Presently Lodged At Yerawada vs The State Of Maharashtra
2010 Latest Caselaw 273 Bom

                                         1               CRI-APPEAL-260-05.sxw


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                             
                    CRIMINAL APPEAL NO. 260 OF 2005




                                                     
    Sunil Vithal Shirke                   ]
    Convict No. C/                        ]




                                                    
    Presently lodged at Yerawada          ]
    Central Prison, Pune                  ]..Appellant/Accused

                  versus




                                             
    The State of Maharashtra              ]     ..Respondents
                           
    Mrs. Pranali Kakade - Advocate appointed for Appellant / Accused.
                          
    Mrs. A. S. Pai - Additional Public Prosecutor for Respondents - State.


                                CORAM : D. D. SINHA AND
           


                                        SMT. V. K.TAHILRAMANI, JJ.

Date of Reserving the Judgment : 26.11.2010 Date of Pronouncing the Judgment : 10.12.2010

JUDGMENT : (Per : D. D. Sinha, J.)

1. Heard the learned counsel for the appellant and the learned Additional

Public Prosecutor for the respondents - State.

2. The appellant being aggrieved by the judgment and order dated 13th

April, 2004 passed by the Sessions Judge, Pune, whereby he has been

convicted for the offence punishable under Sections 302, 324 and 504 of

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the Indian Penal Code as well as order of imposition of fine, preferred the

present appeal impugning the said judgment and order passed by the trial

court.

3. The prosecution case in nutshell is as follows:-

Complainant Sunderabai (P.W. 1) was working as maid servant and

was residing in one of the rooms in the wada at Pune along with her son

Chandrakant (P.W. 2), daughter Rita, daughter-in-law Vandana and grand

children. The appellant was living with his wife and children in the

adjoining room. He was a rickshaw puller. On 9th April 2001 Sunderabai

returned to her house at about 12.30 p.m. Her daughter-in-law also returned

to the house shortly thereafter. Vandana told Sunderabai (complainant) that

appellant was giving abuses to deceased Ramesh Limhan and Chandrakant

outside the wada. At about 2.30 p.m. complainant and her daughter-in-law

Vandana were chitchatting outside their house. Appellant was sleeping

outside his house on the floor mat. At that time Chandrakant (P.W. 2) and

deceased Ramesh came there and asked the appellant why was he abusing

them. Thereupon the appellant started scuffle with them and while scuffle

was going on, took out a knife which was concealed under the pillow and

dealt blow with the said knife on the stomach of deceased Ramesh.

Deceased Ramesh sustained bleeding injury and fell down on the ground.

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The appellant also inflicted knife blow on the left side of waist of

Chandrakant. Complainant intervened to pacify the quarrel, however she

also sustained bleeding injuries to the thumb and two fingers of right hand.

The appellant thereafter ran away from the spot. The brother of deceased

Ramesh P.W. 3 Rajesh came on the spot, took Ramesh to Sassoon Hospital

in a rickshaw, however, Ramesh was declared dead by doctor at the hospital.

Complainant was also referred to Sassoon Hospital for treatment. On receipt

of the information about the incident P.W. 8 P.I. Poman and Senior Police

Inspector went to the scene of offence with the staff. When the police went

to Sassoon Hospital they came to know that Ramesh was declared dead by

doctor. P.W. 1 Sunderabai lodged the complaint, on the basis of which

F.I.R. was registered against the appellant for the offences punishable

under Sections 302, 324, 323 and 504 of the Indian Penal Code coupled

with Section 25(3) of Arms Act and Section 37(1) read with 135 of the

Bombay Police Act. On completion of investigation, charge sheet came to

be filed against the appellant. Charge was framed and explained to the

appellant who pleaded not guilty and claimed to be tried. The trial court

convicted the appellant for the offence punishable under Section 302 and

sentenced him to suffer imprisonment for life; and for offence punishable

under Section 324 of the Code the appellant is sentenced to suffer R.I for

one year, and for offence punishable under Section 504 of the Code the

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appellant was sentenced to suffer R.I. for three months. Fine was also

imposed by the trial court on each count. Being aggrieved by the same, the

appellant filed the present appeal.

4. The prosecution examined number of witnesses to bring home the

guilt of the appellant. However, the material evidence is of P.W. 1

Sunderabai (the complainant), P.W. 2 Chandrakant, both were examined as

eye witness to the incident, P.W. 3 Rajesh (brother of the deceased). The

evidence of P.W. 3 Rajesh shows that on the day of the incident at about 2

to 2.30 p.m. he came to know that his brother Ramesh was injured in a

fight, hence, he went to the place of incident, took Ramesh to the hospital

for treatment. At the hospital, doctor declared him dead. It has also come in

the evidence of this witness that he went to the spot of incident, he saw the

appellant running away with the knife in his hand from the spot of incident.

He has identified shirt article 6 and pant article 8 which belonged to a

deceased and baniyan article 7 and half pant article 10 which belonged to

the appellant. These clothes were on the person of the appellant at the time

of incident. He has also identified knife article 12. The other important

evidence adduced by the prosecution is of P.W. 5 Dr. Suresh who has

examined P.W. 1 and issued injury certificate and P.W. 9 Dr. Hanumant who

had examined P.W. 2 Chandrakant and issued injury certificate. P.W. 6 Dr.

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Belsare was examined by the prosecution to prove the post-mortem report.

5. The learned counsel for the appellant has contended that the evidence

of complainant P.W. 1 Sunderabai as well as P.W. 2 Chandrakant is wholly

inadequate to demonstrate motive behind the crime. As per the prosecution

case at the relevant time the appellant was sleeping on the floor mat. P.W. 2

Chandrakant and deceased Ramesh came at the spot where the appellant

was sleeping and when they asked the appellant why was he abusing them,

the appellant all of a sudden took out the knife and assaulted them. It is

contended that there was no apparent reason for the appellant to assault the

deceased and the other prosecution witnesses. The prosecution case

disclosed by P.W. 1 complainant and P.W. 2 Chandrakant does not appear to

be truthful and reliable. It is further contended that the evidence of P.W. 3

Rajesh (brother of the deceased) is also not truthful. P.W. 3 Rajesh reached

the place of incident after he came to know about the assault and therefore

his claim that when he reached the place of incident, he saw appellant

running away from the scene of offence with the knife article 12 is a

concocted story and therefore his evidence is wholly unreliable. The learned

counsel for the appellant has submitted that the other evidence adduced by

the prosecution is of three doctors and therefore, that by itself does not

improve the case of the prosecution when the evidence of eye witnesses is

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unreliable and untrustworthy.

6. The learned Additional Public Prosecutor on the other hand has

supported the impugned judgment and order of conviction passed by the

trial court and contended that the evidence of complainant P.W. 1

Sunderabai and another eye witness P.W. 2 Chandrakant coupled with the

evidence of medical officers, Dr. Suresh, Dr. Belsare and Dr. Hanumant, the

prosecution succeeded in bringing home the guilt of the appellant. It was

contended that apart from the ocular testimony of eye witnesses, the other

corroborative piece of evidence is the chemical analyser's report which

show that the clothes of the appellant as well as knife were stained with

blood of human origin. It is therefore contended that the appeal suffers from

lack of merit and liable to be dismissed.

7. We have given anxious thought to the contentions canvassed by the

learned counsels for the parties and carefully scrutinised the prosecution

evidence. In the instant case P.W. 1 is a complainant as well as eye witness

to the incident, P.W. 2 Chandrakant is examined by the prosecution as an

eye witness to the incident. Both these witnesses were injured in the

incident. At this stage, it will be appropriate to consider the evidence of eye

witnesses those who were also injured in the incident.

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8. P.W. 1 Sunderabai in her examination-in-chief has stated that at the

relevant time her son P.W. 2 Chandrakant returned to the house. At that time

the appellant was sleeping in front of his house on the floor mat. The

appellant went to him and asked him why was he abusing him. The

appellant got angry and started quarreling with P.W. 2 Chandrakant. Scuffle

ensued between them. The appellant took out long knife (sura) which was

kept under pillow and gave blows on the person of the deceased with the

said knife. The deceased sustained injuries on his stomach and chest and

fell down on the ground. It has come in the evidence of P.W. 1 complainant

that after Ramesh fell down she tried to intervene to rescue her son

Chandrakant, at that time she also sustained injuries to her fingers of right

hand and her son Chandrakant P.W. 2 also sustained injury on account of

blow given by the appellant by knife. This witness further stated that she

immediately thereafter went to police chowky and lodged the report. The

cross-examination of complainant shows that defence has not seriously

disputed the incident of assault. This witness has admitted in the cross-

examination that incident lasted for 10 to 15 minutes. The omissions in the

police statement of this witness brought on record in her cross-examination,

in our view, are not of material nature and therefore those omissions are

wholly inadequate to affect the veracity of the testimony of this witness. It is

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pertinent to note that the complainant is injured witness and lodged the first

information report almost immediately after the assault, which, in our view

ruled out possibility of concoction and fabrication and in absence of any

material omission and contradiction, the evidence of complainant appears to

be trustworthy and is consistent with the material particulars of the

prosecution case disclosed by the complainant in the first information

report as well as other eye witness.

9.

P.W. 2 Chandrakant is the another eye witness examined by the

prosecution who was also seriously injured in the incident by the appellant.

It has come in the examination-in-chief of P.W. 2 that when this witness

along with deceased Ramesh went to the appellant and questioned him as to

why was he abusing them, scuffle ensued between them. Deceased Ramesh

intervened in the scuffle. At that time the appellant took out knife and dealt

blow on the stomach and waist of deceased Ramesh. This witness has also

stated in his evidence that appellant also assaulted him with knife. It has

also come in the evidence of this witness that mother of this witness, the

complainant, intervened to rescue him. She also sustained injuries to her

thumb, index and middle fingers on account of knife blow given by the

appellant. The tenor of the cross-examination of this witness conducted by

the defence also demonstrates that the incident of assault was not seriously

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disputed by the defence. It has come in the cross-examination of this witness

that the incident lasted for 15 to 20 minutes. There was a scuffle ensued

between the appellant and this witness and at that time deceased Ramesh

intervened. This witness has admitted in the cross-examination that the

appellant had taken out knife which was under his pillow and the incident

took place at about 2.30 p.m. The omission brought out in the cross-

examination of this witness, in our view, is not a material omission. The

evidence of this witness is cogent and trustworthy.

10. P.W. 5 Dr. Suresh has examined P.W. 1 complainant and found

following injuries:

1. Abrasion right thumb ½ cm x ½ cm

2. Abrasion right index finger ½ cm x ½ cm

3. Abrasion right middle finger ½ cm x ½ cm

The medical officer has opined that the said injuries were caused by a hard

and blunt object like article no. 12, within six hours of the examination.

Defence could not get anything worthwhile to discredit the testimony of this

witness. Similarly P.W. 9 Hanumant has examined P.W. 2 Chandrakant and

found stab wound over left iliac fassa 2 cms x 1 cm. Doctor also noticed that

there was a peritronial breach 5 cms above left anterior superior iliac

spine. The doctor opined that injury was grievous in nature and was

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caused by sharp edged weapon. Injury certificate issued by the doctor is at

Exhibit 35. The evidence of medical officers Dr. Suresh and Dr. Hanumant

completely corroborates the evidence of complainant P.W. 1 Sunderabai

and P.W. 2 Chandrakant.

11. Dr. Belsare (P.W. 6) has conducted post-mortem examination on the

dead body of deceased Ramesh and found following external injuries:

1. Stab injury on mid-line of abdomen 3 ½ inches above umbilicus, 2 x

¾ inches, perforating the abdominal cavity, sharp margins and

pointed ends.

2. Stab injury on left lateral aspect 6 and ½ inches below the axillary, 2

x ½ x 1 inches. Sharp margins, pointed ends.

3. Abrasion on left cheek ½ x ½ inches.

4. 2 linear abrasion on left side of neck, 1 x ¼ inches each.

5. Abrasion on left shoulder, 1 x ½ x ½ inches.

As per the opinion of Dr. Belsare cause of death of deceased Ramesh was

shock due to stab injuries on chest and abdomen.

12. In the instant case the medical evidence completely corroborates the

prosecution case disclosed by the complainant P.W. 1 Sunderabai, as well as

P.W. 2 Chandrakant coupled with the other circumstantial evidence brought

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on record by the prosecution, we are of the view that the prosecution has

succeeded in bringing home the guilt of the appellant for the offences

charged beyond all reasonable doubts.

13. The learned counsel for the appellant has alternatively contended that

even if it is assumed that the appellant in a sudden fight and without

premeditation in heat of passion inflicted injury on the person of deceased

even then the offence committed by the appellant could not be punishable

under Section 302 of the Indian Penal Code but would be punishable either

under Section 304 (Part I) or (Part II). The contention canvassed by the

learned counsel for the appellant is difficult for us to accept in view of the

following aspects :

(a) The weapon used by the appellant was a deadly weapon i.e.

knife;

(b) The injuries sustained by the deceased Ramesh were on the vital

part of the body;

(c) The injuries were serious injuries inflicted with the deadly

weapon by applying force;

(d) P.W. 1 Sunderabai (complainant) and P. W. 2 Chandrakant

when tried to intervene also sustained multiple injuries. Some

of them were of grievous nature.

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14. Taking into consideration the above referred aspects, we have no

hesitation to hold that the offence committed by the appellant falls within

the ambit of Section 300 (2ndly) of the Indian Penal Code and therefore

same is punishable under Section 302 of the Indian Penal Code. The

contention of the learned counsel for the appellant canvassed in this regard

is devoid of substance and therefore rejected.

15. The impugned judgment and order passed by the trial court, in our

view, is just and proper, needs no interference. Hence, criminal appeal is

dismissed.

(D. D. SINHA, J.)

(SMT. V. K. TAHILRAMANI,J.)