Bombay High Court
Manohar Amrut Satpudke vs The State Of Maharashtra on 16 October, 2000
Equivalent citations: 2001CRILJ4355
Author: R.K. Batta
Bench: R.K. Batta, P.S. Brahme
JUDGMENT
R.K. Batta, J. :
1. The appellant along with another accused was tried for murder of Balaji Raut under Section 302 read with Section 34 of the Indian Penal Code, They were also tried for attempt to murder of witness Janrao under section 307 read with Section 34 of the Indian Penal Code. By impugned judgment, which is subject matter of challenge in this appeal, the Trial Court had acquitted co-accused of the charge under Section 302 as well as under section 307 of the Indian Penal Code. The appellant was also acquitted of the charge under section 307 read with Section 34 of the Indian Penal Code. However, the appellant was convicted for the murder of Balaji Raut under Section 302 and has been sentenced to undergo imprisonment for life.
2. The prosecution case, in brief, is that there was an incident at about 10/10.30 a.m. on 27-3-1994 between the appellant and deceased Balaji Raut. Said Balaji Raut came to his house after the said incident and informed his wife that the appellant had assaulted him. After sometime, Balaji Raut went back to tether the cattle, but his wife Parvatabai (P.W. 1) followed him as she suspected that there may be further quarrel. While deceased Balaji Raut was passing in front of the house of appellant, the appellant assaulted him with ballam on the left side of his chest as a result of which he received bleeding injury and fell down. The deceased succumbed to his injuries on the same day. The prosecution had examined three eye witnesses of the incident, viz. Parvatabai (P.W. 1), Bhagirathabai (P.W. 2) and Shamrao (P.W. 5). The Trial Court accepted the evidence of the eye witnesses as also recovery of weapon at the instance of the appellant and convicted the appellant, as aforesaid.
3. The defence case is that deceased Balaji Raut, his sons and uncle came to the house of appellant and beat him with axes, sticks on his chest, legs and ears as a result of which he and his wife sustained injuries.
4. Learned Advocate for appellant urged that the injuries on the person of the appellant show that there was scuffle at the time of incident and that even otherwise. The incident in question is a result of grave and sudden provocation on account of the previous incident. In addition, it was urged before us that the prosecution has not explained injuries on the person of the appellant; that the recovery of the ballam at the instance of the appellant has not been proved and that it is a case of only single blow as a result of which the offence in question may, at the most, fall under Section 304, Part-I of the Indian Penal Code.
5. Learned A.P.P., on the other hand, submitted that the prosecution has been able to establish the charge against appellant through the evidence of eye witnesses as also by means of recovery of weapon of offence at the instance of appellant. He also pointed out that the clothes of the accused were found blood-stained with blood of "O" group and no explanation has been offered by the appellant in respect of the same. According to the learned A.P.P., the injuries on the person of the appellant have been explained through the evidence of Janrao (P.W. 6) and the said injuries are not the result of any scuffle at the time of incident, but the appellant sustained the said injuries when he was asked to come out of hiding and was, in the process, dragged. He, therefore, submits that appeal should be dismissed.
6. We have gone through the evidence on record. As already stated, the prosecution case rests upon the evidence of eye witnesses P.W. 1 Parvatabai. P.W. 2 Bhagirathabai and P.W. 5 Shamrao. P.W. 1 Parvatabai has stated that on the date of incident at about 10/10.30 a.m., her husband returned back home and informed her that the appellant had assaulted him. After sometime, deceased Balaji went back to tether the cattle, but Parvatabai (P.W. 1) followed him, apprehending that there may be quarrel. Thereafter when the appellant was passing in front of the house of appellant, appellant assaulted her husband by means of ballam on left side of chest as a result of which her husband received bleeding injuries and died. She identified the ballam in the Court. She admitted during cross-examination that the appellant had given only one blow with ballam to her husband. She denied the suggestion given to her that the incident took place during a scuffle while her husband and his friends were beating the appellant even, in spite of lengthy cross-examination, the testimony of Parvatabai (P.W. 1) could not be shaken during cross-examination.
7. Next witness on whose evidence reliance has been placed is, P.W. Bhagirathabai who has stated that she saw that Balaji was going ahead and she was following Balaji. Then she saw the appellant standing at his house and later assaulting deceased Balaji by means of ballam on the left side of his chest. The deceased was assaulted on the road in front of the house of appellant and Balaji fell down. She stated during cross-examination that she did not see any other injury on the person of the deceased Balaji except the injury on the left side of his chest. She further stated that she saw appellant running with ballam. She further confirmed that the appellant gave only one ballam blow to the deceased and ran away. She was also cross-examined at length, but her testimony could not be shaken during cross-examination.
8. The third eye-witness examined by the prosecution is Shamrao (P.W. 5) who has stated that he saw the appellant assaulting deceased Balaji by ballam on the left side of the chest in front of the father's house of appellant. After assault, appellant ran away. Balaji had sustained injuries and he fell down. He tied the injury of the deceased Balaji by means of dhoti. This witness was also cross-examined at length, but his evidence could not be shaken. He denied the suggestion that the appellant had also sustained injuries on his chest and legs. This fact is important and it goes to illustrate that the injuries on the person of the appellant had not occurred at the time of incident and we shall deal with this aspect at a later stage in detail. Thus, with the help of evidence of three eye witnesses, prosecution has been able to establish that the appellant had inflicted one ballam blow on the left side chest of the deceased.
9. Dr. Anil Wanjari (P.W. 3) who had conducted post-mortem examination on the dead body of deceased on 27-3-1994, found one external injury on the person of the deceased, viz., elliptical stab wound, vertically placed, in sixth intercostal space in left infra axillary region 2" x 1" cavity deep. He also found corresponding internal damage relating to the external injury while conducting internal examination and the said injury is, stab wound in lower part of left lung, 2" x 1". He also found that left side 6th rib was fractured in infra-axillary region. According to Dr. Anil Wanjari (P.W. 3), the external injury with corresponding internal damage, was sufficient in the ordinary course of nature to cause death.
10. The contention of the learned Advocate for the appellant is that taking into consideration the injuries on the person of the appellant, which have not been explained by the prosecution and the fact that the said injuries took place during the scuffle due to grave and sudden provocation as a result of the incident in the morning, at the most Section 304, Part-I of the Indian Penal Code may be attracted to the case under consideration and as such, the conviction and sentence of the appellant be altered under Section 304, Part-I of the Indian Penal Code.
11. It is, no doubt, true that some incident took place prior to the main incident in question which is spoken of by Parvatabai (P.W. 1), but there is no material on record to suggest that there was any scuffle at the time of the first incident, since the evidence on record, as disclosed by Parvatabai (P.W. 1), is that her husband (deceased Balaji) had informed her that appellant had assaulted him. The said incident, by no stretch of imagination, be said to be of such nature so as to give rise to grave and sudden provocation prompting the appellant to later on assault the deceased with ballam. The attempt of the appellant that there was scuffle at the time of main incident, had not succeeded in the light of the evidence on record. P.W. 5 Shamrao has categorically denied the suggestion given to him that the appellant Manohar had sustained injuries on his chest and legs at the time of incident. Besides this, the prosecution has been able to establish through the evidence of Janrao (P.W. 6) that the injuries on the person of the appellant occurred when the appellant was asked to come out of hiding. The Investigating Officer Sukhdeo Tayade (P.W. 11) has admitted that the injuries were found on the person of the appellant and the same were recorded in the arrest panchanama of the appellant. He had referred appellant to Medical Officer on 28-3-1994. It was suggested to him that the appellant was referred on 28-3-1994 instead of evening of 27-3-1994 with a view to suppress the injuries, but he denied the same.
12. Janrao (P.W. 6) has stated that he had seen Balaji lying in front of the house of the appellant with bleeding injury on the left side of the chest. He came to know that appellant was hiding in the house of one Pazare. Therefore, he along with people and one policeman went to the house of Pazare. The appellant was asked to open door, but he declined. However, subsequently, the appellant opened the door and came out with Sabbal in his hand and he (witness) caught hold of Sabbal. He further stated that appellant was dragged in the courtyard and he fell down. Learned Advocate for appellant urged before us that the police had interrogated to this witness after about 1-1/2 months of the incident and that his evidence should not be believed. It is true that there was delay in interrogating this witness, but insofar as injuries on the person of the appellant are concerned, the same are duly explained by this witness. According to this witness, the appellant was dragged and he fell down.
13. According to Dr. Kishor Bobade (P.W. 12) who had examined the appellant, he found three injuries on the person of the appellant. The said injuries are not possible to be caused if a person is pushed and the said person falls on the ground. The injuries as found by Dr. Bobade (P.W. 12) on the person of the appellant, are as under
1. Multiple contusions over right thigh lateral side.
2. Multiple contusions over right back mid region.
3. Multiple lining abrasions over left back mid region Nevertheless, the injuries being in the nature of contusions over the right thigh lateral side, right back mid region and left back mid region, are possible due to dragging of the appellant, as stated by Janrao (P.W. 6).
14. P.W. 10 Laxman Moharle, Police Head Constable supports the version given by Janrao (P.W. 6) when he had stated that he came to know that appellant was hiding in the house of one Pazare; the appellant was asked to surrender, but he was saying that he would kill the person who apprehends him. The appellant was apprehended while he was assaulting Janrao (P.W. 6).
15. Thus, evidence on record suggests that injuries on the person of the appellant were not caused at the time of assault by the appellant on the left chest of deceased Balaji Raut with ballam, but the said injuries were as a result of his being dragged out of the house where he was hiding. Thus, the submission of learned Advocate for the appellant that the incident in question was as a result of sudden and grave provocation due to previous incident and that injuries on the person of appellant were caused during scuffle at the main incidence, is without any merit. It is a case of premeditated attack and the blow with ballam was given with such a force that ballam blow penetrated into the lower part of left lung and there was also fracture of left side 6th rib in infra-axillary region. The assault was thus not only pre-meditated, but with such force that the injury was sufficient in the ordinary course of nature to cause death.
16. Besides the evidence of eye witnesses, the prosecution case is also supported by recovery of ballam at the instance of accused and the presence of blood on the clothes of the appellant. The prosecution case is that the appellant had made disclosure which led to the recovery of ballam at the instance of the appellant. In this respect, the prosecution had examined pancha witnesses.
Raju (P.W. 7) and Kishor (P.W. 8) are also Investigating Officers, P.W. 11 Sukhdeo Tayade. The panchas have not said anything about disclosure. However, the Investigating officer, P.W. Sukhadeo Tayade has stated that appellant disclosed that he had kept the ballam at the house of one Pazare and subsequently, the appellant led him and others to Gram Panchayat house No. 192 and produced one ballarn from the roof of that house which was seized. We may point out at this stage that there is no requirement of law that disclosure statement should be made before the panchas. Section 27 of the Indian Evidence Act which is an exception to the confession made by the accused lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in custody of police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The police officer during the course of investigation and interrogation of the accused, is entitled to record the disclosure made by the accused which need not necessarily be before the panchas. Nevertheless, the recovery in the presence of panchas is required to be made after the disclosure is made by the accused. Therefore, the fact that the panchas have not spoken about the disclosure does not at all affect the credibility of the disclosure made by the appellant before the police officer which he is entitled to record in accordance with law. Pancha witness Kishor (P.W. 8) has stated that he along with another pancha witness was called on 27-3-1994 and they all went to the house of one Pazare. The appellant produced one ballam after he had led them to the house of Pazare. Thus, the recovery of ballam at the instance of the appellant is duly established by the prosecution. Even otherwise, the evidence of" Investigating Officer as to the disclosure and recovery, is convincing and in such eventuality, the recovery cannot be disbelieved merely because panchas do not support the disclosure made by the appellant which, in law, is not required to be recorded in the presence of panchas. The Apex Court in the case of Modan Singh v. State of Rajasthan 1978 Cri LJ 1531 has held that if the evidence of investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. Alternatively, the recovery of ballam, as pointed out by the appellant from the house of Pazare where he had hidden himself, would be relevant under Section 8 of the Indian Evidence Act, as rightly stated by the Trial Court. Alternatively, we must also point out that there are eye witnesses who have spoken of blow with ballam given by the appellant to the deceased and seizure of weapon of offence, in such circumstances, is not material as direct evidence is available in the matter. The Apex Court in Pradumaninh Kalubha v. State of Gujarat 1992 Cri LJ 1111 has observed that in case where there is direct evidence, even the seizure of the weapon is not very material.
17. The Investigating Officer had also recovered Shirt (exhibit-4) and Payjama (exhibit-5) of the appellant. The said clothes along with ballam (exhibit-3) were sent to the Chemical Analyst. The Chemical Analyst found human blood of "A" group on ballam (exhibit-3). The blood group of the deceased and the appellant is "A", however, the appellant has not given any explanation whatsoever not only regarding the presence of blood on ballam, but also on his clothes. The Chemical Analyst found that exhibit No. 4, Full Shirt (of the appellant) has moderate number of blood stains ranging from about 0.1 to 3 cm in diameter spread mostly on front upper portion and exhibit 5. Payjama (of the appellant) had few blood stains ranging from about 0.1 to 3 crn in diameter situated mostly on back portion. The blood stains on exhibits 3 and 4 are of group "A" and we have already pointed out that the appellant has not offered any explanation as to the presence of blood on the same. The presence of blood on ballam used in assault also lends further assurance to the recovery of ballam, as pointed out by the appellant, from the house of Pazare from where he was ultimately arrested where he was hiding. In the light of this material on record, as we have already pointed out, we find that the testimony of the Investigating Officer independently also inspires confidence. However, the pancha witness (P.W. 8) has supported the recovery of ballam as pointed out by the appellant, who took them to the house of Pazare.
18. The prosecution has thus established the case against the appellant beyond any iota of doubt. The case under consideration is a clear case of pre-meditated murder which falls under Section 302 of the Indian Penal Code. We do not find any reason or justification to alter the conviction and sentence of the appellant as argued by the learned Advocate for the appellant to Section 304, Part-I of the Indian Penal Code. We accordingly do not find any merit in this appeal and as such, the appeal is hereby dismissed.