JUDGMENT R.S. Mohite, J.
1. Heard Shri Daga, learned Advocate for the appellant and Shri Patel, learned A.P.P. for the respondent-State.
2. This appeal impugns the judgment and order passed by the IVth Additional Sessions Judge, Nagpur, on 12-9-1997 in Sessions Trial No. 360 of 1996, by which the present appellant Janak Khemsingh Marakam, is convicted for the offence under section 302 of I.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-, in default to suffer R.I. for six months.
3. The relevant facts of prosecution case are as follows:
(a) That the deceased Jyoti Nerkar was a young girl aged about 15 years. It is a prosecution case that the present accused Janak used to harass the deceased Jyoti. According to P.W. 2 Shobhabai, who is the mother of the deceased, the accused had followed her daughter twice in day time and once in the night time and had been required to be warned that if he harassed Jyoti, the matter would be reported to the police.
(b) On the date of the incident i.e. on 25-4-1996, the deceased Jyoti along with P.W. 3 Hemlata Tembhare had been to the field of one Dhondbaji Bhoyar at about 3.00 p.m. for plucking chilly. While they were in the process of plucking chilly, the accused Janak came to the said field armed with an axe. He passed from the side of Jyoti and gave a blow of an axe on the head of Jyoti. He gave 2-3 blows of the axe and ran away from the spot. Jyoti fell down after receiving a bleeding injury to her head. P.W. 3 Hemlata went running to the field of one Umaji Anjankar P.W. 1. In the field of Umaji, the mother of the deceased Jyoti by name Shobhalbai (P.W. 2) was working. Hemlata told Shobhabai that the accused Janak had killed her daughter Jyoti. The mother of Jyoti, Shobhabai rushed to the spot and on seeing her dead daughter, she started crying. People gathered at the spot. Amongst these people, who gathered there was also P.W. 1 Umaji Anjankar. According to Umaji Anjankar, P.W. 2 Shobhabai was working in his field and at that time P.W. 3 Hemlata came shouting "Shobhabai dhao, tujha mulila Janak ne marle". He further stated that Hemlata had disclosed that the deceased Jyoti was beated by an axe. This witness followed Shobhabai after about five minutes and found Jyoti dead in the chillypods on the field of Dhondabaji Bhoyar. He found that there was injury to her head and her mother was crying by taking the head of her daughter on her thigh. He names villagers such as Yadavrao Bhoyar, Morba Shriram Thakare and Damu Dahikar as being present at that time. This witness then went back to his house where he had access to his personal telephone and at about 5.15 p.m. he informed Khaparkheda Police Station about the incident.
(c) The telephone call was taken at the Khaparkheda Police Station by P.W. 9 Rajendra Upadhyaya. After making an entry in the station diary, P.S.I. Rajendra Upadhyay went along with his staff to the place of incident. He found the deceased Jyoti lying on the field with head injury. He prepared an inquest panchanama (Ex. 12) and obtained the signature of the panchas thereon. He then recorded the statement of P.W. 1 Umaji Anjankar. The P.S.I. Rajendra then kept P.S.I. Ande on the spot for preparing spot panchanama and returned to the Police Station to register the crime. The printed F.I.R. indicates that the crime was registered at 6.48 p.m. on that day. P.S.I. Rajendra then returned to the scene of the incident and recorded the statements of P.W. 2 Shobhabai and P.W. 4 Gunwantrao on 25-4-1996 itself. He thereafter sent the dead body of Jyoti to Mayo Hospital, Nagpur, for post-mortem and recorded the statements of some more witnesses.
(d) On 26-4-1996, P.W. 8 Prakash Mohite conducted post-mortem on the body of deceased Jyoti. He found an external injury on her head being a lacerated wound over left parital region eminence of size 5 cm. x 4 cm. cavity deep with underlying bone fracture. He found the underlined dura torn and the brain matter was also crushed into pieces. On internal examination, he found haematoma under scalp present in right front parital region in an area of 8 cm. x 7 cm.
(e) On 26-4-1996, P.W. 9 arrested the present accused under an arrest panchanama (Exh. 52). He seized the clothes of the accused in presence of the panchas under the Seizure panchanama (Exh. 53).
(f) On 1-5-1996, the accused made a statement in the presence of panchas that he was ready to produce an axe which he had concealed. Accordingly, P.W. 9 P.S.I. Rajendra prepared a memorandum panchanama. Thereafter, the accused took the police party to the field of one Anandrao Anjankar from where he took out an axe concealed under a mango tree. This axe was seized under a seizure panchanama.
(g) On 17-6-1996, the Investigating Officer, sent the axe under his covering letter to P.W. 8 Dr. Mohite of Mayo Hospital, Nagpur, for his opinion as to whether the injury he had mentioned in the post-mortem could be caused with the axe. On the same day, P.W. 8 Dr. Mohite, after examining the weapon, concluded that blood like stains were present over blade joint and surrounding bamboo near joint. He advised sending of the weapon for Chemical Analyser. He also clearly opined that the injury mentioned at Column No. 17 of the post-mortem notes was possible with that part of blade which formed joint and if used with substantial force.
(h) On 1-7-1996, the Investigating Officer then sent the axe with the covering letter for Chemical Analysis.
(i) On 5-2-1997, the Chemical Analyser sent his report relating to the axe concluding that no blood was found on the axe.
(j) On 27-6-1997, the Chemical Analyser sent his reports relating to other articles including the clothes of the accused and clothes and articles worn by the deceased Jyoti as also in respect of blood of Jyoti, the nail clipping, scalp hair and vaginal swab. Insofar as the clothes of accused are concerned, no blood stains were found on the shirt of the accused but one blood stain of .2 cm diameter was found on the left leg middle back portion of his pant.
(k) After completing the investigation, the Investigating Officer filed the charge-sheet. The case was committed to the Court of Sessions and after recording of evidence, the impugned judgment and order convicting and sentencing the accused as aforesaid came to be passed.
4. The contentions and submissions made by the learned Advocate for the appellant could be broadly categorized as under :
(a) That the prosecution had failed to prove the motive for the crime. The motive for the crime was pointed out firstly by P.S.I. Umaji Anjankar but in his examination-in-chief itself, he had denied that there was any love affair between the accused and the deceased Jyoti, upon which the prosecution had thought it fit to declare this witness hostile. That P.W. 2 Shobhabai, the mother of Jyoti had also talked about the activities of the accused in following the deceased Jyoti and warning and threat given to him in this regard. It was pointed out that insofar as the evidence of P.W. 2 Shobhabai was concerned, the cross-examination indicated that the entire evidence relating to such prior activities of the accused was an improvement upon the police statement of this witness recorded under section 161 of the Code of Criminal Procedure. Similarly, the prosecution version of the accused following the deceased Jyoti was also deposed to by the father of Jyoti Gunwantrao (P.W. 4), but in his cross-examination this was proved to be an improvement on his police statement. It was thus contended that there was no reliable evidence to show that the accused had any motive to kill Jyoti.
(b) It was contended that insofar as sole eye-witness P.W. 3 Hemlata was concerned, her evidence was not in consonance with the injuries found in the post-mortem notes. In her evidence, she had first talked about one blow then about 2-3 blows then about 2 blows and lastly about 4-5 blows. The contention was that only one injury was found to have been inflicted in the post-mortem report and thus, deposition of the sole eye-witness stood falsified. It was then contented that this eye-witness had categorically admitted that she was present when the police came to the spot of incident on 25-4-1996. She claimed that she had been interrogated. This fact had also been admitted by P.W. 9 P.S.I. Rajendra in his cross-examination. The argument was that if she was interrogated on 25-4-1996, the police ought to have recorded her statement on the same day. The fact that her statement was recorded on 26-4-1996, introduced an infirmity in the prosecution case and created a doubt about the veracity of the evidence given by this witness in Court. It was lastly contended that evidence of this eye witness is suffering from several material improvements which had not been specifically dealt with by the trial Court in its judgment.
(c) It was contended that the recovery of axe was a circumstance of no consequence as no blood stains were found on the axe.
(d) It was contended that insofar as the single blood stain found on the back side of the pant of the accused, the same could not be said to be a strong circumstance. The argument was that if the axe injury was caused on the head, blood stains would have splashed on the shirt of the accused but no such blood stains were found on the shirt of the accused. It was contended that no specific question was put to the accused while recording his 313 statement relating to finding of one blood stain of .2 cm. diameter on back left side of his pant. It was submitted that in such a background, this circumstance of finding one blood stain of .2 cm. diameter on back left side of the pant could not further the prosecution case.
5. The reply of the prosecutor to the aforesaid contention can be summed up as follows:
(a) As regards the lack of motive, motive lost its value as an important circumstances when an eye witness was found and deposed about the manner in which the incident occurred.
(b) That insofar as the eye-witness was concerned, the eye-witness was an independent eye-witness. The defence has not been able to give any reason as to why this eye-witness should implicate the accused Janak falsely. That the eye-witness P.W. 3 Hemlata had disclosed about the incident immediately to the mother of the deceased i.e. P.W. 2 Shobhabai, who was working in a nearby field and this fact was corroborated by Shobhabai and also by P.W. 1 Umaji Anjankar in whose field Shobhabai was working at the relevant time, which clearly indicated that the assault had been caused by the accused Janak with an axe. That the omissions were not of a nature that would render them into material contradictions.
(c) That insofar as not finding of blood stains on axe, the same could have been because of the reason that the axe could have been washed or was in any case hidden under a mango tree for a period of time or even because it had been sent to Mayo Hospital for the opinion of the doctor, prior to the sending of the same to the Chemical Analyser.
(d) That the finding of the blood stain of human nature on the pant of the accused did infact indicate the presence of the accused at the scene of the crime. It was contended that blood may not have fallen on the clothes of the accused as the accused was armed with a long handled axe and injury was caused from the blunt side of the axe.
6. We have considered the submissions of both sides, perused the entire record and given anxious thought to the matter. We find that the conviction and sentence imposed by the trial Court needs to be upheld and the appeal is required to be dismissed for the following reasons:
(a) As regards lack of motive, it is well settled that this circumstance by itself looses its value and significance if there is a believable eye witness, who throws light about the manner in which incident actually occurred in his presence.
(b) We find that the eye-witness Hemlata, who is a young girl aged about 25 years is an eminently believable witness and has been rightly believed by the trial Court. Nothing has been shown to us as to why this witness should implicate the person accused. There is no suggestion by the defence that this witness had any prior dealings with the accused or was in any way connected to the prior activities of the accused. We find that this witness upon seeing the assault had made immediate disclosure to P.W. 2 Shobhabai and P.W. 1 Umaji Anjankar. While doing so, she had categorically informed that the assailant was the present accused and had further indicated that the assault was by an axe. Such disclosure has been corroborated not only by the F.I.R. (Ex. 51) which is lodged immediately after the incident but is also corroborated by the substantial evidence of P.W. 1 Umaji Anjankar and P.W. 2 Shobhabai, mother of the deceased. No doubt this witness appears to have given different number of blows said to have been inflicted upon the deceased Jyoti. In her examination-in-chief, she first said that a single blow was given and then said 2-3 blows have been given to the deceased. In the cross-examination, she initially mentioned two blows and then mentioned 4-5- blows. The post-mortem notes indicates that there was a single blow given to the deceased. We are, however, not inclined to give much weight to this discrepancy. The incident must have been occurred in flash when it was not expected. The witness may be exaggerating. But for this reason alone, we are not inclined to dismiss her evidence in totality. The fact that the statement of this witness was not recorded on 25-4-1996 but came to be recorded on 26-4-1996 also, according to us, does not render this witness unbelievable for the reason that the record itself indicates that the Investigating Officer returned to the spot of offence after 6.48 p.m. on 25-4-1996 and was thereafter busy in sending the dead body for post-mortem as also busy in recording the statement of the parents of the deceased Jyoti. It is possible that even though this witness Hemlata was present on 25-4-1996, her statement may have been deferred to the next day on account of Investigating Officer being busy in recording of statements which he had commenced. No omissions which were of such nature as would amount to contradictions were pointed out to us.
(c) As regards none finding of blood on the axe, we find that the blood on the axe could have been lost when the axe was concealed or in the handling of the axe when the same was sent to Mayo Hospital for the opinion of the Doctor, who has conducted the post-mortem. We would like to record that the recovery of axe looses much of its significance due to none finding of blood on the alleged weapon. This circumstance further looses significance in view of the fact that the axe could not be identified by the eye-witness P.W. 3 Hemlata in the Court as being the weapon of assault.
(d) As regards not finding of blood on the shirt of the accused and finding of one stain of blood. 2 cm. diameter on his pant, in our opinion, the same does not necessarily point to lack of guilt on the part of the accused. It cannot be lost sight of the fact that the accused was arrested next day after the incident and the clothes which were sent to Chemical Analyser were clothes worn by the accused on the day of arrest. There exists a possibility that the accused could have changed his clothes. There also exists a possibility that blood may not have spouted because the injury was caused by the blunt edge of the axe.
7. The learned Advocate for the defence made a fable attempt to argue that the offence would not be of a murder but would be one punishable under section 304 Part I as being culpable homicide, not amounting to murder. He was, however, unable to pinpoint the exception under section 299 of I.P.C. under which the conviction could be reduced to fall under section 304 Part I. He also referred to two judgments. The first being in the case of Niranjan Prasad v. State of M.P., reported in 1996 Cri.L.J. 1987, in which the Apex Court on the facts of the case allowed an appeal against conviction in an offence of murder on the ground that the testimony of the eye-witnesses was to the effect that the deceased and injured were assaulted with sharp cutting weapon but was not corroborated by medical evidence which indicated that the deceased was injured by blunt weapon only. In our opinion, this ruling will not apply to the present case. In the present case, the sole eye-witness does not indicate as to whether the injury was caused by the sharp edge of the axe or by its blunt ends. The doctor has clearly opined that this injury was possible from the side of the weapon where the blade had a joint. To our mind, this could only mean that the injury was possible from the blunt part of the blade, other than its sharp side.
8. The learned Advocate for the defence also referred to a judgment of the Apex Court in the case of G.B. Patel v. State of Maharashtra, , where in the Apex Court has held in the facts of that case that the delay of a few hours, simpliciter, in recording the statements of any eye-witnesses by itself may not be a serious infirmity in the prosecution case, but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. We do not find any such suspicious circumstances in the present case.
9. In the result, criminal appeal is dismissed and the conviction and sentence imposed upon the appellant by the trial Court is confirmed.