Raju @ Rajan Kartaiya Harijan vs The State Of Maharashtra
2012 Latest Caselaw 452 Bom

PPD

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                                                                 APEAL.745-05JUDGMENT.doc




                                                                                
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                        
                         CRIMINAL APPEAL NO.745 OF 2005




                                                       
      Raju @ Rajan Kartaiya Harijan,                ]
      Convict No.C/5136,                            ]
      Nasik Road Central Prison.                    ] ..Appellant




                                         
                                                    [Orig.Accused]
                Versus     
      The State of Maharashtra                      ] ..Respondent
                                         ....
                          
      Mr. Arfan Sait,  Advocate (appointed) for the Appellant.
      Mrs. Shilpa Gajare - Dhumal,  APP for the Respondent - State.
        

                                         ....
                              CORAM :   SMT. V. K. TAHILRAMANI, &  
     



                                         A. R.  JOSHI,  JJ. 

DATE : 06th DECEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival submissions on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order of conviction dated 21 st October, 2004

passed by the Additional Sessions Judge, Greater Mumbai in

Sessions Case No.432 of 2002. By the impugned judgment and

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order the appellant/accused was convicted for the offence

punishable under Section 302 of IPC and was sentenced to suffer

imprisonment for life and to pay fine of Rs.1000/-, in default to

suffer SI for six months. Appellant/accused was acquitted of the

offence punishable under Section 37 read with Section 135 of

the Bombay Police Act.

2. The case of the prosecution, in nutshell, is as under :-

Victim Muttayya was residing in Dharavi area along

with his family members including his eldest daughter by name

Chandrika, his son then aged about 13 years one Prabhu

Muttayya (PW-1) and another daughter Lalita and his wife.

Appellant/accused Raju @ Rajan Harijan was residing in the

same locality of Dharavi, Mumbai. Said appellant/accused was

known to one G. Shrinivasagam Pallar (PW-2), Singyaraj (PW-3)

and Babu Harijan (PW-4).

3. According to case of prosecution, appellant/accused

Raju was teasing Chandrika - elder daughter of victim Muttayya.

At times, he used to caught hold of her hands and was trying to

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molest her. He was making gestures for getting sexual favours

and also at times was giving flowers to her. Chandrika was not

responding to such advances of appellant/accused. At times, she

had told him that she would teach him a lesson by slapping with

the help of foot-wear. Apparently due to this situation

appellant/accused was enraged with said Chandrika and also

with her family members. The incident happened at about 11:30

p.m. or so on 1.1.2002. On that night at 9:00 p.m. victim

Muttayya had closed down his stall of vending vada pav & tea

etc. and he was proceeding to his house. That time his two

daughters and son Prabhu (PW-1) were accompanying him.

That time appellant/accused accosted them and he obstructed

the way of Muttayya on the road. Earlier to this incident,

apparently there was reprimanding of appellant/accused by

Muttayya due to eve teasing incident and that time Muttayya

had warned him not to indulge in such activities again or

otherwise Muttayya would teach him a lesson. As such on this

background, on the night of fateful incident appellant/accused

obstructed victim Muttayya and told him to do what the victim

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had earlier threatened by cutting the hands of

appellant/accused. That time apparently appellant/accused was

well equipped with the weapon of assault i.e. a chopper/big

knife. Said weapon was tucked near the waist under the lungi

worn by appellant/accused. There was an altercation between

victim and appellant/accused and victim Muttayya told him that

he will not do any such thing like cutting the hands etc.

However, apparently appellant/accused was determined to teach

a lesson to the victim and took out chopper/big knife hidden

near his waist and assaulted the victim on his chest and other

parts of the body. Victim sustained severe bleeding injuries and

probably died on the spot. The gravity of the injuries can be felt

from the contents of the postmortem report as reported by Dr.

Harish Pathak (PW-6). Relevant extract of examination-in-chief

of said PW-6 Dr. Harish Pathak is reproduced as under :-

"2. Post mortem examination was started at 3 p.m. and

was completed at 5 p.m. on the same day. The body was

sent alongwith ADR No.1/02. During the course of atopsy I

noticed following external injuries. Injury No.1 is cut throat

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injury admeasuring 10 cm x 5 cm, cutting muscles and blood

vessels. Injury no.2 incised wound 5 cm x 2 cm muscle deep.

Injury no.3 is linear abrasion 7 cms in length. Injury no.4 is

incise wound 5 and half cm x .25 cms. Skin deep. Injury no.5

incise wound 2.5 cm x .25 cm skin deep. Injury no.6 is

partial amputation of little finger of left hand. Injury no.7 is

linear abrasion 5 cm x 4 cm. Injury no.8 is incise wound 3

cm x ½ cm skin deep. Injury no.9 was also incise wound.

All the injuries were ante mortem injuries. On internal

examination all the organs were found pale due to loss of

blood."

4. Noticing the incident of assault, PW-1 Prabhu brought

his mother to the spot and then the injured victim Muttayya was

taken to Sion Hospital. Doctor on examining the injured

declared him dead. Police party arrived at the hospital and PW-1

Prabhu was taken to the police station. PW-1 gave detailed

complaint to the police in Tamil and it was narrated by PW-2 G.

Shrinivasagam Pallar as PW-2 was brought there as summoned

by police. Said statement of PW-1 Prabhu was treated as First

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Information report (Exh.6). Said statement was given almost

immediately within half hour of the assault. On the strength of

said statement, offence was registered against the

appellant/accused and investigation was started. However,

initially whereabouts of appellant/accused were not known to

the police as he was absconding. Enquiries were made in the

locality and it was ascertained that appellant/accused was in

acquaintance with PW-2 G. Shrinivasagam Pallar, PW-3 Singyaraj

& PW-4 Babu Harijan inasmuch as appellant/accused was

staying with PW-2 G. Shrinivasagam Pallar at some point of time

and he was on visiting terms with the house of PW-3 Singyaraj as

he was friend of brother of PW-3 Singyaraj, and also he was well

acquaintance with PW-4 Babu Harijan. During enquiry with

these witnesses, the whereabouts of appellant/accused were

found and specifically through PW-4 Babu Harijan. He took the

police party to the native village of the accused at Arlachi, in

Taluka - Tinkashi, District - Thirnalvelli. Police party along with

panchas reached the native place of appellant/accused on

14.1.2002 and he was put under arrest under the panchnama

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(Exh.10) and brought to Mumbai. In the meantime prior to

leaving Mumbai after the incident of assault, appellant/accused

had visited the house of PW-3 Singyaraj as he was on usual

visiting terms to family of PW-3 Singyraj and he had kept one

knife and one lungi kept in a plastic bag at the house of said PW-

3 Singyaraj under some cupboard. Said knife and lungi were

recovered subsequently from the house of said PW-3 Singyraj at

the instance of present appellant-accused and during which

panch witness PW-5 Atikur Chowdhery took part.

5. After completion of investigation and after obtaining

the post-mortem report and CA report etc., charge-sheet was

filed and the matter was committed to the Court of Sessions and

was disposed of by the Additional Sessions Judge, Mumbai by

the judgment and order which is impugned in the present

appeal.

6. Admittedly, entire case of the prosecution revolves

around the substantive evidence of PW-1 Prabhu and recovery of

knife and lungi at the instance of accused from the house of PW-

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3 Singyaraj. Much is argued on behalf of appellant/accused by

the appointed Advocate Mr. Arfan Sait that the recovery of knife

and lungi is doubtful inasmuch as CA report is not incriminating,

so also it is doubtful whether appellant/accused would keep the

weapon of assault and his own lungi having blood stains,

concealed in the house of PW-3 Singyaraj. It is also further

argued that as per the evidence of PW-3 Singyaraj he did not

report the matter to the police, much less, to anybody else and

then only after the arrest of appellant/accused it was allegedly

recovered from his house. In other words, it is argued on behalf

of appellant/accused that said chopper/big knife cannot be taken

as the weapon recovered at the instance of the accused so as to

implicate him with the offence of murder, in that event the entire

case of prosecution rests only on the substantive evidence of PW-

1 Prabhu, further argued. Considering these arguments, still if it

is accepted that recovery of weapon and lungi is doubtful, the

substantive evidence of PW-1 Prabhu is required to be construed

in order to ascertain whether said evidence inspires confidence.

7. On the above aspect, it is argued that PW-1 Prabhu is a

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young boy and as such he had concocted the story as to

witnessing the incident. More over his two sisters allegedly

accompanying him at the time of the incident were not examined

by the prosecution, further argued. We have carefully gone

through the substantive evidence of PW-1 Prabhu Muthappa. It

must be said that he is a boy of 15 years, but having matured

understanding and in fact attended the police station

immediately after the assault and lodged his complaint narrating

the details and specific involvement of appellant/accused and

use of chopper by him. The substantive evidence of PW-2 G.

Shrinivasaagam corroborates the evidence of PW-1 Prabhuas.

Said PW-2 G. Shrinivasaagam had interpreted the statement of

PW-1 Prabhu to the police and translated it from Tamil to Hindi.

8. Moreover, there is another circumstance as to while

giving evidence before the Court help of Tamil interpreter, one

Smt. Laxmi, was taken by the trial Court and said Laxmi

interpreted what PW-1 Prabhu had stated before the Court in

Tami and it was so recorded by the trial Court. On all the

material particulars, the substantive evidence of PW-1 Prabhu is

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in consonance with the First Information Report (Exh.6). In the

result, in our considered view, there is nothing to entertain doubt

that PW-1 Prabhu is a got-up witness and had falsely implicated

appellant/accused.

9. Apart from the above, even the conduct of

appellant/accused as to absconding from Mumbai and going to

his native place for about two weeks, has not been properly

explained by appellant/accused by producing any material which

can be accepted, even on preponderance of probabilities. In our

considered view, the initial burden on the prosecution has

already been discharged by bringing the evidence of PW-1

Prabhu and two other witnesses, and hence it is necessary for the

appellant/accused to give at least plausible explanation for his

absence from Mumbai immediately after the incident of assault.

10. In any event, it must be said that the Sessions Court

has rightly appreciated the material brought before it in coming

to the conclusion of guilt of appellant/accused for the offence of

murder. There is nothing to interfere with the impugned

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judgment and order and there is no merit in the present appeal

and the same is dismissed and accordingly disposed of.

11. This judgment and order be communicated to the

appellant who is presently lodged in jail, through concerned jail

authorities.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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