Bombay High Court
Prakash @ Kuna Shivlingam Harijan vs The State Of Maharashtra on 4 October, 2017
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 743 OF 2014
Prakash @ Kuna Shivlingam Harijan ]
Age 23 Years, Occupation - Nil, ]
Resident of Ambedkar Nagar, Road No. 3, ]
Behind Church, Panchshil Nagar, ]
Chembur, Mumbai 89. ]
(Now in Custody) ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
Through the Govt. Pleader, having his ]
office at PWD Building High Court, ]
Bombay 400 032. ]
(At the instance of Tilak Nagar Police ]
Station, C.R. No. 40/09) ] Respondent
• Ms. Rohini Dandekar, Advocate (appointed) for the
Appellant
• Mr. Arfan Sait, APP for the State
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : OCTOBER 4, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 17.3.2010
passed by the learned Principal Judge, City Civil & Sessions,
Gr. Bombay in Sessions Case No. 313 of 2009. By the said
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judgment and order, the learned Session Judge convicted the
appellant under Sections 302 of IPC and sentenced him to
suffer imprisonment for life.
2. The prosecution case briefly stated, is as under:
(a) Deceased Shamik was the son of PW 1
Khatijabanu. Khatijabanu is the first informant in
the present case. Shamik was a mason by
profession. He was addicted to drugs like Ganja.
The appellant was the friend of Shamik, hence,
Khatijabanu knew the appellant. The appellant
and Shamik used to remain in company of each
other.
(b) Two days before the day of the incident, quarrel
took place between Shamik and the appellant.
Shamik told his mother Khatijabanu about the
quarrel between him and the appellant.
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(c) The incident took place on 11.2.2009. On
11.2.2009, Shamik was taking food in the evening
at about 5.00 p.m. At that time, the appellant
came to the house of Shamik and called out to
Shamik. Khatijabanu, the mother of Shamik went
and questioned the appellant that since the
appellant had quarreled with Shamik only two
days before, then why he was again calling
Shamik. Thereupon, the appellant told
Khatijabanu that they have patched up the
quarrel. Thereafter, Shamik and the appellant
went away together.
(d) At about 6.00 p.m., one boy came and told
Khatijabanu that her son was assaulted with a
knife near Saibaba Temple, therefore, Khatijabanu
went to the spot. She saw her son Shamik lying on
the road in a pool of blood. She took Shamik on
her lap. She made inquiry with Shamik about
who had assaulted him. Thereupon Shamik told
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her that the appellant had assaulted him.
Khatijabanu took her son Shamik to the hospital.
The doctor told Khatijabanu to bring necessary
forms. She went to bring the necessary forms.
When she came back and gave the forms to the
doctor, the doctor declared that Shamik had died.
Khatijabanu then lodged FIR Exh. 9. Thereafter,
investigation commenced.
(e) The dead body of Shamik was sent for
postmortem. PW 9 Dr. Bagul conducted the
postmortem on the dead body of Shamik. He saw
15 injuries on the body of Shamik. Meanwhile, the
appellant was apprehended by PW 12 API Bankar.
API Bankar took personal search of the appellant
in presence of panch witnesses. He found that
the clothes of the appellant were stained with
blood, hence, he seized the same. During the
course of investigation, the knife (Article 4) came
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to be recovered at the instance of the appellant in
presence of panch witness PW 5 Mohd. Ansari.
After completion of investigation, the charge
sheet came to be filed. In due course, the case
was committed to the Court of Sessions.
3. Charge came to be framed against the appellant -
original accused under Section 302 of IPC. The appellant
pleaded not guilty to the said charge and claimed to be tried.
His defence was that of total denial and false implication.
After going through the evidence adduced in this case, the
learned Sessions Judge convicted and sentenced the
appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties,
the judgment delivered by the learned Sessions Judge and
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the evidence on record, for the reasons stated below, we are
of the opinion that the appellant assaulted Shamik with a
knife and caused his death.
5. Though a large number of witnesses have been
examined, most of them have turned hostile, hence, their
testimony is of no use to the prosecution. The prosecution
has mainly relied on the evidence of PW 1 Khatijabanu who is
the mother of deceased Shamik. Her evidence is relied on
two aspects. The first aspect is that her evidence shows that
the appellant had motive to commit the crime and her
evidence also shows that her son Shamik made an oral dying
declaration to her that the appellant had assaulted him.
6. PW 1 Khatijabanu has stated that she had three sons.
Her second son was Shamik. Shamik was a mason by
profession. He was addicted to drugs like Ganja. The
appellant was the friend of Shamik, hence, Khatijabanu knew
the appellant. The appellant and Shamik used to remain in
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company of each other. Khatijabanu has stated that two
days before the day of the incident, quarrel took place
between Shamik and the appellant. Shamik told his mother
Khatijabanu about the quarrel between him and the
appellant. The incident took place on 11.2.2009. On
11.2.2009, Shamik was taking food in the evening at about
5.00 p.m. At that time, the appellant came to the house of
Shamik and called out to Shamik. Khatijabanu went and
questioned the appellant that since the appellant had
quarrelled with Shamik only two days before, then why he
was again calling Shamik. Thereupon, the appellant told
Khatijabanu that they have patched up the quarrel.
Thereafter, Shamik and the appellant went away together.
Khatijabanu has further stated that at about 6.00 p.m., one
boy came and told Khatijabanu that her son was assaulted
with a knife near Saibaba Temple, therefore, Khatijabanu
went to the spot. She saw her son Shamik lying on the road
in pool of blood. She took Shamik on her lap. She made
inquiry with Shamik about who had assaulted him.
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Thereupon Shamik told her that the appellant had assaulted
him. Khatijabanu took her son Shamik to the hospital.
Doctor told Khatijabanu to bring the necessary forms. She
went to bring the necessary forms. When she came back
and gave the forms to the doctor, the doctor declared that
Shamik had died. Khatijabanu then lodged FIR Exh. 9.
7. As stated earlier, the evidence of Khatijabanu brings
out two circumstances against the appellant. The first
circumstance is motive. The evidence of Khatijabanu shows
that two days prior to the day of the incident, the appellant
and Shamik had a quarrel. This shows that the appellant had
motive to commit the murder of Shamik. In addition, what is
most important is that the evidence of Khatijabanu shows
that Shamik made an oral dying declaration to her that the
appellant had assaulted him.
8. As far as the evidence of PW 1 Khatijabanu is
concerned, Ms. Dandekar, learned appointed Advocate for
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the appellant submitted that Shamik was not in a position to
make an oral dying declaration to Khatijabanu which is seen
from the fact that Khatijabanu has admitted that the boy who
came and told her that Shamik was lying in an injured
condition also told her that Shamik was unconscious.
Khatijabanu has further admitted that when she went to the
spot, Shamik was unconscious. However, it is to be noted
that immediately thereafter, Khatijabanu has stated that she
sprinkled water on the face of Shamik, therefore, Shamik
regained consciousness and narrated the facts to her. We
would also like to advert to the evidence of PW 9 Dr. Bagul
Dr. Bagul has stated that a patient with injuries as noted by
Dr. Bagul on the body of Shamik would be in a position to
walk for a certain distance and talk.
9. The next circumstance relied upon by the prosecution
is recovery of knife (Article 4) at the instance of the
appellant. PW 5 panch witness Mohd. Ansari has deposed
about this aspect. He has stated that he was called to the
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Police Station on 13.2.2009 at 2.00 p.m. In his presence, the
appellant made a statement that he will produce the knife
which was kept by him in the hole of a bridge near Murugan
Mandir. Pursuant to the statement made by the appellant,
memorandum panchnama Exh. 15 came to be drawn. The
appellant then led the police and panchas to the spot and
produced the knife. The knife came to be packed, sealed
and seized under panchnama Exh. 16.
10. PW 12 API Bankar has stated that he was on night duty
between 11.2.2009 and 12.2.2009. During the combing
operation within the area of the residence of the appellant,
he found the appellant in an abandoned building in Panchshil
Nagar area in the night. He caught the appellant. He then
took search of the appellant and he noticed that the clothes
of the appellant were stained with blood. The said clothes
came to be seized.
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11. PW 8 panch witness Anil has stated that on 12.2.2009
at 2.30 a.m., he was called by the police. He noticed the
appellant was present at the spot. API Bankar told him that
the clothes of the appellant are to be seized and panchnama
is to be recorded. The police then seized the clothes. PW 8
Anil noticed reddish stains over the clothes. Panchnama was
drawn which is at Exh. 21. He identified greenish shirt
(Article 6) which was seized from the person of the appellant.
12. The blood stained clothes which were on the person of
the appellant were sent to chemical analyst. The C.A.
report Exh. 31 shows that the knife was stained with human
blood and the shirt of the appellant was stained with blood of
"B" group. The clothes of the deceased i.e bush shirt, jeans
and underwear were stained with blood of "B" group which
shows that the blood group of the deceased was "B" group.
C.A. report Exh. 24 also shows that the blood group of the
deceased was "B" group. Thus, finding of stains of "B" group
blood on the clothes of the appellant is a strong incriminating
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circumstance against the appellant.
13. As stated earlier, the evidence of PW 5 panch witness
Mohd. Ansari shows that the knife was recovered at the
instance of the appellant. This knife was sent to chemical
analyst. As per C.A report Exh. 31, the knife was found
stained with human blood. In this connection, we may
usefully refer to the decision of the Supreme Court in the
case Gura Singh Vs. State of Rajasthan1, wherein it has
been observed as under :
" In view of the authoritative pronouncement of this
Court in Teja Ram Case (1999) 3 SCC 507) we do not
find any substance in the submissions of the learned
Counsel for the appellant that in the absence of the report
regarding the 'origin of the blood, the trial Court could
not have convicted the accused. The Serologist &
Chemical Examiner has found that the chadar
seized in consequence of the disclosure statement
made by the appellant was stained with human blood.
As with lapse of time the classification of the blood could
not be determined, no bonus is conferred upon the
accused to claim any benefit on the strength of such a
belated and stale argument. The trial Court as well as
the High Court were, therefore, justified in holding the
circumstance as proved beyond doubt against the
1 (2001) 2 SCC 205
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appellant."
Similar view has been taken by the Supreme Court in
the cases of R. Shaji Vs. State of Kerala 2, Molai & Anr. Vs
State of Madhya Pradesh.3 and Khujji @ Surendra Tiwari Vs.
State of Madhya Pradesh 4. It is pertinent to note that the
appellant has not given any explanation for the presence of
blood on the knife.
14. It is the prosecution case that the appellant assaulted
the deceased with a knife and caused his death. This is
borne out by the medical evidence. PW 9 Dr. Bagul
conducted the postmortem on the dead body of Shamik. He
found 15 injuries out of which, one injury was an old injury.
Out of 14 injuries, 9 were abrasions. Out of 9 abrasions, six
were on the face. The other abrasions were on the neck, ear
and eye. 3 lacerations were found on the knee and thigh. In
addition, 2 incised wounds were noticed on the chest. The
incised wounds on the chest were deep into the chest wall
with penetration into the inner structure. They had also
2 (2013) 14 SCC 266
3 1999(9) SCC 581
4 AIR 1991 SC 1853
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caused perforations. Two perforations were found on the left
lung and there was perforation of the pericardium at the
lower end of heart. In the opinion of Dr. Bagul, the cause of
death was due to stab injury over chest with perforation of
the heart with internal hemorrhage with multiple injuries
(unnatural). Dr. Bagul has stated that the injuries sustained
by the deceased are possible by a sharp edged weapon like
knife (Article 4) shown to him.
15. On going through the evidence on record, we are of the
opinion that the prosecution has proved its case against the
appellant beyond reasonable doubt. Thus, we find no merit in
the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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