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2014 DIGILAW 951 (BOM)

Vasant Dilip Londe v. State of Maharashtra

2014-04-10

A.S.GADKARI, P.V.HARDAS

body2014
Oral Judgment P.V. Hardas, J. 1. Appellant who stands convicted for an offence punishable under Section 302 and 452 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo RI for 2 months, and RI for 5 years and to pay fine of Rs.500/-in default of which to undergo RI for one month, with a direction that the substantive sentences shall run concurrently by the IVth Additional Sessions Judge, Sangli, by judgment dated 22.3.2005, by this appeal challenges his conviction and sentence. 2. Facts as are necessary for the decision of this appeal may briefly be stated thus: (i) PW-8 API Balkrishna Ambure who in February 2004 was attached to Vishrambag police station, Sangli and was on duty on 25.2.2004 was informed at about 10.50 pm by the police station officer about the receipt of information that one B.S. Mohan was seriously injured and had been admitted in the civil hospital at Sangli. PW-8 API Ambure on being informed about the said incident, immediately proceeded to the civil hospital where he was informed by the Medical Officer that injured B.S. Mohan had succumbed to his injuries. In the hospital he met PW-1 Nitin and accordingly scribed his report at Exhibit-17. The report was sent to the Vishrambag police station for registration of the crime. An offence vide crime no.26 of 2004 was registered under Sections 302 and 452 of the Indian Penal Code against the appellant. (ii) Upon registration of the offence, the Inquest panchanama of the dead body of B.S. Mohan was drawn in the presence of panchas at Exhibit 6. On the next day, in the morning, PW-8 API Ambure visited the scene of the incident and upon the scene of incident having pointed out by PW-3 Arun, the scene of the incident panchanama was drawn at Exhibit-7. Statement of PW-3 Arun was also recorded. The clothes of the deceased B.S. Mohan were seized under seizure memo at Exhibit 8. On 27.2.2004, statements of witnesses were recorded. On 28.2.2004, statement PW-6 Manoj, son of the deceased, was recorded. Since the appellant was not traceable, a police team was deputed in search of the appellant. (iii) PW-9 P.I. Shinde who was entrusted with the investigation of the crime no.26 of 2004, recorded the statements of the witnesses. On 27.2.2004, statements of witnesses were recorded. On 28.2.2004, statement PW-6 Manoj, son of the deceased, was recorded. Since the appellant was not traceable, a police team was deputed in search of the appellant. (iii) PW-9 P.I. Shinde who was entrusted with the investigation of the crime no.26 of 2004, recorded the statements of the witnesses. He issued a letter to Tahsildar of Miraj for drawing of sketch of the scene of the incident. The appellant was arrested on 8.3.2004 and was medically examined. During custodial investigation on 11.3.2004, the appellant expressed his willingness to point out the place where he had concealed his clothes and the weapon. Accordingly, a memorandum was drawn in the presence of the panchas at Exhibit 33. The appellant led the police and the panchas and produced his clothes and a knife which came to be seized under seizure memo at Exhibit 34. (iv) On 23.3.2004, a letter was issued to the Medical Officer to express his opinion if the injuries were possible by the weapon which has been seized under seizure memo at Exhibit 34. The seized property was thereafter referred to the chemical analyzer. Further to the completion of the investigation, a chargesheet against the appellant was submitted. (v) On committal of the case to the Court of Sessions, the Trial Court vide Exhibit-4 framed charge against the appellant for offences punishable under Sections 302 and 452 of the Indian Penal Code. (vi) The accused denied his guilt and claimed to be tried. Prosecution in support of its case, examined 9 witnesses. Defence of the appellant was of denial. The Trial Court upon appreciation of the evidence of the prosecution convicted and sentenced the appellant as aforestated. 3. In order to effectively deal with the submissions advanced before us by Mr. Kedar Patil the learned Counsel for the appellant and Mrs. S.D. Shinde, the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 4. The case of the appellant rests on the circumstantial evidence. In cases resting on the circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which the prosecution proposes to rely. The circumstances so proved should be of incriminating nature that is they should have a definite tendency of implicating the accused. 4. The case of the appellant rests on the circumstantial evidence. In cases resting on the circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which the prosecution proposes to rely. The circumstances so proved should be of incriminating nature that is they should have a definite tendency of implicating the accused. The circumstances so proved should form a complete chain which should exclude every hypothesis of innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstance should be capable of only one inference that is that the accused and the accused alone has committed the offence. 5. In the present case, the prosecution relies upon the following circumstances: (i) PW-6 Manoj had taken a loan from the appellant and in order to take loan, Manoj had pledged certain gold ornaments. The deceased B.S. Mohan had refunded the amount borrowed from the appellant and had requested the appellant to return the ornaments which had been pledged. The appellant had not returned the ornaments and on that count the prosecution alleges that the relationship between the deceased B.S. Mohan and the appellant were strained. (ii) The deceased before being shifted to the hospital had telephoned PW-6 Manoj and had informed him that the appellant had stabbed him. (iii) The deceased had orally informed PW-3 Arun who was taking the deceased to the hospital that the appellant had stabbed him. (iv) Discovery of blood-stained clothes and a knife at the behest of the appellant and the report of the chemical analyzer which indicates that the clothes and the knife seized at the behest of the appellant were stained with blood of AB group which matched the blood-group found on the clothes of the deceased. 6. In respect of the last circumstance, the Trial Court has chosen not to place any reliance on the said circumstance. Apart from the reasoning of the Trial Court, we find that there is no evidence that the clothes and the knife which were seized at the behest of the appellant were sealed and remained in that condition till they were examined by the chemical analyzer. Thus, the possibility of the articles being tampered with after their seizure cannot be ruled out. 7. In respect of the first circumstance, the prosecution examined PW-1 Nitin, PW-5 Mahesh and PW-6 Manoj. Thus, the possibility of the articles being tampered with after their seizure cannot be ruled out. 7. In respect of the first circumstance, the prosecution examined PW-1 Nitin, PW-5 Mahesh and PW-6 Manoj. All these witnesses in turn deposed about PW-6 Manoj obtaining a loan from the appellant and pledging certain gold-ornaments. Deceased B.S. Mohan had refunded the amount of loan to the appellant, but the appellant on one pretext or the other was postponing the delivery of the ornaments which had been pledged. The evidence of PW-1 Nitin indicates that on the day of incident, he had received a message from deceased B.S. Mohan intimating that he was ready for discussion. PW-1 Nitin deposes that on the day of incident he along with his friend Shekar and the appellant had gone to the house of deceased B.S. Mohan. The evidence of PW-1 Nitin indicates that deceased B.S. Mohan had asked the accused to return the ornaments and the accused had informed the deceased that he would return the ornaments within 8 days. There was acrimonious exchange between the accused and deceased. The accused then went away on his motorcycle. After sometime PW-1 and his friend went to the hotel for taking dinner, while the appellant and the deceased B.S. Mohan were present in the house. PW-1 Nitin has admitted that on that day there was failure of electricity. PW-1 Nitin has further deposed that while he was taking his dinner in the hotel, he had received a message from PW-6 Manoj asking Nitin to go to the house of his father deceased B.S. Mohan and to ascertain the position. In cross-examination, what has been elicited is that Nitin had received a telephone call from PW-6 Manoj who had informed him that his father B.S. Mohan had telephoned him and had informed him that the appellant stabbed him. PW-6 Manoj was therefore apprehensive about the well-being of his father and had accordingly instructed PW-1 Nitin to go to the house of B.S. Mohan. Accordingly, PW-1 Nitin on receipt of the said information, along with his friend immediately rushed to the house of B.S. Mohan. PW-1 Nitin Ntin did not notice B.S. Mohan in the house. He therefore presumed that the deceased may have been removed to the hospital. He accordingly went to the hospital where he was informed that B.S. Mohan had succumbed to his injuries. PW-1 Nitin Ntin did not notice B.S. Mohan in the house. He therefore presumed that the deceased may have been removed to the hospital. He accordingly went to the hospital where he was informed that B.S. Mohan had succumbed to his injuries. A report was scribed in the police station. The entire cross-examination is centered around the contract/agreement which PW-1 Nitin used to take for recovery of the loan. He has also admitted in his cross-examination that there was no special reason for knowing either PW-6 Manoj or deceased B.S. Mohan. He has admitted that the appellant is a rickshaw-driver. He has further admitted to have taken the appellant to the house of B.S. Mohan. There is absolutely no cross-examination, apart from a bald suggestion which has been denied about PW-1 Nitin receiving a telephone call from PW-6 Manoj who had informed him that his father had telephoned and had informed him that the appellant had stabbed him. Evidence of PW-5 Mahesh is in respect of the motive i.e. the loan taken by PW-6 Manoj. 8. Prosecution has examined PW-6 Manoj who states that on the day of incident he had received a telephone call and had spoken to his father deceased B.S. Mohan who had informed him that the appellant had stabbed him. PW-6 Manoj further deposes that his father had expressed an apprehension that he may not survive. Since Manoj was at that time in Kerala, he contacted his friend PW-1 Nitin requesting him to ascertain the condition of his father. Manoj was thereafter informed about the demise of his father. Manoj has been cross-examined at length but nothing of substance has been elicited in his cross-examination which would in any manner affect the credibility of his statement of receiving a telephone call from his father deceased B.S. Mohan who had informed him that the appellant had stabbed him. 9. Prosecution examined PW-3 Arun a neighour of deceased B.S. Mohan who states that on the day of incident he had returned after plying his auto-rickshaw. According to him while he was taking his dinner, he had heard hue and cry. He had asked his other relatives to go outside to find out as to what the problem was. According to PW-3 Arun, he continued with his dinner and since he heard hue and cry again, he went out of the house. According to him while he was taking his dinner, he had heard hue and cry. He had asked his other relatives to go outside to find out as to what the problem was. According to PW-3 Arun, he continued with his dinner and since he heard hue and cry again, he went out of the house. He went to the house of the deceased B.S. Mohan and noticed the gate locked. He scaled the gate and went inside the house and noticed that the door was open. Though the electricity was off, there was emergency light and in the illumination of the light he noticed deceased B.S. Mohan lying on the Sofas with injuries which were bleeding. He accordingly went to the kitchen and brought water for deceased B.S. Mohan. He had lifted the deceased into a sitting position. Since his clothes were blood-stained and he was clad only in underwear, PW-3 Arun rushed home, changed his clothes and brought his auto-rickshaw. When he brought his auto-rickshaw, he had noticed that deceased B.S. Mohan came out of the house and had opened the gate. With the assistance of one Mr. Apte who is also a neighbour, PW-3 Arun assisted the injured and placed him in the autorickshaw. The neighbour Mr. Apte also sat on the rear seat of the autorickshaw while auto-rickshaw was driven by PW-3 Arun. On the way to the hospital, Arun enquired from deceased B.S. Mohan as to what had happened and the deceased B.S. Mohan had informed PW-3 Arun that the appellant had stabbed him. PW-3 Arun accordingly took the injured B.S. Mohan to the hospital while on the way Mr. Apte alighted from the autorickshaw. According to PW-3 Arun, the Medical Officer had pronounced injured as dead. 10. In cross-examination, he has admitted that in the process of lifting and assisting the injured in the auto-rickshaw, his clothes were stained with blood. He has also admitted that his clothes had not been seized by the police. An admission has been elicited that his statement was recorded on the next day. PW-3 Arun has been extensively cross-examined and has admitted that when he entered in the house of the deceased, he had noticed B.S. Mohan lying between two sofas in the drawing-room. He has admitted that he took about 15 to 20 minutes by the time the injured was placed in the auto-rickshaw. PW-3 Arun has been extensively cross-examined and has admitted that when he entered in the house of the deceased, he had noticed B.S. Mohan lying between two sofas in the drawing-room. He has admitted that he took about 15 to 20 minutes by the time the injured was placed in the auto-rickshaw. He has also admitted that his blood-stained clothes were not seized by the police. 11. The learned Counsel for the appellant has urged before us that the record of the telephone company had not been seized by the prosecution in respect of either the message or the telephone call received by PW-1 Nitin from deceased Mohan and his son PW-6 Manoj. It is also urged before us that PW-1 Nitin makes no reference to the emergency light being available in the house. It is urged by the learned Counsel for the appellant that the neighbour Mr. Apte has not been examined as a witness. It is also urged by the learned Counsel for the appellant that Mr. Daftardar, the immediate neighbour, has also not been examined though possibly he may have informed the police immediately. The learned Counsel for the appellant has further urged that the evidence of PW-1 Nitin, PW-6 Manoj and PW-3 Arun is not corroborated by any witnesses. The learned Counsel for the appellant has urged before us that the evidence of PW-7 Dr. Sawant indicates that Dr. Sawant had opined that the deceased could have died within 3 to 4 minutes on receiving injuries and therefore the oral dying declaration is render doubtful. According to us, the opinion expressed by PW-7 Dr. Sawant in respect of the time during which the deceased would survive cannot be considered to be so sancroscant. The time during which a victim of assault would survive would vary from person to person and would vary according to the circumstance. The evidence of PW-3 Arun clearly establishes that the deceased was alive till he was taken to the hospital. It was only in the hospital that he was pronounced dead. The deceased had in fact talked to his son on telephone and had opened the gate and was assisted in the auto rickshaw by PW-3. Till the disclosure was made by the deceased to PW-3 Arun, the evidence indicates that deceased was alive. Therefore the opinion expressed by PW-7 Dr. The deceased had in fact talked to his son on telephone and had opened the gate and was assisted in the auto rickshaw by PW-3. Till the disclosure was made by the deceased to PW-3 Arun, the evidence indicates that deceased was alive. Therefore the opinion expressed by PW-7 Dr. Sawant would not in any manner affect the oral dying declaration. The learned APP has urged before us for dismissal of the appeal on the ground that the evidence of the prosecution-witnesses proves the offence beyond reasonable doubt. 12. The Supreme Court in Vadivelu Thevar Vs. The State of Madras [ AIR 1957 SC 614 ] had held that the testimony of a witness can be classified into (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. The Supreme Court has further held that in respect of the second category i.e. wholly unreliable, no amount of corroboration would strengthen such testimony. In respect of a witness who is found to be wholly reliable, no corroboration is necessary. It is only in the case of a witness whose testimony is classified as neither wholly reliable nor wholly unreliable that a Court may insist upon corroboration to the said testimony before accepting the same. In the present case, we find that the testimony of PW-1 Nitin, PW-6 Manoj and PW-3 Arun can certainly be classified as wholly reliable. These witnesses at the close of their cross-examination have emerged as reliable witnesses. The cross-examination has not been able to make dent in their testimony and we do not find any ground for holding that these witnesses are unreliable. PW-3 Arun has no motive for falsely implicating the accused in the sense he has no motive for falsely stating that the injured had disclosed to him that it was the appellant who had stabbed him. 13. The evidence of PW-6 in immediately informing PW-1 Nitin about the receipt of a telephone call from his father B.S. Mohan informing PW-6 Manoj that the appellant had stabbed him is corroborated by the conduct of PW-6 Manoj in immediately informing PW-1 Nitin about it. We further find from the evidence of PW-3 Arun that even Arun makes a reference to the injured B.S. Mohan talking on telephone in Malayalam and addressing the person called as “'Manoj”. We further find from the evidence of PW-3 Arun that even Arun makes a reference to the injured B.S. Mohan talking on telephone in Malayalam and addressing the person called as “'Manoj”. It therefore corroborates the oral dying declaration made by the deceased B.S. Mohan to his son Manoj who at that time was residing in Kerala. The conduct of PW-6 Manoj in immediately asking PW-1 Nitin to enquire about the welfare of his father and also informing Nitin about receipt of a phone call strengthens the evidence of PW-6 Manoj. As pointed out by us, the evidence of PW-3 Arun corroborates the oral dying declaration made by deceased Mohan to his son Manoj. We find that implicit reliance can be placed on the testimony of PW-3 Arun regarding oral dying declaration. Once we hold that PW-3 Arun is a reliable witness, corroboration to the evidence of PW-3 Arun is not necessary. Thus, failure of the prosecution to examine the neighbour-Mr. Apte who had accompanied PW-3 Arun in taking injured Mohan to the hospital would not be fatal to the prosecution. No adverse inference therefore can be drawn against the prosecution for failure to examine Mr. Apte. Similarly, failure to examine Mr. Daftardar also would not be fatal to the prosecution case. 14. The spontaneous disclosure made by injured to his son PW-6 Manoj and PW-3 Arun is amply corroborated by other circumstances on record. PW-3 Arun has no reason for falsely stating that the deceased had informed him that it was the appellant who had stabbed him. The proof of motive as well as the proof of oral dying declaration therefore according to us completes the chain of circumstantial evidence, and the circumstances so proved point unquestionably to the guilt of the accused. The circumstances lead to only one inference that is that the accused and the accused alone had committed offence. There is no evidence that any intruder had forcibly entered the house of the deceased and had stabbed him. Such an inference can also not be drawn. No valuables had been stolen and we find it difficult to accept that an unknown would enter the house of the deceased and for no reason would stab the deceased. It is apparent that the accused did not want to return the ornaments or could not return the ornaments and therefore stabbed the deceased. No valuables had been stolen and we find it difficult to accept that an unknown would enter the house of the deceased and for no reason would stab the deceased. It is apparent that the accused did not want to return the ornaments or could not return the ornaments and therefore stabbed the deceased. Apart from the accused, no other person had motive to kill the deceased. Even if the evidence of the chemical analyzer is left out of consideration, there is overwhelming evidence which prove the offence against the appellant beyond reasonable doubt. We therefore do not notice any infirmity in the reasoning of the Trial Court in arriving at the conclusion of guilt of the appellant. 15. Thus, after taking into consideration the evidence on record as well as the submissions advanced before us by the learned Counsel for the parties, according to us the prosecution has proved the offence beyond reasonable doubt, and we do not find any merits in the appeal. Thus, the appeal stands dismissed confirming the conviction and sentence.