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2014 DIGILAW 1523 (BOM)

MANI KUNDASWAMI SHETTIYAR v. STATE OF MAHARASHTRA

2014-07-14

A.S.GADKARI, V.K.TAHILRAMANI

body2014
ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.): 1. The appellant-original accused has preferred this appeal against the judgment and order dated 23rd February 2012 passed by the learned Additional Sessions Judge, Kalyan, in Sessions Case No.295 of 2004. By the said judgment and order, the learned Additional Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to undergo imprisonment for life and to fine of Rs.500/-, in default further imprisonment for the period of one month. 2. The prosecution case briefly stated, is as under: The complainant in the present case is Sandeep Surve (PW-1). He runs a construction business and his office is behind Shankar Mandir at Ulhasnagar. On the day of incident i.e. 4.7.2002 as usual he was present in his office. At about 12 noon, he heard shouts from main road. He went in that direction, he saw the appellant in front of the dispensary of Dr.Gharde (PW-5). The appellant was holding blood-stained knife. One woman was lying in the Tailoring shop i.e. Ganesh Tailor, which belonged to PW-8 Harish. The appellant was caught on the spot. PW-1 Sandeep went inside the Tailoring shop and saw bleeding injuries on the person of the lady. He contacted Vitthalwadi police station on phone and he then lodged F.I.R. Exhibit 28. Thereafter, the investigation commenced. After completion of investigation, chargesheet came to be filed. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and came to be tried. The defence of the appellant was of total denial and false implication. After going through the evidence adduced in this case the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal. 4. We have heard Mr. Toraskar, learned Counsel for the appellant and Smt. Bhonsale, learned APP for the respondent-State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the same, for below mentioned reasons, we are of the opinion that there is no merit in this appeal. 5. The conviction of the appellant is mainly based on the evidence of two eye-witnesses i.e. PW-5 Dr. Suresh Gharde and PW-10 Jayesh Palande. Dr. Gharde has stated that he runs a clinic at station road at Ulhasnagar. After carefully considering the same, for below mentioned reasons, we are of the opinion that there is no merit in this appeal. 5. The conviction of the appellant is mainly based on the evidence of two eye-witnesses i.e. PW-5 Dr. Suresh Gharde and PW-10 Jayesh Palande. Dr. Gharde has stated that he runs a clinic at station road at Ulhasnagar. At about 12 noon on 4.7.2002 he had gone to the toilet. When he returned, he saw one lady lying in front of his clinic. One boy was giving blows with knife on her person. He has identified the said boy as the appellant. Dr. Gharde has further stated that the appellant was assaulting the woman with knife, Article-4. Dr. Gharde has stated that thereafter the said woman went into the shop of Ganesh Tailor. PW-10 Jayesh has stated that he does business of decoration on station road at Ulhasnagar. On 4.7.2002, at about 12 noon, he was in his shop. On that day, he heard shouts of one woman. He came outside his shop and saw the appellant was giving blows with knife on the stomach of the said woman. Meanwhile, Sandeep (PW-1) came to the spot. He caught the appellant. 6. PW-1 Sandeep has stated that his office is behind Shankar Mandir at Ulhasnagar. He heard shouts from the main road, hence, he proceeded in the said direction. He saw the appellant in front of the dispensary of Dr. Gharde (PW-5). The appellant was holding a knife. The knife was stained with blood. One woman was lying in the shop of Ganesh Tailor. He then caught the appellant. PW-1 Sandeep has specifically stated that the shop of Ganesh Tailor is adjoining to the dispensary. PW-8 Harish was the tailor working in Ganesh Tailor at Ulhasnagar. He has stated that on the day of incident, one woman came into the shop and she fell down. She was in injured condition. At that time PW-1 saw the appellant was holding knife in his hand. The said woman was thereafter taken to the hospital. Nothing has been elicited in the cross-examination of these four witnesses i.e. PW-5 Dr. Gharde, PW-10 Jayesh, PW-1 Sandeep and PW-8 Harish, so as to cause us to disbelieve their evidence. 7. Mr. She was in injured condition. At that time PW-1 saw the appellant was holding knife in his hand. The said woman was thereafter taken to the hospital. Nothing has been elicited in the cross-examination of these four witnesses i.e. PW-5 Dr. Gharde, PW-10 Jayesh, PW-1 Sandeep and PW-8 Harish, so as to cause us to disbelieve their evidence. 7. Mr. Toraskar, the learned Counsel for the appellant submitted that there is discrepancy in relation to the place where the incident took place, hence, none of these witnesses can be believed. He submitted that the evidence of PW-5 Dr. Gharde shows that the woman was lying in front of dispensary of Dr. Roy. He submitted that it is the prosecution case that the woman was lying in the shop of Ganesh Tailor. In this connection it is pertinent to see the evidence of PW-1 Sandeep who had stated that Ganesh Tailor is adjoining to the dispensary. This dispensary, as is evident from the evidence of Dr. Gharde, is dispensary of Dr. Roy. This dispensary was situated about 20-25 ft. from the dispensary of Dr. Gharde. That means dispensary of Dr. Gharde was almost adjoining the dispensary of Dr. Roy. Thus, there is hardly any distance between the dispensary of Dr. Roy and the dispensary of Dr. Gharde. From the evidence of Dr. Gharde it is clear that first in point of time when he saw the woman she was lying in front of his dispensary when the appellant was stabbing her and then she entered into shop of Ganesh Tailor. Looking to the evidence of all the witnesses, it cannot be said that there is any discrepancy in relation to the spot of the incident so as to discredit the testimony of the eye-witnesses PW-5 Dr. Gharde and PW-10 Jayesh, as also the evidence of PW-1 Sandeep and PW- 8 Harish. 8. The circumstances in which the deceased was found lying in an injured condition in the Tailoring shop of PW-8 and injuries found on her body and other evidence of record, clearly shows that it is a case of homicidal death. Injuries as seen on the person of the deceased are as under: “1) 2 inch X 2 inch deep injury with sharp weapon 5 inches to the right of navel. 2) 1 inch x 4 inch deep injury with sharp weapon at right side of navel. Injuries as seen on the person of the deceased are as under: “1) 2 inch X 2 inch deep injury with sharp weapon 5 inches to the right of navel. 2) 1 inch x 4 inch deep injury with sharp weapon at right side of navel. 3) 2 x 4 inch deep injury with sharp weapon 7 inch to the right of navel. 4) ½ x 2 inch deep injury with sharp weapon 2 inch to the right of above injury. 5) 2½ inch, and 6 inch deep injury with sharp weapon on abdomen 3½ inch above navel. 6) ½ inch injury with sharp weapon on the thumb of right hand. 7) Injury 1 inch long with sharp weapon below left breast. 8) Two injuries with sharp weapon below 1 inch of above injury 1 inch in dimension. 9) 1 inch in length injury with sharp weapon, 5 inch to the left side of navel. 10) Injury with sharp weapon on the left side of the ribs 2 inch in length and breadth and 4 inch deep. 11) 1 inch injury with sharp weapon 6 inch below the above injury. 12) Injury 1 inch in breadth with sharp weapon below above injury. 13) 2 inch in length injury with sharp weapon on the left thigh. 14) 2 inch in length injury with sharp weapon on left thigh. 15) Injury with sharp weapon, on the ring finger of left hand. Thus, the injuries as seen from the record are serious in nature and most of the injuries are 2 inches to 6 inches deep. The injury which was 6 inch deep was found on the stomach. The injuries are all consistent with the prosecution case that the appellant assaulted the deceased with a knife. 9. Learned Counsel for the appellant submitted that no motive has been brought on record by the prosecution to support its case. As far as motive is concerned, we may refer to the decision of the Supreme Court in the case of Mulakh Raj Etc. Vs. Satish Kumar & Ors., AIR 1992 SC 1175 . “Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. “Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that motive has been proved.” In the present case, there is evidence of two eye-witnesses i.e. PW-5 Dr. Gharde and PW-10 Jayesh who have seen the appellant assaulting deceased with knife. In the light of the evidence of these witnesses, it is clear that the appellant assaulted the deceased with a knife, in such case motive loses all significance. Thus, we find no substance in this submission. 10. Learned Counsel for the appellant submitted that the Investigating Officer has not been examined in the present case and non examination of the Investigating Officer will be fatal to the prosecution case. In this connection, it would be useful to refer to the judgment of the Supreme Court in case of State of Karnataka Vs. Bhaskar Kushali Kotharkar & Ors., 2004 CRI. L.J. 4229 wherein the Supreme Court observed as under: “It is true that as a part of fair trial the Investigating Officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161, Cr. P.C. or if there is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the Investigating Officer who must have recorded the statement of these witnesses under Section 161, Cr. P.C. In the present case, no such serious contradiction is pointed out in respect of the evidence of the important eye-witnesses. So also, the non-examination of Head-Constable who recorded F.I. Statement is not of serious consequence as PW-1 was examined to prove the fact that she had given the statement before the police. There is very strong and convincing evidence to prove that accused along with others had attacked deceased and two witnesses. The Sessions Judge had given valid reasons for finding these accused person guilty. There is very strong and convincing evidence to prove that accused along with others had attacked deceased and two witnesses. The Sessions Judge had given valid reasons for finding these accused person guilty. The single Judge was not justified in reversing the conviction and sentence solely on the ground that Investigating Officer was not examined by the prosecution. As the respondents were not prejudiced by the non-examination of the Investigating Officer and also the Constable who recorded the F.I. Statement. The finding of the single Judge is erroneous, therefore, set aside.” In the present case, no omission of material particulars have been brought on record. In such case non examination of the Investigating Officer will not at all be fatal in the facts of the present. 11. Mr. Toraskar, the learned Counsel for the appellant submitted that the Doctor has not been examined in the present case. He submitted that in such case the prosecution case that the appellant committed the murder of the deceased cannot be believed. As far as this aspect is concerned, it is seen that the prosecution has brought the injuries sustained by the deceased on record through Exhibit 39. From the above-mentioned 15 injuries seen on the body of deceased and from the evidence of the eyewitnesses, there can be no doubt that the appellant assaulted the deceased with dangerous weapon i.e. knife and caused her death. We find the evidence of the eye-witnesses to be believable. In the case of Sheikh Zakir Vs. State of Bihar., AIR 1983 SC 911 the Supreme court has observed that if other evidence on record is believable in such situation, non-production of the medical report would not be of much consequence. 12. At this stage Mr. Toraskar submitted that the appellant was not of sane mind, when he committed the offence, hence the appellant should be given the benefit of Section 84 of IPC and he be acquitted. Mr. Toraskar placed reliance on the evidence of DW-1 Dr. Kumavat to show that the appellant suffers from mental illness more specifically “schizophrenia”. It is seen that the incident took place on 4.7.2002 and the evidence of Dr. Kumavat shows that the appellant was admitted in Mental Hospital on 5.6.2008. It was found that the appellant was suffering from “schizophrenia”. Dr. Toraskar placed reliance on the evidence of DW-1 Dr. Kumavat to show that the appellant suffers from mental illness more specifically “schizophrenia”. It is seen that the incident took place on 4.7.2002 and the evidence of Dr. Kumavat shows that the appellant was admitted in Mental Hospital on 5.6.2008. It was found that the appellant was suffering from “schizophrenia”. Dr. Kumavat has further stated that on 10.12.2008 the appellant was examined by the Visitors Committee under the Mental Health Act, 1987 and the Committee found that he was fit to defend his case. Accordingly, certificate was issued by the Committee on 10.12.2008. As stated earlier the incident occurred on 4.7.2002 and the appellant was found to be suffering from psychiatric disorder in the year 2008. As such the appellant failed to prove that he was suffering from unsoundness of mind at the time of the commission of the offence. The fact that the appellant was suffering from mental illness before or after the commission of the offence is of no consequence, but it has to be proved that the appellant was suffering from mental illness at the time of the incident. Burden to prove that the accused was of unsound mind and as a result thereof, he was incapable of knowing the nature and consequence of his act, is on the accused. It is noticed that the appellant has failed to prove that at the relevant time he was suffering from mental illness. 13. In this view of the matter and on carefully going through the record in this case, we find that there is sufficient evidence to show that the appellant assaulted deceased with knife and caused her death. Thus, we see no merit in the appeal. The appeal is dismissed. 14. At this stage, we must record our appreciation for Advocate Mr. A.G. Toraskar who is on the High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/-.