Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 729 (BOM)

Ramkumar Vaidyanath Pal v. State of Maharashtra

2009-06-23

A.P.LAVANDE, PRASANNA B.VARALE

body2009
PRASANNA B. V ARALE, J. :- Being aggrieved by the judgment and order dated 10.10.2003 passed by the learned Additional Sessions Judge-II Amravati thereby convicting the appellant/original accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life, the present appeal is preferred by the appellant/original accused. 2. The prosecution case, in short, is as under :- On 31.10.2001, Police Constable-Buckle No.619 Prafulla Wadatkar (PW5) and Police Constable-Buckle No.988 Kishor Aagle (PW-2) were on fixed point duty at Yashodanagar square and were discharging their duties. On hearing noise at about 1 O'clock, they rushed to the spot which was at a distance of 200 ft. from Yashodanagar Square and found that there was a fight going on in between two persons. One person, who was holding knife, gave blows of the knife to the other person. Prafulla Wadatkar gave a stick blow on the hand of the assailant in order to make the accused to drop the knife. Prafulla along with Kishor apprehended the assailant (appellant /original accused) on the spot. Police Constable Kishor took the accused/appellant and the victim to Irvin Hospital; whereas Prafulla proceeded to give report about the incident at Police Station, Frazerpura. Prafulla also produced the knife which was used in the assault along with his report. The Medical Officer at Irvin Hospital, Amravati examined the victim and declared the victim dead. On the basis of the report lodged by Prafulla Wadatkar (PW-5), the offence was registered against the accused under Section 302 of the Indian Penal Code. Pandurang Dhongade (PW7), Police Inspector on receiving the report took over the investigation. The investigating machinery was set in motion, and the investigation such as drawing various panchnamas, recording the statements of the witnesses were completed by Pandurang Dhongade (PW-7). On completion of the investigation, charge-sheet was filed against the accused. The case was committed to the Court of Session. The learned trial Court, on appreciation of evidence, found the evidence sufficient to hold that the accused had committed the offence charged against him and accordingly the impugned judgment and order was passed which is under challenge. 3. Miss Pragati Yerlekar, Advocate holding for Shri. V. M. Deshpande, the learned Counsel appearing on behalf of the appellant. vehemently argued that the prosecution has utterly failed to establish its case against the accused. 3. Miss Pragati Yerlekar, Advocate holding for Shri. V. M. Deshpande, the learned Counsel appearing on behalf of the appellant. vehemently argued that the prosecution has utterly failed to establish its case against the accused. It was submitted by the learned Counsel that the so called eye-witnesses have turned hostile. The investigation was not fair for the reason that one of the witnesses Anita Ramkumar Pal (PW-6) is a lady Police Constable and as such the investigation was carried out so as to suit the purpose of Anita (PW-6). The learned Counsel for the appellant further submitted that the statements of the witnesses were recorded at a very belated stage and as such the prosecution story is doubtful and unreliable. 4. Per contra, Shri. S. S. Doifode, the learned Additional Public Prosecutor appearing on behalf of the respondent/State submitted that this is a case where the investigating agency was set up in motion at the earliest. The report of the incident was lodged within the shortest possible time. He further submitted that it is true that some of the witnesses have turned hostile but the important witnesses in respect of the incident have given the truthful account and they were not shaken. He further submitted that it is not the quantity of the evidence but the quality of the evidence which matters. 5. We have considered the Rival submissions of the learned Counsel appearing on behalf of the respective parties. We have also gone through the evidence produced by the prosecution. 6. The evidence on record shows that on the point of the incident as well as the involvement of the appellant/accused in the offence. Kishor (PW-2) and Prafulla (PW-5) are the important witnesses; whereas on the point of motive. Sunita Jawahar Pal (PW-I) and Anita Ramkumar Pal (PW-6) are the witnesses presented by the prosecution. Dr. Swati Patil (PW-8) has been examined to prove the postmortem report. The other circumstance is in the form of recovery of the weapon. 7. The prosecution has examined as many as nine witnesses. The most important witness is Prafulla Wadatkar (PW-5). He was attached to Frazerpura Police Station and on the date of incident, he was discharging his duties at Yashodanagar Square. He gives detailed account of the incident which look place on 31.10.2001. In his substantive evidence, he has stated that on hearing the noise, he immediately rushed to the spot. The most important witness is Prafulla Wadatkar (PW-5). He was attached to Frazerpura Police Station and on the date of incident, he was discharging his duties at Yashodanagar Square. He gives detailed account of the incident which look place on 31.10.2001. In his substantive evidence, he has stated that on hearing the noise, he immediately rushed to the spot. He found that two persons were having scuffle and the accused/appellant was giving blows with knife. This witness gave a blow of stick on the right hand of the accused by which the knife fell down from his hand. Another Constable who was accompanying Prafulla (PW-5) was asked by Prafulla to hold victim. Prafulla apprehended accused Ramkumar on the spot. Thereafter Prafulla (PW-5) took victim of the assault m the auto to Irvin Hospital along with the accused and thereafter PW -5 took the accused in the said auto to Frazerpura Police Station. A report came to be lodged by PW-5. The knife which was used in the assault was handed over by PW-5 10 the Police Station Officer. The seizure panchnama was accordingly drawn in presence of the panchas and API Dhongade. Though PW-5 was subjected to a detailed cross-examination, nothing tangible was brought in his cross-examination. The learned Counsel for the appellant though referred to certain omissions. yet those omissions are of very minor in nature and they do not anyway affect the credibility of this witness. In our opinion, Prafulla (PW5) is a reliable and trustworthy witness. 8. Kishor Aagle (PW-2) who was also discharging his duties at Yashodanagar Square on the day of incident along with Prafulla (PW-5), gives the version on the account which is similar to that If PW-5. By the suggestions given in the cross-examination, the defence tried to bring that Prafulla (PW-5) gave a stick blow on the hand of accused with force but this witness denied the suggestion. He stated that Prafulla gave stick blow to make the accused to drop the knife. Kishor (PW-2) and Prafulla (PW-5) both have identified the accused as well as the weapon used in the assault before the Court. In our opinion, Kishor (PW-2) is also a reliable and trustworthy. 9. Bhimrao (PW-3) andGlf1sh (PW- 4) are not of much help to the prosecution. Sunita (PW-I) and Anita (PW-6) arc the witnesses on the point of motive. Kishor (PW-2) and Prafulla (PW-5) both have identified the accused as well as the weapon used in the assault before the Court. In our opinion, Kishor (PW-2) is also a reliable and trustworthy. 9. Bhimrao (PW-3) andGlf1sh (PW- 4) are not of much help to the prosecution. Sunita (PW-I) and Anita (PW-6) arc the witnesses on the point of motive. Sunita (PW-1), who is the wife of the deceased, stated that the accused Ramkumar is the husband of her elder sister Anita (PW-6). She has stated in her testimony that Anita (PW -6) was subjected to ill treatment at the hands of the accused/ appellant. He was asking Anita to bring money from her parents. In the year 1999, Anita entered into the services of Police Department as a Lady Police Constable and she was posted at Amravati. The appellant/accused was insisting Anita to reside with him at Wadat. But, Anita was not ready to reside with the appellant/accused. The appellant/ accused asked the deceased husband of this witness Sunita to convince Anita for residing with him. The deceased informed to the accused that Anita is not ready to reside with him. The accused developed a grudge in his mind against the deceased. The accused was alleging that the deceased wanted to keep Anita at his residence and was intending to grab her salary. The accused also alleged that the deceased was insisting Anita to get divorce from the accused/appellant. On this count, the appellant/accused was giving threats to the family members of Anita. On the earlier day of the incident, the accused came to the residence of Sunita (PW-1). He was under the influence of liquor and he wanted to stay in the I11ght at the residence of the parents of Sunita to which the parents objected. The accused left the place giving threats that he would see the husband of Sunita on next day and would kill him. Nothing tangible has been brought on record in the cross-examination of the witness. Insofar as Anita (PW-6) is concerned, she corroborates the version of Sunita (PW-I). The defence tried to suggest that by implicating the accused in the offence, Anita (PW-I) wanted to get divorce from the accused. Though Anita admitted that the divorce petition is filed by her, she has denied the suggestion that by implicating the accused she wanted to get divorce from the accused. 10. The defence tried to suggest that by implicating the accused in the offence, Anita (PW-I) wanted to get divorce from the accused. Though Anita admitted that the divorce petition is filed by her, she has denied the suggestion that by implicating the accused she wanted to get divorce from the accused. 10. These two witnesses are on the point of motive. Learned Counsel for the appellant submitted that the prosecution was not successful to bring motive in the case. It is needless to state that in a case where there is a direct evidence available, the motive plays a less 1mportant role. However, the evidence of Sumta (PW-l) and Anita (PW-6) proved the motive for the commission of the crime. 11. The other material circumstance is the medical evidence. The prosecution by way of Inquest Panchnama (Exh.12) and Postmortem Report (Exh.32) which is proved by Dr. Swati Patil (PW-8) has proved that the death of the deceased was homicidal. The inquest panchnama shows that the following injuries were observed - (1) one injury measuring 2" x 1" on the left side ribs on the back; (ii) injury measuring 1" x 1" on the waist; and (iii) injury measuring I" x I" on the back p0l1ion of his left thigh. These were the injuries found in the inquest panchnama. The inquest panchnama is proved by the Investigating Officer (PW -7). The Post-mortem Report (Exh.32) which is proved by Dr. Swati Patil (PW-8). She, in her evidence, referred to the injuries as follows :. (i) Two incised wounds 1" x ½" present at right things, stained with blood. (ii) Incised wound present right Eliac region 1" x ½" (iii) Incised wound present left axillary region 1" x ½" (iv) Incised wound 5 below left Axilla, in mid Axillary line 1" x ½" (v) Incised wound over back left side - 1" x ½" (vi) Incised wound left thigh 1" x ½" (vii) Incised wound present over back lateral to vertebral column. left side 1" x ½" The corresponding injury referred to in column No.20 is - Left lung pale on cut section, laceration over lower level about 1 in length. Heamothorax present on left side about 800 C.c. of frank blood present. It is stated by Dr. Swati Patil (PW-8) that the injury shown in column No.20 correspondent to the of injury Nos.3 and 5. Heamothorax present on left side about 800 C.c. of frank blood present. It is stated by Dr. Swati Patil (PW-8) that the injury shown in column No.20 correspondent to the of injury Nos.3 and 5. IL is also stated by PW-8 that injury No.3 is sufficient to cause death in ordinary course of nature and besides injury No.3, the cumulative effect of other injuries is sufficient to cause a death of person. The article knife was shown to this witness and the witness stated that the injuries mentioned in column No.17 could be caused by the said weapon. The prosecution further relied on the seizure of weapon knife which was collected from the spot itself which was seized by Prafulla (PW-5). The seizure memo (Exh.25) shows that the weapon is a knife having blade measuring 6 ½" in length and handle measuring 4" in length. The blood was sticking to the complete blade from both the edges. The clothes of the deceased wh1ch were seized in the investigation were referred for chemical analysis along with the blade of weapon. The CA Reports arc placed at Exhs.39. 40. 41and 42. The CA Report shows that the blade was having blood and the group of the blood was detected as "A" and the clothes of deceased which were referred for the chemical analysis showed that the blood on the sa1d clothes was of "A" blood group. We, Therefore, have no hesitation to arrive at conclusion that the prosecution was successful to show that the deceased Jawahar died homicidal death. Insofar as the authorship of the crime in view of the direct evidence in the form of the witnesses namely Kishor (PW-2) and Prafulla (PW-5) and the seizure of the weapon knife which was recovered from the spot itself is concerned, we have no hesitation to say that it is the appellant and the appellant alone who IS the author of the crime in question. 12. Learned Counsel for the appellant submitted that though it is the evidence of the prosecution that Prafulla (PW-5) inflicted the blow on the hand of the accused, there is no mark of injury found in the injury certificate (Exh.11) and as such this falsifies the version of prosecution witnesses. 12. Learned Counsel for the appellant submitted that though it is the evidence of the prosecution that Prafulla (PW-5) inflicted the blow on the hand of the accused, there is no mark of injury found in the injury certificate (Exh.11) and as such this falsifies the version of prosecution witnesses. We are not ready to accept the contention raised by the learned Counsel for the simple reason that PW-5 has stated that he gave a blow on the hands of the accused so as to see that the knife is fallen from the hands of the accused. Kishor (PW -2) states that the blow given by Prafulla (PW-5) was not with force. 1n view of this evidence, we find no substance in the contentions raised by the learned Counsel for the appellant. The learned Counsel for the appellant/accused further submitted that the witnesses are the relatives inter sc and as such they are the interested witnesses. We are also not in agreement with the submissions of learned Counsel for the appellant. Sunita (PW-I) and Anita (PW-6) are the sisters and they are on the point of motive; whereas Kishor (PW-2) and Prafulla (PW-5) are the independent eyewitnesses. These witnesses gave the true account of the incident. Their evidence is cogent, trustworthy and reliable and as such we find no merit in the submission of the learned Counsel. 13. The learned Counsel for the appellant relied on the judgment of this Court in the case of Sunil Chokhoba Shambarkar and another Vs. State of Maharashtra (reported in 2008 ALL MR (Cri) 360). By placing reliance on this judgment, the learned Counsel submitted that there is inordinate delay in recording the statements of the witnesses. It is submitted that the incident occurred on 31.10.2001 and the statement of material witness namely Anita (PW-6) was recorded on 07.11.2001. We are unable to accept submission for the reason that in the judgment referred to by the learned Counsel. it is observed that the delay in recording the statements, there was no explanation and as such the delay was fatal to the prosecution. In the case at hand, the delay in recording the statement of PW-6 is duly explained by PW-7 Investigating Officer. Moreover, Anita (PW6) is the witness on the point of motive. it is observed that the delay in recording the statements, there was no explanation and as such the delay was fatal to the prosecution. In the case at hand, the delay in recording the statement of PW-6 is duly explained by PW-7 Investigating Officer. Moreover, Anita (PW6) is the witness on the point of motive. The delay which is duly explained by the Investigating Officer, in our opinion, is neither fatal to the prosecution nor creates any doubt about the prosecution case. 14. The learned Counsel for the appellant Further relied upon the judgment of this Court in the case of Audumbar Digambar Jagdane and another Vs. State of Maharashtra (reported in 1998 ALL MR (Cri) 1363) and submitted that as there was no test identification parade held, the prosecution case becomes doubtful. In our opinion, the facts of this case differ from the facts of the case at hand. In the case at hand, Kishor (PW-2) and Prafulla (PW-5) who rushed to the spot immediately and apprehended the accused on the spot and thereafter they took the accused to the hospital. The witnesses identified the appellant/accused in the Court and as such. in our opinion. there was no need for any test identification parade. On the same point. the learned Counsel relied on the judgment of this Court in the case of Radhesham Govardhan Bhagat Vs. State of Maharashtra (reported in 2000 ALL MR (Cri) 62). As we have dealt with the issue, we are unable to accept the submission of learned Counsel. Learned Counsel for the appellant then relied on the judgment of this Court in the case of Shankar Shridhar Kavale and others Vs. State of Maharashtra (reported in 1998 ALL MR (Cri) 1230). By placing reliance on the said judgment and more particularly placitum-b, It is submitted that the false implication cannot be ruled out. In the case at hand as it is stated by Anita (PW-6) that the divorce proceeding is initiated between the appellant and PW-6. As we have already dealt with Anita (PW-6) in detailed and found that though PW-6 has accepted that the proceedings for divorce are pending, she has denied the suggestion of the defence. In the case at hand as it is stated by Anita (PW-6) that the divorce proceeding is initiated between the appellant and PW-6. As we have already dealt with Anita (PW-6) in detailed and found that though PW-6 has accepted that the proceedings for divorce are pending, she has denied the suggestion of the defence. We have already observed that PW-6 is the witness on the point of motive and as the prosecution is successful by producing the cogent and trustworthy reliable evidence in the form of eye-witnesses i.e. Kishor (PW-2) and Prafulla (PW-6). In our opinion, submission of the learned Counsel for the appellant holds no water. 15. Upon re-appreciation of the entire prosecution evidence, we are of the opinion that no error is committed by the learned trial Court in arriving at the conclusion thereby convicting the accused for the offence punishable under Section 302 of the Indian Penal Code which is impugned in the appeal. 16. In the result, the appeal is liable to be dismissed and is accordingly dismissed. Ordered accordingly .