2010 ALL MR (Cri) 3799
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.B. DESHMUKH AND S.S. SHINDE, JJ.
Charansing @ Chanya S/O. Indersing Kadewale Vs. State Of Maharashtra
Criminal Appeal No.213 of 2009
13th August, 2010
Petitioner Counsel: Smt. BHARTI B. GUNJAL
Respondent Counsel: Mr. N. R. SHAIKH
(A) Evidence Act (1872), S.3 - Appreciation of evidence - Eye-witness - Murder trial - Evidence of eye-witnesses though they are relatives or interested witnesses, can safely be relied upon if it is trustworthy. 2009 ALL MR (Cri) 2181 (S.C.) - Ref. to. (Para 19)
(B) Evidence Act (1872), Ss.134, 3 - Appreciation of evidence - Murder trial - PW-1 and PW-4 witnessing actual incident and shouted and thereafter other witnesses arrived at the scene of offence - Non-examination of other witnesses, held, would not affected the prosecution case. Penal Code (1860), S.302. (Para 21)
Badam Singh Vs. State of Madhya Pradesh, AIR 2004 SC 26 [Para 3,18]
Pappu @ Hari Om Vs. State of Madhya Pradesh, 2009 ALL MR (Cri) 2181 (S.C.) [Para 3]
Ramesh Kumar Toni Vs. State of Haryana, 2009(13) SCC 401 [Para 3]
S. S. SHINDE, J.:- This appeal is filed challenging the final judgment and order dated 28.11.2008, passed by the Additional Sessions Judge, Nanded in Sessions Case No.76 of 2008, by which the appellant-accused is convicted for the offence punishable under Section 302 of IPC and is sentenced to undergo R.I. for life and to pay a fine of '1,000/-, i/d to undergo further S.I. for two months.
One Sunita Pawar, PW-1, daughter-in-law of Vitthal Pawar (hereinafter for the sake of brevity referred to as the "deceased") resides at Tirupatinagar, Dhanegaon alongwith her family members i.e. her husband, brother-in-law, mother-in-law. The appellant (accused) Charansingh resides near house of PW-1 Sunita. Accused owns a auto rickshaw. At the time of Dasara festival, Ankush, brother-in-law of PW-1 Sunita, had taken the Auto Rickshaw of accused for plying. While running the said Rickshaw by Ankush, the rickshaw met with an accident and it got damaged. Accused had demanded an amount of '4,000/- towards the damage caused to the Rickshaw from deceased. Part amount of '2,000/- was given to the accused. However, accused all the while was raising quarrel on account of balance amount of '2,000/- and was threatening of dire consequences.
On 6.1.2008, in the evening time, deceased, PW-1 Sunita, her mother-in-law Gangabai (PW-4) and father-in-law Vitthal, were at their house. Accused came to their house armed with a knife and demanded '2,000/- from deceased. He was abusing the deceased. PW-1 and PW-4 requested the accused not to raise quarrel. Accused was convinced and sent back. After some time, again accused came to the house of PW-1 Sunita with a "Katti" and he gave a blow of Katti on the left side of chest of deceased. Due to which deceased sustained injury. PW-1 Sunita and PW-4 Gangabai shouted loudly saying that deceased was assaulted by accused. On hearing this, neighbours gathered at the spot of incident. Meanwhile, husband and brother-in-law of Sunita returned to the house. Deceased was lying on the ground. The police came to the spot and deceased was taken to the hospital. They also took the accused to another Rural hospital for treatment. PW-1 Sunita lodged the complaint Exh.18 to police station, Nanded (Rural) alleging that accused committed murder of her father-in-law Vitthal Pawar by Katti.
The Police of Rural police station, Nanded registered crime for the offence punishable under Section 302 of I.P.C. and P.S.I. Haribhau Rathod, PW-8 took over the investigation. Inquest panchanama Exh.24 was drawn on the dead body of Vitthal was referred to post-mortem examination. PW-8 Mr. Rathod, visited the place of occurrence and prepared the spot panchanama Exh.20. Katti was lying on the spot and blood stained soil and simple soil were seized from the place of occurrence. Statement of witnesses were recorded. The blood stained clothes were seized at Exh.31. After post-mortem examination, all seized articles were sent to the office of Chemical analyzer Aurangabad for analysis and report is submitted. Office copy of the report is at Exh.32. On receiving the post-mortem report and on completion of investigation, PW-8 submitted the charge-sheet against the accused and registered the offence under section 302 of I.P.C. and Section 4/25 of the Arms Act and under Section 135 of Bombay Police Act to the Court of learned J.M.F.C. Nanded. Since the offence under Section 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to the Court of Sessions at Nanded vide Section 209 of Cr.P.C. Charges at Exh.13 has been framed against the accused for the offence punishable under section 302 of I.P.C. and Section 4/25 of the Arms Act and Section 135 of Bombay Police Act. Charges were read out and explained to the accused. He pleaded not guilty. Plea of the accused has been recorded at Exh.14. The defence of the accused was that of total denial. According to him, he is falsely implicated in the case as he had filed a complaint against husband of PW-1 for the offence punishable under section 307 of I.P.C. Accused did not adduce any evidence in his defence.
The learned Sessions Judge, after hearing the parties and after recording the evidence, has convicted the appellant-accused Charansingh for the offence punishable under section 302 of I.P.C. and sentenced him to suffer R.I. for life and to pay fine of '1,000/-, i/d to undergo further S.I. for two months.
3. Learned counsel appearing for the appellant-accused (appointed) submitted that evidence of PW-1 and PW-4, who claim to be eye witnesses, suffers from material contradictions. Both these witnesses are interested witnesses and their evidence cannot be relied upon and the same should not have been taken into consideration. One of the witness stated that weapon used for commission of alleged offence is manufactured by the family of the witnesses as they being blacksmith. However, another witness does not say so. Therefore, in respectful submission of the counsel for the appellant, the evidence of PW-1 and PW-4 is not reliable. It is further submitted that though independent witnesses were available, however those were not cross-examined by the prosecution. Panch-witness on the inquest panchanama has not supported the prosecution case. It is further submitted that between narration made in the complaint and evidence led before the Court by PW-1, there are material contradictions. It is further submitted that one Parubai had given information to the Police Officer and the said information itself should have been construed as First Information Report, and in view of the information given by Parubai, first in time, by telephonic message to the police, the complaint lodged by PW-1 Sunita could not have been considered. It is further submitted that in statement under Section 313 of Cr.P.C., the accused stated that since he has lodged complaint against the husband of P.W.1 Sunita, the complaint in question filed against him is false. Learned counsel further submitted that the evidence of eye-witnesses is required to be scrutinized minutely by this Court. In support of her contention, learned counsel for the appellant placed reliance on the reported judgment of this Court in the case of Badam Singh Vs. State of Madhya Pradesh, reported in AIR 2004 SC 26 and more particularly para 16 of the said judgment to contend that merely because the eye-witnesses have deposed in favour of the prosecution, that itself is not sufficient to uphold the conviction unless their evidence is scrutinized minutely. Learned counsel further submitted that looking into the nature of injuries and quarrel took place between the appellant and deceased, the case in hand is not covered under section 300 of I.P.C. According to the learned counsel, looking to the facts of entire incident, the injuries sustained by the deceased and the complaint filed by the appellant accused against the husband of PW-1, the case of the appellant would fall under one of the exception of Section 300 of I.P.C. In support of her contention she placed reliance on the reported judgment of this Court in the case of Pappu @ Hari Om Vs. State of Madhya Pradesh, reported in 2009 ALL MR (Cri) 2181 (S.C.) and also the judgment of the Hon'ble Supreme Court in the case of Ramesh Kumar Toni Vs. State of Haryana, reported in 2009(13) SCC 401. Learned counsel invited our attention to the evidence of PW-1, PW-4, PW-8 and the Evidence of Medical Officer and submitted that the appellant is entitled for benefit of doubt Therefore, learned counsel would submit that the impugned judgment and order may be set aside and the accused appellant should be acquitted from the charges levelled against him.
4 . On the other hand, learned A.P.P. appearing for the State placed reliance on the evidence of PW-1 and PW-4 and submitted that there is direct evidence in the matter in the nature of eye-witnesses, Medical evidence corroborates with the version of eye witnesses, and therefore, the case in hand squarely falls under Section 300 and the trial court has rightly convicted the appellant under Section 302 of I.P.C. It is further submitted that merely because the other witnesses are not examined by the prosecution would not affect the prosecution case. Learned A.P.P. further submitted that other neighbouring witnesses had come on the spot after hearing the shouts of PW-1 and PW-4. PW-1 and PW-4 being family members of deceased have witnessed the incident and therefore, their evidence is important. Learned A.P.P. also invited our attention to the post-mortem report and submitted that if the injuries mentioned in column Nos.17 and 20 are taken into consideration, it is clear that the injuries are on vital part. Learned A.P.P. further submitted that there are more than one injury. The appellant accused came prepared and therefore, he does not deserve any leniency. Learned A.P.P. therefore, would submit that the appeal is devoid of any merit and the same be dismissed.
5. With the assistance of the learned counsel appearing for the appellant and the learned A.P.P. for the respondent-State, we have seen entire evidence brought on record. The date of incident is 6.1.2008. The incident has occurred at the evening time. The appellant, who is original accused is Charansingh @ Chanya s/o. Indersingh Kadewale. The name of victim is Vitthal Kashinath Pawar. The complaint is lodged by PW-1 Sunita on 6.1.2008 which is at Exh.18. Prosecution has examined other witnesses. PW-1 Sunita Ramesh Pawar, who is complainant. PW-2 is Bhagwan Vyankatrao Shinde, who is panch witness, PW-3 is Harcharansingh Inshwarsingh Khalsa, who is also panch witness. PW-4 is Gangabai Vitthal Pawar, wife of deceased Vitthal Pawar. PW-5 is Shri. Basare who is also treated as panch witness. PW-6 Balaji Kashiram Pawar blacksmith. PW-7 Dr. Madhukar Kashinath Hatte, Medical Officer, PW-8 Haribhau Patru Rathod. We find that the defence which is taken by the accused is that he filed complaint against the husband of PW-1 and therefore, a false complaint has been filed against him. PW-1 Sunita Ramesh Pawar in her examination-in-chief has stated that deceased was her father-in-law. The family was residing together consisting herself, her husband, mother-in-law, deceased father-in-law and her son. He further deposed that she knows the accused present before the Court. House of the accused is adjacent to her house. Ankush, is brother of her husband. Accused was plying auto rickshaw. On the date of Dasara, accused parked his rickshaw near her house. Anuksh was plying the said rickshaw. Rickshaw was dashed. Ankush sustained injury due to dash. Rickshaw was also got damaged. Accused was demanding an amount of '4,000/- towards the costs of damages. Despite the amount of '1,000/- was paid, the accused was demanding '4,000/- and on account of that he was raising quarrel with her father-in-law on account of non payment of the same amount.
6. On the date of the incident, her in-laws returned to home, from Wajegaon. They all were present in the house. It was about 7.00 p.m.. The accused came there holding a Khanjar with him and he came to their house with that Khanjar and demanded the amount. But deceased requested him not to raise quarrel and that the amount would be paid on one or other day. Accused was convinced and was returned to his house. However, after some time, accused again came to the house of this witness with a Katti. Her father-in-law was in the house. Accused gave blows of Katti on the chest of father-in-law of PW-1. Father-in-law sustained bleeding injures. It is further stated that she herself and PW-4 raised shouts. On hearing the shouts, neighbours gathered at the spot of incident. One lady amongst the persons gathered on the spot, who is residing in neighborhood had informed the police on which police came to the spot. This witness took her father in law to the hospital. This witness called to the police from hospital and lodged report. This witness has identified the thumb mark on the report which was shown to her. She has stated that the contents of the report was read over to her and same are true and correct. She further stated that said report is at Exh.18. Her father-in-law expired in the hospital. The dead body was thereafter referred to the post-mortem examination. This witness has stated that she can identify the "Katti" if shows to her. According to her, father-in-law died due to Katti blow given by the accused. She has categorically stated that the accused had committed murder of her father-in-law. The dispute was on account of amount of damages caused to the Rickshaw of the appellant-accused. This witness has identified the weapon 'Katti' used by the accused at the time of incident and clothes of her father-in-law, which were on his person at the time of incident. Katti (Article 1), Shirt (Article 4), banyan (Article 5), under pant (Article 6) and pant (article 7) were shown to her and she had identified them. (Emphasis supplied).
In her cross-examination, she has specifically denied the suggestion that her husband had assaulted the accused with knife or Khanjir. She has specifically denied that her husband was holding the Katti at the time of this incident. She has specifically denied that her husband was not present at the spot at the time of scuffle between accused and her father-in-law. He reached the spot immediately after the incident. The evidence of this witness has remained intact in the cross-examination.
7. PW-2 Bhagwan Shinde, who is witness to the panchanama of spot, seizure of Katti and soil from the spot of incident. He has denied the suggestion in cross-examination that panchanama was already written by police, before he reached to the spot. He specifically stated that the panchanama at Exh.20 was prepared in his presence.
The evidence of P.W.3 is at Exh.21. This witness has not supported the prosecution story.
8. Evidence of P.W.4, Gangabai Vitthal Pawar is at Exh.22. In her examination-in-chief, she stated that her husband Vitthal Pawar was blacksmith. Ramesh, Pralhad and Ankush are her sons. She had identified the accused, who was present before the Court. She has further stated that the accused resides near her house. According to this witness, incident occurred before Dasara festival. According to this witness her husband (deceased) took auto rickshaw of accused for her son Ankush. Auto Rickshaw was taken from accused prior to Dasara festival. Auto Rickshaw met with an accident and therefore, the same was damaged. The accused was demanding an amount of '4,000/-. This witness further stated that she had given an amount of '1,000/- and also given her marriage string (Mangalsutra) to the accused. Accused, even thereafter continued to demand the amount towards damages and was abusing the family members of this witness. It is further stated that the accused again came to their house and was demanding '1,400/-. The amount of '1,400/- was paid to the accused and requested him to put the end to the dispute.
She further stated that on the date of incident, accused came to the house of this witness in the evening at about 6.00 p.m.. Accused was demanding money from her husband. Accused was having a knife in his hand. This witness and other family members requested the accused and drove out him from their house. Accused went to his house and again came from his house with a Katti. This witness has further deposed that the accused gave a blow of Katti on the left shoulder of her husband and another blow on left side of chest of her husband. Her husband fell down. He sustained bleeding injuries. This witness has further stated that the neighbourer informed the police on telephone. Police came to the spot. Her husband was taken to the hospital. This witness has further stated that she can identify Katti, if shown to her. (Emphasis supplied).
In the cross-examination of this witness, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness, careful perusal of the cross-examination of this witness would show that her evidence in examination-in-chief has not shattered in any way in the cross-examination.
9. The evidence of PW-5 Shrihari Bhaurao Solanke, is at Exh.23. This witness has stated that he saw the dead body of his father-in-law. The clothes from the person of that dead body were stained with blood. There was bleeding injury on the left side of the chest and left shoulder near the neck. The police prepared panchanama. He put his thumb mark on the said panchanama. This witness has stated that the panchanama was read over to him is the same. Contents of the same are true and correct. The panchanama is at Exh.24. Nothing has been brought on record in the cross-examination by the defence so as to disbelieve the evidence of this witness.
10. Evidence of P.W.6 Balaji Kashiram Pawar is at Exh.25. He has stated in his examination-in-chief that deceased Vitthal was his brother. He was residing at Tirupati Nagar. He knew the accused present before the court. He resides near the house of Vitthal Pawar. Vitthal was also black smith and he has four sons. He received message on telephone about the death of Vitthal. He went to the spot at Tirupatinagar and saw the pool of blood at the spot. He saw the dead body of Vitthal in the hospital. The evidence of this witness supports the contention of the prosecution about the death of deceased and spot of incident. This witness has also stated before the Court that the wife of his brother told him that she had paid '2,000/- to '3,000/- to the appellant, towards the damages caused to his rickshaw.
11. The evidence of PW-7 Dr. Madhukar Kashinathrao Hatte is at Exh.27. He performed post-mortem examination between 7.00 a.m. to 8.00 a.m. on 8.1.2008. On examination he found following external injuries on the person of Vitthal Pawar :
i) Stab injury over upper part of left chest anteriorly, 9 cms. x 3 cms. x 15 cms. in dimension, spindle shaped, caused due to pointed doubled edged weapon. Age of injury was within 24 hours.
ii) Fracture of third rib anteriorly,
iii) Left hemothorax, 2.8 ltr. blood,
iv) Left lung was punctured. The wound was in apical lobe, collapse of left lung.
v) Pericardium was punctured at left side. Heart punctured, wound in left atrium.
In para 3 of his evidence, this witness has stated that, "in my opinion, the cause of death is shock due to hemothorax and injuries to lung and heart". He has further stated that post-mortem report shown to him before the court bears his signature. The contents thereof are true and correct and post-mortem report is at Exh.28. He has also issued provisional certificate about the cause of death. The said certificate is at Exh.29. He has further deposed that, "the injury shown in column No.17 of post-mortem report is possible by means of Katti, if it is sharp. The said injuries is possible by means of Katti (Article 1), now shown to me". In his cross-examination, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness. (Emphasis supplied)
We have also noticed that the injuries mentioned in column No.17 of the post-mortem report. It is stab injury over upper part of left chest anteriorly, 9 cms. x 3 cms. x 15 cms. in dimension, spindle shaped, caused due to pointed doubled edged weapon. Age of injury was within 24 hours.
We have also carefully perused the injuries mentioned in column No.20 of post-mortem report, which are as follows :-
i) Fracture of 3rd rib anteriorly,
ii) Left hemothorax, 2.8 ltr. blood,
iii) Left lung was punctured. The wound was in apical lobe, collapse of left lung.
iv) Punctured, wound in left atrium.
The post-mortem report shows that the probable cause of death is, "shock due to haemothorax and injuries to lung and heart". (Emphasis supplied).
12. The evidence of PW-8 Haribhau Patru Rathod, is at Exh.30. In his examination-in-chief, he stated that he received the investigation of crime No.7 of 2008 from Police Station, Nanded (Rural) on 7.1.2008. Inquest panchanama was drawn in the hospital. Inquest panchanama at Exh.24 shown to him before the Court, is the same, which bears his signature and those of panch witnesses. He further stated that he visited the place of occurrence and prepared the spot panchanama. He further stated that it was at Tirupati Nagar, Dhanegaon. He further stated that one blood stained Katti was lying on the spot. It was seized. Similarly, there were blood stains on the ground and therefore, the blood stained soil and simple soil were seized from the spot. Spot-panchanama Exh.20 shown to him is the same. Katti (Article 1) shown to him is the same which was seized from the spot. This witness has further stated that the blood stained clothes of deceased were seized after post-mortem examination. Katti, blood stained clothes, blood stained soil and the simple soil were sent to office of C.A. Aurangabad for analysis and report. Seizure panchanama of the clothes bears his signature and those of panch witnesses. Contents thereof are true and correct. The panchanama is at Exh.31. The blood stained clothes Articles 4, 5, 6 and 7 shown to him are the same. This witness has further stated that office copy of the letter addressed to C.A. Aurangabad bears his signature and the said letter is at Exh.32. It is further stated that he recorded the statements of the witnesses. Post-mortem report was received by him from Medical Officer. The accused was arrested and he is the same person who was present before the court. This witness has further stated that after completion of investigation charge-sheet was filed. This witness has specifically stated that on investigation it is transpired that the accused committed murder of Vitthal Pawar by means of Katti due to dispute on account of payment of damages caused to auto rickshaw of the appellant-accused. We have also seen the cross-examination of this witness. On behalf of the defence, nothing has been brought on record by the defence so as to disbelieve the evidence of this witness.
13. With the assistance of the learned counsel appearing for the appellant as well as the learned A.P.P. we have carefully gone through the impugned judgment of the trial Court. The learned Sessions Judge in para Nos.14 to 17 has taken into consideration the evidence of PW-1, PW-4 and PW-6. The learned Judge has observed in the said paragraphs that merely because PW-1 and PW-4 are relatives of the deceased, the same cannot be a ground to disbelieve and discard their testimony. It is further observed that at the most, on this count, the evidence is to be appreciated with due care and caution. The trial court has accepted the evidence of PW-1 and PW-4. The trial court in para 21, has considered the submissions of the counsel for the defence that other independent witnesses are not examined by the prosecution. The trial court has recorded that neighbourers Parubai, Maruti Sakhare, Kokarebai, Dnyaneshwar, Sonarinbai and others came to the spot after shouting by Sunita and Gangabai. The court has further observed that it is not the prosecution case that these neighbourers witnessed the accused while actually giving Katti blow to deceased but as per the prospection case they came to the spot after accused gave Katti blow to deceased and after shouting by Sunita. The trial Court held that death of deceased Vitthal was homicidal.
We have independently considered the evidence including the statement of PW-1, PW-4, PW-8 and the evidence of Medical Officer. We have also carefully perused the other evidence brought on record including post-mortem report. The Medical evidence unequivocally indicate that the death of deceased was homicidal. The Trial court has elaborately discussed about the said aspect and we fully endorse the finding of the trial court on that aspect.
14. The evidence of PW-1, complainant, Sunita in respect of happening of actual incident is concerned, she stated that on the day of incident, her in law returned to home from Wajegaon. It was about 7.00 p.m. the accused was holding Khanjir with him, came to their house with that Khanjir. Accused had demanded amount but the father-in-law (deceased) requested him not to raise quarrel and that amount would be paid on one or the other day. Accused was convinced and was sent back to his house. In para 3 of examination-in-chief, this witness stated that, "After some time accused again came to our house with a Katti. My father-in-law was in the house. Accused gave blow of Katti on the chest of my father-in-law. My father-in-law sustained bleeding injuries. One woman from neighbourhood informed the police on which police came to the spot". Therefore, the evidence of this witness who has witnessed the incident herself, finds support from the evidence of PW-4, who is also eye-witness and wife of deceased Vitthal.
15. PW-4 Gangabai stated about the actual incident, in her examination-in-chief, she has stated that, "on the day of incident the accused came our house in the evening at about 6.00 p.m.. The accused was demanding money from my husband. Accused was holding a knife. We requested the accused and drove out him from our house. Accused went to his house and again came to my house with a Katti. Accused gave blow of Katti on the left shoulder of my husband and another blow on left side chest of my husband. My husband fell down. My husband sustained bleeding injuries. The neighbour informed to police on telephone. Police came to the spot. My husband was taken to the hospital". (Emphasis supplied)
If the evidence of these two eye-witnesses PW-1 and PW-4 is taken into consideration coupled with the Medical Evidence, it unequivocally record that the appellant accused alone is responsible for the death of deceased Vitthal. Both the witnesses are eye-witnesses to the incident. Their presence at the spot is natural since the complainant is daughter-in-law of deceased and PW-4 is Gangabai is wife of deceased Vitthal. On careful reading of evidence of PW-1 and PW-4, coupled with medical evidence the prosecution has established its case against the appellant beyond reasonable doubt. The appellant accused on the date of incident at about 6.00 p.m. had been to the house of the deceased. The deceased and family members had convinced the accused and told him that they will pay the remaining amount. It has also come in the evidence of PW-4 that accused was demanding '4000/- towards the damages of auto rickshaw and she gave amount of '1000/- and her marriage string to the accused. The accused went back to his house and again came back to the house of deceased at about 7.00 p.m. With weapon Katti, which is double edged sharp weapon. Therefore, there is no manner of doubt that the accused appellant had come fully prepared with an intention to commit murder of Vitthal Pawar. The manner in which the accused assaulted the deceased and the injuries which were inflicted on the deceased by the accused on vital parts of the body unequivocally lead to the conclusion that the accused appellant had full intention to commit the murder of deceased. The Medical evidence supports the prosecution case. The injuries mentioned in column Nos.17 and 20 of the post-mortem report clearly suggest that the accused had intention to commit murder of deceased. Injuries mentioned in column No.17 is near chest i.e. On vital part. It is pertinent to mention that PW-4 in her evidence has stated, "My marriage string (Mangalsutra) was given to accused". It would not be out of place to mention that marriage string (mangalsutra) is a sacred and cherished ornament of the Indian woman. Inspite of the payment being made, the accused again came to the house fully prepared with the weapon Katti and assaulted deceased, which resulted in to the death of deceased. (Emphasis supplied)
16. The prosecution has also examined PW-8 Haribhau Patru Rathod, who was PSI at Nanded police station at the relevant time. Inquest panchanama Exh.24 was drawn by him. Recovery and seizure of blood stained Katti from the spot, sample of blood stained soil and simple soil was seized by this witness from the spot. Spot panchanama Exh.20 has been proved by the prosecution through this witness. This witness has also identified Katti (Article 1) which was seized from the spot. This witness had also seized blood stained clothe of deceased and other articles which were sent to the C.A. The evidence of this witness has not shattered in the cross-examination.
17. We have carefully perused the statement of accused appellant recorded under Section 313 of Cr.P.C. in reply to question No.18. The accused has stated that, since he has filed complaint against the husband of the complainant under Section 307 of IPC, he is falsely implicated in the case. On our careful perusal of entire evidence on record, we do not see that the said defence taken by the appellant has brought on record anywhere or for that purpose no material has been placed on record. On perusal of cross-examination of the prosecution witnesses, it is revealed that the defence has not asked any question or given any suggestion in respect of filing any complaint against the husband of the complainant. There is also nothing in the cross-examination of PW-8 suggesting him that accused appellant had also sustained injuries. In short the defence has failed to bring anything on record in respect of complaint filed by him against the husband of the complainant. In absence of that we find it difficult to look into that aspect. We have carefully perused the impugned judgment and we do not find such defence taken by the accused and evidence brought on record in that regard.
Though the counsel for the appellant has strenuously argued that there are contradictions in the evidence of eye-witnesses, however, in cross-examination the defence has not succeeded to bring it on record. On the contrary, eye-witnesses have reiterated in the cross-examination what they have stated in the examination-in-chief.
18. Coming to the argument advanced by the counsel appearing for the appellant that this court should minutely scrutinize the evidence of eye-witnesses and evidence of eye-witnesses cannot be accepted as it is without scrutinizing it minutely is concerned, we find that the presence of PW-1 and PW-4 at the spot of incident was natural and there is no manner of doubt that they have witnessed the actual incident. We have carefully perused the evidence of PW-1 and PW-4 and on our independent scrutiny we find it wholly reliable. Therefore, in the facts and circumstances of this case, reliance placed by the counsel for the appellant on reported judgment of Hon'ble Supreme Court in the case of Badam Singh (supra) is wholly mis-placed.
As stated herein above, we have carefully perused the evidence of prosecution witnesses including the evidence of PW-1 and PW-4 who are eye-witnesses to the incident, we find that their presence on the spot was natural. The judgment which is cited by the counsel for the appellant is on different facts. In that case the Apex Court had expressed its opinion about the presence of eye-witnesses at the spot of incident. In the present case, since PW-1 is daughter-in-law of the deceased and PW-4 is wife of deceased, their presence at the spot was natural that too in the evening time between 6.00 p.m. to 7.00 p.m. We have carefully considered the submissions of the counsel for the appellant about alleged contradictions in the evidence of prosecution witnesses, however, we are not impressed by said submission.
19. The next argument advanced by the counsel for the appellant is hat since PW-1 and PW-4 are interested witnesses is concerned, the Hon'ble Supreme Court time and again observed that the evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives or interested witnesses. We need not burden our judgment by referring those judgments, since it is well established by this time that the evidence of eye-witnesses though they are relatives or interested witnesses, can safely be relied upon if it is trustworthy.
20. The next argument of counsel for the appellant is that the accused had no intention to commit murder of deceased and therefore, his case would fall under one of the exception of Section 300 of I.P.C. and ultimately conviction would be under Section 304, Part-I or Part-II. In our opinion, it is not the case that there was sudden quarrel or there was sudden fight and the accused appellant was provoked to assault the deceased. In fact the evidence of PW-1 and PW-4 clearly shows that the accused came prepared with weapon at about 6.00 p.m.. However, the deceased and family members persuaded him and assured him to pay the remaining amount and on that he returned to his house. Again at 7.00 p.m. accused again came to the house of the deceased, prepared, having a weapon i.e. Katti in his hand, which is sharp edged weapon. Therefore, he had full intention to assault the deceased and to commit murder of deceased, and same has been reflected from his act and further from the injuries found on the body of deceased. In the circumstances, we do not find any force in the submission of the counsel for the appellant that the case of the appellant accused would fall under Section 304, Part-I or Part-II. Accused appellant had intention to commit murder of deceased and with that intention he had been to the house of the deceased and had assaulted on vital parts of the deceased. Therefore, taking into consideration entire evidence brought on record by the prosecution and taking into consideration the findings recorded by the trial court, we do not find any case for interference.
21. The argument of the counsel for the appellant that the witnesses who are residing in neighborhood are not examined by the prosecution is concerned, we find that PW-1 and PW-4 have witnessed the actual incident and shouted and thereafter the other witnesses have arrived at the scene of offence. In our view, non-examination of other witnesses would not affect the prosecution case. Therefore, we do not find any force in the said argument.
22. Therefore, on careful perusal of the entire evidence brought on record, and after appreciating the rival submissions advanced on behalf of the counsel for the appellant and learned A.P.P. we are of the considered opinion that the appeal sans merit.
23. In the facts and circumstances of this case, in our opinion, the trial court has properly appreciated the evidence brought on record. After appreciation of entire evidence on record and after giving full opportunity to the respective parties, the trial court has convicted and sentenced the appellant-accused. We do not see any infirmity and perversity in the findings recorded by the trial Court. Therefore, this appeal is devoid of any merits and same stands dismissed.
24. We appreciate the assistance rendered by Advocate Smt. Bharti B. Gunjal, who is appointed as amicus curiae to represent the cause of he appellant in the present appeal. We quantify an amount of '3,000/- towards her legal fees and expenses for conducting this appeal.