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2014 DIGILAW 2237 (BOM)

Rakesh Vilas Jadhav v. State of Maharashtra

2014-11-05

G.S.KULKARNI, P.V.HARDAS

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JUDGMENT P.V. HARDAS, J. 1. The appellant who stands convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 100/- in default to undergo further R.I. for six months by the 8th Ad-hoc Additional Sessions Judge, Pune by judgment dated 12th April, 2007 in Sessions Case No. 159 of 2006 by this appeal challenges his conviction and sentence. 2. Facts in brief as are necessary for decision of this appeal may be stated thus:- PW 9 - PSI Gajanan Sonawane who in October 2005 was attached to Ghorpadi Bazar police station and was on duty on 21st October, 2005 received information from the outpost of Sasoon Hospital about admission of one injured Sunil in the hospital. The said information was received at about 5.30 p.m. The information further disclosed that the injured had been admitted in Sasoon Hospital by his mother PW 1 Shantabai and that the injured had succumbed to his injuries in the hospital. PW 9 - PSI Gajanan Sonawane along with police staff proceeded to Sasoon hospital and drew an inquest panchanama of the dead body of the deceased Sunil in the morgue at Exhibit 42 in presence of panchas. PW 1 Shantabai lodged her complaint at Exhibit 24. The complaint at Exhibit 24 was then forwarded to the Hadapsar police station where an offence vide Crime No. 373 of 2005 was registered under section 302 read with section 34 of the Indian Penal Code. Investigation of the said crime was entrusted to PW 9 PSI Gajanan Sonawane. 3. Clothes of the deceased Sunil were seized under a seizure memo at Exhibit 43 in presence of panchas. Statement of witnesses were recorded. In presence of panchas scene of the incident panchanama had been drawn at Exhibit 44. The appellant was arrested by PSI Khomane vide arrest panchanama at Exhibit 45. The juvenile offender was arrested on 22nd October, 2005. The blood stained clothes of the appellant were seized in presence of panchas under a seizure memo at Exhibit 46. Statement of witnesses were recorded. 4. During custodial interrogation, the appellant expressed his willingness to point out the place where the weapon had been concealed. A memorandum was accordingly drawn in presence of panchas at Exhibit 51. The blood stained clothes of the appellant were seized in presence of panchas under a seizure memo at Exhibit 46. Statement of witnesses were recorded. 4. During custodial interrogation, the appellant expressed his willingness to point out the place where the weapon had been concealed. A memorandum was accordingly drawn in presence of panchas at Exhibit 51. The appellant led the police and the panch to the gate of Kalyani Steels and after proceeding some distance produced a knife which had been concealed in the grass. The said knife was seized under a seizure memo at Exhibit 52. The seized property was then forwarded to the Chemical Analyser under a requisition at Exhibit 53. Further to the completion of the investigation, a charge sheet against the appellant was filed. 5. The post mortem on the dead body of the deceased Sunil was performed by PW 8 - Dr. Milind Wable who noticed incised wound on right eye-brow and chest. There were total nine injuries out of which five were incised. The injuries are referred to in column 17 of the post-mortem report which shows that the deceased had sustained nine injuries. The Medical Officer had opined that injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. PW - 8 Dr. Wable opined that the deceased had died due to traumatic and hemorrhagic shock as a result of stab injury. The post-mortem report is at Exhibit 39. 6. On the case being committed to the Court of Sessions, the trial Court vide Exhibit 11 framed a charge against the appellant for the offence punishable under section 302 of Indian Penal Code. The appellant denied his guilt and claimed to be tried. The prosecution in support of its case examined nine witnesses. The prosecution had examined PW 2 Saundari Chatri, PW 3 Siddram Vanmore, PW 5 Bapu Tate and PW 6 Nagurao Shirke as eye-witnesses to the incident but, the witnesses did not support the prosecution and were declared hostile. The conviction of the appellant therefore, rests on the testimony of PW 1 Shantabai Chavan and PW 4 - Surverna Chavan on the circumstance that the deceased was last seen alone in the company of the accused and the proximity of time between last seen and death being so short, the trial Court convicted and sentenced the appellant as aforesaid. The conviction of the appellant therefore, rests on the testimony of PW 1 Shantabai Chavan and PW 4 - Surverna Chavan on the circumstance that the deceased was last seen alone in the company of the accused and the proximity of time between last seen and death being so short, the trial Court convicted and sentenced the appellant as aforesaid. The defence of the appellant was that of denial. 7. In the light of nature of evidence, it would be useful to refer to the evidence of PW 1 - Shantabai Chavan and PW 4 - Surverna Chavan before we advert to the submissions advanced before us by the learned counsel for the appellant. 8. PW 1 - Shantabai Chavan deposes that she was residing along with her son and daughter-in-law and was working as a sweeper in a school at Ghorpadi village. According to her about 8 months prior to the incident there was a quarrel between the deceased Sunil and father of the appellant. Due to the quarrel the appellant was always threatening Sunil and because of the threats Sunil was sent to village Lonand. On the day of the incident the deceased Sunil had come from Lonand to the house of PW 1 - Shantabai. At that time PW 1 - Shantabai and PW 4 Surverna were present in house. The appellant accompanied by the juvenile offender came to the house and invited Sunil outside the house. The deceased Sunil went along with the accused. After sometime some boys from the locality had informed Shantabai that Sunil was lying on the road. PW 1 - Shantabai accompanied by PW 4 Surverna proceeded to the scene of the incident and noticed Sunil lying on the road in a pool of blood. Sunil was then immediately shifted in a rickshaw to Sasoon Hospital. PW 1 Shantabai had accompanied Sunil to the hospital where Sunil was pronounced dead. Shantabai lodged her report in Hadapsar police station. She has identified her report to be at Exhibit 24. 9. In cross examination, she has admitted that there are several houses surrounding her house. She has admitted that for reaching Kondwa from her house at Lonand it takes about one hour. She has admitted that it would take two hours to walk from her house to Lonand. She has identified her report to be at Exhibit 24. 9. In cross examination, she has admitted that there are several houses surrounding her house. She has admitted that for reaching Kondwa from her house at Lonand it takes about one hour. She has admitted that it would take two hours to walk from her house to Lonand. She has admitted that she used to get information about arrival of her son to her house from Lonand or Kondwa. She has further admitted that her son used to come to the school where Shantabai was working. Shantabai has admitted that she had not called her son in the house as she was apprehensive of some quarrel. She has also admitted that whenever she used to go to the school Sunil used to remain at the house for one or two hours and thereafter used to go away. After reaching either Kondwa or Lonand, Sunil used to telephone Shantabai about his arrival. Shantabai has admitted that Sunil used to come on a bicycle. She has admitted that on the day of the incident, there was no special occasion in the house for Sunil to visit her. She has further admitted in cross - examination that from the point of view of security it was quite safe for Sunil to visit her in the school. She has admitted that she used to return back from school at about 5.30 p.m. She has admitted that on the day of the incident she had attended the school while her daughter-in-law PW 4 Surverna was present in the house. She has denied a suggestion that she was deposing false that the deceased Sunil had come to her house at about 3 to 3.15 p.m. She has admitted that there are about 25 houses in between her house and one Bhosale Tapri and it takes about 10 minutes to walk from Bhosale Tapri to the compound wall of the company. 10. It is elicited in cross-examination that the appellant was residing in the same locality during the time of the incident. It has further elicited in cross-examination that on the day of the incident the deceased had come at about 4.30 p.m. and had left the house at 5 to 5.15 p.m. The deceased had not taken dinner in the house. It is elicited in cross-examination that the appellant was residing in the same locality during the time of the incident. It has further elicited in cross-examination that on the day of the incident the deceased had come at about 4.30 p.m. and had left the house at 5 to 5.15 p.m. The deceased had not taken dinner in the house. An admission is further elicited in cross-examination "within 10 -15 minutes after departure of my son from the house, I came to know about the incident." She has admitted that police had made inquiry with them about the incident in the hospital. She has admitted that she has informed the police that her son was alone on the road in front of the company in an injured condition and that she had shifted him to the hospital. The aforesaid statements would be wholly in - admissible in evidence as it would be hit by section 162 of the Code of Criminal Procedure, 1973. She has admitted that she had given information to the police at the time of drawing of the inquest panchanama and that the police had written down what she had stated and obtained her thumb impression. She has admitted that thereafter her statement had been recorded. The prosecution has examined PW 4 - Surverna the sister-in-law of deceased Sunil who also deposes about Sunil coming to the house on the day of the incident from Lonand at about 3.30 p.m. She further deposes about the appellant and the juvenile offender taking Sunil along with them. She states that within 5 to 10 minutes some boys from the locality had informed her about the appellant assaulting the deceased Sunil. However, this part of the evidence would be inadmissible in evidence as it would be hit by Indian Evidence Act since those persons who had informed PW 1 - Shantabai had not been examined. Suffice it to state that Surverna denies that she accompanied by her mother-in-law (PW 1) ran to the scene of the incident and noticed Sunil lying in a pool of blood. Sunil was then shifted to Sasoon hospital where he was declared dead. 11. In cross examination, she has admitted that a crowd was present near the scene of the incident. She has admitted that her statement had been recorded on 21st October, 2005. Sunil was then shifted to Sasoon hospital where he was declared dead. 11. In cross examination, she has admitted that a crowd was present near the scene of the incident. She has admitted that her statement had been recorded on 21st October, 2005. An admission is also elicited in cross-examination that within 5 to 10 minutes some boys had come and had informed her about the incident. She has admitted that the inquest panchanama was drawn in the Sasoon hospital. She has identified the clothes which were worn by the deceased Sunil. Though the knife at the behest of the appellant has been seized, report of the Chemical Analyser in respect of blood-stains is inconsequential. Clothes of the appellant were not found stained with blood. The eye-witnesses did not support the prosecution and were declared hostile. 12. Learned counsel for the appellant has urged before us that it is impossible to believe that the appellant who had been sent at some other place due to the apprehension of injury at the hands of the appellant would be allowed to go with the appellant and other accused without there being any protest by PW 1 Shantabai. It is also urged before us that Shantabai had disclosed the incident to the police in hospital and consequently, report of PW 1 - Shantabai would be inadmissible in evidence as the First Information Report and at best would be as statement either under section 161 or 162 of the Code of Criminal Procedure. It is further urged before us that though several persons were present there, the prosecution has not produced any eye-witnesses to the incident and consequently the entire prosecution version as deposed to by PW 1 Shantabai and PW 4 Surverna is a figment of imagination of these witnesses. The learned APP has supported the findings arrived at by trial Court and has urged for dismissal of the appeal. 13. The incident about the deceased being threatened by the appellant on account of the quarrel between the appellant and father of the appellant was eight months old. The appellant had been sent away from the village as it was apprehended that the deceased may sustain some injury due to the threats of the appellant. 13. The incident about the deceased being threatened by the appellant on account of the quarrel between the appellant and father of the appellant was eight months old. The appellant had been sent away from the village as it was apprehended that the deceased may sustain some injury due to the threats of the appellant. The deceased used to generally visit PW 1 - Shantabai in the school and on the day of the incident, the deceased had come to the house of PW 1. Possibly on account of passage of time since threats of danger which was looming earlier may have been felt by PW 1 - Shantabai to have been diminished. In any event, on account of passage of time the severity of threats or gravity of the threats may have been reduced. In any event, the deceased had come to the house of PW 1 Shantabai and that has been established by the prosecution. There is no manner of doubt about the deceased coming to the house of PW 1 Shantabai and also about the appellant taking the deceased along with him. Within 5 to 10 minutes of the deceased and the appellant going together, news about the deceased lying on the ground was conveyed to PW 1 - Shantabai. The time gap between the appellant and the deceased having been seen together and the deceased having been found in an injured condition is so narrow that the only inference which is possibly to be drawn on the basis of this circumstantial evidence, is that the appellant and the appellant alone has committed the crime. Coupled with this circumstance, there is a strong circumstance of motive which is really not seriously challenged in cross - examination. Even if the eye -witnesses have not supported the prosecution, this circumstance with proximity of the time of death certainly proves the offence against the appellant beyond reasonable doubt. 14. A reference may usefully be made to the judgment of the Supreme Court in Amit alias Ammu vs. State of Maharashtra, 2003 Cri. L.J. 3873. The Supreme Court in this case found that the accused had taken the deceased, a school girl to a secluded place and committed rape on her and strangulated her to death. There was evidence of last seen which was found to be trustworthy and reliable by the Court. L.J. 3873. The Supreme Court in this case found that the accused had taken the deceased, a school girl to a secluded place and committed rape on her and strangulated her to death. There was evidence of last seen which was found to be trustworthy and reliable by the Court. Time of death of the deceased was established which was in close proximity of place and time between the event of the accused having been with the deceased and the factum of death. The Supreme Court further found that no explanation given by the accused as to how and in what circumstances the victim suffered the death. In the present case also, as pointed out by us, the accused has not offered any explanation except a bald defence of denial. 15. Other submission of the learned counsel that the First Information Report of PW 1 - Shantabai would not be a First Information Report in our opinion, deserves to be rejected. The Police Officer has clearly deposed that PW 1 - Shantabai was interrogated in hospital and her report was obtained which was then forwarded to Hadapsar police station. So is the testimony of PW 1. Delay in recording the statement of PW 4 Surverna or other eye-witnesses would not be fatal to the prosecution case. Thus having considered the evidence on record in our opinion, the trial Court has rightly convicted the appellant and no interference is called for in this appeal. 16. Accordingly Criminal Appeal No. 628 of 2007 is dismissed confirming the conviction and sentence of the appellant. Appeal Dismissed.