2010 ALL MR (Cri) 3370
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.D. SINHA AND A.R. JOSHI, JJ.

Shankar Maruti Bamne Vs. State Of Maharashtra

Criminal Appeal No.243 of 2005

23rd September, 2010

Petitioner Counsel: Mr. SHYAM MEHTA
Respondent Counsel: Mrs. A. S. PAI

(A) Evidence Act (1872), S.3 - Testimony of sole eye-witness - Credibility - Conviction can be based on the testimony of the sole eye-witness provided the evidence of such witness is cogent, trustworthy, reliable and is corroborated by other evidence. (Para 13)

(B) Penal Code (1860), S.300 - Evidence Act (1872), S.27 - Murder - Testimony of sole eye-witness - Reliability - Prosecution case that wife of deceased was present on the spot and had seen the appellant assaulting deceased with an axe - Testimony of eye-witness, wife of deceased is free from any material omission and contradiction and it inspires confidence - Her testimony corroborated by the medical evidence coupled with the evidence of discovery of axe by accused under S.27 of Evidence Act - Axe recovered had a blood of 'A' group also lends corroboration to the material particulars of the prosecution case - Guilt of appellant accused proved beyond reasonable doubts - Conviction of appellant-accused, therefore, is proper.(Paras 13, 14)

JUDGMENT

D. D. SINHA, J.:- Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the Respondent - State.

2. The appellant has preferred the present appeal against the judgment and order dated 21st March, 2003 passed by the Additional Sessions Judge, Pandharpur, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer R.I. for life and to pay fine of Rs.500/-, in default, to suffer R.I. for one month.

3. The prosecution case in nutshell is as follows :-

On 4th December, 2001 at about 6 a.m. Ranganath Karande (deceased) had gone to his agricultural field for watering the crops. He had asked his wife to come to agricultural field after a while. When Ranganath was watering the crops in his field, the appellant had come there with the axe and asked Ranganath why was he drawing water from the well on that day since it was his turn to draw water from the well which was used by both of them. It is the case of the prosecution that the appellant immediately thereafter assaulted the deceased by axe and caused injuries on the head, neck and other parts of the deceased. Ranganath had received serious bleeding injuries and succumbed to those injuries on the spot. Wife of Ranganath P.W.2 Gaurabai was present on the spot and had seen the appellant assaulting deceased with an axe. The son of deceased Vikas came on the spot, P.W.1 Dhondiram (brother of the deceased) lodged the first information report, Exhibit '8' at Police Station Sangola. The Investigating Officer came on the spot, drawn spot panchnama, inquest panchnama, forwarded dead body of the deceased for post-mortem examination, seized the blood stained clothes of the accused and the deceased, effected discovery of an axe at the instance of the appellant. On completion of the investigation, charge-sheet was filed. The trial court framed the charge against the appellant to which appellant denied his charge and claimed to be tried.

4. The learned counsel for the appellant has contended that the case of the prosecution wholly depends upon the testimony of sole eye-witness P.W.2 Gaurabai. It is submitted that the evidence of this witness is not free from suspicion. It is submitted that as per the testimony of this witness deceased Ranganath on the day of the incident left the house at 6 a.m. and went to his agricultural field for watering the crops. This witness claimed that she also followed her husband and reached the agricultural field one hour after her husband Ranganath came to the agricultural field. It is contended that this witness has stated in her examination-in-chief that after seeing the murderous assault on her husband by the appellant, she suddenly felt weak and became unconscious. The witness in the same breadth has further stated that her son Vikas reached the spot immediately or came to the spot in the meantime and she told him that the appellant assaulted deceased Ranganath and he should go to village and inform the people. The counsel for the appellant has submitted that the testimony of P.W.2 Gaurabai shows that this witness did not accompany deceased Ranganath when he left their house for going to his agricultural land. It is submitted that there is no positive evidence adduced by the prosecution at what time P.W.2 Gaurabai reached the agricultural land where the alleged incident had taken place. P.W.2 Gaurabai though claimed that her son Vikas reached on the spot immediately after the incident of assault and she disclosed the incident of assault to him, however the prosecution has not examined Vikas and since it is the case of the prosecution that P.W.2 Gaurabai after seeing the assault became unconscious and remained in that condition for a while, creates serious doubt as to how this witness could narrate the incident to her son Vikas who reached the spot immediately after the alleged incident. Similarly, though this witness has stated that after the incident the appellant had fled away from the spot, however, there is omission in this regard in her statement recorded by the police. Similarly this witness has also not stated to the police that after seeing the assault she suddenly felt weak and sat down on the ground. It is contended that it is not in dispute that the deceased as well as appellant were drawing water from the same well and their days were fixed. The enmity between the decease and the appellant is not in dispute. The appellant assaulted the deceased five to six months prior to the incident in question is also not in dispute. The counsel for the appellant therefore contended that P.W.2 Gaurabai being the wife of deceased Ranganath and in view of strained relations between the appellant and deceased Ranganath, the possibility of falsely implicating the appellant in the crime in question cannot be ruled out, particularly because P.W.2 Gaurabai being a wife of the deceased was an interested witness. It is further submitted that the totality of the testimony of this witness creates doubt as to whether she was really present on the spot at the time of the incident and whether she has witnessed the incident as claimed by her.

5. The counsel for the appellant has contended that so far as the recovery of clothes of the appellant which had blood stains is concerned, the prosecution has examined panch P.W.9 Ankush Kashinath Janakar to prove the panchnama of recovery of blood stained clothes of the appellant. It is further submitted that so far as recovery of blood stained clothes of the deceased is concerned, to prove the recovery panchnama of blood stained clothes of the deceased the prosecution has examined panch witness P.W.8 Bhimrao Khilare. In order to prove the recovery panchnama in respect of jacket of the appellant, the prosecution has examined P.W.6 Kisan Kondiba Khandekar, as a panch witness to prove the recovery of blood stained jacket of the appellant. It is contended that all these panch witnesses in their evidence have stated that all these clothes were already with the police which were shown to them in the police station and they were asked to sign the recovery panchnamas. The learned counsel for the appellant has submitted that neither the blood stained clothes of the accused nor blood stained clothes of the deceased were seized by the police in the presence of these panchas and in absence thereof the evidence of recovery of clothes loses its significance. It is contended that though the blood detected on the clothes of the appellant was of 'A' group which was the blood group of the deceased, however, since the said clothes were not seized in the presence of the panch witnesses the prosecution has failed to prove the recovery of clothes of the appellant.

6. The learned counsel for the appellant has submitted that the prosecution claimed that the clothes of the deceased were seized from his person which had blood of 'A' group, which was the blood group of the deceased and this is an incriminating circumstance which also corroborates the case of the prosecution disclosed by P.W.2 Gaurabai. The counsel for the appellant has submitted that the incident had taken place on 4th December, 2001 whereas the clothes from the person of the appellant came to be seized on 11th December, 2001. The learned counsel for the appellant contended that it is highly improbable that the appellant/accused will continue to wear blood stained clothes from 4th December, 2001 till the time of his arrest which took place on 11th December, 2001 and therefore the evidence of recovery of clothes from the person of the accused having blood of 'A' group is wholly untrustworthy and cannot be believed.

7. The learned counsel for the appellant further submitted that even the evidence in respect of discovery under Section 27 of the Evidence Act by the appellant is not free from suspicion. It is submitted that even otherwise discovery of the weapon by the appellant under Section 27 only demonstrate that the appellant pursuant to the memorandum statement discovered the axe, however that by itself does not prove that it was the same axe which was allegedly used by the appellant at the time of assaulting the deceased. In the instant case except the uncorroborated testimony of sole eye-witness P.W.2 Gaurabai there is no other evidence to corroborate the material particulars of the prosecution case except the medical evidence which only shows the nature of injuries sustained by the deceased and cause of death of the deceased. It is therefore contended that in the instant case the evidence adduced by the prosecution is wholly inadequate to prove the charge of murder against the appellant and therefore the finding of conviction recorded by the trial court against the appellant for the offence punishable under section 302 of the IPC is not sustainable in law and liable to be quashed and set aside.

8. The learned Additional Public Prosecutor on the other hand supported the impugned judgment of the trial court and contended that evidence of P.W.2 Gaurabai is truthful and reliable. There are no omission or contradiction in her testimony and her presence at the scene of offence has also not been seriously disputed by the prosecution. The testimony of this witness has been completely corroborated by the medical evidence as well as discovery made by the appellant of the weapon of offence under Section 27 of the Evidence Act. It is contended that P.W.2 Gaurabai in her evidence has specifically stated that the appellant assaulted the deceased with the axe, the post-mortem report shows that deceased received multiple incised wounds including fracture and after seeing weapon of offence (axe) medical officer has opined that injury nos.1 to 5 sustained by the deceased were possible or can be caused by the axe. It is further contended that the axe which was discovered by the appellant was stained with human blood of 'A' group which was the blood group of the deceased. The learned Additional Public Prosecutor therefore submitted that even if for the sake of argument it is presumed that the evidence regarding recovery of blood stained clothes of the accused as well as deceased is kept aside even though the evidence of eye-witness P.W.2 Gaurabai, discovery of weapon of offence under Section 27 of Evidence Act by the appellant coupled with the medical evidence proves the charge of murder against the appellant beyond all reasonable doubts and therefore criminal appeal is liable to be dismissed.

9. We have considered the contentions canvassed by the respective counsel and reconsidered the evidence adduced by the prosecution.

10. In the instant case the important evidence is of sole eye-witness P.W.2 Gaurabai, widow of deceased Ranganath. P.W.2 Gaurabai in her examination-in-chief has specifically stated that about six months prior to the incident in question, another incident had taken place in which the appellant had given a blow with the spade to her husband Ranganath. It has come in her examination-in-chief that on the day of incident deceased left the house at about 6.00 a.m. for his field and an hour thereafter this witness went to the agricultural field at that time deceased was watering the crop of jawar which was standing in their field. This witness has specifically stated in her examination-in-chief that she had seen appellant coming towards her husband holding calf and also had an axe with him. The appellant asked her husband why was he drawing water from the well when on that day it was his turn to draw water from the well. This witness further deposed in examination-in-chief that the appellant immediately thereafter started giving blows with the axe on the person of the deceased. She has also stated in her evidence that the appellant assaulted deceased with the axe on his head, neck, back, hip etc. This witness has stated that after the assault the appellant fled away from the spot of occurrence, this witness suddenly felt weak and sat down. After a while her son Vikas came there, he made her sit and at that time P.W.2 told her son that the appellant had assaulted Ranganath and therefore he should go to the village and tell others. It is pertinent to note that in the cross-examination of this witness she has admitted that she left the house an hour after deceased left the house. She has also admitted in the cross-examination that she had seen appellant coming towards them from his field. She has also admitted in the cross-examination that her son has reached the spot one hour after she and her husband came to the field. It is necessary to mention that tenor of the cross-examination of this witness shows that the defence has not disputed the presence of this witness at the time of the incident, presence of the appellant at the scene of offence with the axe and as well as presence of son of the witness sometime after the incident at the spot. There are no material omission or contradiction in her testimony and the omission which is brought out in her evidence, in our view, is a minor one and is not in respect of material particulars of the prosecution case. Considering the totality of the evidence of P.W.2 Gaurabai we are of the view that her testimony is cogent, reliable and trustworthy.

11. In the instant case, the appellant has given a memorandum of statement in presence of panch witness P.W.2 Arun Rohidas Bansode, discovered the axe which had blood stains of 'A' group. It is not in dispute that the place from where the axe was discovered was not accessible to the people at large and it was recovered from the place which was not visible to others. The defence though cross-examined panch witness P.W.5 at length, however, the defence could not get any material in the cross-examination of this witness which would affect the substantive evidence of this witness. The discovery of weapon of offence i.e. axe which had blood stains of 'A' group is not only a most incriminating circumstance against the appellant but also corroborates the prosecution case disclosed by the sole eye-witness Gaurabai.

12. P.W.4 Dr. Uttam Appa Phule had conducted post-mortem examination on the dead body of deceased Ranganath on 5th December, 2001 and found following injuries and noticed as follows :

1) Incised wound on the right parieto temporal region, it was horizontally placed, size of the injury was 7 cms. x brain deep. I had noticed that parieto temporal bone was fractured. The brain was exposed, and lacerated.

2) It was also incised wound on the right mastoid region, it was obliquely placed. Size of the injury was 3 c.m. X 1 c.m. x 2 cm..

3) Incised wound on the right side of the neck middle part, it was horizontally placed. Size of the injury was 4 c.m. x 1-1/2 c.m. x bone deep (3 cms). In this injury I had also noticed the fracture of survical fourth vertebra. The common carotid and external jegular veins and the vagus nerves and stenroo mastoid muscles were found to have been cut.

4) Incised wound over the nape of the neck. Size of this injury was 7 cms. x 2 cms. x bone deep, it was horizontally placed. I had noticed fracture of survical 2nd and 3rd vertebra. I had also seen that vertebral artery was cut, there was lacerations to the spinal cord of the size of 1 c.m. x 1 cm..

5) Incised wound on the inter scapular region (back). This injury was obliquely placed. Its size was 9 c.m. x 2 c.m. x bone deep. I had also noticed fracture of thoracic 7th vertebra.

6) Incised wound over right glauteal region it was obliquely placed. Size of this injury was 2 cms. x 4 cms..

All these injuries were caused by some hard and sharp weapon.

7) Abrasion over right knee joint of the size of 1 c.m. x 1 cm..

8) Abrasion over left knee joint, it was of the size of 0.5 c.m. X 0.5 c.m..

9) Abrasion over right arm, it was of the size of 3 c.m. x 3 cm..

These three abrasions were caused by some hard and blunt object.

Dr. Uttam in his testimony has stated that the deceased suffered fractures on palpation. The medical officer has opined that cause of death of the deceased was due to cardio respiratory failure due to haemorrhagic shock because of vascular injury to the neck with lacerations to the brain and fracture of parieto temporal bone and also the fracture of right survical and thoracic spine. Injury Nos.1 to 8 mentioned in column 17 of the post-mortem report were ante-mortem in nature and injury nos.1 to 5 were of fatal in nature and could be caused by means of an axe. Cross-examination of the medical officer is cryptic and insignificant. The medical evidence clearly shows that deceased sustained as many as 6 incised wounds which could be caused by an axe. The medical officer has also opined that injury nos.1 to 5 could be caused by means of an axe which was shown to him. The nature of injuries coupled with the placement of those injuries sustained by the deceased would demonstrate that they were inflicted with the sole intention to cause murder of the deceased. The injuries were on the vital part of the body and the fractures sustained by the deceased on a parieto temporal bone would demonstrate that the injuries were inflicted with full force. The medical evidence, in our view, completely corroborates the ocular testimony of eye-witness P.W.2 Gaurabai.

13. It is well settled that conviction can be based on the testimony of the sole eye-witness provided the evidence of such witness is cogent, trustworthy, reliable and is corroborated by other evidence. In the instant case as we have already observed herein above that the defence has not seriously disputed the presence of P.W.2 Gaurabai at the spot at the time of incident. The presence of the appellant as well as deceased was also not seriously disputed by the defence. The evidence of P.W.2 Gaurabai is free from any material omission and contradiction and it inspires confidence. The testimony of P.W.2 Gaurabai has been completely corroborated by the medical evidence coupled with the evidence of discovery of axe by the accused under Section 27 of the Evidence Act which had a blood of 'A' group also lends corroboration to the material particulars of the prosecution case.

14. Taking into consideration the above referred evidence of P.W.2 Gaurabai, medical evidence and discovery of weapon under Section 27 of the Evidence Act, we are of the view that the prosecution has proved the charge of murder against the appellant beyond all reasonable doubts without placing reliance on the evidence of discovery of clothes of the appellant and deceased.

15. For the reasons stated herein above, criminal appeal suffers from lack of merits. Same is dismissed.

Appeal dismissed.