Criminal Appeal No.174 of 1995

19th January, 2001

Petitioner Counsel: S/Shri. P.V.HARDAS, S.A.BRAMHE, R.M.PATWARDHAN
Respondent Counsel: Shri. KILOR

Cases Cited:
Shankar Kondiba Gore vs. State of Maharashtra, 1995(1) Mh.L.J. 416 [Para 14,45]
State of Maharashtra vs. Tanaji Dagadu Chavan, 1998 ALL MR (Cri) 1062=1998 Cr.L.J. 4515 [Para 14,47]
Harchand Singh vs. State of Haryana, 1974 Cri.L.J. 366 [Para 14]
State of U.P. vs. Ashok Dixit, (2000) 3 SCC 70 [Para 14]
State of H.P. vs. Lekh Raj, 2000 ALL MR (Cri) 266 (S.C.)=(2000) 1 SCC 247 [Para 14]
Jaswant Singh vs. State of Haryana, 2000 SCC (Cri) 991 [Para 16]
Modan Singh vs. State of Rajasthan, 1978 Cri.L.J. 1531 [Para 41]
1981 Cr.L.J. 1136 [Para 44]

JUDGMENT

BRAHME, J. :- Appellant Raju alias Rajesh Natthuji Dongre was tried along with other three accused for the offence under Section 302 read with 34 I.P.C. for committing the murder of one Purushottam Marotrao Gohate in Sessions Trial No.210 of 1992 in the Court of Third Additional Sessions Judge, Wardha and by the judgment and order dated 31st March 1995, he was convicted of the offence under Section 302 I.P.C. and was sentenced to imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo further R.I. for six months, while the other accused were acquitted. The conviction and sentence of the appellant is the subject matter of challenge in this appeal.

2. The prosecution case in brief is that deceased Purushottam was residing with his brother Yuwaraj (P.W.6) and sister Vanita (P.W.7) at village Bori within the jurisdiction of Karanja Police Station. His marriage was to take place on 30th May 1991, but he was done to death on 23.5.1991 in an incident that took place at noon in front of his house. Incidentally, on that day in village Bori, there was marriage of the daughter of one Sadashiv Deshmukh and for that purpose, number of bridegroom guests had come from Nagpur. They were moving in the village and some persons including the appellant and other accused had been to the house of one Babybai Kadawe (P.W.11). The inmates of deceased Purushottam namely his brother Yuwaraj, his mother Laxmibai, his sister Vanita, one Bhumita and neighbour Satyabhamabai were in the courtyard of the house breaking out the seeds from groundnuts. Deceased Purushottam went to the house of Babybai to reach the message of Jijabai Rabade that she was to go for well work. Purushottam, when he went to the house of Babybai, noticed some persons from Nagpur sitting in her house while some were standing in the courtyard of her house. Deceased Purushottam gave the message of Jijabai Rabade to Babybai. That time, one person wearing full sleeves white shirt namely the appellant, asked Purushottam as to the reason for his coming there. When Purushottam told the purpose, the appellant stated that they were taking number of contracts of well work and he also said to Purushottam as to what relation he had with Babybai. After this conversation with the appellant, Purushottam left the house of Babybai and he started returning to his house. His house is adjacent to the house of Babybai. While he was in the courtyard, the appellant alongwith other persons came running and apprehended Purushottam. The appellant caught hold of Purushottam by his waist from behind and gave call to others and then he took out the knife (Article 4) from his waist and assaulted Purushottam with that knife inflicting several injuries so also thrusting in his stomach. Purushottam screamed as soon as he was attacked. His brother Yuwaraj so also the neighbour Satyabhamabai rushed to the rescue of Purushottam but the assailants obstructed and threatened to kill them. The appellant then took out the knife that had pierced in the abdomen of Purushottam and fled away with other assailants. Purushottam was immediately removed to Primary Health Centre, Karanja. His condition was serious. The Medical Officer Dr. Abdul Wajid Khan (P.W.14) who attended Purushottam, advised to shift Purushottam to Medical College Hospital, Nagpur. Accordingly, Purushottam was removed to Nagpur, but he died on way to Nagpur.

3. One Bhagwan Choudhari made a phone call to Police Station, Karanja informing that in the quarrel that ensued in the village Bori, two boys assaulted one man with knife and assailants fled away on a Hero Honda motorcycle, the number of which was not known. This phone message was received by Krishna Ramchandra Hiware (P.W.10), A.S.I., who was then attached to Police Station, Karanja. He took entry in Station Diary of that phone message vide Exhibit 69 and gave a direction to the concerned persons to bring the injured to Karanja. He deputed one Jamadar and two constables. They apprehended three persons namely Kishore Sarjerao Shelar, Sk. Jabbar and Raju Natthuji Dongre (the appellant).

4. In the meanwhile, deceased Purushottam was brought to Primary Health Centre, Karanja by village Police Patil Bharatram Nikose (P.W.1). After admitting him in the hospital, Bharatram Nikose (P.W.1) lodged his report Exhibit 27 in Police Station, Karanja stating that the persons of the bridegroom party of Nagpur assaulted Purushottam Gohate by knife and the occurrence took place at about 3 p.m., but the reason of the occurrence was not known.

5. Dr. Abdul Wajid Khan (P.W.14) who examined Purushottam, made a phone call to A.S.I. Krishna Hiware (P.W.10) that the condition of the deceased was very serious and he had sustained injuries by sharp edged weapon and as such, he should be taken to Nagpur for further treatment. Initially, A.S.I. Krishna Hiware (P.W.10) registered Crime No.48 of 1991 under Section 326 read with 34 I.P.C. vide his own F.I.R. Exhibit 48 in Police Station, Karanja. In that report, he stated that as there was marriage of the daughter of Shri Sadashiv Deshmukh, this day, some guests had come to village Bori to attend the said marriage. At about 3 O' clock, in the noon, the said persons were moving in the village and teasing the women. Hence his brother Purushottam accosted them. Because of the said reason, 2 to 3 persons assaulted his brother by means of a knife. As he fell down, he rushed there to separate them. At that time, one boy assaulted him by means of a blade of a wood cutter, as a result of which he received injuries on the palm of right hand, near the thumb and near the right elbow.

6. P.S.I. Prakash Hingmire (P.W.12) who was then attached to Police Station, Karanja, took over the investigation in the crime registered on the basis of F.I.R. Exhibit 45 lodged by A.S.I. Krishna Hiware. He arrested the appellant and two others who were produced in the police station under arrest panchnama Exhibit 32. The appellant was wearing white shirt (Article No.11) having blood stains on right sleeve and ash coloured pant (Article No.12). On the very day i.e. on 23.5.1991, he went to village Bori and visited the place of occurrence and drew spot panchnama (Exhibit 29). He also seized plain earth, blood smeared earth, pair of chappal of deceased Purushottam, one quilt smeared with blood from the place of occurrence Exhibit 30. It appears that Pratap Digaonkar (P.W.13), Dy. S.P. attached to Arvi Division, recorded the statements of Satyabhamabai (P.W.9), Gulab Bhade (P.W.5), Vanita Gohate (P.W.7). He also recorded the statements of parents of deceased, Yuwaraj Gohate (P.W.6), Babybai (P.W.11) and Satyabhamabai (P.W.9) on 25.5.1991. Yuwaraj Gohate and Satyabhamabai were sent to Public Health Centre, Karanja for examination as they had sustained injuries at the time of the occurrence and they were examined by Dr.Abdul Wajid Khan (P.W.14). He also examined the appellant and his associates and issued Injury certificates Exhibit 113, 114 and 115.

7. On 24.5.1991, the appellant, while in police custody, made a confessional statement in the presence of panch witnesses namely Dayaram Bharange (P.W.2) and Liladhar Baigane (P.W.3) vide memorandum Exhibit 35 recorded by P.S.I. Prakash Hingmire (P.W.12) regarding recovery of the knife which he had kept in the drum in front of the house of one Kisna Balaji Barange of village Bori and accordingly, the appellant took out that knife (Article 6) which came to be seized under seizure memo Exhibit 36. That knife was stained with blood.

8. On 24.5.1991, Dr. Ashok Tank (P.W.8) carried out autopsy on the dead body of Purushottam and he noticed the following injuries which he noted in the post mortem report Exhibit 60 :

"1. Stab wound Lt. side mid axillary line 6" below and lateral to the nipple in 7th Intercostal space. 1 1/2" x 1.2" cavity deep, directed medially, downwards and posteriorly. Both margins and angles clean cut fresh.

2. Stab wound Lt. side Hypocondrium. 2" above and lateral to umbilicus, size 1" x 1/2" x cavity deep. Both margins and angles clean out, fresh.

3. Incise wound Rt. flank 2" above and posterior to posterior Inferior Iliac spine. Size 1 1/2" x 1/4" x skin deep fresh.

4. Incise wound at T10 Lt. side posterior aspect 2" lateral to midline. Size 3/4" x 1/4" x skin deep fresh.

5. Incise wound Lt. Buttocks upper medial Quadrant 1 1/2" x 1/2" x Skin deep fresh.

6. Abrasion Lt. side 1 1/2" lateral to nipple size 1" x 1" x red in colour, fresh.

7. Abrasion Lt. Zygomatic arch 1/2" x 1/4" x red in colour, fresh."

All the above injuries were antimortem, fresh.

On internal examination, following injuries were noticed :

"1. 7th Intercostal muscle cut underneath Injury No.1 of size 1 1/4". Ribs intact.

2. Pleura cut underneath Injury No.1 size 1 1/4" x Haemothorax present lt. side about 600 to 700 ml. Blood, clots present.

3. Left lung collapsed, pale, stab present on lower lobe size 3/4" x 1/2" x 2". Haematoma present, corresponding with Injury No.1 of column No.17 of P.M. Report."

In his opinion, the cause of death was shock and haemorrhage due to injury to vital organs. Injury No.1 of column No.17 was sufficient to cause death in the ordinary course of nature.

9. All the articles seized were sent to the Chemical Analyser for examination. The report of Chemical Analyser Exhibit 90 shows that the blood detected on the quilt, full pant, cut manila, shirt, fullpant of the appellant and knife (Article 6) was human blood and was stained with the blood of blood group "O". Shirt (Art.11) has innumerable blood stains ranging from about 0.1 cm. to 2 Cms. in diameter spread mostly on front and the sleeves. Article 12 (Full Pant of appellant) has few small washed blood stains on right leg front - lower portion. The knife (Art.6) is stained with blood of blood group "O". The report of Chemical Analyser (Exh.87) is in respect of blood of the appellant the result of the analysis as stated in the report is that the blood is of blood group "B".

10. At the trial, the prosecution examined in all 14 witnesses which include Bharatram Nikose (P.W.1) who gave report Exhibit 27 to Karanja Police Station, Panch witnesses Dayaram (P.W.2) and Liladhar (P.W.3), Kisna Gohate (P.W.4) who identified the appellant when he was apprehended by the villagers in the village and also noticed that the appellant was wearing white shirt and ash coloured pant, Gulab Bhade (P.W.5), Yuwaraj Gohate (P.W.6), Vanita Gohate (P.W.7), Dr. Ashok Tank (P.W.8), Satyabhamabai (P.W.9), A.S.I. Krishna Hiware (P.W.10), Babybai Kadawe (P.W.11), P.S.I. Prakash Hingmire (P.W.12), Pratap Digaonkar, Dy. S.P. (P.W.13) and Dr.Abdul Wajid Khan (P.W.14). It is pertinent to note that P.W.5 Gulab, P.W.9 Satyabhamabai and P.W.11 Babybai though claimed by the prosecution as eye witnesses, did not support the prosecution. So, the prosecution rested its claim on the eye witness account given by witnesses Yuwaraj and Vanita. The appellant was examined under Section 313 Cr.P.C. While denying the prosecution evidence and circumstances which appeared against him, he stated that :

"I had gone to Bori to attend the marriage of the daughter of Deshmukh. I was standing on the panthela. The deceased came and started assaulting me. Other persons from Nagpur who had come for marriage assaulted deceased and I ran away. The persons who had assaulted the deceased ran away on the vehicles. I was apprehended by the villagers out of the village. I am falsely involved in this case."

11. The trial Court accepted the evidence of both the eye witnesses namely Yuwaraj and Vanita, so also recovery of knife (Article No.6) having blood stains of human blood of Group "O" at the instance of the appellant as also finding of blood of group "O" on the shirt and pant of the appellant, so also identification of the appellant, showing that deceased Purushottam was done to death by the appellant and accordingly, convicted and sentenced him of the offence under Section 302 I.P.C. as stated earlier. Hence this appeal.

12. We have heard Mr. Patwardhan, learned Advocate for the appellant. He contended three theories as to the occurrence, have come forth in the prosecution evidence. As per the report (Exhibit 27) lodged by Bharatram Nikose (P.W.1) on 23.5.1991, some unknown persons assaulted on the hands, legs and abdomen of Purushottam Gohate by means of a knife. It is submitted that this report Exhibit 27 does not disclose the names of the assailants nor the place of occurrence. While the report Exhibit 69 shows that an exchange of hot words took place in the marriage and that two boys assaulted one unknown person by means of a knife and the names of those assailants were not known and they fled away on their Hero Honda motorcycle. He also pointed out from the report Exhibit 48 which was admittedly lodged by Yuwaraj that the names of the assailants of Purushottam are not disclosed, nor their description has been given. He also made reference specifically to the statement in the report Exhibit 48 that some guests from Nagpur had come to village Bori to attend the marriage and at about 3 O' Clock in the noon, the said persons were moving in the village and teasing women and hence his brother Purushottam accosted them and because of that, the said 2 - 3 persons assaulted his brother by means of a knife.

13. Mr. Patwardhan submitted that both the eye witnesses namely Yuwaraj and Vanita, on the contrary, in their evidence, before the Court, stated that deceased Purushottam had gone to give message to Babytai and at that time, he had questioned Purushottam as to what relation he had with Babybai and further on his return from the house of Babybai, he was attacked by the appellant and his associates in which the appellant assaulted him with the knife which he was armed with, inflicting successive blows on his person including a thrusting blow in his stomach. Mr. Patwardhan pointed out from the evidence on record that the witnesses Yuwaraj and Vanita could not have heard much less seen what occurred at the house of Babybai. No evidence has been led by the prosecution to support the claim of the witnesses Yuwaraj and Vanita as to what happened at the house of Babybai. He also pointed out that both Yuwaraj and Vanita, in their statements recorded by the police, have not stated about the conversation and altercation between the appellant and deceased Purushottam at the house of Babybai and further the assault on Purushottam on his return to his house. So far as witness Yuwaraj is concerned, the learned Counsel for the appellant pointed out that in his report Exhibit 48, he has not disclosed about the genesis of the quarrel in the manner in which he deposed before the Court. So, he submitted that the evidence of both the witnesses Yuwaraj and Vanita is far from truth having regard to the glaring inconsistencies vis-a-vis the report Exhibit 48 and material omissions. As regards the identity of the appellant, the learned Counsel submitted that no identification parade was held. Both the witnesses have seen the appellant in the police station. No identification parade was held. Therefore, identification of the appellant by both the witnesses is meaningless and it should be left out of consideration.

14. Mr. Patwardhan contended that the factum of recovery of knife at the instance of the appellant is not proved inasmuch as both the panch witnesses, in whose presence the alleged disclosure statement was made by the appellant, have not supported the same. He also submitted that the place from where the knife was seized, was accessible to the public and as such, the discovery of the knife has no evidentiary value as an incriminating circumstance against the appellant. Mr. Patwardhan placed reliance on a decision in the case of Shankar Kondiba Gore v. State of Maharashtra reported in 1995(1) Maharashtra Law Journal 416 to substantiate his contention that the case would fall under Section 299 Thirdly I.P.C. as there was no intention to cause injuries and the incident has taken place on the spur of moment on account of quarrel that ensued. He also submitted that the appellant had no motive to commit even assault on the deceased; that the prosecution has failed to establish that the appellant had motive to commit the crime. He placed reliance on the decision in the case of State of Maharashtra v. Tanaji Dagadu Chavan and others reported in 1998 Criminal Law Journal 4515 : (1998 ALL MR (Cri) 1062) in which it is held that when neither the prosecution nor defence coming with true facts, - gainer is defence and not prosecution. He then placed reliance on a decision in the case of Harchand Singh and another v. State of Haryana reported in 1974 Criminal Law Journal 366 in which it is laid down that when prosecution leads two sets of evidence, each one of which contradicts the other, the accused is entitled to benefit of doubt. Mr. Patwardhan then placed reliance on two decisions of the Apex Court i.e. in the case of State of U.P. v. Ashok Dixit and another reported in (2000) 3 Supreme Court Cases 70 and in the case of State of H.P. v. Lekh Raj and another reported in (2000) 1 Supreme Court Cases 247 : (2000 ALL MR (Cri) 266 (S.C.)) in which the Apex Court explained the importance of identification when the offender is unknown to the prosecutrix/complainant as to the evidentiary value of identification of the accused, the Apex Court observed that it is not a substantive evidence, but holding of test identification is a safe rule of prudence and can be used for corroboration purposes. It is further observed that during investigation of a crime, the police agency is required to hold identification parade for the purpose of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested on the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained.

15. Mr. Patwardhan contends that in the instant case, the Medical Officer Dr. Ashok Tank (P.W.8) who performed autopsy on the dead body of deceased Purushottam, has given candid opinion that the injuries No.1 and 2 are not possible by knife (Article 6). Against that, prosecution witness Yuwaraj in his evidence, claimed that the appellant caused injuries with the knife (Article 6) by inflicting blows on his person including his abdomen. Having regard to the opinion given by Dr. Ashok Tank, the claim of prosecution witness Yuwaraj as to causing injury on the abdomen of deceased Purushottam cannot be accepted. Therefore, it is contended that witness Yuwaraj cannot be believed. The prosecution has failed to bring home the guilt on the accused-appellant. In the alternative, the learned Counsel submitted that in the absence of motive and intention on the part of the appellant to inflict that fatal injury which was found to be sufficient in the ordinary course of nature to cause death, it is only knowledge that could be attributed to the appellant and therefore, the case would fall under Section 304 Part II I.P.C.

16. Mr. Doifode, learned A.P.P., while supporting the judgment of conviction, submitted that presence of appellant on the spot is admitted. He drew our attention to the answer or reply to question No.74 given by the appellant. In our earlier part of the judgment, we have reproduced the reply given by the appellant. In that, he has specifically admitted his presence so also the fact that deceased came and started assaulting him and the person from Nagpur assaulted the deceased and ran away and he was apprehended by the villagers. The learned A.P.P. further submitted that as to the main incident, there is neither discrepancy nor inconsistency in the evidence of the eye witnesses P.W.6 Yuwaraj and P.W.7 Vanita. As regards the omissions in the evidence of witness Vanita, it is submitted that mere not mentioning of certain facts and circumstances in the statement recorded by the police under section 161 Cr.P.C. could not ipso facto amount to contradictions affecting the veracity of the witness. He placed reliance on a decision in the case of Jaswant Singh v. State of Haryana reported in 2000 Supreme Court Cases (Criminal) 991. The Apex Court while dealing with the omission to state a fact or circumstances, observed :

"An omission in order to be significant must depend upon whether the specific question, the answer to which was omitted, was put to the witness - Where investigating officer was not asked as to whether he had put questions to the eyewitness regarding details of the injuries inflicted or of persons who had caused the injuries, held, omission of such details in the testimony of the eyewitness would not render his/her testimony unreliable particularly when the courts below believed the testimony of that witness and that the omissions were not contradictions in the peculiar context."

17. Learned A.P.P. pointed out that it is not brought on record through the evidence of investigating officer who recorded the statements of witnesses Yuwaraj and Vanita that the specific questions, the answers to which were omitted, were put to them. So, in the absence of that, the omissions would not amount to contradictions much less that would not affect the veracity of witness Vanita. He submitted that both the witnesses have given consistent version on material fact of assault by the appellant on the victim Purushottam. The witnesses had opportunity to see the appellant. The witnesses have identified the appellant on their own before their statements were recorded by the police under Section 161 Cr.P.C. It is in this background that the identification of the appellant by these witnesses before the Court assumes importance. Therefore, it is submitted that not holding of the identification parade does not affect the factum of identification of the appellant by the witnesses before the court. In the post mortem report, there is no reference to the fact that intestine of the deceased had protruded out. But the learned A.P.P. pointed out that in the post mortem notes, there is mention of the fact that towel was tied to the abdomen of the deceased which fact supports the prosecution case that Lilabai tied the towel as the intestine had protruded out. Learned A.P.P. contends that the appellant was armed with a knife. After assaulting deceased Purushottam, the appellant also assaulted witnesses Yuwaraj and Satyabhamabai with a view to prevent them from coming to the rescue of the deceased. That the appellant has given successive blows with the knife. All these factors go to show that the appellant had intention to cause death or that bodily injury which proved to be fatal, being sufficient in the ordinary course of nature to cause death. As regards the discrepancy as to the number of injuries sustained by deceased Purushottam, the learned A.P.P. pointed out that abrasions were also possible by knife and taking into consideration those injuries or abrasions, there is no discrepancy as to the number of injuries. He submitted that mere non-mentioning of all injuries in the inquest is of no consequence. Shri. Doifode further contended that the factum of recovery of knife has been duly proved through the evidence of Investigating Officer. P.S.I. Prakash Hingmire (P.W.12) on whose interrogation, the appellant made disclosure to produce the knife that was hidden in the drum and further, witness Dayaram (P.W.2), in his evidence, has supported the factum of disclosure by the appellant and P.S.I. Prakash Hingmire has stated in his evidence about the actual recovery of the knife at the instance of the appellant (and) seizure of the same. He pointed out that as the knife was concealed in the drum, it was within the exclusive knowledge of the appellant. Further, the finding of blood stains on the blade of that knife of blood group "O", lends assurance to the involvement of the appellant in commission of the crime. Added to that, finding of blood on the sleeves of the shirt and pant of the appellant having blood group "O" which is admittedly the blood group of deceased Purushottam and the blood group of the appellant being of "B" type, brings the appellant close to the commission of the crime. He, therefore, urged that the prosecution has proved the guilt of the accused beyond every shred of doubt and the trial Court has rightly found him guilty. He urged that the appeal merits no consideration and as such, it should be dismissed.

18. As to the appreciation of evidence and duty of the Court in appreciation of evidence in criminal trial, the Apex Court in the case of State of H.P. v. Lekh Raj and another (supra), has said :

"The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."

19. As to the omissions which amount to contradictions, affecting the veracity of the witness, the Apex Court in the case of Jaswant Singh v. State of Haryana (supra) has observed :

"47. Section 161(2) of the Code requires the person making the statements "to answer truly all questions relating to such case put to him by such officer....." It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tahsildar Singh v. State of U.P. as :

"(i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; "

48. Now the explanation to Section 162 provides that an omission to state a fact in the statement may amount to a contradiction. However, the explanation makes it clear that the omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

49. Reading Section 161(2) of the Criminal Procedure Code with the explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the investigating officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries.

50. As already noted, Gurdeep Kaur's testimony in this regard was believed by both the courts. Both the trial court as well as the High Court were of the view that although Gurdeep Kaur had not given to the police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. This Court has also held that : (SCC p.197, para 12)

"(A) incident where a number of persons assaulted three persons at one and the same time with different weapons, some contradictions as to who assaulted whom and with what weapon, were not unlikely and such contradictions could not be made a ground to reject the evidence of eyewitnesses, if it was otherwise reliable."

It is thus clear in mind that every omission as to statement of fact or circumstance will not amount to a contradiction. The omission must be significant one and otherwise relevant. That omission in order to be significant must depend upon whether specific question, answer to which is omitted, was asked of the witnesses by the Investigating Officer.

20. Since the appeal is admitted and challenge to the conviction is basically on the ground of incorrect and erroneous appreciation of evidence of eyewitnesses, we have decided to reappreciate the prosecution evidence independently. Learned Counsel for the appellant has taken us through the evidence of material witnesses. We have also perused the evidence of the witnesses. Before we deal with the controversy, it is necessary to state certain facts which are not in dispute and which stood established clinchingly.

21. On the day of occurrence, for the marriage of the daughter of Sadashiv Deshmukh, some persons had been to village Bori and the appellant was amongst them. The house of witness Babybai (P.W.11) is adjacent to the house of deceased Purushottam. On the day of incident, some persons who had come to attend the marriage from Nagpur, had gone to the house of witness Babybai and amongst them was the appellant. Deceased Purushottam had gone to the house of Babybai at noon to give her message to work on the well. That on his return, Purushottam came to be attacked by some persons who had come in the village for attending the marriage. In that attack, Purushottam came to be assaulted with knife (Article No.6) and in all, seven injuries as noted by the Medical Officer Dr. Ashok Tank were caused before he could reach to the Medical College Hospital, Nagpur. He succumbed to the injuries. Dr. Tank has opined that the cause of death was shock and haemorrhage due to injury to vital organs and injury No.1 is sufficient to cause death of the deceased in the ordinary course of nature. So, Purushottam died homicidal death. On the same day, the villagers immediately apprehended the appellant and two persons while running away and they were produced in the police station where they were arrested. When the appellant was arrested, the clothes on his person were seized. There were stains of blood on his clothes and as per the report of Chemical Analyser (Exhibit 90), Article 11 which is shirt of the appellant, had blood stains ranging from 0.1 cm. to 2 cm. spread mostly on front and the sleeves. The blood was human and of "O" blood group. While the pant (Article 12) had few small washed blood stains on right leg front - lower portion. The shirt which the appellant was wearing when he was arrested, was white shirt of full sleeves and the pant was ash coloured one. As per the report of the Chemical Analyser (Exhibit 87), the blood of the appellant is of group "B". As per the report of the Chemical Analyser (Exh.90), the blood group of deceased Purushottam was "O". The appellant admitted that he had gone to Bori to attend the marriage of the daughter of Deshmukh. He was standing on the panthela. The deceased came and started assaulting him. Other persons from Nagpur who had come for the marriage assaulted deceased and he ran away. The persons who had assaulted the deceased ran away on the vehicles. He was apprehended by the villagers out of the village. Witness Yuwaraj (P.W.6) admitted the suggestion by the defence and stated : "It is true to say that at about 3.00 p.m. some guests were teasing the women folk and my brother objected and thereupon, 2 - 3 persons assaulted my brother with knife. Then, my brother fell down."

22. As to the occurrence of the incident, three theories have been put forward by the prosecution as reflected in three reports Exhibit 27, Exhibit 48 and Exhibit 69. The submission of the learned Counsel for the appellant is that the real genesis of the incident is not disclosed in any of the reports and the theories disclosed in the reports are not consistent.

23. So far as report (Exhibit 27) is concerned, it is lodged by Bharatram Nikose (P.W.1) who did not claim to be an eye witness to the incident. In his evidence, he has stated that the house of deceased Purushottam was adjacent to the house of Baby Kadawe. There took some altercation between Purushottam Gohate and the persons from Nagpur. In that altercation deceased Purushottam was assaulted by knife by the persons from Nagpur. He immediately came to Karanja and lodged the report. He has also stated that some persons in their village had arrested some persons from Nagpur. This witness has specifically stated that he knew the accused nos.1 to 4 before the court. His evidence has been undisturbed though he was subjected to cross-examination by the defence. It is true that in the report Exhibit 27, nothing has been stated as to the cause of quarrel and the persons who assaulted deceased Purushottam. It is obvious that no such disclosure was made in the report Exhibit 27 as the maker of the report namely witness Bharatram Nikose (P.W.1) has not seen the incident. At any rate, the report cannot be said to be inconsistent with the report Exhibit 48 admittedly given by P.W.6. Nonetheless, we may say that neither the report Exhibit 27 nor the evidence of witness Bharatram Nikose (P.W.1) established the prosecution case against the appellant. The report Exhibit 27, however, affirms the fact that deceased Purushottam was assaulted in the village at noon on 23.5.1991.

24. The report Exhibit 69 is the outcome of Station Diary entry taken by A.S.I. Krishna Hiware (P.W.10) of receipt of phone call from Bhagwan Choudhari. In this report Exhibit 69, the cause of quarrel was said to be exchange of hot words in the marriage and there, two boys assaulted one unknown person by means of a knife. In the report itself, it is made clear that names of those assailants were not known. The prosecution did not examine Bhagwan Choudhari who gave the said phone message nor it is claimed by the prosecution that the incident reported in phone message was witnessed by Bhagwan Choudhari. Therefore, for the simple reasons, it can be said that this report does not, by itself, further the prosecution case. But, nonetheless, this report is in no way, at variance with the report Exhibit 69.

25. The prosecution is therefore left with the report Exhibit 48 which was immediately lodged by Yuwaraj (P.W.6) after the occurrence by going to Karanja. As we find in the report Exhibit 48, it is stated that :

"At about 3 O' clock, in the noon, the said persons were moving in the village and teasing the women. Hence his brother Purushottam accosted them. Because of the said reason 2 to 3 persons assaulted his brother by means of a knife. As he fell down, I rushed there to separate them. At that time, one boy assaulted me by means of a blade of an awl, as a result of which I received injuries on the palm of right hand, near the thumb and near the right elbow."

This report undoubtedly gives the genesis of quarrel so also the assault on deceased Purushottam with knife. The authenticity of this report lies with the fact that Yuwaraj has specifically made a mention of the fact that he was also assaulted when he intervened to rescue his brother and in that process, he sustained injuries. It is not disputed that Yuwaraj was examined by Dr.Abdul Wajid Khan (P.W.14) for the injuries sustained by him. According to us, this fact lends assurance to the credibility of the witness Yuwaraj.

26. But then, the learned Counsel for the appellant pointed out from the evidence of witnesses Yuwaraj and Vanita that deceased Purushottam had gone to the house of Babybai and has conversation with the appellant and others and while he was returning to his house, the appellant accosted him by holding him by his waist and assaulted him with knife giving successive blows on his person. It is contended that in the report Exhibit 48, witness Yuwaraj has not disclosed these facts. In addition to that, in his statement recorded by police, nothing has been stated by him. So far as witness Vanita is concerned, nothing has been stated by her in her statement recorded by the police in the course of investigation and she has admitted in her evidence about these omissions. Learned Counsel for the appellant, therefore, strenuously argued that these omissions amount to material contradictions affecting the veracity of both the witnesses. He also submitted that there is no other evidence to substantiate these facts stated by the witnesses before the Court. That, having regard to the situation that prevailed at the time and place, it is almost impossible for both the witnesses to know, much less to see, what actually took place so also the involvement of the appellant.

27. After carefully considering the evidence of both the witnesses Yuwaraj and Vanita coupled with other circumstances attending the case, we do not find that the witnesses have made improvements in stating these facts in their evidence before the Court nor could it be said that the disclosure of these facts by these witnesses before the Court, brings out any infirmity or inconsistency in their evidence so as to discredit their testimony and claim as having seen the incident.

28. In the first place, learned A.P.P. has rightly placed reliance on the decision reported in the case of Jaswant Singh v. State of Haryana supra, "The omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context, shall be a question of fact. An omission in order to be significant, must depend upon whether the specific question, the answer to which is omitted, was asked of the witness". In the case before hand, so far as evidence of witness Vanita is concerned, she has stated that before the police, she has disclosed these facts. But she admitted that she cannot assign any reason why it is not recorded in her statement. It is true that factually the omissions are proved through the evidence of Investigating Officer P.W.12 P.S.I. Prakash Hingmire. But it is not brought in his evidence that he put the questions, the answers of which were omitted by the witness while recording her statement. If that is so, then as observed by the Apex Court, it cannot be said that the witness Vanita omitted to state such facts, when, in her evidence before the Court, she had specifically stated that when her statement was recorded, she did state all these facts.

29. So far as witness Yuwaraj is concerned, for the same reasons, we do not find that the witness has omitted to state some facts in his statement recorded by the police about which he has stated in his evidence before the Court.

30. From the evidence of witnesses Yuwaraj and Vanita, it is proved that Purushottam had gone to the house of Babybai where he had some sort of conversation with the appellant which resulted into some altercation and further, assault on him while he returned to his house. Witnesses Yuwaraj and Vanita claimed that they were in the courtyard of their house where the work of breaking groundnut was going on. The house of Babybai is adjacent to the house of Purushottam. In such circumstances, the possibility of witnesses Yuwaraj and Vanita having heard the conversation and what actually occurred at the house of Babybai between the appellant and Purushottam cannot be denied. It is further the version of both the witnesses that the appellant accosted Purushottam in the courtyard of the house and assaulted him with knife causing multiple injuries appears to be true. The claim of both the witnesses to have seen the incident of assault by the appellant ton Purushottam is not vitiated merely because both the witnesses have not stated in their statement recorded by the police about the incidental facts, so also non-mentioning of the same in the report Exhibit 48 by Yuwaraj.

31. Witness Satyabhamabai (P.W.9) was claimed by the prosecution to be present in the courtyard of the house of Purushottam and she too witnessed the incident. However, she did not support the prosecution. But, her admissions need to be taken into consideration. She has stated that she was sitting in the courtyard of Purushottam and they were breaking out the groundnuts. The deceased went to Shamraoji Baingane for taking meal. However, he returned back as the food was not ready. Thereafter, deceased went to bring iron from Dandale and Rabade. However, could not bring the iron. Radabebai told deceased to send message to Babybai for going to work. Then Baby was in the house. Two persons were standing in the courtyard of Baby. Purushottam told message to Baby. Those two persons were abusing Purushottam. Purushottam then came to his house. While deceased reached to courtyard, four persons followed him. Atleast this much evidence of witness Satyabhamabai fully corroborates the version of witness Yuwaraj and Vanita on incidental facts that took place. There is no challenge by the defence to what witness Satyabhamabai had stated in her first examination. That is why we say that the version of witnesses Yuwaraj and Vanita gains corroboration by the evidence of witness Satyabhamabai.

32. Both the witnesses Yuwaraj and Vanita have clinchingly identified the appellant. In their evidence before the Court, they have candidly stated that the appellant assaulted deceased Purushottam in the courtyard of their house. Learned Counsel for the appellant vehemently objected to the identification of the appellant by these witnesses in the background that the witnesses were not knowing the appellant nor they have seen him prior to the incident and further, no identification parade was held. To substantiate this submission, the learned Counsel placed reliance on two decisions of the Apex Court reported in the case of State of U.P. v. Ashok Dixit and another and in the case of State of H.P. v. Lekh Raj and another, both supra. We have gone through both the cases. As to the appreciation of evidence on identification, the Apex Court has observed that test identification is not a substantive evidence but holding of its identification is a safe rule of prudence and can be used for corroboration purposes. It is also laid down by the Apex Court as to the identification of the accused : "One of the accused not known to the prosecution witness - But no test identification parade held and the prosecution witness identifying the accused for the first time in the court. The identification of two accused by the prosecution witnesses in the curt, held, could not be accepted". The Apex Court also observed:

33. Learned A.P.P., on the other hand, submitted that having regard to the manner in which the incident has taken place and witnesses have witnessed it, it goes to show that the witnesses, particularly Yuwaraj and Vanita had ample opportunity to see vividly the appellant so also the act done by him. He pointed out that witness Vanita has, by her own, stated to the police to have identified the appellant. As regards witness Yuwaraj, he has stated in his evidence that when he went to lodge the report, the appellant was brought in the police station. So, in the background of this, learned A.P.P. submitted that identification of the appellant before the court cannot be doubted merely because the Investigating Officer did not hold identification parade.

34. Having regard to the facts attending the case, we do not find that identification of the appellant, for the first time, in the court has affected merely because the appellant was not put to identification parade by the Investigating Officer. Both the witnesses had ample opportunity to see the appellant and the act done by him. The incident has taken place in broad daylight and both the witnesses have seen the incident from very close quarters and so far as witness Yuwaraj is concerned, the appellant has assaulted him while he intervened to rescue his brother. In addition to that, the appellant has been apprehended and produced in the police station on the same day where the witnesses identified him. It is significant to note that the appellant does not dispute the fact that he was apprehended by the villagers and was produced on the same day in the police station when he was arrested. It is also not denied that both the witnesses saw; and identified the appellant on the same day in the police station before their statements were recorded. In addition to this, identification of the appellant is on the basis of the clothes he was wearing. It is proved that the appellant was wearing white shirt and ash coloured pant and the same clothes were seized when he was arrested. Both the witnesses have clinchingly stated about these clothes being worn by the appellant.

35. Witness Yuwaraj has stated in his evidence about the blood stains on the clothes of the appellant. That statement has gone unchallenged. As already stated, as per the report of Chemical Analyser Exhibit 90, on the shirt blood stains were spreading on the front and the sleeves and human blood was found of "O" group, while the blood group of the appellant is "B". The appellant has not explained as to finding of blood on his shirt of blood group "O" which was the blood group of deceased Purushottam. According to us, this circumstance not only brings the appellant close to the crime, but also clinches the issue of his identification.

36. Learned Counsel for the appellant submitted that in the case before hand, the prosecution led two sets of evidence, each one of which contradicts the other. Therefore, it is difficult to find conviction of the appellant. He referred to the decision of the Apex Court in the case of Harchand Singh and another v. State of Haryana, supra. We have already said that there is no inconsistency in the prosecution evidence nor it is a case laying two sets of evidence, contrary to each other. We have said that the theory of deceased Purushottam having gone to the house of Babybai and having altercation with the appellant, is in no way, contradictory to the main incident of assault on account of deceased Purushottam having obstructed/objected to the appellant and others for their teasing women of the village. Therefore, the decision of the Apex Court is of no application so far as the case before hand is concerned.

37. Mr. Patwardhan submitted that the prosecution has failed to establish that the appellant had motive to commit the crime. The incident has taken place on the spur of moment as a result of quarrel that ensued between the appellant and deceased Purushottam who were not knowing each other prior to that day. Therefore, absence of motive would have significance resulting into acquittal of the accused-appellant. He placed reliance on the decision in the case of Deoraj Deju Suvarna and etc. v. State of Maharashtra supra. In this case, this Court has observed :

"27. Another circumstance which creates doubt in our mind is that the prosecution has not assigned any motive, to accused persons, other than John. It is true that prosecution is not bound to prove motive in cases of direct evidence but this rule applies only to those cases where the direct evidence is reliable, cogent and unimpeachable. Where direct evidence is not of that quality, as is the case here, absence of motive would have significance. Therefore the absence of motive is also a circumstance which goes against the prosecution."

Learned A.P.P., however, submitted that though the appellant was not known to the victim Purushottam as the quarrel arose on the spur of moment, the appellant being armed with knife and inflicted injuries on the person of Purushottam, it has to be said that the appellant had motive to commit the crime. In the alternative, he submitted that when direct reliable evidence is adduced by the prosecution, absence of motive is of no consequence.

38. In the case before hand, we have found direct evidence of witnesses Yuwaraj and Vanita reliable and trustworthy. Therefore, as held by this Court, the absence of motive is of no consequence at all. Apart from that, considering the facts and circumstances of the case and having regard to the genesis of the quarrel, we hold that the appellant had motive to cause assault on deceased Purushottam and that motive developed on the spur of moment when the quarrel ensued.

39. As to the recovery of knife (Article 6), the learned Counsel for the appellant submitted that both the panch witnesses have not supported recovery and seizure of the knife at the instance of the appellant. In addition to that, the knife was found in a public place which was accessible to the public at large and therefore, it carries no evidentiary value much less an incriminating circumstance against the appellant. As against that, learned A.P.P. submitted that the evidence of Investigating Officer before whom the appellant made disclosure statement, is corroborated by panch witness Dayaram Bharange (P.W.2) and recovery and seizure of the weapon has been duly established. He also submitted that the knife was kept in the drum. It was also concealed and therefore, it cannot be said that the recovery was from an open place accessible to the public.

40. In the case before hand, it is clear that the knife that was recovered and seized at the instance of the appellant, was concealed in the drum. The appellant has made categorical statement that the knife was put by him in the drum and factually, the knife was recovered from the drum by the appellant. Therefore, it cannot be said that the recovery of the weapon was from a public place as submitted by the counsel for the appellant.

41. That apart, witness Dayaram Bharange (P.W.2), though was declared hostile as he did not support on the point of recovery of the weapon, has stated about the disclosure statement made by the appellant before him in pursuance of the memorandum Exhibit 35. Taking into consideration that statement coupled with the evidence of P.S.I. Hingmire (PW 12) who stated about the recovery and seizure of the knife at the instance of the appellant, as fortified by the seizure memo Exhibit 36, the recovery of the weapon at the instance of the appellant in pursuance of his statement made, is duly established. We are fortified by the decision of the Apex Court in the case of Modan Singh v. State of Rajasthan reported in 1978 Criminal Law Journal 1531 wherein the Apex Court has said that if the evidence of Investigating Officer who recovered material objects is convincing, the evidence as to the recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. Therefore, on the evidence of witnesses Dayaram Bharange (P.W.2) and P.S.I. Prakash Hingmire (P.W.12), the factum of recovery of knife (Article 6) at the instance of the appellant having made disclosure statement, has been duly established. It is further borne out on the evidence on record, particularly the report of Chemical Analyser Exhibit 90 that human blood of group "O" was found on the blade of this knife (Article 6). According to us, this is an incriminating circumstance connecting the appellant with the commission of the crime inasmuch as the knife has been seized after having been recovered at the instance of the appellant in pursuance of the statement made by him. This recovery of the weapon at the instance of the appellant shows his authorship of the weapon and incriminating nature is of the authorship of the weapon with the appellant and finding of blood stains of group "O" on it.

42. Mr. Patwardhan contended that the ocular version of witnesses Yuvraj and Vanita as regards the injuries inflicted on deceased is inconsistent with the medical evidence on record. He has urged that in the inquest which is admitted by defence, only four injuries are mentioned while the witnesses deposed about the successive blows of knife on the person of deceased Purushottam. He also pointed out that in the postmortem report the medical officer noted in all seven external injuries. The learned A.P.P. submitted that there is no disparity in the evidence of medical officer who has attended the deceased and noted only four injuries. The medical officer who conducted the postmortem on the dead body of Purushottam had occasion to go in detail of the injuries found on the dead body so also the internal damage corresponding thereto. The medical officer who attended the deceased cursorily noted few injuries. He has categorically stated that injury no.1 was very grave and patient's life was in danger and patient was in complete state of shock and haemorrhage internally and as his condition was very serious, he was referred to Government Medical College and Hospital, Nagpur without any further examination of injuries. This shows that the medical officer had not examined the deceased thoroughly as his condition was very serious. As against that in the postmortem report Dr. Tank has specified in all seven external injuries found by him as also corresponding internal damage sustained. Both the witnesses Yuvraj and Vanita stated abut successive blows of knife being given when victim Purushottam was assaulted. In view of these statements we do not find that there is no disparity which brings inconsistency between ocular evidence and medical evidence. We find that in the inquest only four injuries have been mentioned. While in postmortem report the medical officer noted 7 injuries that by itself does not prove any inconsistency or disparity to the extent of affecting the veracity of the testimony of the witnesses. We have already said that the appellant has not disputed that in the incident deceased Purushottam was assaulted with knife and sustained injuries as noticed by the medical officer who performed autopsy on his dead body. It is very material to note that the injuries mentioned in the postmortem included abrasions which are possible by knife. The medical officer Abdul Wajid Khan (P.W. 14) noted only stab and incise wounds on the person of Purushottam. He did not probe into the incised and stab wounds. It is obvious that he had not noted abrasions. That is why number of injuries noted by him is less than the injuries mentioned or noted in the postmortem report. We do not think that much can be made of this apparent disparity as to the number of injuries when the factum of deceased having sustained injuries due to attack at the time and place is admitted.

43. Learned Advocate for the appellant has urged that Dr. Ashok Tank P.W. 8 has deposed that Injury No.1 and 2 are not possible by knife (Article 6). The occular evidence and other circumstances are contrary to medical opinion. Eye witness P.W. 6 Yuvraj and P.W. 7 Vanita have not only identified knife (Article 6) but have categorically stated that the injuries were caused by the said knife. The said knife was recovered at the instance of appellant and blood stains of "O" group were found on it. In view of this overwhelming evidence, not much significance can be attached to medical evidence.

44. Now we consider the last submission of Mr. Patwardhan that the case would fall under section 299 of I.P.C. and the offence would be that under section 304 part II of I.P.C. He contended that the appellant accused and his associates continued to assault Purushottam after he fell down. The appellant was knowing that the injuries would be fatal and it was sufficient in ordinary course of nature to cause death, but there was no intention to cause death, having regard to the manner in which the quarrel ensued and victim came to be assaulted. In a case reported in 1981 Criminal Law Journal Page 1136 (supra) on which the learned counsel placed reliance, accused gave blow on the deceased with blunt side of Gandhala. The assault was in the heat of moment and without premeditation. It was therefore, held that the case would be covered by explanation 4 of section 300 I.P.C. and as such case would not fall under clause thirdly of section 300 I.P.C. Therefore, the conviction of the accused was altered to section 304 part II of I.P.C. In the case before hand the position is entirely different. The assault on the victim Purushottam was neither in the heat of moment nor with premeditation. Here in this case undisputedly, the assault on the victim was by the sharp edge of the knife. The appellant gave successive blows causing multiple injuries. It is pertinent to note that the external injury no.1 and 2 have been caused on the vital organs of the body. It is a matter of record that while leaving the place, the appellant took out knife from the abdomen and that there was spurting of blood. The blows on vital organs have been inflicted with such force and that there was corresponding internal damage resulting into severe haemorrhage. It is also clear that first when quarrel ensued there was altercations between the deceased and the appellant and thereafter when deceased was returning home, the appellant followed him and held him round his waist and gave call to his associates and then assaulted him inflicting successive blows. The victim was injured. In addition to that the appellant was armed with knife. There was no provocation by the victim to the appellant. It is very much clear that the act of the appellant was premeditated when he followed the deceased armed with knife.

45. In (1995) Mh.L.J. 416 (supra), the accused caused death of the deceased by stab injury through abdomen which internally punctured the right artery at ileum. That according to the postmortem report the injuries suffered by the deceased and the circumstances that the death of the deceased appear to have been caused as a result of right artery being punctured, the court found that the conviction of the accused under section 302 of I.P.C. was justified as the accused could not be fastened with the intention of puncturing a right artery at ileum, it can not be said that the accused had requisite intention contemplated by the third clause of section 300 of I.P.C. He could only be saddled with the knowledge of causing death of the deceased as contemplated under section 299 of I.P.C. When he assaulted the deceased with knife on the abdomen, he would be fastened with the knowledge by said act, he could rupture the artery thereby causing his death. It is clear from the attending circumstances that the motive suggested by the prosecution was too trifle to have an intention to kill the deceased and if accused wanted to kill the deceased, he would have given him another blow on any vital organ of his body. Therefore, the conviction was altered to one under section 304 of I.P.C.

46. Again as pointed out earlier the factual position in the case before hand is entirely different. The appellant has inflicted 7 blows with knife and in that fatal injuries have been caused on vital organs. Injury no.1 was a stab wound on left side axillary line 6" below and lateral to the nipple in 7 m. intercostal space, 1 1/1" x 1/2" x cavity deep, directed medially downwards and posteriorly both margin and angles clean cut fresh. Injury no.2 was stab wound on the left side Hypocondrium 2' above and lateral to umbilicus size 1' x 1/2" x cavity deep. Both margin and angles clean cut fresh. The corresponding internal injuries were 1) Seventh international muscle cut undernity injury no.1 of size 1 1/4" rib intact; 2) Plura cut underneath injury No.1 of the size 1 1/4" x Hemothorax present left side about 600 to 700 ml. of blood and clots present; 3) Left lung collapsed, pain, stab present on lower loab of size 3/4" x 1/2" hematoma present correspond which injury no.1. The appellant has therefore with the knife had inflicted blow on vital organ which resulted into corresponding internal damage. It is a matter of record that when witnesses Yuvraj and Satyabhamabai intervened to rescue Purushottam, the appellant and his associates assaulted them and also threatened to kill them. The appellant has caught deceased Purushottam from his behind and having regard to the fact that the appellant was armed with knife, it has to be said that his act of assaulting the victim was premeditated. Therefore, taking into consideration the fact that the appellant inflicted blows with knife on his vital organs intended, it is clear that he intended to cause, particular fatal injuries, that proved to be fatal and were found to be sufficient in ordinary course of nature to cause death. Therefore, the case of the appellant squarely falls under section 302 of I.P.C.

47. Mr. Patwardhan, placed reliance on the decision reported in 1998 Cr.L.J. 4515 (supra) to substantiate his contention that when neither the prosecution nor the defence case gives true facts the gainer is defence and not the prosecution. It is very difficult to apply the ratio laid down to the case before hand. In the case under consideration the prosecution has established its case as against the appellant on the basis of the direct evidence, as also the circumstantial evidence relating to recovery of the knife having blood stains as also human blood of Group 'O' on the shirt of the appellant. The prosecution has been successful in establishing the true facts. Therefore, the only conclusion that can be arrived at and has been arrived at by the Trial Court was that of the guilt of the accused appellant.

48. Thus for the aforesaid reasons we also come to the conclusion that the prosecution case has been established beyond shadow of doubt that the deceased Purushottam was done to death by the appellant and as such the appellant has committed offence under section 302 of I.P.C.

49. The Trial Court has committed no error in finding the appellant guilty of the offence under section 302 of I.P.C. for committing murder of deceased Purushottam. We have no hesitation in saying that the conviction of the appellant recorded by the Trial Court was legal and justified. We do not find any substance and merit in this appeal. Therefore, we dismiss the appeal.

Appeal dismissed