she was coming from her house and on her way, she saw the appellant assaulting her brother deceased Dattu with Suri (knife) and Sattoor (chopper) in front of the door of house of the appellant. She has also stated that her rnother Bhagubai (PW 2) was also assaulted by the appellant and when she intervened to save her brother deceased Dattu, appellant assaulted on her both hands as well as on her back of right shoulder by Sattoor and Suri. She has also stated that her rnother Bhagubai (PW 2) was also assaulted by the appellant and when she intervened to save her brother deceased Dattu, appellant assaulted on her both hands as well as on her back of right shoulder by Sattoor and Suri. ( 11 ) AFTER taking into consideration the totality of the testimonies of the above referred eye-witnesses, we afe of the view that they are not only consistent with the material particulars of the prosecution case, but they have also established the presence of each other on the spot of incident and, therefore, the evidence of these eyewitnesses clearly demonstrates that the author of injuries sustained by deceased Dattu and Bhulabai (PW 4) is the appellant. ( 12 ) IN the instant case, Dr. Shirish conducted post-mortem examination of the dead body of deceased Dattu and found following injuries :- "1) Incised wound of about 2 x 1 cm. deep over left iliac crest. 2) 3) incised wound of about 2 cms over abdomen in midline above ubilicus. Omentum of size 7 x 2 cm herniating through the wound. Incised wound of about 7 x 2 cm over left forearm extenser region. 4) Fracture line passing through lower edge of mandible between angle of mandible and symphasis menti extending upward and medially towards right central incisor. 5) Fracture line present over left maxilla. 6) Avulcion of right lateral incisor and canino. "the doctor has opined that the probable cause of death of deceased Dattu was hypolumic shock due to rupture of left kidney. The doctor has further stated in his deposition that the injuries mentioned in the Post-mortem report were sufficient to cause death in ordinary course of nature. Dr. Shirish (PW 5) examined Bhulabai (PW 4) and found the following injuries on her person :- "1) Incised wound of about 5 x 3 cm. over right hand between thumb and little finger. 2) Incised wound of about 7 x 3 cm. over left hand between middle finger and ring finger. 3) Abrasion over right hand about 2 x 2 cm. 4) Contusion over right hand of about 5 x 5 cm. 5) Contusion over right scapulla about 7 x 5 cm. "and issued Injury Certificate (Exh. 21 ). The doctor has opined that the injuries mentioned in (Exh. over left hand between middle finger and ring finger. 3) Abrasion over right hand about 2 x 2 cm. 4) Contusion over right hand of about 5 x 5 cm. 5) Contusion over right scapulla about 7 x 5 cm. "and issued Injury Certificate (Exh. 21 ). The doctor has opined that the injuries mentioned in (Exh. 21) were caused by hard and sharp object and the age of the injuries was eight hours prior to examination. The cross-examination of this witness is very cryptic and there is nothing worthwhile in the cross-examination to affect the ocular testimony of Dr. Shirish. In the instant case, the medical evidence completely corroborates the testimonies of eye-witnesses. Deceased Dattu suffered as many as three incised wounds and two fractures, which clearly show that these injuries were caused by hard and sharp object like knife or sattoor (chopper ). Similarly, the medical evidence further demonstrates that Bhulabai (PW 4) in all suffered five injuries, out of which two are incised wounds, one abrasion and two contusions and as per the opinion of the doctor, these injuries could be caused by hard and sharp object. It is, therefore, evident that in the instant case, the medical evidence corroborates the ocular testimonies of eye-witnesses. ( 13 ) IN the instant case, the knife was produced by the appellant, which had blood stains of 'a' group, which is the blood group of deceased. This, in fact, is an additional circumstances, which further corroborates the material particulars of the prosecution case. After taking into consideration the totality of the prosecution evidence, we are of the considered view that the prosecution has succeeded in proving the charges levelled against the Appellant beyond all reasonable doubts and the contention canvassed by the learned Counsel for the Appellant in this regard are misconceived and, therefore, rejected and the finding of conviction recorded by the Trial court is just and proper and sustainable in law. For the reasons stated herein above, the appeal is dismissed. Appeal dismissed.