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CASE NO.: Appeal (crl.)  704 of 2007

PETITIONER: Santosh @ Santukrao

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 09/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.        704             2007 [Arising out of S.L.P. (Crl.) No. 6054 of 2005]

S.B. SINHA, J.

   1.  Leave granted.

   2.  Appellant is before us aggrieved by and dissatisfied with the   judgment of the High Court of Judicature of Bombay, Aurangabad Bench at  Aurangabad dated 30.6.2004 passed in Criminal Appeal No. 101 of 2001  whereby and whereunder the appeal preferred by the appellant herein from a  judgment of conviction and sentence dated 3.2.2001 passed by the Second  Additional Sessions Judge, Jalana finding the appellant guilty of commission  of an offence under Section 302 and 307 of the Indian Penal Code and  sentencing him to undergo imprisonment for life and to pay fine of Rs.  5,000/- and to undergo rigorous imprisonment for  10 years and to pay a fine  of Rs. 5,000/- respectively, was affirmed.

  3.   The prosecution case is as under :-

       A First Information Report lodged by Sandhu (P.W. 1) was recorded  at about 11 p.m. on 7.8.1999  at a hospital in relation to an incident which  had taken place at a place known as Bhakardan.  P.W. 1 and the deceased  Janardhan Dalvi allegedly were going to attend a weekly bazaar which is  held every Saturday.  They were going on foot.  Appellant Santosh crossed  them from the opposite direction.  He, however, although went ahead, but all  of a sudden came back and from behind assaulted the deceased first.  While  P.W. 1 made an attempt to prevent him from doing so, he also attacked him  with a sharp edged weapon as a result whereof he suffered an injury on his  head.  Janardhan tried to run away, but he was chased and assaulted by a  sharp edged weapon.   Appellant later on ran away.   Janardhan died on the  spot.

   4.  Before the learned Trial Judge, apart from P.W. 1 some other  witnesses were also examined.   Appellant, as noticed hereinbefore, was  found guilty by the learned Trial Judge.   His appeal has been dismissed by  the High Court.    

   5.  Mr. K. Rajeev, learned counsel appearing on behalf of the appellant in  support of this appeal would submit that credibility of P.W. 1 as an eye  witness is in question as he had made an attempt to implicate Radhakishan   falsely.   It was urged that the alleged motive for commission of the offence  namely giving of a slap to the accused by the  deceased on an earlier  occasion having not been proved, the impugned judgment cannot be  sustained.  It was contended that there exists a discrepancy in regard to the  time factor with regard to the lodging of the First Information Report, as  although according to P.W. 1, it was lodged at 9 p.m.  The Investigating

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Officer,  P.W. 7 stated that he had recorded the same at 11.45 p.m.   It was  furthermore submitted that seizure of the articles purported to be at the  instance of the appellant herein has not been proved.  

   6.   Mr. Sushil Karanjkar, learned counsel appearing on behalf of the  State, however, supported the impugned judgment.   

   7.  Homicidal nature of death of the deceased and sufferance of injuries  by P.W. 1 is not in dispute.  Deceased had suffered two stab injuries, one on  the middle of his back and other on his chest.  As indicated hereinbefore, in  the First Information Report itself, it has been alleged that the deceased was  assaulted with a sharp edged weapon from the back first and later on he was  chased and killed.  Sufferance of a large number of injuries by P.W. 1  Sandhu is also not in dispute as would be evident from the medical report.     8.  He suffered the following injuries:- (i)     Incised injury on chest Rt. Side about 4 cm x 1/2cm  x Muscle depth sharp regular margin.  Elliptical in  shape Red base.

(ii)    Incised injury on Rt. Parital region about 4cm x  1/2cm x muscle depth Red base, Regular sharp  margine Eliptical shape.

(iii)   Incised injury on back over Thorasic vertebra about  2cm x 1/2 cm on Eliptical shape, Regular sharp  margin Red base.

(iv)    Incised injury on Ltd. Shoulder Eliptical shape 1/2  cm Red base Regular sharp margin.

(v)     Incised injury on Rt. Side of neck about 1/2 cm x =  cm, Red base Regular Sharp margin.

(vi)    Incised injury at the base of Rt. Thumb about 1/2 cm  x 1/2cm Red base Eliptical shape Regular sharp  margin.

(vii)   Contusion on Lt. Knee anterior aspect about 2cm x  1cm Red base."

    9. It is trite that there exists a discrepancy in regard to the time of  lodging of the First Information Report.   It is, however, not in dispute that  P.W. 1 was admitted to hospital.  He was being treated when his statement  was recorded by P.W. 7.  According to the doctor treating him, the statement  was recorded at about 11 p.m.  The Investigating Officer P.W. 7, however,  stated that it was lodged at about 11.45 p.m.   The possibility of the injured’s  losing track of time by reason of sufferance of grave injuries cannot be ruled  out.  Similarly the time of the recording of the statement might have been  made at 11 p.m., but the First Information Report might have been lodged at  about 11.45 p.m., which would not mean that the recording of the statement  of P.W. 1 had also started at that point of time.

  10.  The number of injuries received by Sandhu being not in dispute and   appellant herein having been named in the First Information Report, in our  opinion, purported discrepancy in respect of the time of actual lodging of  F.I.R. is not such which would prove to be fatal to the entire prosecution  case particularly when the occular evidence is corroborated by the medical  evidence.  P.W. 1 might have taken the name of Radhakishan also, but he  had even not been prosecuted.   It is now well known that in India, the  doctrine of falsus in uno, falsus in omnibus has no application.  So far as  non-establishment of the motive on the part of the accused is concerned,  suffice it to say that when the prosecution case is proved by direct evidence,  motive takes a back seat.  It is, however, not correct to contend that motive  has not been proved.

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  11.  Before the courts below, a contention had been raised in regard to the  identity of the accused.        The learned Trial Judge in view of the fact that  both the parties were resident of the same village rightly negatived the said  contention.  Such a contention has not been even seriously raised before us.   Identity of the appellant, therefore, is not in dispute.  Both the courts below  have accepted the testimony of P.W. 1 as a natural witness.   We also do not  find any reason to take a different view.   

  12.  We may notice that P.W. 1 went to Fakirba Mhatarji, P.W. 3 to his  village at the first instance.  He found him in an injured condition having  suffered injuries on his head, forehead and chest.  Thereafter, the other  villagers gathered.  This fact is supported by P.W. 4, Sanjay and P.W. 12,  Pralhad Bhikaji Dalvi.   

  13.  We may furthermore notice that the details of the incident was also  intimated immediately to P.W. 3, Fakirba Mhatarji, by P.W. 1.  There is no  reason as to why P.W. 3 would tell a lie.  So far as the recovery of some  articles at the instance of the accused is concerned, we may notice that the  weapon of assault and other articles were recovered at his instance. It  contained human blood.  The shirt of the appellant was also recovered.  It  was also stained with blood.  Group of the blood found on the said weapon  as also of the appellant being Group "B" matched with the blood group of  P.W. 1 Sandhu.  We, therefore, see no reason to differ with the findings of  the courts below.

   14. For the reasons aforementioned, we do not find any merit in this  appeal which is dismissed accordingly.