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Judgment
Vishnu Sahai, J.—Through this appeal, the appellant challenges the Judgment and Order dated 7th October, 1997 passed by the IInd Additional Sessions Judge, Nasik in Sessions Case No. 101 of 1997 whereby he has been convicted and sentenced in the manner stated hereinafter:-
(i) u/s 302 of the IPC to undergo imprisonment for life and to pay a fine of Rs. 8,000/- in default to suffer R.I. for one year; and
(ii) u/s 307 of the IPC to undergo R.I. for 10 years and to pay a fine of Rs. 8,000/- in default to undergo R.I. for one year.
The substantive sentences were ordered to run concurrently.
In short, the prosecution case runs as under:-
The deceased Vilas Akolkar, the informant Santosh Patil P.W. 1, the injured Ravindra Wagale P.W. 5, Balu Zagade P.W. 8, Bhagirath Jadhav P.W. 11 and the appellant, at the time of the incident, were residing in Nehru Nagar District Nasik. On 9th February, 1997, sometimes between 9 p.m. to 9.30 p.m. the informant, the injured, Bhagirath Jadhav and the deceased were talking in chowk behind the hospital compound in Nehru Nagar, Nasik. In the meantime, the appellant and his cousin Rajesh Kajale came out from the house of the latter, situated in Nehru Nagar. The appellant kept his hand on the shoulder of the deceased Vilas Akolkar and called him aside on the pretext that he had some work with him. The appellant took Vilas to a distance of about 20 to 25 feet approximately and a severe altercation ensued between them culminating in exchange of blows. The informant Santosh Patil and the injured Ravindra Wagale rushed towards Vilas and the appellant. They saw the appellant inflicting knife blows on the person of Vilas who fell down as a result thereof. When Ravindra Wagale tried to intervene, the appellant inflicted knife blows on his waist and buttock. The appellant continued assaulting Vilas even after he had fallen1 down.
Apart from Santosh Patil and Ravi Wagale (who were the eye witnesses of the incident) Bhagirath Jadhav P.W. 11 who was proceeding to his house after telling Santosh Patil P.W. 1, Ravi Wagale P.W. 5 and Vilas Akolkar the deceased, that he had been transferred to Gonda and who had also seen the appellant and Ravindra Kajale there; on hearing cries, came to the place of the incident and found that in front of the house of Rajesh Kajale, Vilas Akolkar was lying on the ground; Santosh Patil was lifting him; and Ravindra Wagale was also injured.
Immediately after the incident, Rajesh Kajale proceeded to the house of Balu Zagade P.W. 8 who was living at a distance of 10 feet from the place where Vilas Akolkar had been assaulted and asked him to come with his rickshaw as Vilas Akolkar was to be admitted in the Hospital. Consequently, along with Santosh Patil and Ravindra Wagale, Balu Zagade took Vilas Akolkar on his rickshaw to Bytco Hospital where Dr. Jairam Kothari P.W. 9 pronounced him dead.
The evidence of Ravindra Wagale P.W. 5 shows that after Vilas Akolkar had been pronounced dead, in Bytco Hospital, he proceeded to Nasik Road Police Station where the police noted his bleeding injury and consequently, sent him through a constable to Bytco Hospital where at 1.50 a.m. same night (night of 9th/10th February, 1997) Dr. Jairam Kothari P.W. 9 examined him and found on his person, following injuries:-
Stab injury 1/2 cm. above the left iliac crest sharp cutting parallel to upper iliac margins size 2 cm. x 1 cm. with reversion of margins of wound, clean cut margins were noted. Its shape was elliptical depth of the injury was 5 cms cutting abdominal muscle. I found direction of injury as upward medically into abdominal wall with haematoma (swelling) of 5 cm. x 5 cm. in deep layer of abdominal wall. In and out air entry seen and bleeding oozing type, there is not resistance at inner layer of abdomen at depth of wound Single track.
Sharp cutting stab wound of 2 cm. length x 1 cm. breadth with clean cut margins.
In the opinion of Dr. Kothari, these injuries were possible with Article No. 13 shown to him (knife recovered on the pointing out of the appellant). He also stated that these injuries were sufficient in the ordinary course of nature to cause death.
The FIR of the incident was dictated by the informant Santosh Patil P.W. 1 to API Bhaskar Badgujar P.W. 13 the same night at 2 a.m. at Bytco Hospital. On its basis, C.R. No. 45 of 1997 was registered at 2.30 a.m. at Nasik Road Police Station. The FIR is Exhibit 30.
The autopsy on the corpse of the deceased Vilas Akolkar was performed on 10th February, 1997 by Dr. Sunil Sonar P.W. 10 who found on it following ante-mortem injuries:-
Stab wound 2 cm. x 1/2 cm. subcutaneous deep spindle shaped, edges clean cut. Its location was on 2nd left intercostal area, just lateral to the sternum.
Second stab wound was also clean cut on left hypochondriac region just below 10th rib. It was at a distance of 10 cm from midline. Its dimension noted in Col. No. 17 as per diagram. Its depth was found 4 to 5 cm while catheter was inserted.
Stab wound 2x1/2 cm. 6 cm. lateral to the umbilicus on the left side. It was spindle shaped, clean cut. Its depth was 4 cm.
On internal examination, Dr. Sonar found both the lungs to be pale; pericardium cut at the apex; heart clean cut; and kidney liver and spleen pale.
In the opinion of Dr. Sonar the deceased died on account of shock and haemorrhage due to stab wounds to the apex of heart and right lung.
The investigation was conducted in the usual manner by API Bhaskar Badgujar P.W. 13. On the morning of 10th February, 1997 he prepared a panchanama of the scene of offence and recovered therefrom plain and blood-stained earth. The same day at 9 a.m. API Deshpande brought the appellant to Nasik Road police station from Thane. In the presence of panchas he was arrested at 9.30 p.m. He had blood stained jeans and shirt on his person, which were recovered under a panchanama. On 12th February, 1997 at about 8 p.m. during the course of interrogation, the appellant told API Badgujar that he had thrown the knife near Nasardi Bridge and he could get it recovered. Consequently, on 13th February, 1997 the said knife was recovered.
We may straight away mention that since during the course of interrogation, place of recovery was disclosed by the appellant to API Bhaskar Badgujar, this recovery cannot be said to be on the pointing out of the appellant as mandated by Section 27 of the Evidence Act and therefore, we have not referred to it in greater detail. It is said that the knife, bloodstained clothes of the appellant, blood-stained clothes of the deceased, clothes of the injured Ravindra Wagale and blood-stained earth were sent to the Chemical Analyst.
After completing the investigation, API Bhaskar Badgujar submitted the charge-sheet against the appellant.
The case was committed to the Court of Sessions in the usual manner where the appellant was charged for offences punishable under Sections 302 and 307 of the IPC and Section 135 of the Bombay Police Act. He pleaded not guilty to the said charges and claimed to be tried. His defence was that of denial.
During trial, in all the prosecution examined 13 witnesses. Two of them namely Santosh Patil P.W. 1 and Ravindra Wagale P.W. 5 were examined as eyewitnesses. Bhagirath Jadhav P.W. 11 gave evidence which would be admissible u/s 6 of the Evidence Act. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.
Hence, this appeal.
We have heard Mr. D.U. Mirajkar for the appellant and Mr. I.S. Thakur, Additional Public Prosecutor for the State of Maharashtra (Respondent No. 1). We may mention that although the respondent Nos. 2 and 3 were served but they have not engaged any counsel. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellant recorded u/s 313 of the Cr.P.C.; and the impugned Judgment. Anxiously, having considered the entire material on record, we are of the Judgment that this appeal deserves to be dismissed.
The crucial question in this appeal is whether the evidence of the two eye-witnesses Santosh Patil P.W. 1 and Ravindra Wagale P.W. 5 coupled with that of Bhagirath Jadhav P.W. 11 and the Investigating Officer API Bhaskar Badgujar P.W. 13 inspires confidence or not? Our answer to the said question is in the affirmative.
We would first like to begin with the ocular testimony of Santosh Patil and Ravindra Wagale. Their evidence shows that on 9th February, 1997 sometimes between 9 p.m. to 9.30 p.m. Bhagirath Jadhav and the deceased Vilas Akolkar were talking in chowk area within the limits of police station Nasik Road. At that time, the appellant along with his cousin Rajesh Kajale came there and took Vilas Akolkar aside to a distance of 20 to 25 feet. There was some altercation and exchange of blows between the appellant and Vilas Akolkar. They tried to intervene. In the meantime, the appellant inflicted knife blows on the person of Vilas Akolkar as a result of which, he fell down. When Ravindra Wagale tried to rescue Vilas Akolkar, the appellant inflicted knife blows on his waist and buttock. Even after Vilas had fallen down, the appellant continued assaulting him with knife. Their evidence further shows that Rajesh Kajale went to the house of Balu Zagade which was situate about 10 feet from the place where Vilas was lying and asked him to bring his rickshaw, for removing Vilas Akolkar to the hospital. Balu Zagade brought the rickshaw and on the same, Santosh Patil and Rajesh Kajale took Vilas Akolkar to Bytco Hospital where Dr. Jairam Kothari P.W. 9 pronounced him dead.
We have gone through the evidence of Santosh Patil and Ravindra Wagale and in our Judgment, it inspires confidence. In the first place, since the incident took place in Nehru Nagar where these witnesses lived, they were perfectly natural witnesses of the incident. They explained their presence by deposing that at the time of the incident, they along with Bhagirath Jadhav P.W. 11 were talking to the deceased Vilas Akolkar and at that time, the appellant and Rajesh Kajale also reached there.
Apart from being natural witnesses, we find that the ocular account rendered by them in terms, that the appellant inflicted knife blows on Vilas Akolkar and Ravindra Wagale is corroborated by the presence of three stab injuries found on the person of the former by Dr. Sunil Sonar P.W. 10, the Autopsy Surgeon and two stab injuries on the person of the latter found by Dr. Jairam Kothari P.W. 9. It is pertinent to mention that both Dr. Kothari and Dr. Sonar candidly and categorically stated that the said injuries could be caused by Article No. 13 (the knife shown to them).
It is pertinent to mention that both these eye-witnesses are independent witnesses, having no axe to grind or any rancour, against the appellant. In our view, unless the appellant had inflicted fatal knife blows on the person of the deceased and assaulted Ravindra Wagale with a knife, they would not have falsely implicated him.
It is pertinent to mention that Ravindra Wagale P.W. 5 is an injured eye-witness whose account is corroborated by medical evidence. It is a trite that Courts give weightage to the evidence of an injured witness for injuries ensure the presence of such a witness and once the presence is established, the limited question remains is that of credibility.
As mentioned above, Ravindra Wagale P.W. 5 had no animus or rancour against the appellant.
Assurance to the ocular account furnished by Santosh Patil and Ravindra Wagale is lent by the evidence furnished by Bhagirath Jadhav P.W. 11. The account furnished by him would be admissible u/s 6 of the Evidence Act and constitutes against the appellant, substantial evidence of a incriminating nature. He is a highly natural witness of the incident who at the time of the incident, was residing at Nehru Nagar. He stated that on the date of the incident at about 9 p.m. to 9.30 p.m. after taking his meals, had gone for a walk and reached the chowk area and found Santosh Patil P.W. 1 and Ravindra Wagale P.W. 5 talking with Vilas Akolkar. At that time, the appellant and Rajesh Kajale P.W. 1 also came there from the house of the latter situated nearby. Thereafter, when he was proceeding towards his house, he heard cries; turned back; found Santosh Patil lifting Vilas Akolkar whose injuries were bleeding found Ravindra Wagale P.W. 5 in an injured condition; and the appellant not there. The evidence of this witness fixes the following things:-
(a) time of the incident;
(b) place of the incident;
(c) presence of the deceased, eye-witnesses Santosh Patil and Ravindra Wagale on the place of the incident both before and after the incident;
(d) the presence of the appellant and Rajesh Kajale on the place of the incident, before the incident;
(e) the fact that both Vilas Akolkar and Ravindra Wagale were injured; and
(f) Santosh Patil was picking up Vilas Akolkar.
In our view, the evidence of this witness constitutes incriminating circumstantial evidence against the appellant.
It is pertinent to mention that Bhagirath Jadhav P.W. 11 is a wholly independent witness who had no axe to grind against the appellant. In our view, in the absence of the same, he would not have falsely deposed about the incident in the manner given out by him.
The circumstance that he has not been made an eye-witness by the investigating agency shows that he is not a got up witness; his account is credible; and he saw the incident in the manner deposed to by him. It should be borne in mind that if the prosecution wanted, it could have made him an eye-witness. That it did not done so, is an in-built guarantee in favour of his credibility.
Apart from the evidence of Santosh Patil, Ravindra Wagale and Bhagirath Jadhav, we have the evidence of the Investigating Officer API Bhaskar Badgujar P.W. 13 which is incriminating. His evidence shows that on 10th February, 1997 at about 9 p.m. API Deshpande brought the appellant. In the presence of panchas, he arrested him and took in his possession the blood-stained jeans and blood-stained shirt, which he was putting on, under a panchanama.
It is true that the public panch of recovery of clothes from appellant one Sunil Thakur P.W. 7 turned hostile and stated that the clothes were not seized in his presence but, were found lying on the table but, there is no impediment in law in believing the evidence of API Badgujar in respect of this recovery. It should be borne in mind that the law does not require that unless the evidence of recovery is supported by that of a public panch, the same cannot be relied upon. The corroboration of the evidence of a police witness in respect of recovery by a public panch is not an inflexible legal requirement but, on dictates of prudence, the Court in the given facts of a case, may look for such corroboration.
In the instant case, we find that the evidence of API Badgujar P.W. 13 in respect of recovery is wholly credible. Although, he was cross-examined extensively, but nothing could be extracted therefrom which could discredit his evidence.
It is relevant to mention that the recovered blood-stained shirt and jeans which the appellant was putting on at the time of the recovery were sent to the Chemical Analyst who found on them human blood. The Chemical Analyst also found blood of ''A'' group on the shirt. It is pertinent to point out that the blood of the injured Ravindra Wagale P.W. 5 was of ''A'' group and since the blood on the clothes of the deceased was found of the same group, his blood group also was ''A'' group. In such a situation, in our view, presence of ''A'' group of blood on the shirt and human blood on both shirt and jeans is a very strong circumstance which goes against the appellant. It is true that group of blood found on the jeans has not been determined by the Chemical Analyst but, this does not mean that presence of human blood would not incriminate the appellant. In this connection, it would be useful to refer to para 10 of the oft-quoted Judgment of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, wherein in para 10, the Supreme Court has held that presence of human blood is an incriminating circumstance.
We would be failing in our fairness if we do not mentioned that the blood group of the appellant was also ''A''. This circumstance could have helped the appellant had there been some bleeding injuries on his person, on the basis of which it could have been said that the blood on the shirt and jeans was his own. But, in the absence of such injuries the mere circumstance that blood group of the appellant was ''A'' does not help the appellant.
Coming to the question of offence, we find that the learned trial Judge acted correctly in convicting the appellant on both the counts namely Sections 302 and 307 of the IPC. So far as the conviction of the appellant on the former count is concerned, we find that his act would fall squarely within the four corners of clause thirdly of Section 300 of the IPC the breach of which is punishable u/s 302 of the IPC. The said clause provides that culpable homicide is murder, if an act is committed with intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death. The evidence of the eye-witnesses shows that the appellant intentionally inflicted knife blows on vital parts of the body of the deceased and the evidence of the Autopsy Surgeon shows'' that the injuries found on the person of the deceased which were accompanied by massive internal damage pertaining to vital organs, were sufficient in the ordinary course of nature to cause death, The offence under the latter count is also made out because, Dr. Kothari P.W. 9 categorically stated that the injuries suffered by Ravindra Wagale P.W. 5 were sufficient in the ordinary course of nature to clause death.
So far as the question of sentence is concerned, in our view the same cannot be castigated as excessive.
We would be failing in our fairness, if we do not advert to some of the submissions canvassed by Mr. Mirajkar learned Counsel for the appellant. Mr. Mirajkar strenuously urged that the omissions in the statement of the two eye-witnesses namely Santosh Patil P.W. 1 and Ravindra Wagale P.W. 5 in their earlier statements, render their substantive evidence unworthy of acceptance.
In relation to Ravindra Wagale P.W. 5, Mr. Mirajkar strenuously urged that the same night, his dying declaration was recorded and in the same, there are a large number of omissions. He emphasised on three omissions namely:-
(i) absence of light on the place of the incident and the categorical averment that there was darkness;
(ii) He did not know the weapon with which he was assaulted; and
(iii) he had not stated before the Magistrate, the place of the incident with description of situation on four sides.
In our view, these omissions should be reckoned in the light of the fact that when his statement was recorded, he was in a precariously injured condition. We feel that the only weighty omission was absence of light and the categorical averment that there was darkness but, the said statement in our view, appears to have been made due to some confusion because, when during cross-examination, the informant Santosh Patil P.W. 1, in para 10, was suggested that there was no street light or any other light on the place of the incident and there was total darkness, he emphatically denied the said suggestion.
At any rate, it should be borne in mind that the appellant was known to all the witnesses namely Santosh Patil, Ravindra Wagale, and Bhagirath Jadhav and he could have been recognised by them even in the absence of any light. The Supreme Court in the oft-quoted decision of Kirpal Singh Vs. State of Uttar Pradesh, , has held in para 3 that known people can be recognised by their gait, timbre of voice etc.
Mr. Mirajkar also referred to certain omissions in the FIR lodged by Santosh Patil. The main omissions are:-
(a) that the incident took place in front of his house;
(b) that Ravindra Wagale separated Vilas Akolkar. Appellant assaulted Ravindra Wagale with a knife; and
(c) Non-mentioning of assault by the appellant with a knife and instead an averment that he assaulted with a sharp weapon.
We have examined the said omissions and in our view, they do not discredit the credibility of Santosh Patil and belie his claim of having seen the incident.
Mr. Mirajkar then urged that the statement in para 4 of the examination-in-chief of Ravindra Wagale to the effect that till he had reached Nasik Road police station and the police noted that he had bleeding injuries he did not know that he was injured shows that he did not receive injuries during the course of the incident. We regret that we cannot hold this because, in para 3 of his examination-in-chief, he categorically stated that when he tried to rescue Vilas Akolkar, the appellant inflicted knife blows on his waist and buttock.
It is pertinent to mention that when in his cross-examination in para 7, he stated that it was correct to say that at the time of the incident, he had no knowledge that he sustained injury, following question to which he gave the answer mentioned below was put to him by the Court:-
Q. Do you admit that as there were injuries on your waist and buttock, you say that those were caused by the accused?
A : Yes it is true.
The answer would clearly show that it was the appellant who inflicted the injury on his person.
It may be that Ravindra Wagale was so much stunned on receiving the extremely serious injuries which he had sustained that initially he did not realise that he had been injured but in view of his categorical statement that it was the appellant who had assaulted him with a knife on his waist and buttock. We reject this submission of Mr. Mirajkar.
At any rate the aforesaid circumstance would not render his evidence unworthy of acceptance.
Mr. Mirajkar next contended that the conduct of the eye-witnesses in taking Vilas Akolkar to Bytco Hospital situated 3kms away and not to the Government hospital which was situated very nearby was extremely unnatural. We do not find any substance in his submission. It is pertinent to mention that none of the witnesses were questioned as to why Vilas was taken to Bytco Hospital and not to the Government hospital situated nearby. It may be that the witnesses may have taken him to Bytco Hospital because, they thought it to be a better hospital than the Government hospital. At any rate, to repeat, in the absence of witnesses being asked, no advantage can be taken from this conduct of theirs.
Mr. Mirajkar also urged that if Balu Zagade P.W. 8 whose house was situate at a distance of hardly 10 feet from the place of the incident could not hear the cries, it is extremely improbable that Bhagirath Jadhav P.W. 11 who lived at a greater distance, would have heard the cries and reached the place of the incident. The argument definitely sounds attractive but, only on the first blush. Its fallacy lies that it is based on the premise that Bhagirath Jadhav P.W. 11 had reached his house and from there, heard cries. This is not what is in his evidence; His evidence is that immediately after talking with the eye-witnesses and the deceased, while he was returning towards his house, he heard the cries. The cross-examiner did not cross-examine him regarding the time-lag between his talking with the informant and others, and when he heard cries. It may be that immediately after talking with the informant, and others while he was going back he heard the cries and therefore, came in time to see Ravindra present with injuries on his person; Vilas Akolkar lying on the ground with blood oozing from his injuries; and the informant Santosh Patil picking him up. Apart from it, the statement of Balu Zagade shows that he was watching television and it may be that he was so engrossed in watching it (and people are very engrossed when they watch television) that he might not have heard the cries.
Mr. Mirajkar lastly urged that it would be extremely unsafe to accept the solitary statement of the Investigating Officer API Bhaskar Badgujar P.W. 13 that when the appellant was brought before him on 10th February, 1997 at 9.30 p.m. he was putting on blood stained jeans and shirt which were seized from him because, the public panch of recovery Sunil Thakur P.W. 7 did not support the prosecution and on the converse, stated that he found the clothes lying on the table. We have already in para 12 of our Judgment, given our reasons as to why in this case, we find it safe to accept the evidence of recovery on the solitary statement of API Bhaskar Badgujar P.W. 13.
No other point was urged before us by Mr. Mirajkar.
In the result, we find no merit in this appeal and dismiss the same. The appellant is in jail and shall remain there till he serves out the sentence.
Before parting with the Judgment, we would like to place on record our appreciation for the extremely competent manner in which this brief was argued by the learned Counsel for the parties.
Certified copy is expedited.