The Panchnama was prepared by the Investing Officer immediately after the incident.
The series of suggestions of the defence that on the day of incident the witness had number seen the appellant at the spot the appellant had number carried the gun with him the appellant had number rushed towards him, his wife Sunita and other persons accompanying them armed with knife and that the appellant had number stabbed deceased Sunita and Nirmalabai with knife, have categorically been denied by him.
The appellant and PW Rajesh returned to their respective houses in the evening.
They left the house of Nirmalabai around 5.00 p.m. At about 6.00 p.m. or 6.30 p.m. they started returning to the house of Nirmalabai from the place of their visit, when they saw the appellant and Raju Deshkar PW 5 going towards the bridge side riding on a motorcycle.
The appellant has number pointed out any reason as to why PW Vithoba Khobragade has deposed against him.
When he was going to his house, he came to know near the house of one Parate that Nirmalabais son in law was given beatings.
The appellant, on seeing the gathering of people at the scene of occurrence, ran away leaving all the three injured persons on the spot.
On 30.03.1988, the Police Station Officer of Paoni sent one knife to the doctor for his opinion.
It was alleged that they developed love affair with each other when they were studying in the school.
99, Ext.
P.C. along with four or five more witnesses.
Sunita and Nirmalabai both tried to extend help to injured Sanjay, but the appellant came near them, pulled Sunitas hair and stabbed her on vital parts of head, neck and back.
PW Rajesh and appellant himself have admitted that at about 5.30 p.m. or 6.00 p.m. on the day of occurrence, both of them had gone on motorcycle to river side for evening walk.
Doctor has opined that the injuries found on the body of Sunita and on the person of PW Sanjay, as mentioned in their Medical Certificates, companyld be caused by knife which he identified Art.
After companypletion of the investigation and after receipt of the post mortem report and the Injury Certificates of deceased Sunita, PW Sanjay and Nirmalabai and also the Chemical Analysers Reports Ext.
The injured man had uttered Golya Kadha Golya Kadha.
The prosecution case was that the marriage of Sunita was arranged with Sanjay, a resident of Nagpur.
PW Sanjay at that time was vomiting.
PW 1, the companyplainant, is a Medical Practitioner and belongs to village Paoni.
The arrest Panchnama Ext.
The learned Additional Sessions Judge has disbelieved the testimony of the injured witnesses inter alia on the grounds a they are close relatives and also interested witnesses besides they being untrustworthy because their evidence did number find companyroboration from any independent witnesses though many people were present at the scene of occurrence, yet numbere of them was examined by the prosecution, b some of the important witnesses have turned hostile to the prosecution and c the recovery of weapons of offence has number been supported by the panch witnesses and, therefore, recorded the judgment of acquittal of the appellant.
PW Sanjay and Nirmalabai were transferred to Medical College, Nagpur, at about 7.45 p.m. for proper medical treatment.
Brief facts, which led to the trial of the accused, are as follows The appellant Mahesh and one Sunita were residents of Bastarwari Ward, Paoni, Tehsil Paoni, District Bhandara.
As regards number recording of the statements of injured Sanjay and Nirmalabai, it is the explanation of the Investigating Officer that he tried to get their statements recorded, but companysidering the seriousness of injuries on their person, doctor had referred them to the Medical College, Nagpur, and before they companyld be taken to Nagpur, he made an attempt to request the Tehsildar or any other Magistrate to visit hospital for recording statements of the injured persons, but numberofficers were found available at the relevant time for the said purpose.
62 of deceased Sunita companyld number have been possibly caused by knife Art.
Doctor opined the cause of death of Sunita due to shock and haemorrhage as a result of severe injury to vital part, i.e., left lung.
Prakash PW 1 , a private Medical Practitioner, who lived nearby the place of occurrence, on hearing shouting of the people, went to the spot.
Fire arm injuries 9 in number on left size back at renal angle level to upper iliac crest.
It is her evidence that after crossing the gate of Fort and turning towards western side of the place of incident, they heard a sound of gunshot, which hit PW Sanjay on his back and Sanjay shouted Are Bapre and as a result of gun fire injury, Sanjay laid down on the road.
100 and Ext.
20 before the Court.
55 and Injury Certificate of PW Nirmalabai Ext.
Being aggrieved, the State of Maharashtra preferred Criminal Appeal No.198/90 in the High Court of Judicature at Bombay, Nagpur Bench.
In cross examination by Public Prosecutor, PW Rajesh along with the appellant had returned to their respective houses at about 7.30 p.m. and thereafter at about 7.45 p.m. or 7.50 p.m. he again went to hill side along with Ulhas, the elder brother of the appellant.
His evidence has number been shattered or discredited by the defence in spite of searching cross examination.
Two injuries were on right buttock and one injury was on left buttock and size of each injury was 1 cm x 1 cm edges of all the said injuries were inverted.
Sunita companylapsed on receipt of severe injuries.
PW Dhimole started investigation.
62 of Sunita, her Injury Certificate Ext.
P.C., the appellant has denied his involvement in the crime.
28 at Paoni Police Station, on the basis of which First Information Report bearing Crime No.34/1988 Ext.
The testimony of the Investigating Officer also would number ipso facto give rise to doubt its credibility when the same was number shaken in cross examination and he has numberanimus against the appellant to frame him in a false case.
Dr. Laxman also companyducted medical examination of injured Sanjay and on examination his companydition was also found very poor and as many as three severe injuries were found on his person.
The evidence of this witness was companysistent and free from embellishment.
He arrested the appellant on the same day at about 7.30 p.m. The appellant allegedly made a disclosure statement to the Investigating Officer expressing his willingness to point out the place where a gun and one knife were companycealed by him.
They had stayed for a night at the house of Nirmalabai.
The appellant has number explained the existence of cut injury on his right little finger.
A suggestion of the defence that in the evening of the incident he did number accompany PW Archana, PW Sanjay, deceased Sunita and deceased Nirmalabai for a walk as deposed by him in the Court, has been denied by him categorically.
The appellant warned him that if he still would like to marry Sunita he would face dire companysequences at the hands of the appellant.
A lacerated wound 1 cm x 1cm over right little finger, muscle deep over middle phalanx was numbericed on his hand by the doctor.
If PW 1 the maker of the companyplaint has chosen number to companyroborate his earlier statement made in the companyplaint and recorded during investigation, the companyduct of such a witness for numberplausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the Investigating Officer who had sincerely and honestly companyducted the entire investigation of the case.
The duration of all the said injuries was reported to be within six hours.
He lifted them into a rickshaw and took them to the Government Hospital at Paoni, where he assisted the Medical Officer in giving medical treatment to the injured persons.
The appellant has filed this appeal against his companyviction and sentence imposed upon him by the High Court for the murder of Sunita.
The learned companynsel submitted that there is discrepancy in giving 7.30 p.m. the time of the arrest of the appellant, which was factually incorrect as the same time was mentioned in the FIR and numberreliance, therefore, companyld be placed on such documents and according to the companynsel numberreliance companyld be placed on the evidence of PW Harihar being habitual panch witness of the Police.
The Division Bench of the High Court scrutinized and reappraised the entire oral and documentary evidence on record and has companye to the companyclusion that the learned Trial Judge has number properly appreciated the evidence on record and therefore, the judgment was set aside and as a result thereof, the appellant has been held guilty for the offence of murder of Sunita.
It is her evidence that on the day of occurrence, Sunita had requested her and PW Rupesh to give companypany to her, her husband Sanjay and mother Nirmalabai, who had decided to go to Wainganga river bridge side for evening walk.
Dr. Laxman recorded the cut injury on the little finger of the appellant in the Medical Report Ext.
The Injury Certificate of the appellant was placed on record marked Exhibit 57.
The trial of the appellant was companyducted by the learned Additional Sessions Judge, who framed charges against the appellant for the offences under Sections 302, 307 and 324 of the IPC and for the offences under Sections 25 and 27 of the Arms Act.
Besides the arrest panchnama Ext.
This witness, numberdoubt, has turned hostile to the prosecution and in the cross examination by the learned A.P.P. he denied having made portion marked A of his statement to the Police to the extent that Mahesh was standing near the place where Sunita, her husband and Nirmalabai were lying with bleeding injuries, holding gun between his knees and one knife in his hand and at that time the appellant was shouting arrest him arrest him.
56 respectively.
After some time, the appellant armed with a gun and knife came back to the place of incident and fire shot in the back of Sanjay, who, as a result of bleeding injury, uttered Are Bapre and then laid on the road side.
Dr. Laxman Fegadkar PW 10 on 28.03.1988 had admitted injured Sunita, Nirmalabai and PW Sanjay in the Government Hospital, Paoni.
He is natural witness being an injured person and his evidence is companyent, satisfactory and companysistent which has been properly re appreciated and accepted by the High Court holding the appellant an assailant of the murder of Sunita.
Doctor placed on record Injury Certificate Ext.
Sunita companyld number survive and succumbed to the injuries in the evening around 7.15 p.m. Dr. Laxman sent a memo to the Police Station, Paoni, regarding admission of the injured persons.
He knew the deceased Sunita, her mother Nirmalabai and the appellant Mahesh.
He returned to the shop of Gopal Somnathe where he was told that the son in law of Nirmalabai had been taken to the hospital in an injured companydition.
In these circumstances, numberfault companyld lie on the companyduct of the Investigating Officer and this companytention therefore is rejected.
He immediately passed on the information to the Police Station about the admission of the injured persons in the Hospital.
He received a letter from the Police Officer, Paoni, requesting him to certify whether Sunita was in a fit companydition to give statement and in reply thereto, doctor certified that Sunita was number fit for giving oral statement as she was lying unconscious.
In post mortem report of the deceased Sunita, doctor reported the injuries to be ante mortem.
A suggestion of the defence that when he went to the Hospital he found Nirmalabai in an unconscious companydition was denied by him.
45 by which samples of nail clippings of the appellant were also taken in the presence of PW Vithoba Khobragade.
82 and Ex.83 respectively.
In cross examination, Dr. Laxman categorically stated that when Sanjay and Nirmalabai were brought to the hospital, their companyditions were serious therefore they were referred to the Medical Hospital, Nagpur, for further medical treatment.
Thus, the testimony of the eye witnesses including the injured eye witness PW Sanjay finds companyplete companyroboration from the medical evidence in regard to the severe injuries sustained by deceased Sunita at the hands of the appellant with knife Art.
It was alleged that around 5.00 or 5.30 in the evening, the appellant along with his friend Rajesh PW 5 was seen by the above said persons going on a motorcycle to Wainganga River bridge side.
On examination of Sunita, he found as many as 9 injuries on her body.
28 which was signed by him.
Before the marriage of Sunita companyld take place with Sanjay, the appellant had gone to the house of Sanjay and disclosed the fact of his past love affair with Sunita.
The injury statement of PW Sanjay was placed on record mark Ext.
Chemical Analysers Report Ext.
The defence has number brought on record any evidence to show why the Investigating Officer had recorded mark A portion of the statement of PW 1 incorrectly.
He admitted that on the day of incident at about 5.00 to 5.30 p.m., he along with PW Rajesh had gone on a motorcycle towards river side for evening walk and thereafter they went to a small hillock in the vicinity and stayed there for about 1 hours.
The appellant was arrested by the Investigating Officer in the presence of PW Vithoba Khobragade and PW Harihar.
545 OF 2007 Lokeshwar Singh Panta, J. The appellant has filed this appeal under Section 379 of the Code of Criminal Procedure, 1973 for short Cr.
The evidence of these witnesses on this aspect has remained intact and untouched from the defence side.
He also spotted Nirmalabai and one man lying in injured companydition at a little distance away from Sunita.
In the opinion of the doctor, all the injuries were caused by a sharp edged weapon within a duration of six hours.
Copies of the statements were placed on record Ext.79, Ext.80, Ext.81, Ext.
Dr. Laxman medically examined the appellant at about 10.30 p.m. on 29.03.1988 when he was brought to the hospital by Police Constable.
Dr. Laxman companyducted the post mortem examination on the dead body of the deceased Sunita and recorded the following injuries in Post Mortem Report Ext.
20 has been categorically denied by him.
He companyld number take sample of blood of Sunita as her veins had companylapsed.
P.C., has admitted that he along with PW Rajesh around 5.00 or 5.30 p.m. on the date of incident had gone on a motorcycle towards the river side for evening walk.
The injury was found simple in nature and companyld have been caused by hard and blunt object within a duration of about 24 hours.
A suggestion of the defence that the injuries mentioned by him in the Injury Statement Ext.
This witness is number a stranger to the appellant and he has clearly identified the appellant as an assailant.
P.C. read with Section 2 A of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 read with Order 21 Rules XII to XXIX of the Supreme Court Rules, 1966, against the judgment and order dated 09.03.2007 passed by the Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur.
He pleaded that the prosecution witnesses are inimical towards him.
He immediately went to the Hospital at Paoni, where he found Nirmalabai, Sanjay and Sunita lying in an injured companydition.
In the statement under Section 313 of Cr.
His evidence is that Sunita, Nirmalabai and the man were having bleeding injuries on their person.
The Investigating Officer companyducted inquest on the dead body of Sunita.
It also finds mentioned in the Panchnama that the appellant had a cut injury on his right little finger and blood was oozing out of the said injury.
He rushed to the spot of occurrence where he came to know that injured Sunita, Sanjay and Nirmalabai were already taken to the Hospital.
According to the opinion of the doctor, the general companydition of Sunita was poor when she was brought to the hospital and Sunita expired around 7.15 p.m. on 28.03.1988.
At the Medical College Hospital at Nagpur, some pellets of gun fire were taken out of the body of PW Sanjay.
The Special Judicial Magistrate denied the suggestion of the defence that he had prepared the statements of the said witnesses on the basis of the statements recorded by the Police.
At about 7.30 or 8.00 p.m. as per his version, Sunita died in the hospital whereas Nirmalabai and the said injured man were sent for better medical treatment to Medical College Hospital at Nagpur.
The prosecution examined as many as 18 witnesses in support of its case.
On 27.03.1988, Sanjay and his wife Sunita both had gone to the house of Nirmalabai for inviting the latter to attend the marriage of the niece of Sanjay scheduled to take place at Nagpur.
At about 6.00 p.m. when they started returning to the house of his mother in law they numbericed the appellant and his one friend going on a motorcycle towards bridge side.
PW Dhimole submitted charge sheet against the appellant in the Court of Chief Judicial Magistrate, Bhandara.
She and PW Rupesh got frightened due to the sudden horrible incident, they rushed to the house of PW Sadashiorao grandfather of Sunita to narrate the incident but Sadashiorao, at the relevant time, was number present in the house.
He spotted Sunita lying with bleeding injuries on the road side.
He also threatened Sanjay to face with dire companysequences if he would marry with Sunita.
He heard some sound emanating from western side of the road.
PW Prakash at about 7.30 p.m. lodged a written companyplaint Ext.
PW Archana has fully companyroborated the testimony of PW Sanjay.
This witness has identified the appellant who was following them at a distance of about 5 or 6 feet holding a gun and one knife in his hands.
On the same day, Dr. Laxman examined Nirmalabai and found as many as four injuries on her person caused by sharp object and the duration of the injuries was within six hours.
29 was registered by PSI Dhimole PW 18 under Sections 302 and 307 of the IPC.
He found two internal injuries on the body of deceased Sunita 1 Pleura perforating injury 1 cm x 1 cm upto apex of left lung and 2 Left lung 2 cm x cm injury to the apex of left lung plenty blood companylection was seen in left thoracic cavity.
On the next day, i.e. 28.03.1988, Nirmalabai, Sanjay PW 8 , his wife Sunita, Archana PW 4 niece of Sunita and Rupesh PW 16 , son of the maternal uncle of Sunita, had gone towards the bridge side of Wainganga River for evening walk.
The High Court has observed that this piece of evidence of this witness was number possible to believe that when such incident had occurred in a village and his friend appellant was arrested by the Police at about 7.30 p.m. for the murder of Sunita and causing severe injuries to PW Sanjay and Nirmalabai, this witness along with elder brother of the appellant would have gone for second round of walk and in such sequence of events, PW Rajesh was obviously hiding the truth from the Court.
PW Sanjay and his brother PW Manik deposed that the appellant had extended threats to PW Sanjay to get ready for facing dire companysequences if he would marry with Sunita since the appellant was in love with her since their school days.
The Chief Judicial Magistrate companymitted the trial of the appellant to the Court of Sessions, Bhandara, as the offences framed in the charge sheet were exclusively triable by the Court of Sessions.
The defence of the appellant was that he was arrested on suspicion by the Police on account of old quarrel with the grandfather of deceased Sunita and he pleaded innocence.
He has denied having made statement to the Special Judicial Magistrate to the extent that on the day of incident he saw the appellant armed with a gun and giving knife blows on the person of Sunita and her mother Nirmalabai.
Sunita at that time was unconscious therefore, he companyld number speak to her.
Injured Nirmalabai was also referred to Nagpur for further management and her Injury Certificate was placed on record marked Exhibit 56.
It was on 12.02.1988 when the marriage between Sunita and Sanjay took place at Nagpur.
41 , the Investigating Officer prepared panchnama Ext.
The injury was simple in nature and was caused by blunt object.
Merely because PWs 1, 2, 3 and 15 did number support the prosecution case when they were examined in the Court, that would number, in the circumstances, lead to the companyclusion that the appellant was innocent.
P.C. On 06.04.1988, the Special Judicial Magistrate recorded the statements of PW Prakash the companyplainant.
Nothing has been elicited in the cross examination to discredit his testimony.
Black right all around the injuries would of exit seen.
54 , Injury Certificate of PW Sanjay Ext.
Sanjay in the presence of his brother Manik PW 7 told the appellant that as the Sakshagandha Ceremony had already taken place, he was left with numberother option except to marry with Sunita.
His dispensary is at a distance of about 50 feet from the place of occurrence.
The record shows that during the pendency of the trial, Nirmalabai had died and, therefore, she companyld number be examined as a witness and injuries sustained by her though sought to be proved through PW Dr. Laxman, yet the High Court has numbericed that there was numberevidence on record to prove the period of hospitalization of Nirmalabai and the nature of medical treatment given to her by the doctor of Medical College at Nagpur.
54 of Sunita.
REPORTABLE CRIMINAL APPEAL NO.
The testimony of this witness also companyroborates the testimony of injured PW Sanjay and other number injured eye witnesses to the extent that deceased Sunita, PW Sanjay and Nirmalabai were lying with bleeding injuries at the scene of occurrence on the day of incident.
The Investigating Officer companylected the post mortem report Ext.
Dr. Laxman found blade of the knife blood stained.
28 of the incident, stated that on hearing Sunitas shouts Wachawa Wachawa, he rushed to the spot of incident and numbericed Sunita lying with bleeding injuries on the road side in front of the house of one Ganeshe Tahsildar and he also spotted Nirmalabai and one man lying on the ground in an injured companydition.
In the circumstances, the appellant has been acquitted of the charge under Section 324 of IPC for causing injuries to Nirmalabai.
As soon as they reached near the house of his mother in law, he heard sound of gun fire from his back side which hit him in the back and at that time he saw the appellant approaching behind him armed with a gun.
41 would reveal that the appellant at the time of arrest was wearing a sky companyour white check manila and brown catechu companyoured full pant and stains of blood were numbericed at his shirt when he was arrested.
He was allowed to be cross examined by the learned A.P.P. when he admitted that during investigation of this case the Police had recorded his statement and later on Special Judicial Magistrate had also recorded his statement under Section 164 Cr.
They kept motorcycle near one Hotel, where they had taken tea and when they were walking on a small hill, they heard sound of blasting of cracker and thereafter they returned to their respective houses.
PW Prakash lifted Sanjay, Sunita and Nirmalabai into a rickshaw and took them to the Government Hospital, Paoni, where they were admitted by Dr. Laxman PW 10 , Medical Officer.
No Medical Officer from Medical College, Nagpur, who medically examined PW Sanjay, has been examined by the prosecution to prove injuries received by Sanjay from fire arm.
The appellant on seeing Sanjay, his wife Sunita, Nirmalabai, PWs Archana and Rupesh at the site of the river, allegedly uttered Sali Sunita Yevdha Prem Asun Aaj Ekda Sudha Mazyakade Pahile Nahi to PW Rajesh.
The appellant also stated that when he came to his house, some people told that murder had taken place.
As regards the gunshot injuries caused to PW Sanjay by the appellant, the High Court has companye to the companyclusion that the prosecution has number established that pellets extracted out of the body of PW Sanjay were companyresponding to the pellets allegedly fired by the appellant from the gun recovered from him by the Investigating Officer.
It is the evidence of PW PSI Dhimole that portion mark A appearing in the statement of PW 1 was recorded by him companyrectly.
He stated that he reported the entire incident to the Police in the Police Station and made a report Ext.
The articles were seized by the Investigating Officer vide Panchnama Ext.
20 , the weapon of offence used in the companymission of the crime.
102 and Report of Ballistic Expert Ext.
The versions of PWs Sanjay and Manik that before marriage of Sanjay with Sunita, the appellant had gone to the house of Sanjay at Nagpur and disclosed the factum of his love affair with Sunita have number been rebutted by the appellant in his statement.
Nirmalabai tried to save her daughter Sunita, but the appellant struck knife blows to Nirmalabai also.
His evidence does number lend any support to the defence plea of the appellant that he has been falsely framed in this case by the Police or by eye witnesses for some ulterior reasons.
PW 6 companyroborated the testimony of PWs Archana and Rupesh to the extent that both these witnesses had companye to his house and narrated the entire sequence of the incident to him.
Injury No.1 companyld be caused by sharp object and Injury Nos.
PW Prakash, PW Laxmi and PW Nilkanth companyld number explain any reason why the Special Judicial Magistrate was interested to record the portions of their statements incorrectly in which they had named the appellant as an author of the crime.
She deposed that in her presence the appellant at first attempt pulled Sunitas hair and then inflicted knife blows on her head, neck and back without any cause.
2 and 3 were as a result of fire arm as per doctors opinion.
The case of PW Sanjay was referred to Medical College, Nagpur, for further management.
The appellant took the Police and the Panch witnesses, namely, Vithoba Khobragade PW 9 , a Legal Practitioner, and Harihar Barsagade PW 13 to his house and got the weapons of offence recovered therefrom.
One more suggestion of the defence that the witness has falsely implicated the appellant because deceased Sunita was his grand daughter and also due to the reason that the father of the appellant was number on speaking terms with him, was emphatically denied by him.
The eye witnesses have numberanimus against the appellant to implicate him in a false case and leaving the real assailant from the clutches of law.
The appellant, as numbericed above, in his statement under Section 313, Cr.
Injury No.2 as described in post mortem report was reported to be sufficient in ordinary companyrse of nature to cause the death of Sunita and was possible with knife Article No.
He tried to get the dying declaration of Sunita and statements of injured Sanjay and Nirmalabai recorded, but at the relevant time he companyld number get the services of any Executive Magistrate readily available for the purpose.
Doctor companylected five C.C. Venous blood from the body of the appellant.
By the judgment under challenge, the High Court has partly set aside the judgment dated 25.01.1990 of the learned Additional Sessions Judge, Bhandara, passed in Sessions Trial No.44/88 companyvicting the appellant under Section 302 of the Indian Penal Code for short IPC and sentencing him to imprisonment for life and to pay a fine of Rs.1,000/ with default clause to suffer further six months R.I. The appellant, however, has been acquitted for the offences punishable under Sections 307 and 324 of the IPC and Sections 25 and 27 of the Arms Act.
54 and post mortem report Ext.
The Investigating Officer companylected samples of nails of the appellant in the presence of Panch witnesses and the same were sent to the Chemical Analyser.
PW Vithoba Khobragade is a Legal Practitioner and he has fully supported the preparation of the arrest panchnama of the appellant.
The prosecution alleged that on the same day, the appellant had kept a gun and one bag at the house of Laxmibai PW 2 in the presence of Bilkish Begum PW 3 , a neighbour of PW 2 on the pretext that he would companylect these articles in the evening for hunting purpose.
PW Prakash, who lodged report Ext.
