Balaji S/O Narayan Nikas vs The State Of Maharashtra
2022 Latest Caselaw 12932 Bom

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  CRIMINAL APPEAL NO. 713 OF 2015

Balaji s/o Narayan Nikas
Age - 33 years, Occu - Agriculture
R/o Pokhari, Taluka - Jafrabad
District - Jalna                                      ... APPELLANT
                                                      (Orig. Accused)

                       VERSUS
The State of Maharashtra
Through Tembhapuri Police Station,
Taluka - Jafrabad, District Jalna                 ... RESPONDENT

Mr. R. A. Tambe, Advocate for the appellant
Mr. R. V. Dasalkar, APP for the respondent/State

                                    ----
                               CORAM : R. G. AVACHAT &
                                       R. M. JOSHI, JJ.

RESERVED ON : 06TH DECEMBER, 2022 PRONOUNCED ON: 13TH DECEMBER, 2022

JUDGMENT (PER- R. M. JOSHI, J.):-

1. Appellant/original accused being aggrieved by the

judgment and order dated 7 th August, 2015 passed in Sessions

Case No. 195 of 2014 convicting him for the offence punishable

under Section 302 of the Indian Penal Code has preferred this

appeal under Section 374 of the Code of Criminal Procedure.

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2. As per the report given by Mubarak on 5th June, 2014

at about 4.00 pm his nephew Rais came to the field where he

was working and informed that Salim, son of the informant,

being severely assaulted by Balaji (accused) in the field of Police

Patil. He, therefore, went to the spot and found Salim dead. The

said report (Exhibit 14) was given to the police on the same day

at 8.15 pm.

3. After registration of crime investigation was done

wherein police visited spot of the incident and panchnama was

drawn. Inquest on the dead body was conducted and it was sent

for post-mortem. Appellant came to be arrested and pursuant to

his disclosure recovery of knife is done under panchnama.

Investigation Officer recorded statements of witnesses and

collected other relevant evidence. Seized muddemal was sent to

the Chemical Analyzer for examination and as Investigating

Agency found sufficient reason for filing charge-sheet, the same

was filed against the appellant before JMFC. On committal the

case was registered as Sessions Case No. 195 of 2014. Trial

Court framed charge against the appellant at Exhibit 7. As

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appellant abjured the charge he was put on trial. Prosecution

examined 12 witnesses in order to prove the charge against him.

4. Learned counsel for the appellant submitted that Trial

Court committed error in not considering the cross-examination

of informant as well as eye witnesses Pawan and Mohan, which

according to him indicates their testimonies unreliable. It is

contended further that statements of eye witnesses were not

recorded immediately and which makes it prone to concoction. It

is also argued that it does not stand to any reason as to why

appellant will go to the place and the distance of about 250 km

from the spot to conceal weapon hence the said alleged recovery

shown at instance of the appellant is not believable. According to

him witness Haridas had reason for false implication of the

appellant in this crime and with the help of child witnesses false

evidence is created against him. By referring to the medical

evidence it is submitted that the possibility of causing of the

injuries to the deceased by more than one weapon is brought on

record and hence in the light of this testimony of defence

witness Ankush there is reason to believe that 2-3 persons who

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were seen going from the spot of the incident could be

perpetrators of crime. It is submitted that the evidence on

record is not sufficient to prove guilt against the appellant

conclusive and hence it is thus acquittal.

5. Learned APP opposed the said submissions by relying

upon testimony of eye witnesses who according to him have

consistently deposed about the incident of appellant causing

assault on the deceased with knife. It is also pointed out from

evidence that the appellant had motive for committing murder of

the deceased as he used to suspect illicit relation of his wife with

the deceased. According to him there is no reason for not

accepting testimonies of child witnesses. As far as the defence

witness is concerned, it is submitted that the said witness is

cousin brother of appellant and is interested in securing his

acquittal. Thus, according to him it is not a fit case to cause

interference in the impugned judgment.

6. There is no dispute about the fact that on 5 th June,

2014 at about 2.30 pm dead body of Salim was found at the

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spot which is agricultural field of Police Patil. Spot panchnama

(Exhibit 16) indicates that at the spot dead body of the deceased

was lying under the tree in the blood. Inquest panchnama

(Exhibit 17) which is proved through Abdulsha (PW-2) indicates

that there were number of injuries found on the person of the

deceased. The dead body of the deceased was sent for post-

mortem which was conducted by Dr. Sabale (PW-11). He has

noticed following external injuries on the person of the

deceased.

(1) Stab wound over right side of neck near the lower part of stemocledo mastoid muscle 3 x 1 x 2.5 cm, running from left mastoid towards axical clavicular joint.

(2) Stab wound over sterno mandibnum junction oblique running from right nipple to sterno clavicular joint 2 x 1.5 x 1 cm.

(3) Stab wound 2 cm. Above left nipple running from zipisternym to left anterior auxiliary fold 3 x 2 x 1.5 cm.

(4) Stab wound oblique left to the zipisternum- epigastric region 5 x 2.5 x 10 cm.

(5) Stab wound oblique over right hypochoderiac region against 8-9th constrocondra junction 5 x 3 x 5 cm right running from right flanks to zipistarnum.

(6) Stab wound over right wrist joint to darsal and radial aspect horizontal 2.0 x 0.5 cm.

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(7) Stab wound over left wrist joint 2 x 0.5 x 0.5 cm oblique, dorsal on the radial size.

(8) Stab wound side on right knee joint against lateral condyle of femur anteriorly oblique running towards patella.

(9) Left 3rd intercastal space through and through, stab wound 2.5 x 1.5 x 4 cm.

7. All these injuries were antemortem in nature and it

was opined by him that the death of the deceased was caused

due to hemorrhagic shock due to multiple stab injuries over the

body. Defence was unable to elicit anything from the cross-

examination of Medical Officer to discard his opinion about cause

of death. The circumstances in which the dead body was found

which are appearing from testimonies of eye witnesses and spot

panchnama (Exhibit 16) and having regard to the nature injuries

on the person of the deceased the prosecution has proved that

deceased died homicidal death.

8. In the instant case Mubarak, PW-1, father of the

deceased lodged report to the police at around 8.15 pm on the

date of incident itself. He has deposed about getting information

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from his nephew Rais about the assault on the deceased by

appellant. After he went to the spot he found dead body of Salim

in the pull of blood lying under fig tree. He also found stab

injuries on his neck, chest and abdomen. Evidence of this

witness shows that the report to the police about the incident is

prompt. He has also stated therein that the appellant while

leaving the spot of the incident had threatened Pawan and

Mohan not to disclose this incident to anyone.

9. Pawan who was aged about 11 years at the time of

incident has candidly deposed about the occurrences on the

fateful day. According to him he along with Salim went for

swimming and came back near the cattle shed of Haridas.

Thereafter Salim brought food article from village on his

motorcycle and they had lunch together. He further stated that

he along with Salim and Bandu went to the field of Police Patil on

motorcycle. As there was summer heat Salim sat under the tree.

Balaji (appellant) came to the spot and after the occurrence of

incident of falling of box removed knife from his pocket. Salim

initially thought that appellant was making fun and started

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laughing but appellant stabbed him with the knife on his

abdomen and chest. He thereafter rushed to the cattle shed of

Ankush to call him. They were threatened by appellant not to go

to the spot and thereafter he left on his motorcycle. There is

support to his testimony from the evidence of Mohan (PW-7)

who was aged about 8 years at the relevant time. He also

deposed about Salim sitting under the tree and appellant coming

there and drawing knife from his pocket to assault Salim. He

also claimed that initially Salim laughed at him thinking that the

appellant is making fun of him. But thereafter appellant stabbed

him with knife. He thus, deposed consistently with the testimony

of Pawan.

10. From the cross-examination of these witnesses

nothing could be elicited by the prosecution in order to

disbelieve their version about the occurrence of the incident.

Except for the fact that their statements were recorded on the

next date of the incident defence could not make out any reason

for keeping their evidence out of consideration. These witnesses

are child witnesses and in absence of any material to believe

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that they were tutored or had interest on their own or acted at

the instance of someone else to falsely deposed against

appellant, we find no reason to disbelieve and discard their

testimonies.

11. There is further evidence against the appellant in the

form of seizure of knife at his instance pursuant to the

memorandum statement made by him while in policy custody.

Subhash (PW-6) who acted as panch witness has proved the

said statement (Exhibit 26) and specifically deposed about the

place where the appellant took police and removed knife kept

beneath a stone. Except for admission of this witness that in

memorandum panchnama (Exhibit 26) there is no mention of

knife but there is a mentioned of weapon. We find that, causing

of such discrepancy in the statement of witness after lapse of

one year is possible and would not be sufficient discard his

evidence. Completely, which is otherwise found worthy of

credence. Investigating Officer (PW-12) specifically deposed

about seizure and sealing of knife at spot and sending it along

with other muddemal for forensic examination. It is not

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suggested to Investigating Officer that there is tempering of

evidence. CA report (Exhibit 58) shows that the said knife was

stained with blood group 'B', which is of deceased. Thus, there is

further evidence to connect knife recovered at instance of

appellant upto actual assault on deceased.

12. In this regard it is material to note that Medical

Officer Dr. Sable (PW-11) has deposed about possibility of

sustainment of the injuries to the deceased with knife (article 7).

In the cross-examination though it is admitted by him that there

is possibility of use of more than one weapon in this assault

owing to the difference in the length, width and breadth of the

injuries but still it is his opinion and not a concrete piece of

evidence. In case where there is unimpeachable direct evidence

showing occurrence of the incident in a particular manner, the

evidence in form of Medical Officer cannot override ocular

evidence. In the facts and circumstances of the case and on

considering ocular evidence of eye witnesses, we do not find any

reason to accept evidence in form of opinion to override, other

conclusive evidence.

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13. Learned counsel for the appellant drew attention of

this Court to the evidence of defence witness Ankush and

submitted that same evidentiary value needs to be attached to

this testimony as weightage is given to the evidence of

prosecution witness. There cannot be two opinions about the

said proposition canvassed by the learned counsel for the

appellant and that evidence of defence witness cannot be

undermined or can not be looked upon with tainted glasses.

However, test of reliability and credibility must be applied to

evidence of defence too. Consideration of the evidence of

Ankush (DW-1) shows that he tried to claim that he found dead

body of Salim inside cattle shed. This evidence of the witness

runs contrary not only to the ocular evidence of eye witnesses

but also to the spot panchnama (Exhibit 16) wherein the place

where the dead body of deceased is clearly seen under the tree

and not inside the cattle shed. This fact itself is more than

sufficient to disbelieve testimony of this witness. Apart from this

it is relevant to note that the witness is paternal cousin brother

of the appellant and certainly can be said to have interest in

seeking acquittal of the appellant. In the facts and

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circumstances of the case his evidence is found wholly unreliable

in order to place any reliance thereupon.

14. Prosecution apart from the ocular evidence was also

successful in bringing on record that the appellant had motive or

reason for committing murder of the deceased. Though on the

face of it, it seems that over the issue of fall of the box the

incident triggered however evidence of Mubarak-informant as

well as suggestion made by the defence to Pawan shows that

appellant was murmuring at the time of causing assault on

deceased about illicit relations of his wife with deceased. Thus,

there is reason to believe that appellant was aggrieved by the

relationship between them and which provided a motive for him

to eliminate deceased. Finding of number of injuries on the

person of deceased also indicate the intention of appellant.

15. The prosecution thus was able to prove from the

ocular evidence of Pawan and Mohan who had witnessed the

incident in question that it was appellant who with the help of

knife seized at instance of appellant with blood stains of group of

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deceased thereon. The medical evidence supports the case of

the prosecution as the post-mortem note shows as many as 09

stab injuries on chest, abdomen and neck of the deceased which

found on vital part of the body. The number of injuries caused to

the deceased with knife on vital part of body indicates the

intention behind assault was to commit murder of the deceased.

In this circumstance, no fault can be found with the judgment

recording conviction of the appellant passed by the learned Trial

Court. In the result, appeal must fail. Hence order.

ORDER

. Criminal Appeal No. 713 of 2015 is dismissed.

(R. M. JOSHI, J.)                            (R. G. AVACHAT, J.)


ssp




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