2008 ALL MR (Cri) 2998
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
K.J. ROHEE AND A.P. BHANGALE, JJ.
Suresh S/O. Chhotelal Madhumatke Vs. State Of Maharashtra
Criminal Appeal No.66 of 2003
30th September, 2008
Petitioner Counsel: Miss. T. KHAN
Respondent Counsel: Mr. S. S. DOIPHODE
Evidence Act (1872), S.3 - Penal Code (1860), S.302 - Appreciation of evidence - Solitary eye-witness - Conviction for murder case - If main evidence of eye-witness is sufficient, cogent and trustworthy, Court can still record a finding of guilt upon reliable evidence of solitary eye-witness - Object of criminal law is to punish real culprit while innocent shall always be acquitted.
If main evidence of eye-witness is sufficient, cogent and trustworthy, the Court can still record a finding of guilt, upon reliable evidence of solitary eye-witness. The object of criminal law is to punish real culprit while innocent shall always be acquitted. The principle must be borne in mind that it is the quality of evidence and not the quantity that matters most, and upon examination of evidence and circumstances on record and after sifting chaff from the grain, if the Court can come to rational and irresistible conclusion irrevocably pointing towards the guilt of the accused, it is the duty of the criminal Court to punish real offender. [Para 10]
A. P. BHANGALE, J.:- By this Appeal, the judgment and order passed by learned 2nd Additional Sessions Judge, Nagpur on 2nd December, 2002 thereby convicting the appellant/accused for offence punishable under section 302 of the Indian Penal Code (in short 'IPC') and sentencing him to suffer imprisonment for life, is under challenge.
On 28th May, 1995 at about 2.00 p.m. at Kamptee, the appellant/accused assaulted his wife Meerabai, by means of knife, on her chest and stomach. In the course of the incident, the appellant also caused injury to his mother Itwaribai (PW-1). The injured were taken to Rural Hospital, Kamptee, Dist.-Nagpur. Itwaribai was treated and discharged; whereas Meerabai was shifted to Mayo Hospital, Nagpur. She succumbed to her injuries on the same day at 15.15 hours. The crime was reported at about 16.15 hours at Kamptee Police Station on the same day, and Cr. No.190/1995 came to be registered against the appellant, for offence punishable under sections 302, 324 of the IPC.
3. Upon completion of investigation, charge-sheet was filed before the learned Judicial Magistrate, First Class, 7th Court, Nagpur who committed the case to the Court of Sessions at Nagpur (being Sessions Trial No.421/1995). The charge was framed on 21.1.1997 to which the accused pleaded not guilty and claimed to be tried.
4. The Prosecution has examined as many as eight witnesses to substantiate the case of murder. The trial Court found the accused guilty and convicted him for offence punishable under section 302 of the IPC. The conviction was challenged earlier by Criminal Appeal No.171 of 1997. This Court by judgment dated 17.6.2001, directed the trial Judge to frame questions under section 313 of the Criminal Procedure Code (in short 'Cr.P.C.') to examine the accused as required and to pronounce judgment.
6. The trial Court after recording statement of the accused under section 313, Cr.P.C., in detail and giving sufficient opportunity to the accused to defend himself, convicted the appellant for offence punishable under section 302 of the IPC and sentenced him to suffer imprisonment for life.
7. The trial Court has placed reliance upon evidence of PW-1 Itwaribai, the real mother of the appellant. Her evidence is corroborated by medico-legal evidence deposed by Dr. Dixit (PW-7) and by recovery of knife i.e. weapon used in the offence, at the instance of the appellant and other circumstantial evidence indicating his guilt, vide Chemical Analyser's Report (Exhs.45 to 47).
8. In support of the appeal, the learned counsel for the appellant submitted that Bharat (son of appellant Suresh) and API Dangre who allegedly seized weapon i.e. knife under Panchnama, were the essential witnesses but they were not examined by the prosecution. Further, according to the learned counsel for the appellant, the solitary eye-witness was an old lady, that too with weak eye-sight and, therefore, the trial Court committed an error to rely upon her evidence.
9. Per contra, the learned APP for the Respondent-State, submitted that the prosecution has led sufficient and reliable, direct as well as circumstantial evidence to bring home the guilt of the appellant. Regarding contention on behalf of the appellant that essential witnesses were not examined, the learned APP contended that API Dangre, who drew Panchnama regarding recovery of knife (weapon of offence), died during pendency of trial and reportedly was not alive when summoned from the trial Court. The learned APP, further, submitted that the best available evidence was led by the prosecution to prove the offence of murder. Thus, he supported impugned judgment and order.
10. We do not see any reason to doubt veracity of PW-1-Itwaribai. She being the real mother of the appellant had no reason to falsely implicate her son, that too in a serious crime of murder. We also find ample corroboration in medico-legal evidence as deposed by Dr. Dixit (PW 7). He gave crystal-clear evidence to indicate that deceased Meerabai met with homicidal death as a result of stab injuries, vide Post-mortem notes (Exh.39), which are as under:
1. Incised stab over front of chest 5 cm. above sub-costal angle 3 cm x 1/2 cm. cavity deep, verticle upper angle blunt lower sharp, internal direction from front to back and above downwards, structures cut were atrium of hear ( through and through) middle lobe of right lung (interior margin through and through) adherent blood clot seen.
2. Incised stab over front of chest across sub-costal angle 2.8 x 5 cm. cavity deep oblique upper angle blunt and lower sharp internal direction from above downwards front to back and right to left structures cut were front cut liver (through and through) 2.5 cm. at entry and .5 cm. at exist), Stomach (.5 cm).
3. Through and through stab over right palm, wound of entry of hypothenar eminent 2.5 cm x .5 cm. edges clean cut upper angle blunt and lower sharp verticle, wound of exist on back of web between thumb and index finger 1 x .5 cm. upper angle blunt and lower sharp edges clean cut total distance 3.8 cm.
4. Through and through stab over left side of waist, wound of entry 9 cm. behind interior superior iliac spine oblique 1 x 5 cm. lower end blunt and other sharp wound of exist 11 cms. behind interior superior iliac spine, 5 x .5 cm oblique edges clean cut lower and blunt and other sharp, total distance 1.5 cm. direction from front to back.
5. Contusion abrasion over upper side of left shoulder 2 x 1 cm. brownish red.
Thus, injury nos.1 and 2 were on vital part of the body which, according to the Doctor, are sufficient in the ordinary course of nature, to cause death. The findings reported by Chemical Analyser (Exhs.45 to 47) lend further corroboration to the prosecution case. The medico-legal evidence pointed out that deceased-Meerabai died due to shock and haemorrhage caused by stab injuries to vital organs. PW-7 Dr. Dixit also opined that injuries No.1 to 4 in Column No.17 of P.M. Notes (Exh.39) can be caused by weapon (Art.1) and the injuries were sufficient to cause death in ordinary course of nature. Hence, intention to commit murder is established. Thus, the case is covered by Clause thirdly of Section 300 of the IPC. Moreover, knowledge can also be attributed to the appellant thereby overruling any other possibility suggested by defence for sustaining such injuries. Evidence of PW 1-Itawaribai, by her direct ocular evidence on the incident, deposed implicating her own son- Suresh stating that he assaulted her deceased daughter-in-law Meerbai, by means of knife. There is no ground to disbelieve her evidence as she stood up firm in her short evidence and gave bold and clear answers in cross-examination by giving time of the incident etc. Her evidence appears wholly reliable to prove that she was an eye-witness to the incident and saw her son killing her daughter-in-law, in the house. Since the incident had occurred inside the house, she was most natural witness to see the incident. She, in unequivocal terms, stated that she is not using spectacles and, as such, it cannot be said that she had a weak-eye-sight. The conduct of the accused that he produced knife (weapon of offence) from his house, evidence in seizure memo (Exh.35) as deposed by Panch witness- J. M. Ingle (PW-6), corroborated the direct evidence, is relevant in view of Section 8 of the Indian Evidence Act. Some of the prosecution witnesses, namely, PWs.3, 4 and 5 had turned hostile, with the result, their evidence has to be kept out of consideration on the ground that they did not support the prosecution case. In any case, no criminal case is free from such shortcoming. If main evidence of eye-witness is sufficient, cogent and trustworthy, the Court can still record a finding of guilt, upon reliable evidence of solitary eye-witness. The object of criminal law is to punish real culprit while innocent shall always be acquitted. The principle must be borne in mind that it is the quality of evidence and not the quantity that matters most, and upon examination of evidence and circumstances on record and after sifting chaff from the grain, if the Court can come to rational and irresistible conclusion irrevocably pointing towards the guilt of the accused, it is the duty of the criminal Court to punish real offender.
11. Having considered the evidence led by the prosecution in this case and legal position stated above in this regard, we find that the trial Court analysed the evidence correctly and recorded the finding of guilt, considering the nature of the weapon used by the accused in the incident, to hold the appellant guilty of murder. We do not find any fault with the conclusion arrived at by the trial Court that deceased Meerabai met with homicidal death and the author of the crime was none other than the appellant-Suresh.