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CASE NO.: Appeal (crl.)  744 of 2006

PETITIONER: Umesh

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 07/02/2007

BENCH: C. K. Thakker & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       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.         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.           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.  

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       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.         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 levelled 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.           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.         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

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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.         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.           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 = cm. x 2 cm.  obliquely downwards and one stab wound posteriors upwards  oblique 3 cm. x 1 = 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).           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

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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.                   As a result of the aforementioned discussion, this  appeal is dismissed and the conviction and sentence imposed  upon the appellant is maintained.