Bombay High Court

Jagadish Anant Narvekar vs The State Of Maharashtra on 27 October, 2010

Bench: D.D. Sinha, A.P. Bhangale

                                          1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                              
                    CRIMINAL APPEAL NO. 255 OF 2005




                                                      
    Jagadish Anant Narvekar                     ]
    At present in Nasik Road Central Prison     ]..Appellant/
    Nasik 422 101                               ] Accused




                                                     
          versus

    The State of Maharashtra                    ]..Respondents




                                             
                           
    Mrs. Rohini Dandekar - Advocate appointed for Appellant/ Accused.
    Mrs. A. S. Pai - Additional Public Prosecutor for Respondents - State.
                          
                                         CORAM : D. D. SINHA AND
                                                 A. P. BHANGALE, JJ.

DATED : OCTOBER 27, 2010.

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

1. Heard the learned counsel for the appellant/ accused and the learned

Additional Public Prosecutor for the respondents - State.

2. The Criminal Appeal is directed against the Judgment and Order

dated 6th May 2004 passed by the Additional Sessions Judge, Greater

Mumbai, whereby the appellant / accused came to be convicted for the

offence punishable under Section 302 of the Indian Penal Code and was

sentenced to suffer rigorous imprisonment for life.

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

On the night intervening 17th May 2003 and 18th May 2003 it is

alleged that the present appellant committed murder of his aunt Sarita by

use of a chopper. The appellant was apprehended on the spot and the

weapon of offence i.e. chopper was seized from him on the spot. The

Investigating Officer conducted inquest panchnama, spot panchnama and on

completion of other formal investigation the charge sheet came to be filed

in the competent criminal court. Charge was framed against the appellant

which was explained and read over to him. The appellant pleaded not guilty

and claim to be tried.

4. The prosecution case is based on the evidence of P.W. 1 Virendra

Ramakant Narvekar, P.W. 2 Shyam Ramakant Narvekar and P.W. 3

Subhash Bajrang Dhanawade coupled with the medical evidence in the

form of post-mortem report as well as chemical analyser's report.

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

adduced by the prosecution is wholly inadequate to prove the charge of

murder against the accused beyond all reasonable doubts. It is contended

that there are no eye witnesses to the incident in question and the witnesses

who are examined by the prosecution i.e. P.W. 1 Virendra and P.W. 2

Shyam are highly interested witnesses and therefore their testimony needs to

be scrutinized with care and caution. It is further contended that both the

witnesses reached the scene of offence after the incident of assault had taken

place and therefore their testimony is of no help to the prosecution in respect

of the assault alleged to have been committed by the appellant. It is

submitted that the prosecution failed to prove any motive for commission of

a crime in question. The appellant is related to P.W. 1 and P.W. 2 as well as

deceased Sarita and in absence of strong motive, it is difficult to rely on the

case of the prosecution to hold that the appellant is the author of the injuries

sustained by the deceased.

6. The learned counsel further contended that though there was a blood

found on the weapon of offence as well as clothes of the accused, however

that was of human origin only and the blood group could not be detected

and therefore this cannot be an incriminating circumstance against the

appellant, who was admittedly residing in the same house and was present at

the time of the incident in the house. It is contended that so far as medical

evidence is concerned it only establishes the nature of the injuries sustained

by the deceased and probable cause of death. The medical evidence by

itself is of no help to establish who is the author of those injuries. It is for

the prosecution to adduce independent, cogent and reliable evidence in order

to establish who was the author of the injuries sustained by the deceased. In

the instant case the evidence available on record is not sufficient to prove

the charge of murder against the appellant beyond all reasonable doubts. In

the circumstances, the findings of conviction recorded by the trial court are

liable to be quashed and set aside.

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

supported the judgment and order of conviction passed by the trial court.

The learned Additional Public Prosecutor has submitted that the prosecution

has examined five witnesses, however, the material evidence is of P.W. 1

Virendra, P.W. 2 Shyam and P.W. 3 Subhash. It is further contended that

apart from the ocular testimony of these witnesses there is a medical

evidence which corroborates the case of the prosecution and the chemical

analyser's report demonstrates that the weapon of offence as well as the

clothes of the appellant were stained with blood of human origin. The

learned Additional Public Prosecutor has submitted that at the relevant time

the appellant was residing with the prosecution witnesses P.W.1 and P.W2 in

the same house. It is contended that the evidence of both these witnesses

P.W. 1 and P.W. 2 establishes the presence of the appellant at the relevant

time in the room who was armed with weapon of offence i.e. chopper. The

testimony of these witnesses further shows that they saw their mother

deceased Sarita was lying on the ground in an injured condition. The

evidence of panch witness would show that there was a blood on the floor as

well as walls of the room. The learned Additional Public Prosecutor has

submitted that considering the totality of the evidence adduced by the

prosecution coupled with the medical evidence as well as the chemical

analyser's report, the trial court was justified in concluding that the

prosecution succeeded in bringing home the guilt of the accused for the

offence of murder.

8. We have considered the contentions canvassed by the learned counsel

for the appellant and the learned Additional Public Prosecutor for the State

and also scrutinized the entire evidence adduced by the prosecution.

9. So far as the evidence of P.W. 1 Virendra is concerned, it has come in

his examination-in-chief that the appellant / accused is the cousin of the

witness and the deceased Sarita was his mother. The appellant was staying

with them in the same house since his childhood. The appellant was

addicted to "toddy"; that the appellant was a lazy fellow, did not want to do

any job and therefore deceased used to tell him that he must do some job

and earn money. On account of this aspect there used to be arguments

between the deceased and the appellant. P.W. 1 has stated in his testimony

that sometime prior to the incident, the appellant purchased chopper and

when he was asked as to why did he purchase the chopper, he informed that

he would like to start business of sale of fish. In the examination-in-chief of

this witness it has come that on 18th May 2003, this witness, appellant,

Sarita (deceased) were sleeping in the house in question. This witness got up

from the bed on seeing something unusual happened, at that time the

appellant who was awake who pushed this witness towards the bed. This

witness switched on the light and saw that his mother Sarita was seriously

injured. The appellant tried to attack this witness but he somehow saved

himself from the attack and started shouting that his mother was killed. It is

the prosecution case that on account of shouts, his father got up, this witness

and his father caught hold of the appellant and took away chopper from his

hand. Police was contacted. Doctor came and examined Sarita. On

examining Sarita doctor declared her dead. While going through the cross-

examination of this witness, the material particulars of the prosecution case

disclosed by this witness in his ocular testimony are not affected. On the

other hand it has come in the cross-examination of this witness that there

used to be quarrel because of his laziness and drinking habits. It has also

come in the cross-examination that the appellant purchased chopper 4 to 5

days prior to the day of incident. This witness has further stated in his cross-

examination that on the day of the incident his younger brother P.W. 2

slapped the appellant/ accused as he abused his mother deceased Sarita.

This witness has admitted in the cross that the appellant Jagadish and he

slept on the same cot in the night on the day of the incident. This witness

has fairly admitted that he did not see the actual assault committed by the

appellant.

10. There are no omissions or contradictions brought on record by the

defence so far as the evidence of P.W. 1 Virendra is concerned. On the other

hand the testimony of this witness appears to be straightforward. This

witness has fairly admitted that he did not witness the actual incident of

assault which shows that the evidence of this witness is genuine and

straightforward. The testimony of this witness clearly establishes the

presence of the appellant at the time of assault in the room where the

incident had taken place. It is pertinent to note that the appellant was caught

red handed by this witness with the help of his father and at that time the

appellant was armed with chopper which was seized by this witness. The

testimony of this witness demonstrates that when he switched on the light he

saw his mother Sarita in an injured condition as well as accused armed with

chopper. The evidence of this witness therefore demonstrates the presence

of the appellant at the time of the incident who was armed with chopper and

deceased Sarita was lying on the ground in a seriously injured condition. It

is necessary to consider the other prosecution evidence in order to find out

whether the prosecution has succeeded in bringing home the guilt of the

accused for commission of murder of Sarita.

11. P.W. 2 Shyam is the younger brother of P.W. 1. He has stated in his

examination-in-chief that the appellant at the relevant time was residing

with his family. This witness has also stated that appellant was a lazy fellow

and did not like to do any job and was also addicted to drink "toddy". It has

come in his testimony that this witness as well as his family members tried

to persuade the appellant to do some job and earn some money. This

witness has stated that on 17th May 2003 at about 9.00 p.m. appellant came

home drunk and abused the mother of this witness Sarita. This witness got

angry and slapped the appellant. The appellant became furious and

threatened this witness as well as the other family members that he will see

them. P.W. 2 has further stated in his examination-in-chief that at about

4.45 a.m. on 18th May 2003 he was woken up by one Poojari, his neighbour

and informed him that the appellant has created some problem in his house

and therefore this witness rushed towards his house. When he entered in the

house he saw his mother Sarita was injured and was lying in the pool of

blood. He also saw P.W. 1 Virendra and other family members caught hold

of appellant Jagadish who was armed with weapon. He has identified

weapon Article '1' as the same weapon which was in the hand of the

appellant. While going through the cross-examination of this witness, we

have noticed that fact of appellant addicted to drinks has been reaffirmed

and the defence could not extract any material which would affect the

veracity of the testimony of this witness. This witness in his cross-

examination has also fairly admitted that he did not see the actual assault

committed by the appellant on his mother Sarita. The totality of the

evidence of P.W. 2 Shyam, in our view, is straightforward which establishes

presence of the appellant at the time of incident in the house, presence of

Sarita (deceased) and the appellant who was caught on the spot by P.W. 1

Virendra and others and was armed with chopper. This witness has also seen

his mother Sarita at the relevant time was injured and lying in the pool of

blood inside the room.

12.

P.W. 3 Subhash is a panch witness examined by the prosecution to

prove enquest panchnama, spot panchnama, seizure of chopper and clothes

of the appellant / accused. The defence has not cross-examined this witness.

The evidence of this witness shows that deceased Sarita suffered only one

injury on her neck, there was a blood on the spot as well as on the walls of

the room.

13. In the instant case the post mortem report Exhibit 14 has been

admitted by the defence. Column 17 of the post mortem report shows that

the deceased suffered following external injuries:

1) I/W, 10 cm x 3 cm x muscle deep on rt. side of neck below angle of

mandible cutting stereo cho-mastoid muscle x rt. carotid full of

clotted blood.