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CASE NO.: Appeal (crl.)  1157 of 2006

PETITIONER: Ramkrushna

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Appellant who was accused No. 2 before the trial judge is before us,   aggrieved by and dissatisfied with the judgment dated 16.6.2006 passed by  the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal  Appeal No. 31 of 1991 whereby and whereunder appeal preferred by him  from a judgment dated 22.1.1991 passed by the Additional Sessions Judge,  Chandrapur convicting him for commission of an offence under Section  302/34 of the Indian Penal Code was dismissed.   The parties are closely  related.   The deceased was  one Kannu Shende.   Accused No. 1 (since  deceased) was Baliram.   Appellant being the accused No. 2 before the      Ld. Trial Judge was the brother in law of said Baliram.  There were two eye  witnesses to the occurrence in question.   P.W. 3 Shobha was his wife and  P.W. 8 Dnyaneshwar was his son.   At this stage, we may notice that   Dnyaneshwar later on killed Baliram.   He was sentenced to undergo  rigorous imprisonment for life.  When the trial in this matter was going on,  he was undergoing his sentence.   

       Prosecution case is that there had been a dispute by and between the  deceased and the said Baliram with regard to the partition of the joint family  properties.  Deceased Baliram also had asked for the motor cycle belonging  to the deceased which was denied.  In the midnight at about 2 a.m. on  21.9.1986 both the accused came to the house of the deceased.   Accused  No. 1 was armed with a large stick known as "Ubhari".  Appellant was  armed with a knife.   They had shut the door of the room where  Dnyaneshwar was sleeping.  The door between the room of the deceased and  his wife Shobha was, however, open.  On hearing a cry of her husband,  Shobha came out.   Appellant threatened her at the point of a knife asking  her not to shout.   Both the accused then assaulted deceased Kannu Shende  with Ubhari (stick) and knife.

       P.W. 8 heard the cries of his father.   He tried to come out but found  the doors closed.  He could break open the door.  He came out of the room  and went to that of his father and saw both the accused coming out of the  room.  They ran away through the courtyard.  He found his father in an  injured condition.  He also saw bleeding injuries on his person.   He shouted  for help whereupon 20-25 persons from the locality arrived.  Shobha, P.W. 3  disclosed to him that the accused had assaulted the deceased.  P.W. 8 went to  the Police Patil, Vishwanath, P.W. 1 immediately.  He wrote down a Report.   P.W. 1 came to the house and thereafter went with P.W. 8 to Sindewahi  Police Station where First Information Report was lodged.   The Police  Station is situate at about 9 kilometers from the Village.   The report was  recorded at about 6.45 a.m.

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       During investigation, Appellant herein made a confession leading to  recovery of the handle of the knife which is said to have been used for  causing the murder of the deceased.                  Before the learned trial judge, inter alia the wife of the deceased  was  examined.  She turned hostile.   Two other witnesses P.W. 5, Nilesh and  P.W. 7 Uttam who had made statements before the Police that they  alongwith Baliram and Ramkrushna came to the village on cycle were also  declared hostile.  The learned trial judge, however, relied upon the  statements of Dnyaneshwar (P.W. 8) and to some extent the deposition of  P.W. 3, Shobha.  The appellant was found to be guilty of commission of the  said offence.  Appeal preferred by the appellant thereagainst as noticed  hereinbefore has been dismissed.    

       Dr. Rajiv Masudkar, learned counsel appearing on behalf of the  appellant in support of this appeal inter alia would submit:-

i)      As the sole eye-witness P.W. 3 had turned hostile, a judgment of  conviction cannot be sustained. ii)     The High Court committed a serious irregularity in not scrutinizing  deeply the statements of P.W. 8 as he was not an eye-witness and  furthermore contradicted himself in material particulars. iii)    The butt of the knife having been recovered from an open place, no  reliance could have been placed on the recovery thereof. iv)     The High Court did not deal with the question of motive for  commission of the crime elaborately.

       Mr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf  of the respondent on the other hand, in support of the judgment would  submit; i)      The courts below did not commit any mistake in relying upon the  evidence of P.W. 3 which clearly supports the prosecution case. ii)     P.W. 4 having proved the recovery of the handle of the knife, the  involvement of the appellant stands proved.     iii)    The Serologist Report clearly establishes that samples of human  blood found in the butt of the knife and that of the deceased were  of the same group.

       Indisputably, the First Information Report was lodged at the earliest  possible time.   The Police Patil, P.W. 1 was approached by the first  informant P.W. 8 soon after the incident.   He categorically stated that the  appellant and the deceased Baliram were named as the assailants of his  deceased by P.W. 8.

       Disclosure of the names of the assailants of the deceased by P.W. 8 at  the earliest possible opportunity, being not in dispute, the courts below in  our opinion did not commit any error whatsoever in believing the  prosecution case.

       P.W. 8 was the son of the deceased, he accepted that he had killed  Baliram and had been undergoing the sentence of life imprisonment for  commission of the said offence.                  The description of the house has not been disputed.   Evidence of the  Investigating Officer Ganpatrao Darwadkar, P.W. 9 clearly shows that one  cane containing kerosene oil and other articles were found near the place of  occurrence.

       Dyaneshwar’s  evidence fully supported the prosecution case.   He  was the first person to arrive at the place of occurrence on hearing the cries  of his father.   He had to break open the door.   He found the accused coming  out of the room.  He had asked them to wait but they ran away.   The fact  that his doors were bolted from outside to prevent any male member from  assaulting the accused and his arriving at the scene of occurrence  immediately after the assault took place is beyond any shadow of doubt.   He

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found the deceased with bleeding injuries at several places on his person.    He also found the butt of the knife embedded in the stomach of the deceased.   His step mother P.W. 3 categorically stated that it was the accused who had  assaulted the deceased.   She might have turned hostile but she had seen two  persons in the room.   Accused No. 1 was one of them.   She in her  examination-in-chief although stated that she could not identify the other  person, but in her cross examination by the prosecution, she categorically  stated that a person other than Baliram threatened her on the point of knife  preventing her from shouting.  Baliram uttered the words, according to her  "Ramya Kai Pahates".  There are materials on records to show that  Appellant was having a knife.                  P.W. 3 identified the appellant in the court.  She categorically stated  that the accused before the Court was the same person who had been  preventing her from shouting at the point of knife.                  From the post-mortem report it appears that the deceased had suffered  as many as seven ante-mortem injuries.  On examination of the dead body of  the deceased the Autopsy Surgeon in his report observed: "This wound along with the same hand weapon  which was a knife, which was 5 to 6 inches in  length blackish colour made up of iron with int  handle, one side of which was sharp and  Narrowing toward the to its (sic)."                  In his opinion, the probable cause of death was shock and hemorrhage  because of multiple external injuries and injuries to internal organs like heart  and intestine.   P.W. 6, Keshav Laman Gamdar proved that the appellant had  hired a cycle from him.   He also identified him in the court as the person  who had hired the cycle.

       The Chemical Analyst’s Report (Ext. 38) establishes that human  blood was found on the knife and also on the butt of the knife having been  recovered at the instance of the appellant, is also of some significance.   Discovery of the said fact is admissible under Section 27 of the Indian  Evidence Act.    

       It is also not correct to contend that the butt of the knife was recovered  from an open place.  According to P.W. 4, the knife was found in the pitch  of manure at Village Chikhalgaon of which the appellant was the resident.  He categorically stated that the butt of the knife could not have been seen by  a person passing through the road. Clothes of the appellant were also  recovered at his instance.

       The High Court might not have dealt with the question of motive  elaborately but when the presence of the appellant with Balram has been  established, motive takes a back seat.  Appellant must have come to the  place of occurrence.  He came with a knife.  The knife injuries were found.  Even if the prosecution has not been able to establish as to the exact role  played by each of the accused, the fact that both the accused had common  intention to commit the crime stood established.  Submissions of the learned  counsel for the State in this behalf are of some significance.  The learned  Trial Judge as also the Trial Court cannot be said to have committed any  error in relying upon the testimony of the P.W. 3 in part.   It is in our opinion  permissible in law.  [See Soma Bhai v State of Gujarat, AIR 1975 SC 1453]

       It is well-settled that the courts are entitled to rely upon a part of the  testimony of a witness who has been permitted to be cross-examined by the  prosecution.   

       In State of U.P. v. Ramesh Prasad Misra and Another [(1996) 10 SCC  360], this Court opined:

"7\005.It is equally settled law that the evidence of a  hostile witness would not be totally rejected if

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spoken in favour of the prosecution or the accused,  but it can be subjected to close scrutiny and that  portion of the evidence which is consistent with  the case of the prosecution or defence may be  accepted\005"

       [See also Gurpreet Singh v. State of Haryana, (2002) 8 SCC 18 and  Gagan Kanojia & Anr. v. State of Punjab, 2006 (12) SCALE 479]

       For the reasons aforementioned, there is no merit in this appeal, which  is dismissed accordingly.