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2012 DIGILAW 607 (BOM)

Shankar Ganpatrao Nehare v. State of Maharashtra

2012-03-20

P.V.HARDAS, SADHANA S.JADHAV

body2012
JUDGMENT P.V. HARDAS, J. :- The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.10,000/-, in default of which to undergo further R.I. for two years by the 1st Ad-hoc Additional Sessions Judge, Yavatmal by judgment dated 8.8.2006 in Sessions Trial No.38/05, by this appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus: PW.10 SDPO Murlidhar Nale, who was attached to Police Station Kalamb as Police Station Officer recorded the complaint of PW.2 Fakira on 5.5.2005. On the basis of the said report at Exh.24, an offence was registered vide Crime No. 51/05 under Section 302 of the Indian Penal Code. The printed FIR is at Exh.25. Upon registration of the said offence, the investigation of the said crime was entrusted to PW.11 PSI Gunwant Atal who was also attached to Police Station Kalamb. Accordingly, PW.11 PSI Atal proceeded to the scene of the incident and drew the scene of the incident panchnama in the presence of PW.3 Raju and another panch at Exh 27. From the scene of the incident, he seized a bicycle which was lying there and other articles such as a bicycle pump, one slipper, etc. under seizure-memo at Exh. 28. The dead body of deceased Vilas was lying at the scene and accordingly, the inquest panchnama was drawn in the presence of panchas at Exh. 29. The dead body was forwarded for post-mortem examination under requisition at Exh. 46. The police searched for the accused and ultimately the accused was apprehended at village Narsapur and was brought to the Police Station. Accordingly, the arrest of the accused was effected before the panchas under the arrest panchnama at Exh. 47. One knife which was in the possession of the accused was seized. The clothes of the accused were also found stained with blood and, therefore, the knife and the clothes were seized under seizurememo at Exh. 22. The accused was thereafter referred for medical examination and the accused was examined by PW.7 Dr. Kunte who did not notice any injury on the person of the accused. PW.7 Dr. Kunte accordingly issued the certificate at Exh. 38. 3. 22. The accused was thereafter referred for medical examination and the accused was examined by PW.7 Dr. Kunte who did not notice any injury on the person of the accused. PW.7 Dr. Kunte accordingly issued the certificate at Exh. 38. 3. Post-mortem On the dead body of deceased Vilas was conducted by PW. 7 Dr. Kunte. PW.7 Dr. Kunte noticed the following injuries on external examination : (1) There was stab and incised Injury weighed shape 4 x 1 cm and cavity deep in mid-clavicular line 4.5 cm. away from the mid sternum towards left laterally on 4th rib, involving 3rd and 4th left inter-coastal space, margins were inverted and edges were clear, (2) There was stab and incised injury 2 x 1 cm and cavity deep on left infrascapular region 11 cm away from vertebral column left laterally. On palpation, he noticed fracture of the fourth rib just lateral to the left costo-sternum joint. He has opined that the injuries were ante-mortem. On internal examination, he noticed the following injuries : (1) Fracture of left 4th rib as mentioned in col. no. 17, (2) Punctured and incised pleura corresponding to the injuries1 and 2, (3) Left lung was punctured and incised corresponding to injuries mentioned in col. no. 17 No.1. (4) Punctured and incised pericardium corresponding to injury mentioned in col. no. 17 no. I. Right atrium and left ventricle were punctured corresponding to injury no.1 referred in column no. 17 of the post-mortem report. The postmortem report is at Exh. 39. PW.7 Dr. Kunte opined that the cause of death was due to haemorrhagic shock in view of the injuries referred to in column nos. 17 & 18 and the thorax region. He has also opined that the injuries were possible with the weapon which had been referred to him. 4. The seized property was referred to the Chemical Analyser under requisitions at Exhs. 50 & 53 and the property was carried to the Chemical Analyser by PW.6 Police Constable Ramdas. Further to the completion of investigation, a charge-sheet against the appellant was filed. 5. On committal of the case to the Court of Sessions, trial Court vide Exh. 3 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined II witnesses. 5. On committal of the case to the Court of Sessions, trial Court vide Exh. 3 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined II witnesses. The trial Court upon appreciation of the evidence of the prosecution, convicted and sentenced the appellant as aforestated. 6. Before we deal with the submissions advanced before us by Shri R.M. Patwardhan, the learned Counsel appointed for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the eyewitnesses examined by the prosecution. PW.2 Fakira, father-in-law of deceased Vilas, states that his daughter Rekha was married to the deceased Vilas, who was working as a blacksmith. On 5.5.2005 deceased Vilas had come to Ashti and, therefore, PW.2 Fakira went to meet his son-in-law at Ashti. Thereafter, Fakira and deceased Vilas went to the house of PW.8 Pralhad and borrowed a bicycle from PW.8 Pralhad. Deceased Vilas and Fakira were proceeding towards the pan-shop and reached the pan shop of one Madhavrao at about 12.30 to 1 p.m. Vilas was not riding bicycle but was taking the bicycle while talking to Fakira and the bicycle dashed against the appellant. Because of the dash, there was an altercation between them. Fakira had intervened in the quarrel and had separated them. PW.8 Pralhad and one Krushna were present at that time. PW.2 Fakira further stated that deceased Vilas was inflating the tyre of the bicycle at the shop of Madhavrao and at that time the appellant suddenly came from behind and kicked Vilas. Vilas fell on the bicycle and the pump. The appellant removed a knife and stabbed Vilas twice on his chest. There was severe bleeding from the injuries and Vilas succumbed to the injuries at the spot itself. The appellant ran away from the scene carrying the knife with him. PW.2 Fakira states that thereafter he had gone to the Police Station and lodged his report at Exh. 24. In cross-examination on behalf of the appellant. PW.2 Fakira has admitted that his daughter had also accompanied the deceased Vilas to Ashti. He has denied the suggestion that Fakira and Vilas had come to Ashti from Mendhla and that he had accompanied his son-in-law to Ashti. 24. In cross-examination on behalf of the appellant. PW.2 Fakira has admitted that his daughter had also accompanied the deceased Vilas to Ashti. He has denied the suggestion that Fakira and Vilas had come to Ashti from Mendhla and that he had accompanied his son-in-law to Ashti. He has admitted the contents of the report that both, i.e. Fakira and Vilas had come to Ashti. Fakira has also admitted that he is a blacksmith and his shop was closed on that day. He has admitted that he had gone to Ashti to meet his son-in-law and his daughter. He has admitted that one Raju Tone and Suresh Ghodmare had telephoned the Police Station and the Police vehicle had arrived at the spot of the incident. He has admitted that he alone had gone to the Police Station for lodging the report. He has admitted that the pan-shop owner gives the bicycles on hire. In cross-examination, it is further cemented that PW.8 Pralhad and one Kisnabai were present at the scene of the offence when bicycle of the deceased dashed against the appellant. Though this witness has been cross-examined at length, nothing of substance has been elicited in the cross-examination which would in any manner affect the credibility of what has been deposed by him. 7. The prosecution has also examined PW.4 Suresh as an eye-witness to the incident. PWA Suresh states that he was present on the day of the incident and at the time of the incident in front of the gate of the primary school as he had gone there for attending the marriage of daughter of one Bhoyar. He has deposed on similar lines as that of PW2 Fakira in respect of the incident of stabbing of Vilas by the appellant. In cross-examination, he has admitted that he was present along with Raju Tone at that time. He has admitted that he was standing at the gate receiving the guests who had come for the marriage. He has admitted that he was not standing in front of the pan-shop at that time. He has admitted to have informed the police that the appellant had killed Vilas. He was confronted with the omission and has admitted that he could not assign any reason as to why such statement was not appearing in his previous statement. He has admitted that he was not standing in front of the pan-shop at that time. He has admitted to have informed the police that the appellant had killed Vilas. He was confronted with the omission and has admitted that he could not assign any reason as to why such statement was not appearing in his previous statement. Even in respect of this witness, though he was cross-examined, nothing of substance is elicited in his cross-examination. 8. Prosecution has examined PW.8 Pralhad who deposed in respect of the earlier incident of the altercation between the appellant and deceased Vilas because the bicycle of Vilas had dashed against the appellant. He then states that the appellant removed the knife and stabbed deceased Vilas while Vilas was inflating the bicycle tyre. He has denied the suggestion that he had not witnessed the entire incident. He has also denied the suggestion that Vilas had not borrowed a bicycle from him. He has admitted that he had not intervened in the second incident because the appellant was armed with a weapon and Pralhad apprehended that the appellant would assault him also. 9. PW.9 Somaji, another eyewitness to the incident, states that on the day of the incident he was present near a tree which is opposite to the pan-shop. He states about the deceased and PW.2 Fakira coming on the bicycle from the house of PW.8 Pralhad. He states about having witnessed the bicycle of Vilas giving a dash to the appellant and there being an altercation between them. Somaji further states that Pralhad and others had intervened and had separated and defused the quarrel. He then states that Vilas was inflating the tyre of the bicycle and thereafter the appellant came from behind and kicked Vilas, due to which Vilas fell on the bicycle. Thereafter the appellant took a knife and stabbed Vilas on the chest twice. He states that Vilas expired at the spot itself. In cross-examination, he has admitted as true that marriage of the daughter of one Bhoyar was performed in the school and he too had been invited for the marriage. He has admitted that the marriage was already solemnized at 9.30 in the morning. He has admitted that he had informed the police and he had stated in his previous statement that he was standing near the pan-shop beneath the tree at the time of the incident. He has admitted that the marriage was already solemnized at 9.30 in the morning. He has admitted that he had informed the police and he had stated in his previous statement that he was standing near the pan-shop beneath the tree at the time of the incident. He could not assign any reason as to why this was not mentioned in his statement. He was confronted with portion marked 'A' in his statement in respect of the marriage procession. He has admitted not to have intervened in the first incident as well as in the second incident. 10. The report of the Chemical Analyser at Exh. 50 discloses that the clothes of deceased were stained with blood of 'A' group. The knife which was recovered and seized from the possession of the appellant was also found stained with human blood, though the blood group could not be detern1ined. The clothes of the appellant, namely, a full shirt and full pant were found stained with blood of 'A' group. The appellant had no visible injury and the blood group of the appellant is determined as 'O'. The appellant has not offered any probable explanation for the presence of blood stains of the blood group of the deceased being found on the clothes of the appellant. 11. Mr. R.M. Patwardhan, learned Counsel (Appointed) for the appellant, has urged before us that there is variance in respect of both the timing of the incident as well as the time when the marriage ceremony of the daughter of Bhoyar was performed in the evidence of PW.4 Suresh and PW.9 Somaji and consequently, their evidence needs to be discarded. It is further urged before us that the evidence of PW.8 Pralhad is that of an interested witness and, therefore, his evidence also needs to be discarded. The learned A.P.P. has supported the findings arrived at by the trial Court. 12. It is true that in the evidence of PW.4 Suresh and PW.9 Somaji there is a variance in respect of the actual time when the marriage of daughter of Bhoyar was solemnized in the school opposite the pan shop. However, the time which is deposed to by the witnesses is by way of approximation and it cannot be considered that the variance is of such a substantial nature as would affect very credibility of these witnesses. However, the time which is deposed to by the witnesses is by way of approximation and it cannot be considered that the variance is of such a substantial nature as would affect very credibility of these witnesses. The presence of the witnesses at the scene of the incident cannot be questioned as in the evidence of PW. 2 Fakira it has been elicited that PW.8 Pralhad was present. Merely because Pralhad had not intervened when the appellant was stabbing would not be any ground for discarding the evidence of PW.8 Pralhad. In fact, Pralhad has clearly admitted that since the appellant was armed with a knife, he had not intervened as Pralhad apprehended some injury being caused to him by the appellant in case of intervention. 13. We have carefully perused the evidence of the eye-witnesses and from the said perusal, according to us, all the eyewitnesses have emerged as reliable witnesses and there is no material on record to discard the evidence of the witnesses. We, therefore, find that reliance can be placed on the testimony of the eye-witnesses who had actually seen the appellant stabbing the deceased. The appellant had stabbed the deceased because of a trivial reason and that of the bicycle giving a dash to him. The severity of the internal damage was such as it resulted in the death of Vilas instantaneously at the scene of the incident. PW.2 Fakira who is the father-in-law of deceased Vilas was present along with Vilas and had accordingly immediately lodged the report with the police. The finding of blood of 'A' group on the clothes of the appellant is another circumstance which clinches the case against the appellant. The blood group of the appellant is determined as 'O' and there is no plausible explanation given by the appellant for presence of blood stains of 'A' group on his clothes. The appellant had not sustained any injury and the knife which was found stained with human blood was recovered from the possession of the appellant. In such circumstances, therefore, according to us, prosecution has proved the offence against the appellant beyond reasonable doubt. 14. There being no merit in the present appeal, this appeal is dismissed confirming the conviction and sentence. Fees payable to Mr. R.M. Patwardhan, learned Counsel (Appointed) for the appellant, quantified at Rs.5000/- (Rupees Five thousand). Appeal dismissed.