Cri. Appeal No. 549 of 1991

4th February, 1993

Petitioner Counsel: S. G. Surana
Respondent Counsel: Smt. S. G. Pingulkar

JUDGMENT

M. F. SALDANHA, J. :- The appellant, a youngster aged at the relevant time 18 years and a resident of Malwadi, Vadgaon-Sheri, stood charged with the offence of having committed the murder of colleague of his, Vijay Laxman Bansode, at about 10 p.m. on 30-3-1990. It is alleged that about eight months prior to the incident, Vijay had teased the sister of the Accused as a result of which her father lodged a Police complaint and the deceased Vijay was arrested. That incident created some bad blood between the brother of the girl, Accused Balu, and the deceased Vijay. At about 8 p.m. on that night, Vijay and his friends are alleged to have abused and assaulted the Accused as a result of which he lodged a Police complaint against Vijay. The Police along with the Accused came to Vijay's house and left word that he should call at the Police chowky. The complaint of the Accused was taken down and he was allowed to go. Vaijanta Bansode (P.W.3), mother of the deceased Vijay, states that she told her son about his being called to attend at the Police Station; whereupon he stated that he would go to the nearby house where some function was being held for a few minutes and then proceed to the Police Station. A commotion ensued with the people shouting out that Vijay has been assaulted and his mother alleges that she ran to the spot and found her son lying in a pool of blood. She states that she saw the Accused running away from the spot. Since no transport was available, efforts were made to procure an autorickshaw, but, in the meanwhile, a phone message was received at the Police chowky that Vijay was assaulted and the Police themselves came there and removed Vijay and his mother to the hospital in an autorickshaw. It is the case of the mother and some of the witnesses that Vijay told them that the Accused had assaulted him with a knife. Since it took considerable time to take Vijay to the Sasoon Hospital, the medical record indicates that he was found dead when brought for admission at the hospital. The Police arrested the Accused on the next day from the house of his uncle at Chinchwad, and it is alleged that he made a statement two days thereafter pursuant to which he produced a blood-stained knife. His clothes were also alleged to have been blood-stained and all this material was sent to the Chemical Analyser. On completion of the investigations, the Accused was chargesheeted. The learned 4th Additional Sessions Judge, Pune, on completion of the trial, held the offence under section 302 of the Indian Penal Code established and awarded the Accused a sentence of rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for three months. The present appeal assails the correctness of this conviction.

2. Shri Surana, learned counsel appearing on behalf of the appellant-accused, has taken us through the evidence on record, which consists essentially of the depositions of Vaijanta Bansode (P.W.3), the mother of the deceased Vijay, Khanderao Shitole (P.W.4), the autorickshaw driver, the Police Head Constable Dasharath Khopade (P.W.5). We would prefer to consider the evidence of these three witnesses as a group because the conviction of the appellant has essentially been based on this material. Vaijanta, admittedly, resides very close to the scene of offence. It is her case that on hearing the commotion, she immediately went there and found her son in a pool of blood. The fact that she knows the accused has not been disputed nor for that matter is there any serious challenge to her evidence when she states that she saw the accused running away from that spot. She has also deposed to the background, namely, the fact that her son was arrested pursuant to the earlier complaint from the father of the accused as also the fact that the Police had come along with the accused to her residence on that night as a result of the complaint lodged by him against her son. Shri Surana submitted that the background is not disputed but, according to him, it is precisely in this background that the mother has jumped to the conclusion that it must have been the accused who had attacked her son. He has placed reliance on the medical evidence and on the evidence of the defence witness to submit that, having regard to the nature of the injury, the deceased Vijay must have collapsed and died on the spot and there was no question of his having made any dying declaration to his mother and to the other two witnesses, Khanderao Shitole (P.W.4) and Police Head Constable Dasharath Khopade (P.W.5). The learned A.P.P. has submitted that the doctor, in his deposition, very clearly stated that even though injury No. 1 was sufficient in the ordinary course of nature to cause death that he has indicated that the person could be alive for as long as 2½ hours depending on the degree of bleeding. The possibility of Vijay having been alive and having disclosed the name of the accused cannot be ruled out. However, in the light of the submissions canvassed by Shri Surana, it was considered by us to be necessary to look for independent corroboration from other material on record.

3. Khanderao Shitole (P.W.4) is an autorickshaw driver, who states that when the Police along with the accused went to Vijay's house on the first occasion that they had engaged his vehicle and that he, therefore, had opportunity of knowing the accused. Since there was very little business on that night, it so happened that the Police found this very person and used his vehicle to take the deceased Vijay from the scene of offence to the Sasoon Hospital. This witness categorically states that he overheard the deceased Vijay stating more than once that he had been assaulted by the accused. We then have the supportive evidence from Police Head Constable Dasharath Khopade (P.W.5), who had visited the scene of offence pursuant to a phone-call and who states that the deceased Vijay very clearly informed him that it was the accused who had inflicted the knife injuries. Shri Surana has submitted that the autorickshaw driver has been used by the Police in order to support their theory that the accused had committed the murder when, in fact, he had been at the Police Station the whole night and was produced before the remand court on the next day as per his statement. We are unable to accept this contention because nothing has been brought out in cross-examination nor is there any material produced before us to establish that the accused was, in fact, in custody. Under these circumstances, this evidence almost goes unchallenged and it would establish that the deceased Vijay had told these witnesses at the earliest point of time that the accused was the assailant. What lends corroboration is the fact that the First Information Report, which was recorded on that very night, clearly indicates the name of the accused as the assailant.

4. We have on record the evidence of Bapusaheb Pathare (P.W.2), who is the Panch and who has witnessed the memorandum whereby the accused made a statement that he would produce the knife as also the recovery panchanama. His evidence, coupled with the evidence of the Police Officers, P.S.I. Pandurang Kohinkar (P.W.6) and Bajirao Mohite (P.W.7), establishes that after his arrest on 1-4-1990, the accused made a statement that he would produce a knife, that he led the Police and the Panchas to a place close to his residence from where he took out the blood-stained knife. This knife had been sent for chemical analysis and it was found to be stained with human blood of "O" group, which is the blood group of the deceased Vijay. It is relevant to mention that the blood group of the accused is "AB".

5. At this juncture, it would be useful to refer to the evidence of Ravindra Galande (P.W.1), who is the Panch who has witnessed the seizure of the clothes of the Accused. Bajirao Mohite (P.W.7) the Police Sub-Inspector, states that he had gone to the house of the uncle of the accused on the next day as the accused was not found at his own house and the Police were informed that the accused was hiding there. He states that the accused was hiding at that place and that his clothes were found to be blood-stained. The Panch has witnessed the seizure of these clothes and it is of some consequence to record that the clothes of the accused, which were sent for chemical analysis, were found to have been stained with blood of the "O" group, which happens to be the blood-group of the deceased Vijay. These are clinching circumstances and the defence has virtually not been able to tender any valid explanation for them except the usual charge that the Police has taken the easy way out by virtue of the earlier complaint of the accused, since it was admitted that there was hostility between him and the deceased Vijay and they falsely implicated him by fabricating evidence against him. This defence, to our mind, is too far-fetched and is liable to be rejected.

6. The learned trial Judge has, after a very careful consideration of the evidence on record, held that the accused has committed the offence punishable under section 302 of the Indian Penal Code. It was contended by Shri Surana that the accused is a young boy, that there was a background of some family dispute over the old incident and that at the highest even if it is established that the accused had dealt the fatal blow that he should be convicted under the Indian Penal Code since, according to him, the incident was the result of a sudden violent quarrel. Had the defence established any of these, it would have been open to the learned counsel to advance this argument, but on the material before us, it would not be proper for this Court to alter the conviction, since there is no such material before us. We see no reason whatsoever to disturb the finding recorded by the trial Court. In these circumstances the conviction and sentence awarded to the appellant-accused are liable to be confirmed.

7. At this stage, Shri Surana pointed out to us that when the accused was arrested, the Police themselves had serious doubts about his age. The accused comes from a poor strata of society and there does not appear to be any record from which his age could be ascertained and he was, therefore, sent to the hospital for the requisite test, including an x-ray test, as a result of which the doctor has opined that he was approximately 18 years of age. Shri Surana pointed out to us that the accused was not a member of a gang nor is there even the remotest suggestion that he was involved in any criminal activity, nor for that matter any impropriety of any type. He also contended that the circumstances under which this incident took place ought to be taken into consideration by this Court because the accused had got involved in the dispute, principally, because he was offended that the honour of his sister had been infringed upon. Shri Surana submitted that it is on these grounds that this Court should be pleased to recommend to the State Government that the sentence of the appellant-accused should be remitted.

8. We have heard learned counsel on both sides and we have considered the case on facts. We have also gone into the question of the propriety involved in remission of the sentence which would require that in appropriate cases only such powers ought to be exercised. It is for this reason that section 432(2) of the Code of Criminal Procedure, 1973 requires that before passing an order whereby the whole or part of a sentence is remitted, the Government would, normally, ask for the opinion of the Court in that regard. Having considered the age of the accused, the poor strata of society to which he belongs, the circumstances in which the incident took place and, more importantly, the fact that it is eminently desirable that the accused be removed from the company of hard ened criminals and that he be given an opportunity to re-make his life, particularly since he is virtually a boy of the tender age, we recommend to the State Government that his case be considered for remission and that the same be done sympathetically. We need, however, to emphasise that any orders in this regard, if they are to be passed, must be passed expeditiously as delay in these cases could cause serious prejudice. The Registrar is accordingly directed to forward a copy of this judgment forthwith to the Secretary to Government, Home Department, Mantralaya, with a direction that the recommendation be considered and that appropriate orders be passed expeditiously, in any event, within three months from the date of receipt of the judgment. The Secretary, Home Department, Mantralaya, shall report compliance to the Registrar, High Court, Appellate Side, Bombay. The appeal fails and stands dismissed.

Appeal dismissed.