Raju Balkrishna Bhise vs The State Of Maharashtra
2003 Latest Caselaw 226 Bom

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment dated 12.10.1999 passed by the Additional Sessions Judge, Pune in Sessions Case No. 303 of 1995 convicting the appellant-accused under Section 302 of Indian Penal Code to suffer rigorous imprisonment for life this appeal is filed on the ground as mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the appellant-accused.

2. The prosecution story stated briefly is that: On 27.3.1995 around 11.45 p.m. near Jan Mohamed Street, Lashkar, Pune the accused Raju launched a murderous attach on deceased Razak Makbul Maniyar by knife as a result of the injuries the victim died in the hospital. On a complaint being filed which was registered as First Information Report investigation was commenced and the accused was prosecuted for the offence of murder. The prosecution examined 11 witnesses to prove its case. The Investigating Officer and other police involved have also been examined amongst those 11 witnesses to prove various documents executed in the presence of witnesses by the police.

3. The learned trial Judge on appreciation of oral as well as documentary evidence came to the conclusion of guilt and accordingly convicted the accused as aforesaid. It is this order which is impugned in this appeal on the grounds mentioned in the memo of appeal as also canvassed by the learned advocate Mrs. Agarwal for the appellant. With the assistance of the learned counsel for the appellant and the learned Public Prosecutor we have scrutinized the record and reappreciated the evidence. The submissions made by Mrs. Agarwal to put in nut shell are that (i) the prosecution has not led the correct version of the entire incident before the Court and therefore the evidence is not complete and cannot therefore form basis for such conviction; (ii) the eye witnesses on which reliance has been placed by the learned Judge are wholly unreliable because of contradictions which were pointed out by her: (iii) even if the prosecution evidence is considered carefully it will be seen that eye witnesses could not have seen the assault at all the therefore reasonable doubt arises as to who was the assailant. In the absence of any concrete proof that the accused was the assailant conviction is unsustainable in law.

4. P.W.3-Abdul Maniyar who is an eye witness who has described the assault according to the learned counsel is liable to be disbelieved because his entire conduct is unnatural. He is related to the deceased and it is highly improbable that such relation would simply walk away from the scene of assault leaving the injured to suffer. If the evidence of this witness is ignored there remains no evidence on record on which the conviction can be sustained because P.W.6-Mehboob Qureshi is obviously a chance witness or go up witness. For all these reasons learned counsel submitted that the judgment of conviction is liable to be set aside. These arguments were countered by learned Public Prosecutor who pointed out from evidence of P.Ws.3 and 6 that the eye witness account given by P.W.3 is duly corroborated by P.W.6 and the blood collection test etc. prove that the oral testimony of these eye witnesses is liable to be accepted as correct. It was therefore submitted by learned Public Prosecutor that the judgment is correct.

5. We have to appreciate rival contentions in the light of evidence as reappreciated by us. P.W.1-Or. Shrikant Chandekar is Doctor who conducted post mortem, proved post mortem report. He has proved homicidal death of the victim. There can be no doubt that the death of the victim was homicidal. The only question which consequently remains is whether that homicidal death was committed by accused only. P.W.2-Prakash Yadav is panch witness but he has turned hostile. He has stated that he has only signed the panchnama and has denied everything stated in toto. He was panch to spot panchnama. However nothing turns on proof of spot panchnama. Even if it is proved it cannot be substantial piece of evidence for sustaining conviction.

6. P.W.3-Abdul Maniyar is an eye witness and relation of the victim deceased. In fact he is elder brother of the deceased. He has deposed that he knows the accused since childhood. According to this witness the incident took place on 27.3.1995 at about 11.45 p.m. when he was present at Jan Mohamad Street near street No. 11 at the corner. According to the witness one Bashir Shaikh was also present with him. He saw one Premnath Kamble and deceased Rajjak passing by side of Ambedkar Bhavan proceeding towards Babajan Chowk around 11.45 p.m. At that time he saw the accused coming near the corner of lane No. 11, he was holding a knife with which he assaulted the victim causing severe injuries on his person and then after the victim collapsed accused ran away towards the lane No. 16. The witness goes on to depose that then he and Bashir ran towards the victim lying on the ground when Premnath Kamble took the victim to Sasoon Hospital which is nearby by an auto rickshaw and the witness went home informed his parents and went to the police chowky but police did not take complaint immediately therefore he went to hospital. The victim died within 1/2 and hour of admission. The shirt of witness got blood stains because he lifted the victim and put him in auto rickshaw and he therefore went to police and gave his report. His shirt stained with blood was attached under a panchnama. He describes that the accused was wearing black pant, cream colour shirt and the handle of the knife was yellow in colour. He has identified the clothes and the knife. He has also identified the shirt and pant worn by the accused at the time of assault. Certain omissions were brought out in the cross examination. The learned counsel appearing for the accused heavily criticized this witness and relied upon the omissions and certain statements made by the witness and contended that he may not be believed. The omission according to her was not mentioning of the fact that the accused was holding a knife in the right hand in the police statement recorded earlier. He may have said so earlier or may not have said so also. It hardly has any bearing on the issue. He was deposing to a gruesome act result of which was death of his brother. Such scraps are natural. Our attention was drawn to page 88 where the witness in his examination in chief says that "My shirt was removed as there were blood stains which was attached under the panchnama." And then it was pointed out by learned counsel that i para 3 he states that "there was full light at the spot and I have seen this incident in the light. Then I came to police chowky." The argument was that he speaks of his shirt being attached under a panchnama before he talks of going to police chowky. The seizure or attachment cannot take place unless one goes to police chowky therefore it must come after his going to police chowky. Therefore his entire statement is liable to be rejected. We are unable to accept this submission for the simple reason that there can be mistake in narration. Witness was narrating as to how his brother died and assaulted and then taken to hospital where he died and then says that his shirt which was blood stained was seized. He then identifies the colour of the clothes of accused proves Exh.56, proceeds to identify knife as also the clothes. There is nothing unnatural in such mistakes occurring in the narration. This cannot be a reason for disbelieving the witness.

7. The evidence of this witness is duly corroborated by P.W.6-Mehboob Qureshi. He states that at the time when incident took place he had come to Babajan Chowk for chewing pan. He was chit chatting with friend near Ambedkar Sanskrutik Bhavan when he saw the accused assaulting the deceased. He also mentions of the presence of Abdul Bashir there. He saw Abdul Bashir carrying the injured to Sasoon Hospital and he went home. He has also said that handle of the knife was yellow. The testimony of this witness is heavily criticized by the learned counsel by submitting tat conduct of this witness was highly unnatural. Admittedly he was maternal uncle of the deceased and it is inconceivable that the maternal uncle would leave the injured nephew to suffer and walk away home and tell about it to nobody. Therefore according to her this witness is obviously got up and therefore should be ignored totally. We are unable to accept the submission for the simple reason that the knife has been recovered and proved by P.W.3 and it is proved that handle of the knife was yellow as deposed to by this witness. There is therefore corroboration to each material statement made by this witness. This witness says that P.W.3 was present. He says that Abdul and Bashir took the victim to the hospital. Factually it is Bashir and Premnath who took the victim to the hospital and Abdul assisted them in putting the victim into rickshaw. In the absence of fruitful cross examination as to the nature of relationship between the two this criticism would take us nowhere. The only question is what is the relationship between this witness and the deceased and the answer is they are sons of his sister. The entire cross examination thereafter is directed to show that the accused did not see factual assault. His son disclosure of incident to the police is used as circumstances to disbelieve him. According to the learned counsel such conduct is improbable. A person who sees his nephew is assaulted is bound to go police and narrate what he has seen. If the relationship was cordial as alleged by the learned counsel the witness knew that Abdul Bashir had gone to the police and given FIR and on which investigation started therefore there was no need for immediate disclosure of the incident to the police all over again by this witness. In view of the fact that the material facts stated by the witness are duly corroborated by testimony of P.W.3 as also identification of knife we see no reason to disbelieve this witness.

8. Exh. 56 is the panchnama dated 28.3.1995. It speaks of seizure of clothes worn by the accused. The shirt was cream colour and the pant was black, the knife was having yellow handle. It was blood stained. This document is duly proved by P.w.9-Peter Lobo Addl. Police Inspector. He has deposed that he effected the arrest of the accused around 2.00 O'clock and seized clothes from his person. Knife was also found from the place where the accused found sleeping i.e. behind the temple. The witness states that he had gone to Keshavnagar for getting whereabouts of the accused at about 2.00 a.m. The accused was not present at Keshavnagar at the house of his father. Then they saw one person sleeping at backside of the temple who was identified by the police to be the accused and they he arrested the accused who at that time was wearing cream colored shirt and black pant. this is reflected in the panchnama and it is duly proved by the accused. P.W.5-Raju Jaiswal who was witness to this panchnama has turned hostile. This document is executed by P.W.9 and execution of which was witnessed by P.W.5. Merely because P.W.5 is hostile and denies its execution the maker of it testifies and proves execution thereof. The hostility of one P.W. becomes inconsequential. Attempt was made by the learned counsel to seek that this witness also be disbelieved by saying that the accused would not commit murder and go to sleep behind temple wearing clothes with blood stained and take knife below his head as pillow. Such conduct is highly improbable on the part of killer and therefore entire thing is got up. the fact that there was an arrest cannot be denied. The fact that there is seizure of the clothes with blood stained cannot be denied. The only reason according to the learned counsel why it should be discarded is that there were no proper seals on the packet of clothes and therefore it could be a subsequent plan. Even this submission is also not acceptable to us for the reason that there is ample evidence to show that there was seal to the packet of clothes.

9. We have thus dealt with the contentions raised by the learned counsel for the appellant while reappreciating the evidence which according to us is acceptable i.e. evidence of P.W.1-Abdul an eye witness corroborated by P.W.6 another eye witness and contemporaneous documents executed by P.W.9-Police Inspector. Eye witness described the colour of the handle of the knife. One eye witness described clothes of the accused. Those clothes are recovered from accused. The death is homicidal as mentioned by P.W.1. In our opinion therefore the contention of the learned public prosecutor that there is enough material on record in the shape of evidence of witnesses i.e. P.Ws. 6 and 9 as also the panchas relating to seizure of knife ]and clothes to sustain the order of conviction and sentence. In our opinion, therefore there is no substance in this appeal and the same is liable to be dismissed. It is accordingly dismissed.