Bhaskar Janu Khadme Vs. the State of Maharashtra and Another - Court Judgment

Oral Judgment: (A.S. Gadkari, J.)

1. The appellant-original accused no.1 by the present appeal has questioned the correctness of the judgment and order dated 22 February 2005 passed by the learned Ad-Hoc Additional Sessions Judge, Raigad in Sessions Case No.239 of 2003, thereby convicting him for an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment and to pay a fine of Rs.1000/-, in default of payment of fine, to suffer simple imprisonment for one month. The appellant has been further convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- in default of payment of fine to suffer simple imprisonment for one month. It has further been ordered that both the substantive sentences to run concurrently. The appellant along with original accused no.2 Smt.Ramibai Janu Khadme i.e. the mother of the appellant were charged with offence punishable under Section 324 read with Section 34 and 302 read with 34 of the Indian Penal Code for committing the murder of Gangaram Nagu Kokre and causing grievous hurt to PW-7 Dhau Shingade on 4.7.2003 approximately at about 11.30 pm. The original accused no.2 Smt. Ramibai Janu Khadme was acquitted from all the charges by the learned Trial Court by the present judgment and order dated 22.2.2005.

2. Brief facts which are be enumerated from the record can be stated thus:

(i) PW-11 P.S.I. Shri Kerubhau D. Kolhe was on 5.7.2003 attached to Rasayani police station, Alibag and was on night-round patrolling duty near Bhatan Tunnel, when he received a message on the wireless from Rasayani police station informing him that an incident of murder of Gangaram Kokre had taken place at Sarsai Road, near Khadkichi Wadi. He then immediately went to the said spot of incident and noticed that one Gangaram Kokre was lying on the spot in dead condition and Dhau Shingade (PW-7) was lying near him in injured condition.

(ii) He therefore immediately took Dhau Shingade to H.O.C. Hospital, Rasayani. In the hospital PW-11 PSI Shri Kolhe recorded the complaint of injured Dhau Shingade, PW-7, as per his hay. The said complaint is at Exhibit 42. On the basis of the said complaint, PW-11 PSI Shri Kolhe registered the offence and started investigation of the same. He then went to the spot of incident and prepared Inquest Panchanama of the dead body lying at the scene of the incident. Inquest Panchanama is at Exhibit 19.

(iii) PW-11 PSI Shri Kolhe then sent the dead body of Gangaram to primary health center, Panvel for conducting postmortem examination. He thereafter prepared spot panchanama of the scene of incident which was in the main square of Poultry Farm at Sarsai road. He then arrested the accused persons by effecting an arrest panchanama which is at Exhibit 21. While arresting the appellant, he noticed blood-stains on the shirt and banian on the person of the appellant and therefore he seized the said clothes under panchnama and in the presence of panch-witnesses prepared seizure panchanam of the clothes which is at Exhibit 59. After arresting accused persons, he found that the accused persons have sustained some injuries and therefore he referred both the accused persons to the Primary Health Centrer, Lohap, Taluka-Khalapur and got them medically examined. He also obtained the medical certificate of the injuries of the accused persons.

(iv) During the course of investigation, PW-1 PSI Shri Kolhe recorded the statements of the witnesses. The appellant when was in police custody, expressed his willingness to show the place where he had concealed the knife which was used by him while committing the present crime. A memorandum of statement of the appellant dated 6.7.2003 was recorded in the presence of two panch-witnesses by PW-11 PSI Shri Kolhe, as per the narration of the appellant. The said memorandum statement is at Exhibit 60. That in accordance with the statement of the appellant, the appellant led the police personnel to Sarsai road and from beneath the bushes on the western side of Sarsai road he took out a knife and produced it before the police. The said knife was seized in the presence of panch-witnesses by effecting the seizure panchanama. The said seizure panchama of the knife is at Exhibit 61. The knife was having blood stains on it, when it was discovered at the instance of the appellant. PW-11 PSI Shri Kolhe thereafter sent the clothes and the said knife for the forensic examination to the concerned laboratory. After receipt of the injury certificate of PW-7 Shri Dhau, postmortem notes of deceased Gangaram, the reports from the chemical analyzer and other related documents, PW-11 PSI Shri Kolhe submitted a chargesheet against the appellant and the other accused before the competent Court having jurisdiction over it.

(v) The learned Ad-Hoc Additional Sessions Judge, Raigad after recording the evidence of the witnesses and after hearing the parties to the said Sessions Case No.239 of 2003, was pleased to convict the appellant/accused no.1 and was also further pleased to acquit the accused no.2- Smt. Ramibai Janu Khadme as aforestated.

3. We have heard Shri Shrikant Gavand the learned Counsel for the appellant and Shri H.J. Dedhia, the learned APP for the State at length. The learned Counsel for the appellant submitted that the discovery of the weapon as per Exhibit 61 the Seizure panchanama, is made by the police from the same spot i.e. from the very place where the incident had occurred and the police had visited the said spot while conducting the inquest panchama on deceased Gangaram and therefore the discovery of the said knife at the instance of the appellant vitiates. He further submitted that on the day of incident, there was neither the moonlight nor there was any light which would entail PW-1 Govind and injured witness PW-7 Dhau Shingade to identify the appellant. In support of his contention, he relied upon almanac of the year 2003-2004. The learned Counsel for the appellant further submitted that there is no evidence at all to connect the appellant with the crime in question. He therefore submitted that the appeal may be allowed and the appellant may be acquitted. Per contra, the learned APP for the State supported the impugned judgment and order and prayed that the appeal may be dismissed thereby confirming the conviction and sentence of the appellant.

4. With a view to appreciate the submissions advanced by the learned Counsel for the appellant and the learned APP, it is necessary to advert to the evidence in brief, of the prosecution witnesses, which is available in the form of testimony and the documents which have been proved during the course of trial.

5. PW-1 Govind Balu Kokre, in his testimony, has stated that he knew the appellant very well. He has stated that he also knew one Bharat Dhebe, deceased Gangaram and injured Dhau Shingade. That deceased Gangaram and PW-7 Dhau Shingade were from his village while Bharat Dhebe is the resident of the village of the appellant. The said witness has stated that on 4.7.2003 he returned from his field at about 7.30 pm in the evening. At that time there were hot altercations between Bharat Dhebe and the appellant. He along with Gangaram and Dhau settled the said dispute and asked appellant and Bharat to go to their respective houses. Accordingly, Bharat and the appellant left for their home. He thereafter had his dinner and was watching television. He subsequently noticed that the appellant and his mother-original accused no.2 had came there and were abusing in filthy language to the persons. PW-7 Dhau therefore asked PW-1 Govind to lower down the volume of the television. PW-7 Dhau rushed out of the house to see what had happened. PW-1 Govind also followed Dhau and noticed that the sound of abuses and quarrel was coming from the side of poultry-phata. PW-1 Govind then heard the sound of Dhau saying œmelo melo?. PW-1 Govind thereafter rushed fast towards that particular side and noticed that the appellant along with his mother Smt.Ramibai-original accused no.2, were running from poultry-phata towards the forest. PW-1 Govind tried to follow/chase the appellant for a little while and after he realized that the appellant had ran away towards the forest, he returned back to the poultry-phata and found that Dhau and Gangaram were lying on the spot. PW-1 Govind has stated in his testimony that he found Gangaram having blows on his person on the left side of chest and back and on left-side of waist and was lying in pool of blood. He also noticed, Dhau had also suffered two blows on his right hand and was having bleeding injuries. He has stated that thereafter the police reached there. He has further stated that the said incident took place at about 11.30 to 11.45 pm on 4.7.2003. PW-1 Govind has further stated that he was also panch-witness to the Inquest Panchanama which was effected pertaining to the dead body of deceased Gangaram. PW-1 Govind has proved the Inquest Panchanama which is at Exhibit 19.

PW-1 Govind has been cross-examined at length by the appellant. However, no material which is useful for the appellant or which can create doubt about his testimony was elicited in the cross-examination. It is pertinent to note that in the cross-examination, an admission from this witness has been brought on record by the appellant, wherein this witness has voluntarily admitted that there was moon on that night, though he had in his earlier sentence admitted that there was no light at the spot where Gangaram was lying.

6. PW-7 Dhau Shingade is the complainant who had lodged the FIR which is at Exhibit 42 and is also an injured eye-witness. PW-7 Dhau Shingade in his testimony has stated that deceased Gangaram was the father-in-law of his daughter. He has stated that Laxman son of Gangaram has married with the daughter of PW-7 Dhau and they all are residents of Khadkichi Wadi. He has further stated that he knew the appellant and Smt. Ramibai, the mother of the appellant. He has stated that Smt. Ramibai is closely related with him and the appellant and his mother were from village Palaswadi. He stated that road approaching the village of the appellant passes from his village. PW-7 Dhau Shingade in his testimony has further stated that on 4.7.2003, he returned to his home in the evening at about 7 to 7.30 pm and within 5 to 10 minutes thereafter the appellant and one Bharat were quarreling and there were hot altercations between them near the house of Govind (PW-1). He has further stated that he himself, Govind and Gangaram (deceased) and other villagers then had been to the place and intervened in the quarrel and requested the appellant and Bharat not to quarrel in our village. The appellant thereafter left towards his house. He stated that at about 9.30 pm, he had his dinner and at about 10.30 pm he went to the house of PW-1 Govind for watching the movie on television. He has further stated that he himself and Gangaram were sitting in front of the door of his house and other persons were watching the television from inside the house. He has stated that at about 11 to 11.30 pm, Smt. Ramibai, the mother of the appellant, had been there from the side of her house and started abusing in filthy language to Gangaram and asked Gangaram that she had come now where he will flee and she then left towards poultryphata. While proceeding towards poultry-phata, Smt. Ramibai was continuously abusing Gangaram. PW-7 Dhau Shingade with deceased Gangaram thereafter heard a sound of the appellant and Smt. Ramibai shouting loudly and abusing them from poultry-phata. That Gangartam thereafter asked PW-7 Dhau Shingade that they would go to the said place and see what the matter is about. He has stated that Gangaram proceeded ahead and PW-7 Dhau followed him. When they reached to the poultryphata, they heard the sound of shouting and abuses by the appellant and his mother. The moment they reached the poultry-phata, the appellant started assaulting Gangaram by means of knife and gave about 7 to 8 blows with the help of knife on the chest and stomach of Gangaram. Gangaram collapsed immediately. When PW-7 Dhau went ahead to rescue Gangaram, appellant rushed towards him and when PW-7 Dhau tried to catch hold the appellant, the appellant assaulted him by means of knife and PW-7 Dhau was hit with two blows of the knife on his right arm. PW-7 Dhau sustained bleeding injuries and therefore he shouted loudly as œrun run, Gangaram is killed?, œhe may also be killed?. By that time PW-1 Govind and Ankush rushed towards him after hearing shouting. The appellant and his mother Smt. Ramibai then ran away from the spot towards the forest. He has further stated that Gangaram died on the spot and was lying on the ground. He has further stated that the incident took place at poultry-phata which was a tar-road. This witness has stated that no stones etc. were there at the spot. That person from his village had gathered there and somebody tied a piece of cloth to his injuries and informed to police and after about half an hour police came there with a vehicle and took him to the hospital from the jeep. This witness has further narrated the fact about the medical treatment given to him at various Government hospitals. This witness has identified the article-10 i.e. the knife as the same weapon by which the appellant assaulted him.

The appellant has cross-examined this witness at length. However no fruitful material which would come to the help of the appellant could be elicited from this witness, except few minor variations pertaining to timing of the incident and the distance and or the place. The said minor variations do not disturb or shake the testimony of PW-7 Dhau Shingade which would create doubt in the mind of Court to disbelieve it.

7. PW-8 Bharat Soma Dhope in his testimony has stated that he knew deceased Gangaram. He stated that deceased Gangaram was the husband of his sister Lilubai. PW-8 Bharat was resident of village Khadkichi Wadi. Dhau Shingade is also resident of village Khadkichi Wadi. This witness has further stated that he knew the appellant and his mother Smt. Ramibai. They were from village Palaswadi. He has further stated that on 4.7.2003, he was going to Kalivali and was carrying fertilizer. He was proceeding to Kalivali by poultry farm road. At about 7 pm he was returning back and on his way back near the poultry farm phata, the appellant and his brother-in-law Mohan met him. The appellant started altercations with him on the point that PW-8 Bharat was taking his cattle for grazing in the forest at the upper-side of the village and therefore the appellant was having hot altercations with PW-8 Bharat on that count. While they were indulging in hot altercations, they reached near the house of deceased Gangaram near Khadkichi Wadi. At that time deceased Gangaram, PW-7 Dhau Shingade and PW-1 Govind Kokre and other villagers came there and the quarrel was settled. He has further stated that the appellant thereafter went towards his house. PW-8 Bharat, Laxman and Babu then went to village Kalivali and informed the police Patil about the incident which occurred. After informing the police patil, they returned and reached near poultry phata at about 11 to 11.30 pm when he noticed that Gangaram has received injuries on his chest and stomach. PW-7 Dhau was also there and had suffered injuries on his right hand. At that time, PW-7 Dhau told them that the appellant and his mother have assaulted and killed Gangaram and also assaulted Dhau Shingade (PW-7). Police came there and thereafter PW-8 Bharat left the said spot.

This witness has been cross-examined at length. However, no omissions were brought on record which would create doubt about the truthfulness of the testimony of this witness in the mind of the Court.

8. PW-10 is Dr. Rubina Sayyed Usmaini, the Medical Officer, HOC Hospital, Rasayani. She was on 5.7.2003 attached as Medical officer to the said hospital and was on duty. This witness has stated that at about 1.30 am on 5.7.2003 one Dhau Shingade (PW-7) was brought in injured condition to the hospital. She examined him and noticed the following injuries on his person:

œ1. Stab injury on front portion above elbow right arm, 3 x 1 cms.

2. Stab injury on front portion above elbow right arm 2 x 1 cms.?

She found that both the injuries were fresh and probable weapon used for causing the said injuries was a sharp object. She found that the patient was in conscious condition. She sutured the wounds by giving local anesthesia and antibiotic medicines and kept the patient under observations. This witness was shown the article-10 a knife, and she has opined that the injuries caused to PW-7 Dhau Shingade are possible by the use of article-10. This witness was also produced and proved the medical treatment documents which was given to PW-7 Dhau Shingade. The said documents are at Exhibit 56.

This witness was cross-examined by the appellant. Except vague and general admission to the effect that, she cannot say definitely whether the injuries were simple injuries or grievous injuries, no fruitful material was elicited in the cross-examination.

9. PW-9 is Dr. Megha Laxmanrao Deshpande, Assistant Chief Medical Officer at HOC Hospital, Rasayani in her testimony has stated that on 5.7.2003 she was on duty as Medical Officer at HOC Hospital, Rayasani and received emergency call from the Resident Medical Officer Dr. Rubina (PW-10) at about 3.30 am. PW-10 Dr. Rubina called PW-9 Dr. Megha Deshpande and informed her that one Dhau Shingade has been admitted in the hospital. PW-9 Dr. Megha Deshpande immediately from her residence went to the hospital and examined the patient PW-7 Dhau Shingade. She noticed that the blood pressure of the patient was lowered down and the patient was having injuries which were sutured and had been already applied dressing on the right arm. She did not notice any smell of alcohol. After PW-9 Dr. Megha Deshpande examined PW-7 Dhau Shingade, noticed that the blood pressure of the injured was lowering down and she suspected about internal injuries and advised the patient i.e. PW-7 Dhau Shingade to be taken to the civil hospital at Alibag for further investigation and therefore PW-7 Dhau was not admitted in the said hospital. She has further stated that in spite of her advise, the patient i.e. PW-7 Dhau had obtained discharge against the same on the same day at about 9.45 a.m. In her cross-examination, this witness has flatly denied the suggestion that injuries which were caused to PW-7 were possible by a fall on sharp edge stone.

10. PW-4 Dr. Prabhakar Patil was then attached to Primary Health Centre as Medical Officer and had examined and gave treatment to PW-7 Dhau Shingagde on 7th and 9th 11th July 2003 for the injuries which were caused to him. This witness has also examined accused no.1 i.e. the present appellant and original accused no.2 i.e. the mother of the appellant. PW-6 Dr. Shivaji Ghumre is also a Medical Officer who was attached to Primary Health Centrer, Lohap, Taluka-Khalapur, has examined the appellant and the original no.2 the mother of the appellant on 5.7.2003 and treated them for the injuries caused to them. In our opinion the evidence of PW-4 Dr. Prabhakar Patil and PW-6 Dr. Shivaji Ghumre is formal in nature and does not require any comments on the same.

11. PW-5 is Dr. Murlidhar Chimaji Pawar and was then working as a Medical Officer at Panvel. This witness has conducted the postmortem on the body of deceased Gangaram. On examination, PW-5 Dr. Pawar found the following injuries on the body of deceased Gangaram.

œ1) Stab injury left side chest oblique of siz 2 x 1 cms. Cavity deep 4 cm from middle line 8 cms. left to the left to nipple.

2) Stab wound left blank oblique 4 x 1 cms on 14 cms from middle line 10 cms above ilisc chest, failing upwards.

3) Stab wound left abdomen 5 cms from middle line 12 cms above pubis 2 x 0.5 cms cavity deep.

4) Incised wound on left side back of 2 x 0.5 cms 5 cms from middle line, 20 cms below collac bone muscle deep.

5) Incised wound on left scapule 1.5 x 0.5 cms muscle deep 12 cms from mieel line, 9 cms below shoulder joint.

6) Incised wound on left forearm posterial suspect 1 x 0.5 cms 10 cms above elbow just muscle deep.

7) Incised wound 2 x 1 cms on left forearm posteriarly 8 cms below joint.

8) Incised wound on left side chest 1 x 0.5 cms 13 cms from middle line 12 cms below nipple.

9) Incised wound on left side chest on middle axilliary muscle deep.?

PW-5 Dr. Pawar has therefore opined that all the injuries were antemortem injuries.

PW-5 Dr. Pawar on internal examination noticed the following injuries:

œThorax walls cut in 5th inter costal space. Haemorrahage seen at the injury. Pleura cut, haemoi throx 1200 ml blood. Examination of the heard. Left Ventricle puncture internally. Ionternal injury found on abdomen wall, corresponded to injury no.8 which is mentioned in Col. No.17. Haemorrhage of size 1 x 1 cms in masentry.?

12. PW-5 Dr. Pawar therefore opined that the cause of death of deceased Gangaram was haemorrhage and shock due to stab injury to the heart and it was unnatural. He had further opined that injury no.1 mentioned in column no.17 of the postmortem notes was sufficient in ordinary course of nature to cause death. The postmortem report is at Exhibit 32.

13. PW-2 Anand B. Pawar is the panch-witness to the arrest panchanama of the appellant dated 5.7.2003 and is also panch to the spot panchanama i.e. the scene of offence panchanama. The arrest panchnama is at Exhibit 21 and spot panchnama is at Exhibit 58. This witness did not support the prosecution and was declared hostile.

14. PW-3 Baliram Gharat is the panch-witness to the spot panchanama (Exhibit 58), panchanama of seizure of the clothes of the appellant (Exhibit 59), memorandum statement (Exhibit60) and discovery panchanama (Exhibit 61). This witness is also panch to the seizure of the clothes of deceased Gangaram. This witness also did not support the prosecution case and has been declared hostile.

15. PW-11 is P.S.I. Shri Kolhe, the Investigating Officer of the crime. This witness has narrated all the facts pertaining to the information received by him and the procedure adopted by him while completing the investigation of CR No.41 of 2003 i.e. the present crime. This witness has proved the documents namely spot panchanama (Exhibit 58), panchanama of seizure of clothes of the appellant (Exhibit 59), memorandum statement (Exhibit 60), discovery of the weapon clothes at the hands of the appellant (Exhibit 61), the letter sent to the chemical analyzer (Exhibit 62) and the reports of the chemical analyzer (Exhibit 63 to Exhibit 67). The Investigating Officer has seized the knife which was used by the appellant by effecting discovery panchnama at Exhibit 61 at the instance of the appellant. The said knife was stained with blood. The report of chemical analyzer which is at Exhibit 66 points out that human blood was found on the said knife. This circumstance corroborates the prosecution case against the appellant.

This witness has been cross-examined by the appellant, however no material which would come to the help of the appellant, was elicited this witness.

16. Mr. Gavand, the learned Counsel for the appellant contended that on the date of incident i.e. on 4.7.2003 at about 11.30 pm there was no moon-light at all, though PW-1 Govind, in his cross-examination has voluntarily admitted in his cross-examination that there was moon-light on that particular day. Mr. Gavand, learned Counsel for the appellant in support of his contention place reliance on the photo-copy of the almanac for the year 2003-2004 and in particular page no.38 of the said compilation and submitted that on 4.7.2003 the moon set at 11 pm and therefore the testimony of PW-1 is scientifically not correct. In support of his contention for placing reliance on the almanac, the learned Counsel for the appellant relied on the judgment of the Supreme Court reported in in AIR 1979 SC 874 in the case of State of U.P. Vs. Ashok Kumar and Anr.

17. We have perused the copy of almanac for the year 2003-2004 produced by the learned Counsel for the appellant and after careful perusal of page no.38 of the said almanac what we have understood is that there is no mention at all about the moon-rise and moon-set on 4 and 5 July 2003. It only reflects about the sun rise and sun-set on those particular days and therefore, the contention of Mr. Gavand that on 4 and 5 July 2003 there was no moon at all which was based on the reliance on the said almanac, in our opinion is totally incorrect. May it as it may, we have perused the entire evidence on record and we have found that the almanac for the year 2003-2004 has been produced before this Court for the first time and the same was not brought on record during the trial. The said almanac and/or its contents was also not put to any witness during the course of trial for proving it as a document on record.

18. After scrutiny of the evidence minutely, we have further found that even PW-1 Govind has not been contradicted of his voluntarily admission which has come on record in his cross-examination, about the presence of moon-light at the spot of incident and the said admission was unchallenged. The judgment of the Supreme Court relied upon by the learned Counsel for the appellant has no application in view of the facts of the present case, as the facts mentioned in the said judgment are totally different. In the said judgment of the Supreme Court, the two prosecution eye-witness no.1 and no.2 who had admittedly seen the firing from a distance of about 150 yards, as was reflected from the examination of the site plan and which was endorsed by PW-1 who stated in his evidence that he had given the details of the place from where they saw the occurrence to the Investigating Officer at the spot. The first question which had fallen for consideration of the Supreme Court, was as to whether the witnesses would be in a position to identify the respondents from such large distance at night. It has further been observed by the Supreme Court that it is true that it was a moon-lit night but from a reference to the almanac it would appear that the moon had covered 3/4th distance on the night of occurrence and was to set at 3.23 a.m The Supreme Court has further observed that even though there may be some moon light at that night, it is difficult for the witnesses to identify the respondents or even if they did the possibility of mistake in identification cannot be completely excluded. The ruling of the Supreme Court (supra) relied upon by the learned Counsel for the appellant in our opinion has no application in the set of the facts of the present case.

19. In the present case, PW-7 Dhau is the injured eye-witness. The assault on deceased Gangaram and injured Dhau (PW-7) had taken place near their village and it is the specific case of PW-7 Dhau that the appellant assaulted the deceased Gangaram and also to him. Assuming for the sake of argument that there was no moonlight at the place of incident, however, the fact remains that the deceased and the injured were knowing to the appellant. There were altercations amongst themselves just prior to the incident. The appellant also hails from the vicinity of the village of PW-7 Dhau. We further find that the assault had taken place from a distance of not more than 3 feet and there was every probability of the said PW-7 Dhau identifying the appellant correctly. As stated in the forgoing paragraphs, the evidence adduced by PW-7 Dhau is sterling, impeccable and inspires full confidence in the mind of the this Court.

20. After scrutinizing the evidence on record, we are of the firm opinion that there is no evidence on record, to even suggest that at the time of incident there was no light at all and it was totally dark which would disbelieve the probability of identification of the appellant at the hands of PW-7 Dhau. We have further noticed that at the very first instance, the said PW-7 Dhau, while lodging the FIR at about 2.05 am on 5.7.2003, has in clear terms mentioned the name of the appellant as the assailant of deceased Gangaram and the said PW-7 Dhau.

21. After scrutinizing the entire evidence on record we are of the firm opinion that the appellant and the appellant alone is guilty of the present crime and the learned Trial Court has rightly convicted the appellant for the charges levelled against him. We therefore find no merits in the present appeal. Hence the appeal is dismissed with no order as to costs thereby confirming the judgment and order dated 22 February 2005 passed by the learned Ad-Hoc Additional Sessions Judge, Raigad in Sessions Case No.239 of 2003.