JUDGMENT : A.R. Joshi, J. Heard rival arguments on this appeal preferred by the appellant-original accused No.2 challenging the judgment and order of conviction in Sessions Case No. 1043 of 2004. 2. The impugned judgment and order was passed by 6th Ad hoc Additional Sessions Judge, City Sessions Court, Sewree Mumbai dated 25th June, 2008. The appellant-accused No.2 was convicted for the offences punishable under Section 302 and also under Section 452 of Indian Penal Code and was sentenced to suffer life imprisonment and one year imprisonment respectively. Also respective fine amounts of Rs.500/- and Rs.100/- were imposed. The substantive sentences were directed to run concurrently. Original accused No.1 was acquitted of the said charges. The State has not preferred any appeal against the acquittal of accused No.1. Being aggrieved by the judgment and order of conviction, appellant-accused No.2 preferred this appeal. 3. The prosecution case, briefly stated, is as under : The incident of assault on the victim woman by name Bhakti @ Chayya occurred at about 11:00 a.m. on 2nd September, 2004 when she was at her residential premises which is room No.2 at BIT Chawl No.9, Mumbai Central Mumbai. Present appellant accused No.2 and co-accused No.1 entered the room of said victim woman at about 11:00 a.m. Accused No.1 remained outside the room keeping a watch to see that there should not be any obstruction for accused No.2 in doing away with the victim. The door of the room was latched from outside and appellant accused No.2 after entering the room assaulted the victim woman, apparently, causing instantaneous death. Assault was of such a gravity that there were various incise and stab wounds. At this juncture, the said incised and stab wounds are detailed hereunder as appearing from the substantive evidence of PW 7 Dr Shailesh Mohite. "(1) Curvilinear incised wound 4 cms x 0.2 cm x subcutaneous tissues deep vertically placed in front of tragus of the right ear. (2) Curvilinear incised wound 4.5 cm x 0.2 cm x subcutaneous tissue deep. Behind the right ear in the right mastoid region directed backwards and downwards from the lobe, with evidence of tailing at its lower end. "(1) Curvilinear incised wound 4 cms x 0.2 cm x subcutaneous tissues deep vertically placed in front of tragus of the right ear. (2) Curvilinear incised wound 4.5 cm x 0.2 cm x subcutaneous tissue deep. Behind the right ear in the right mastoid region directed backwards and downwards from the lobe, with evidence of tailing at its lower end. (3) Linear incised wound 6 cm x 0.5 cm x subcutaneous tissue deep horizontally placed over the front of neck, in the thyroid region more towards right, 9 cm above the sternal notch and 7 cm below the tip of chin, with tailing towards the left. (4) Spindle shaped incised wound 1.5 cm x 0.5 cm x subcutaneous tissue deep, vertically placed over the right supra clavicular region, 5 cm, medial to the tip of the right shoulder and 11 cm away from right sterno clavicular joint. (5) Incised wound 2 cm x 0.5 cm x subcutaneous tissue deep obliquely and medially directed from a point 1.5 cm medial to injury no.4. (6) Linear incised wound 6.5 cm x 0.1 cm x subcutaneous tissue deep. Obliquely placed over the linear aspect of the right palm extending from the base of the right thumb up to right wrist (defence wound) (7) Linear incised wound 5 cm x 0.1 cm x subcutaneous tissue deep parallel to injury no.6 extending from the web of the right index finger up to 2.5 cm below the right wrist (defence wound). (8) Spindle-shaped penetrating stab wound of size 2.5 cm x 0.5 cm x intercostal muscle deep obliquely placed over the upper and other quadrant of the right breast, medially directed, 7 cm lateral to the nipple. Both angles of this wound were acute. (9) Linear incised wound, 1.2 x 0.3 cm x subcutaneous tissue deep horizontally placed over the inner and lower quadrant of the right breast, 4.5 cm medial to the nipple. (10) Spindle shaped penetrating stab wound 2 cm x 9 cm abdominal cavity deep, obliquely placed over the right lumbar region 95 cm above the right heel 12 cm above the anterior superior iliac spine and 15 cm away from the mid-line, with its upper end facing inwards and lower and outwards. This injury was directed medially and slightly upwards. (10) Spindle shaped penetrating stab wound 2 cm x 9 cm abdominal cavity deep, obliquely placed over the right lumbar region 95 cm above the right heel 12 cm above the anterior superior iliac spine and 15 cm away from the mid-line, with its upper end facing inwards and lower and outwards. This injury was directed medially and slightly upwards. (11) Spindle-shaped penetrating stab wound 1.5 x 0.5 cm x rib deep over the upper and medial aspect of the areolar region of the left breast, 1 cm away from the nipple. The injury was obliquely placed and directed posteriorly and slightly laterally. However, there was no evidence of fracture of the rib. (12) Spindle-shaped penetrating stab wound 2 cm x 1 cm x thoracic cavity deep vertically placed over the upper half of the left side of the back 28.5 cm above posterior superior iliac spine 117 cm above the left heel 2.5 cm lateral to the mid-line and 14 cm below the prominence of 7th cervical vertebra. Both angles of this injury were acute. It was directed anteriorly, medially and slightly downwards." Doctor who performed postmortem opined as under : "All the incised wounds as stated above at Sr.No. 1 to 12 may be possible by sharp edged weapon. Injury No.13 may be possible by hard and blunt object. All injuries were fresh and antimortem. In my opinion, the injuries were fresh and may be caused within six hours from the death." 4. It is also the case of the prosecution that PW 2 one Sheela Dajiram Bhise and her elder sister PW 11 Smt. Kondalkar were present in the neighbouring room No.3 in the same building No.9. They heard shouts and noise of commotion and reached room No.2 and found that it was latched from outside. They opened the latch and PW 11 Smt. Kondalkar entered the room and apparently noticed the appellant-accused pressing the neck of the victim woman. Thereafter, PW 11 Smt. Kondalkar noticed that the said victim woman was thrown in the nearby WC area and appellant accused no.2 started leaving the spot. That time PW 11 Smt. Kondalkar accosted him and enquired with him as to what had happened. However, without explaining the situation the appellant accused no.2 ran away. Thereafter, PW 11 Smt. Kondalkar noticed that the said victim woman was thrown in the nearby WC area and appellant accused no.2 started leaving the spot. That time PW 11 Smt. Kondalkar accosted him and enquired with him as to what had happened. However, without explaining the situation the appellant accused no.2 ran away. It is also the case of the prosecution that PW 2 Sheela Bhise, neighbour of the victim also witnessed the part of the incident and she had seen the appellant accused No.2 coming out of the room No.2 and she accosted him and enquired with him as to what had happened inside. At that time the accused answered to go and see herself and hurriedly ran away from the spot. Thereafter, brother of the victim woman one Sanjay PW 1 arrived on the spot and noticed the severely injured condition of the victim woman and sensing that the victim could be alive, took immediate steps to take her to the hospital for immediate medical treatment. The victim woman was taken to the hospital but was declared dead. The inquest panchnama was drawn and the dead body was sent for postmortem. The postmortem was conducted by PW 7 Dr Mohite. The postmortem report is at Exh.34. The injuries sustained by the victim are detailed earlier. The cause of death according to PW 7 Dr Mohite was cardiac tamponade due to haemo pericardium following stab injury of arota. 5. During the course of the investigation, statements of witnesses were recorded including one shopkeeper, one Prakash Solanki. Said Prakash Solanki had apparently seen the appellant-accused along with one more person on a bicycle and said bicycle was parked at the entrance of the building No.9 and after sometime said accused No.2 hurriedly came down and then left the place and prior to that another person had also left the place and both went towards the Foras road area. Statement of one Mangesh Shirke PW 4 was also recorded and according to him at about 11:00 a.m. he came out of his room No.4 situate in BIT Chawl No.10 and had seen the present appellant accused No.2 hurriedly coming out of Chawl No.9 and it was about 11:15 a.m. That time said PW No.4 accosted the accused. However, the accused hurriedly ran away. However, the accused hurriedly ran away. That time said witness had noticed that the appellant accused No.2 was wearing red colour shirt and black pant. This witness also heard hue and cry from Chawl No.9 and thereafter he brought taxi and then the victim woman was sent to the hospital. During investigation initially accused No.1 was arrested on 4th September, 2004 and thereafter present appellant-accused No.2 was arrested from Matheran area, District Alibag Raigad on 7th September, 2004. Some injuries like abrasions and scratch marks were found on the person of the appellant on his arrest. Immediately he was taken for medical examination and he was examined by PW No.12 Dr Hanmant Bobde on the same day and injury certificate Exh.49 was obtained to that effect. The appellant accused was put under arrest. His blood samples were sent for analysis and it was found that his blood group is "B". 6. It is also the case of the prosecution that during investigation initially on 8th September, 2004 present appellant accused No.2 made a voluntary statement to produce the clothes and as such he took the police party and panchas including pancha PW 10 Sidharth Jadhav to one carom playing shop owned by PW 14 one Feroz Shaikh. From that shop area the appellant accused No.2 procured one plastic bag containing red colour Tshirt and black colour pant. These clothes were taken charge of under the panchnama. It is also the case of the prosecution that during investigation on 16th September, 2004 the appellant-accused No.2 made another voluntary statement to produce the knife and accordingly panchnama was drawn in presence of panchas including PW 8 Nanu Ahmed Shaikh. In furtherance of said memorandum statement, the appellant accused took the police and panchas near one garden by the side of Byculla Railway Station and from the public area one knife was recovered at the instance of the present appellant-accused. Said knife is article no.6. At this juncture, it must be mentioned that the blood was found on the said knife and it is of human origin and of "O" group and also according to the case of the prosecution the clothes of the victim and the blood sample collected from the spot panchnama were sent for chemical analysis show that those articles were stained with blood of group "O". It is also the case of the prosecution that on 21st September, 2004 test identification parade was conducted by calling Special Executive Magistrate one Manohar Naik PW 13. In the said test identification parade various persons identified appellant-accused No.2 and also accused No.1. The said witnesses are Smt. Kondalkar PW 11, PW 2 Sheela Bhise, Jyoti More, Vivek More and Prakash Solankhi PW 3. Out of these witnesses Jyoti More and Vivek More were not examined by the prosecution during the trial. On completion of investigation charge-sheet was filed and the matter was committed to the Court of Session and ended in conviction of the appellant-accused No.2 as detailed above. 7. During the trial, total 19 prosecution witnesses were examined. However, so far as present appeal is concerned, the important witnesses are PW 2 Sheela Bhise and PW 11 Sumati Kondalkar who had immediately seen the appellant-accused No.2 hurriedly coming out from room No.2 in Chawl No.9. These are the witnesses who had occasion to see for the first time the said incident and also witnessed that the appellant-accused No.2 hurriedly ran away from the scene of offence. We have gone through the substantive evidence of these witnesses. So far as PW 11 Smt. Kondalkar is concerned, though it is brought to our notice on behalf of the appellant that there is omission so far as the substantive evidence of these witnesses is concerned on the aspect as to she saw the appellant-accused No.2 pressing the neck of the victim woman. Though this omission is taken into consideration, still other substantive evidence of this witness PW 11 Smt. Kondalkar coupled with the substantive evidence of PW 2 Sheela Bhise goes to show that they had seen the present appellant-accused No.2 hurriedly running away from the spot and when he was accosted by these witnesses he did not give any answer but indicated that something has happened to the woman and accused No.2 indicated that these witnesses may go and see as to what had happened. Moreover, the substantive evidence of these witnesses is also to be seen in juxtaposition of the evidence given by PW 4 Mangesh Shirke and PW 3 Prakash Solankhi. Moreover, the substantive evidence of these witnesses is also to be seen in juxtaposition of the evidence given by PW 4 Mangesh Shirke and PW 3 Prakash Solankhi. As mentioned earlier said PW 3 Prakash Solankhi had witnessed the present appellant-accused No.2 arriving at the spot near building No.9 on a bicycle and after sometime hurriedly leaving the said area and rushing towards the Foras road. According to said PW 3 Prakash Solankhi, he also noticed accused No.1 hurriedly leaving the place. So far as PW 4 Mangesh Shirke is concerned, his substantive evidence is also discussed earlier while mentioning the case of the prosecution inasmuch as he had witnessed the rushing of the appellant-accused No.2 out of building No.9 and when was accosted by PW 4 did not give any answer. Admittedly, these witnesses PW 3 and 4 were knowing appellant-accused No.2 well as he was the resident of the same area and was on visiting terms in the nearby buildings and as such there was no question of these witnesses to be put in the test identification parade as identifying witnesses. In our considered view, the substantive evidence of PW 2 Sheela Bhise and PW 11 Smt. Kondalkar coupled with the evidence of PW 3 and 4 goes to show the involvement of the present appellant-accused No.2 in the said episode of assault on the victim. 8. Now the question arise whether the role of the appellant-accused No.2 is only to the extent of running away from the spot or for taking active part in the assault on the victim. So far as this aspect is concerned, the another set of witnesses were examined by the prosecution before the trial Court and these witnesses are on the aspect as to the present appellant-accused No.2 on the relevant date after the incident of assault coming to the carom shop and changing his clothes and keeping the clothes in the plastic carry bag and keeping the bag in the said premises of the shop and leaving the place after getting the spare clothes. Even similar such evidence is given by PW 14 Feroz Shaikh owner of the shop. However, it must be mentioned that for actual changing of the clothes by appellant accused No.2 in the said carom shop was not witnessed by PW 14 but it was told to him by his Manager Sultan. Even similar such evidence is given by PW 14 Feroz Shaikh owner of the shop. However, it must be mentioned that for actual changing of the clothes by appellant accused No.2 in the said carom shop was not witnessed by PW 14 but it was told to him by his Manager Sultan. Though said Manager Sultan is not examined by the prosecution, we have to see whether the substantive evidence of PW 9 Rajesh Patil and 15 Mangesh Lohakare along with the evidence of PW 14 Feroz is sufficient to establish the link of the present appellant-accused No.2 with the offences charged. 9. On this aspect, it is vehemently argued on behalf of the appellant-accused No.2 that these witnesses did not mention that the clothes accused No.2 was then wearing and he had allegedly changed the clothes, were not having any blood stains. It is further argued that even there was no positive finding as to blood grouping of the blood on the said clothes. On this aspect, it is counter argued by the learned A.P.P. that it is established fact as to recovery of clothes at the instance of the appellant-accused No.2 and the said clothes having blood of human origin though the blood grouping could not be ascertained. Considering the evidence of these witnesses PW 9, 14 and 15 coupled with the recovery of the clothes and recovery of the knife at the instance of the appellant, in our considered view, the prosecution has established the complicity of the appellant-accused with the offences charged beyond reasonable doubt. 10. Apart from the above there is another circumstance as to finding of the injuries as mentioned in the injury certificate Exh.49 on the person of the appellant-accused No.2 when he was put under arrest out of Bombay and from the area of Matheran in Alibag Raigad district. This piece of evidence is to be viewed in juxtaposition of the substantive evidence of PW 11 Smt. Sumati Kondalkar. Said PW 11 Sumati Kondalkar has mentioned that after opening latch of the door of room No.2 when she entered, she saw the appellant-accused No.2 inside the room and there was a sort of scuffle. Though specifically said witness did not take this word as "scuffle" the effect is same that appellant-accused No.2 had dragged the victim woman and put her in the WC area in the said room No.2. Though specifically said witness did not take this word as "scuffle" the effect is same that appellant-accused No.2 had dragged the victim woman and put her in the WC area in the said room No.2. Definitely in such type of dragging a woman and when there were severe injuries inflicted on the woman, there bound to be some resistance and scuffle and which can result in some minor injuries on the person of the assailant as in this case appearing on the person of the appellant-accused No.2 and this is substantiated by injury certificate Exh.49. 11. Considering the cumulative effect of the evidence of the prosecution witnesses as discussed above, in our view, it must be said that the prosecution has established the link of present appellant-accused No.2 with the offence of murder and also the offence of trespass in the house of the victim. In fact, most of the witnesses and mainly PW 9 and 15 were not cross-examined on behalf of the accused during the trial and in fact their substantive evidence has gone unchallenged so far as the visits of the appellant-accused No.2 to the carom shop and the changing of the clothes there and hiding the clothes he was thus wearing on 2nd September, 2004. In the result, there is no merit in the present appeal and same is accordingly dismissed and disposed of. 12. We quantify legal fees to be paid to Mrs Sarojini Upadhyay, Advocate appointed by the High Court Legal Services Committee in this appeal at Rs. 5000/-.