Umesh Vs. State of Maharashtra - Court Judgment

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evidence - appreciation of evidence - section 302 of indian penal code, 1860 (ipc) appellant (accused) convicted under section 302 of ipc appellant submitted that high court committed serious error in appreciating evidence of alleged eyewitnesses and gave undue importance to recovery of weapon of offence no motive attributed for commission of offence state submitted that in presence of direct evidence, motive recedes to background and not necessary for prosecution to prove motive of accused to commit murder - held, prosecution established that witnesses appeared on their behalf are natural and truthful - evidences produced cogent, reliable and convincing no reason to disbelieve and discard consistent and truthful version to discard evidence of witness on ground that he did not react in particular manner is to appreciate evidence in unrealistic and unimaginative way evidence of eyewitnesses corroborated by medical evidence - prosecution established its case beyond reasonable doubt appeal dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 154: [c.k. thakker & tarun chatterjee, jj] f.i.r. deceased himself dictated f.i.r. to police held, the report of occurrence was dictated by the deceased him self and the same was read over to him after which he had put his thumb impression on the same. this report is admissible under section 32 of the evidence act as a dying declaration. it is true that the original document signed by the deceased was not brought or record but the fir has rightly been admitted as a dying declaration. there appears no reason for the police to falsely implicate any one of the accused inasmuch as, initially, the report dictated by the deceased was taken down as a non-cognizable report under section323 of the ipc. if the police were to implicate the accused, they would have not taken down the report as a non-cognizable report in the very first place itself. further, the names of the accused and the important features of the case have been clearly mentioned in the report. it contains a narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eyewitnesses and the medical evidence on record. there is nothing on record to show that the deceased was not in a position to speak at the time when he dictated the report of occurrence. on the other hand, the materials and the other evidence on record show that the deceased was in a position to speak when he dictated the report of occurrence. therefore, the high court was fully justified in holding that the deceased was in a fit state of mind at the time of making the statement. furthermore, the dying declaration was fully corroborated by the other evidence on record.-- section 154: ] fir effect of non-production original fir could not be produced as registers relating to non-cognizable offences were destroyed after a lapse of two years loss of original fir was duly proved by prosecution witness accordingly, secondary evidence adduced by prosecution was accepted held, no adverse inference could be drawn against prosecution for non-production of original fir. -- sections 385 & 386: appeal against conviction non appearance of accused procedure high court deciding the appeal on merits held, it cannot be said that the high court ought not to have decided the appeal on merits in the absence of the appellants as the high court had no power or jurisdiction under section 385 or 386 to do so. further, it cannot be said that the notice of appeal was not served upon the appellants and, therefore, without a proper service of notice of appeal on the appellants and without giving them any opportunity of hearing to proceed with the appeal, the high court erred in proceeding with the appeal and deciding the same on merits. even if it was assumed that the notice of appeal was not served on the appellants, then also, it was an admitted position that the counsel for the appellants appeared for them to prosecute the appeal and, therefore, after appearance of the counsel for the appellants, it must be held that the notice of appeal was duly served. moreover, the counsel for the appellants submitted before the high court that despite repeated reminders to the appellants, the appellants were not responding and, therefore, the counsel for the appellants expressed his inability to argue the case before the high court. when the accused does not appear, it is the bounden duty of the high court to look into the records and the other materials on record, including the judgment of the trial court and thereafter, decide the appeal on merits which would be due compliance with sections 385 and 386 in disposing of criminal appeals. the appellate court must dispose of the appeal after perusal of the record and judgment of the trial court even if the appellant or his counsel was not present at the time of hearing of the appeal. the only exception is that if the appellant is in jail and his counsel is not present, the court should adjourn the case to facilitate the appearance of the appellant. there is yet another exception to this rule, namely, that in an appropriate case, the court can appoint a lawyer at the state expense to assist the court. therefore, the high court was justified in taking the assistance of the assistant government advocate and after taking such assistance and considering the entire evidence on record, the high court passed the judgment under appeal. it cannot be said that the high court had ignored the basic principles of criminal justice while disposing of the appeal ex parte. therefore, the matter cannot be remitted back to the high court for decision afresh after giving opportunity of hearing to the appellants. indian evidence act,1872[c.a.no.1/1872] -- section 3: [c.k. thakker & tarun chatterjee, jj] appreciation of evidence related witness - held, evidence of a witness should not be rejected merely because he happens to be a relative of the deceased. section 3: [c.k. thakker & tarun chatterjee, jj] interested witnesses evidence of witnesses who were relatives of deceased held, it cannot be discarded in the absence of any infirmity in said evidence. indian evidence act,1872[c.a.no.1/1872] section 32: [c.k. thakker & tarun chatterjee, jj] dying declaration f.i.r. recorded to the dictation of victim and his thumb impression affixed, can be treated as a dying declaration. - it was urged that the high court has failed to take cognizance of the fact that no motive has been attributed to the appellant for commission of the offence therefore, the appellant could not have been found guilty of the charge leveled against him. thus, according to the learned counsel, the prosecution has failed to establish the charge of murder against the appellant beyond reasonable doubt. karanjkar submitted that the evidence of the eye-witnesses supported by other ocular and documentary evidence has been rightly examined and appreciated by the trial court as well as by the high court. he submitted that no adverse inference can be drawn against the prosecution for non-examination of the informant and other witness because the prosecution has fully established the charge against the appellant beyond reasonable doubt by leading reliable and convincing evidence. the learned sessions judge as well as the high court have accepted the testimony of eye-witnesses pw-1 and pw-2 to the incident. their evidence is cogent, reliable and convincing and there is no good reason to disbelieve and discard their consistent and truthful version. it is well-settled that every person who witnesses a murder reacts in his own way. in the teeth of the reliable and convincing evidence, which has come on record, we have no other option but to accept the finding recorded and the conclusion arrived at by the high court on reappraisal of the entire evidence on record to hold that it was the appellant and none else who has committed the murder of dilip.lokeshwar singh panta, j.1. umesh, the accused in sessions case no. 15 of 1998 on the file of the sessions judge, amravati, is the appellant before us. the appellant was charged under section 302 of the indian penal code (for short 'ipc') for committing the murder of dilip ganpatrao shirbhate on 26.11.1997.2. the broad facts giving rise to this appeal may be set out briefly.the prosecution case is that on 26.11.1997 in the midnight vasant shankarrao bijwe, resident of vivekanand colony, warud, lodged a report (ext. 32) at warud police station, sub-division morshi, district amravati, alleging that when he was sleeping in his house, one anil ramrao gulhane, resident of warud, came there and told him that dilip ganpatrao shirbhate resident of warud was found lying in injured condition near the shop of patel situated near bombay lodge. vasant shankarrao bijwe immediately went to the spot of occurrence and found dilip ganpatrao shirbhate, his brother-in-law (wife's brother) lying dead. he noticed injury on the chest of dilip-the deceased. the clothes of the deceased were smeared with blood. vasant shankarrao bijwe-informant along with one baba alias purushottam marotrao ingle went to the police station to lodge the report. head constable b. no. 25 of police station warud, sub-division morshi, district amravati recorded first information report at 23:30 hrs. on 26.11.1997 against an unknown person under section 302 of the ipc.3. the investigating officer api ashok pw-7 conducted the investigation of the crime. pw-7 had inspected the spot and prepared panchnama. he sent the dead-body for autopsy. statements of several witnesses were recorded at the spot. the appellant was arrested on 27.11.1997. during the interrogation of the appellant, he made statement under section 27 of the evidence act in the presence of keshav (pw-4) and suresh (pw-5) about the concealment of knife in his house, which allegedly was used in the commission of the offence. on the basis of the said statement, knife was recovered. the appellant made another statement (ext. 47) under section 27 of the evidence act in the presence of amiruddin (pw-3), on the basis of which blood stained clothes worn by him at the time of the incident were seized from the house of the appellant. the seized articles' were sent for chemical analysis.4. after completion of the investigation, charge-sheet under section 302 ipc was filed against the appellant. in order to prove its accusations against the appellant, the prosecution examined in all seven witnesses, out of whom anand katole (pw-1) and waman nerkar (pw-2) were the eye-witnesses. the documents prepared during the investigation were also filed in support of the case. the appellant in his statement recorded under section 313 of the code of criminal procedure denied his involvement in the crime. his plea was that a false case has been registered against him. however, he led no defence evidence. placing reliance on the evidence of the eye-witnesses and other evidence adduced on record, the appellant as noted above was found guilty. the appeal of the appellant against his conviction came to be dismissed by the high court.5. mr. arvind kumar, learned counsel appearing on behalf of the appellant, submitted that the high court committed a serious error in appreciating the evidence of the alleged eye-witnesses and undue importance to the recovery of the weapon of offence (knife) has been given. it was urged that the high court has failed to take cognizance of the fact that no motive has been attributed to the appellant for commission of the offence therefore, the appellant could not have been found guilty of the charge leveled against him. learned counsel next submitted that non-examination of vasant shankarrao bijwe, who allegedly lodged the first information report of the crime in the police station and owner of sandeep pan shop, is fatal to the prosecution case and both these witnesses were intentionally withheld by the prosecution with a view to conceal the true facts of the case. thus, according to the learned counsel, the prosecution has failed to establish the charge of murder against the appellant beyond reasonable doubt.6. per contra, mr. sushil karanjkar, learned counsel appearing on behalf of the state, supported the judgments of the courts below. mr. karanjkar submitted that the evidence of the eye-witnesses supported by other ocular and documentary evidence has been rightly examined and appreciated by the trial court as well as by the high court. he submitted that no adverse inference can be drawn against the prosecution for non-examination of the informant and other witness because the prosecution has fully established the charge against the appellant beyond reasonable doubt by leading reliable and convincing evidence. learned counsel further submitted that in the presence of direct evidence, motive recedes to the background and, therefore, it is not necessary for the prosecution to prove the motive of the appellant to commit the murder of the deceased.7. we have carefully considered the respective contentions of the learned counsel for the parties and perused the entire material on record. the learned sessions judge as well as the high court have accepted the testimony of eye-witnesses pw-1 and pw-2 to the incident. it has come in the deposition of pw-1 that on the day of occurrence, i.e. 26.11.1997, at about 9.30 p.m. dilip came to his house and then both of them went to hotel rupa liquors where they consumed liquor. thereafter, they went to sandeep pan shop and smoked cigarettes there. umesh (the appellant) was also present in the pan shop. the appellant asked dilip to give him liquor, but dilip could not oblige the appellant, because he had no money in his pocket for buying liquor. the appellant entered into verbal altercation with dilip. pw-1 and dilip went to the liquor shop of shankar lala and they had again consumed country-made liquor there. thereafter, they went to the bombay lodge where the appellant suddenly appeared and dealt a blow of knife on the back of dilip. dilip raised cries in pain. pw-1 got frightened and tried to run away. he saw the appellant giving second blow of knife on the chest of dilip. on the next day, he went to the police station and informed the police about the incident. pw-2 deposed that the deceased dilip was working with him. on 26.11.1997 at about 9.15 p.m., he went to the pan shop of sandeep where he noticed pw-1 and dilip (deceased) coming from the opposite direction towards the shop. the appellant was also present there. the appellant asked dilip to give him money for buying liquor. he has corroborated the testimony of pw-1 in its entirety in regard to the injuries inflicted by the appellant on the person of dilip with knife, the weapon of offence.8. we are unable to accept the contention of the learned counsel for the appellant that the conduct of the eye-witnesses is unnatural as they had not disclosed the genesis of the incident to the members of the family of the deceased on the same day or they had not immediately reported the matter to the police. on scrutiny of the evidence of the eye-witnesses, we have no hesitation to hold that pws-1 and 2 are natural and truthful witnesses. their evidence is cogent, reliable and convincing and there is no good reason to disbelieve and discard their consistent and truthful version. it is well-settled that every person who witnesses a murder reacts in his own way. there is no set rule of natural reaction. to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. therefore, the high court has rightly re-appreciated the evidence of the eye-witnesses and we find no fault in the reasoning recorded by it. the evidence of the eye-witnesses finds corroboration from the medical evidence.9. we do not find any substance in the submission of the learned counsel for the appellant that the evidence of the eye-witnesses needs to be discarded on the simple ground that they are interested witnesses.dr. ambadas sadapure (pw-6) conducted autopsy on the dead-body of dilip on 27.11.1997. he noticed two stab wounds on back below left scapular region 4 cm. away from vertebral column obliquely upwards 5 cm. x 1 cm. x 8 cm. and one stab wound on chest below left middle part of clavicle obliquely downwards, 5 cm. x 1cm. x 5 cm., besides three abrasion marks on right hand of the deceased. doctor deposed that upon internal examination of the body of the deceased, one stab wound on left lung 3 cm. x 1 1/2 cm. x 2 cm. obliquely downwards and one stab wound posteriors upwards oblique 3 cm. x 1 1/2 cm. x 3 cm. were also noticed. all these injuries were ante mortem and sufficient in the ordinary course of nature to cause death. as per the opinion of the doctor, the cause of death was due to shock due to injuries to vital organ, i.e. lung and extensive haemorrhage and the injuries could have been caused by knife (article 8).10. the version of the eye-witnesses was further corroborated by the presence of blood of 'b' group on the shirt of the appellant, which was recovered at his instance on 27.11.1997 from his house in the presence of the panch witness amiruddin kazi (pw-3) in whose presence the disclosure statement (exh. 39) was made by the appellant to the investigating officer. the bloodstained shirt was sent to the chemical analyst for analysis. the report of the chemical analyst would reveal that the shirt of the appellant was stained with blood of 'b' group matching with the blood group of the deceased. the appellant has cross- examined pw-3 at length, but he could not shatter the evidence of the panch witness to dislodge his evidence in regard to the recovery of blood-stained shirt at the instance of the appellant from his house pursuant to disclosure statement (ex. 39) made by the appellant. the next contention of the learned counsel for the appellant that adverse inference should be drawn against the prosecution for non-examination of the informant and other material witness does not merit acceptance. in the teeth of the reliable and convincing evidence, which has come on record, we have no other option but to accept the finding recorded and the conclusion arrived at by the high court on reappraisal of the entire evidence on record to hold that it was the appellant and none else who has committed the murder of dilip. the prosecution has been able to establish the offence against the appellant beyond reasonable doubt. none of the contentions raised by the learned counsel on behalf of the appellant can be accepted.11. as a result of the aforementioned discussion, this appeal is dismissed and the conviction and sentence imposed upon the appellant is maintained.