Barkya @ Balu Yadav Khalge Vs the State of Maharashtra

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HVN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 5 OF 2006

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 Barkya @ Balu Yadav Khalge,
 Aged about 27 years, Occ.
 Business, R/at Annabhau Sathe Vasahat,
 Room No. 182, Nigdi, Pune .... Appellant

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 Versus

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 State of Maharashtra .... Respondent

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 Mr. A.B. Vagyani for the Appellant.

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 Ms. S.D. Shinde, A.G.P. for State.

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CORAM: F.I.REBELLO&
SMT.V.K.TAHILRAMANI,JJ.
DATED: APRIL 02, 2008

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ORAL JUDGMENT (PER F.I. REBELLO,J.) :

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 . The appellant was charged amongst others for the

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 offence punishable under Section 302 of the Indian

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 Penal Code for having caused death of one Vikram
 Kashinath Kamble on 29.4.2003 at about 10.20.20 p.m.

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 The learned Second Ad Hoc Additional Sessions Judge,
 Pune by his judgment dated 4.2.2005 convicted the

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 appellant for the offence punishable under Section

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 302 of the Indian Penal Code and sentenced him to

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 suffer imprisonment for life and to pay fine of
 Rs.2,000/- and in default to undergo R.I. for one

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 year. The appellant was acquitted of the offences
 punishable under Section 37() read with Section 135

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 of the Bombay Police Act as also acquitted for the
 offences punishable under Section 4 read with

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 Section 25 of the Indian Arms Act.

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 2. In this appeal on behalf of the appellant, the

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 learned counsel has contended that there are serious

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 lacunaes in the prosecution case. It is pointed out
 that there was delay in launching the F.I.R. There
 are serious discrepancies in the evidence of P.W.
 No. 7. P.W. No. 7 though claims to have been
 injured in the incident, did not disclose the same
 either to his wife or to the Doctor from whom he
 received the medical treatment. Though the clothes
 of P.W. No. 7 had blood stains, they were not
 seized. It is also submitted that the knife which
 is alleged to have been used in the incident was
 found in the nalla where there was flowing water
 therein and consequently it is impossible to find
 blood stains on the said knife. The knife, it is
 pointed out was also not forwarded to the Chemical
 Analyzer for his report. There are also serious
 discrepancies about the time of the incident
 considering the versions given by the eye witnesses.
 For all the aforesaid reasons, it is submitted that
 this will be a fit case where there is serious
 doubts in the prosecution case. The learned Judge
 while convicting the appellant, it is submitted, did
 not address himself to this issue and consequently

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 the appeal ought to be allowed by giving appellant
 the benefit of doubt.

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 3. The evidence of P.W. No. 9 Dr. Prakash
 Dnyanoba Rokade who conducted the post mortem of the

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 deceased, discloses that there were altogether 47

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 injuries on the person of the deceased. All the
 injuries were ante mortem injuries. The cause of
 death is given due to traumatic and haemorrhagic
 shock due to multiple stab injuries to vital organs.
 He further deposed that the penetrating injuries
 mentioned above along with corresponding internal
 injuries can cause the death of the person in the
 ordinary course. He identified the injuries Nos. 1
 to 6, 11, 14, 16 to 19, 21, 25, 29, 31 to 44 as
 caused by sharp cutting object/weapon. Similarly
 Injury Nos. 15, 23, 24, 28 and 30 as caused by
 sharp and long cutting object. The injury Nos. 10,
 20, 45, 46 and 47, 7 to 9, 27, 27 as caused by hard
 and blunt object. It is further deposed that
 injuries caused by sharp cutting object can be
 caused by sharp edge of Article No.6 Rambo knife.
 Similarly injury Nos. 15, 23, 24, 28 and 30 can be
 caused by Article No. 6. The witness was not cross
 examined on these aspects. It is therefore, clear
 that the prosecution have been able to establish
 that the death was homicidal.

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 4. There are three eye witnesses to the incident.
 One Nagnath Kamble, P.W. No. 5 was working in the
 country liquor shop and was on duty on 29.3.2003.
 According to this witness, there was hue and cry on
 or about 8.30 to 9.00 p.m. on that day in front of

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 the shop near the bridge. When he came out of the

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 shop to see the incident, he noticed Vikram Kamble
 and Barkya Khalge i.e. the accused while sitting
 near the bridge. He noticed Barkya while assaulting
 Vikram with the help of the knife on the chest and
 head of Vikram Kamble. The appellant then threw the
 knife in Nalah and ran way from the spot. He
 identified article No. 6 as the knife used in the
 assault. In the cross examination, it has come on
 record that there was a light pole (street pole) at
 the distance of one and a half foot from the liquor
 shop. There was some dispute as to whether the date
 of incident was 29.3.2003 or 29.4.2003. In
 Re-examination, he explained that the incident took
 place on 29th day of the month but he doe snot
 remember in which month. He was examined on
 10.01.2005.

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 . P.W. No. 6 Indrajit Kashinath Kamble is the
 brother of the deceased. According to him, while
 returning to the house, when he reached near the
 liquor shop, at about 10 to 10.15 p.m. he noticed
 the appellant giving blows with Rambo knife on the

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 neck, on stomach, on face and on chest of his
 brother Vikram. He ran to the house and narrated
 the incident to his brothers, his mother and sister.
 Thereafter all family members returned to the spot.
 He noticed the accused while throwing the weapon in

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 the nalah and running away towards market. He

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 noticed his brother while lying in injured condition
 o the spot. They shifted the deceased to the
 hospital where he was declared dead. There is
 nothing in cross examination, which would result in
 impeaching the credibility of this witness.

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 . P.W. No. 7 Sachin Ramesh Mhetre was eye witness

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 who on that fateful day was sitting with the
 deceased Vikram on the plat form of the bridge. The
 accused according to this witness, was sitting on
 the platform at some distance from them. A scuffle
 ensued between the appellant and the deceased. The
 appellant took out Rambo knife and started
 assaulting the deceased on his neck, stomach and
 chest. The witness tried to save the deceased but
 in doing so received injuries on his hand (palms) as
 also little finger of right hand. As he was
 frightened, he went away to his house. Even after
 he has received injuries the accused continued his
 assault on the deceased. As he received injuries,
 he came by the side of them and the accused started
 giving the blows to deceased. When he reached to
 his house, his wife asked him how he received the
 injury on his palm. He told his wife that he
 received the injury due to tin sheet while working.
 On the next day he had been to Y.C.M. Hospital,
 Nigdi. He informed the Doctor that he received the

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 injury due to iron sheet while working, on his palm.
 The doctor stitched the injury on his little finger.
 The witness deposed that he told his wife and doctor
 that he received the injury while working as he was
 frightened. He identified Article 6 Rambo knife.

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 . The evidence of this witness was sought to be
 impeached on the ground that this witness did not
 disclose that he had not informed about the injuries
 on account of the assault by the appellant to his
 wife and or to his Doctor. The clothes of the
 witness were also not attached. In our opinion,
 considering the fact that the appellant had been
 attacked by the knife and he left the scene of the
 offence when the assault was still continuing on the
 deceased, the explanation of the witness that he did
 not disclose the incident to his wife and Doctor as
 he was frightened, has to be accepted.

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 5. P.W. No. 1 Ravi Kamble is the complainant He
 is also brother of the deceased. In his evidence,
 he has stated that on 29.4.2003 his younger brother
 came to the house running and in a frightened
 condition and informed of the quarrel between the
 appellant and then deceased brother in front of the
 liquor shop. He along with other family members
 rushed to the spot and saw his brother lying near
 the bridge and he noticed the appellant going with

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 Rambo knife and blood stains on his clothes. Then
 he shifted his brother by rickshaw to the hospital
 where he was declared dead. He identified the
 cloths worn by the appellant and which were
 attached. He also identified the Rambo knife. A
 suggestion was put to him that the appellant was
 running his business at his stall till 11.00 p.m.
 That was denied.

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 6. A submission was made on behalf of the counsel
 for the appellant that the knife was not sent to the
 Chemical Analyzer. The report of the Chemical
 Analyzer is on record and that has come in the
 evidence through I.O. Indrajit Kamble. He has
 stated that the seized muddemal was sent to Chemical
 Analyzer and the report is at Exh. 45 to 47. In
 the Chemical Analyzer’s report, Item No. 4 is
 described as "Rambo sura". The blood identified is
 shown as human. The group is held to be
 inconclusive. The knife was attached pursuant to
 the spot panchanama. P.W. 4 Ramesh Salunkhe was
 one of the panchas. He has deposed to the fact of
 the seizure of the knife and that there were blood

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 stains on the knife. He has further deposed that

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 the knife was kept in a separate paper wrapped and
 it was sealed and so also other articles seized. He

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 had his signature on the panchanama. He identified
 the knife. At the time the knife was attached, it

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 was lying in the nala and there was some water
 flowing.

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 . P.W No. 8 Mohan Shrirang Sawant had partly
 conducted the investigation. According to this
 witness, on the very night of 29.4.2003 on receiving
 information at 11.15 p.m. he recorded statement of
 the brother of the deceased who is complainant P.W.
 No.1. He went to the spot with two panchas to
 record spot panchanama. They searched the weapons
 and found Rambo Knife lying on the grass in nalla
 having blood stains. This witness have also deposed
 to attachment of clothes of the appellant. He also
 deposed the fact of attaching clothes of the
 deceased by drawing panchanama in the presence of
 two panchas. He had also noticed fresh injuries on
 the palm and hands and on leg of the accused.

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 7. In our opinion, amongst the eye witnesses, P.W.
 No. 5 Nagnath is an independent witness. P.W. No.
 7 has deposed to his presence at the scene when the
 assault took place and that he attempted to prevent
 the appellant from attacking the deceased and that
 he also was injured by the Appellant. The evidence
 of the brother of the deceased P.W.No. 6 as also of
 the complainant P.W.No.1 can not be rejected. We
 have no doubt whatsoever that the appellant caused
 injuries to the deceased by the knife Article No. 6

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 which has been recovered. Apart from the witnesses

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 having identified the knife, it has also been
 identified by P.W. No. 8 who has prepared the spot
 panchanama. From the evidence of P.W. No. 9 Dr.
 Prakash Rokade who conducted post mortem and the
 report of the Chemical Analyzer, there is no doubt
 whatsoever, that it was the knife which was used in
 the assault.

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 8. In so far as purported contention of the learned
 counsel for the appellant that there was delay, we
 find that the complaint was recorded at the hospital
 itself in terms of the evidence of P.W. No. 8
 Mohan Sawant. There is therefore, in our opinion,
 no delay in lodging the F.I.R. It is true hat there
 is some discrepancy about the time of the offence in
 the evidence of P.W. No. 8, P.W. NO. 10 and P.W.
 No. 9. Considering that the deceased was shifted
 to hospital and the information was received by the
 police at about 10.15 p.m. in all probability, the
 incident took place between 10 to 10.30 p.m. on the
 night of 29.04.2003. Much was sought to be argued
 that as there was flowing water in the nalla,
 Article No. 6 Rambo Sura could not have had blood
 on it. From the spot panchanama, it will be clear
 that though the article was recovered from nalla, it
 was recovered from the place where there was grass.
 Apart from that it is not possible to accept that

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 clotted blood only because the knife was thrown in
 the nalla, the blood would be washed away. It must
 be borne in mind that there were altogether 47
 injuries on the deceased and most of which were
 incised wounds. The assault therefore, must have
 been continued over period of time. The blood
 therefore, on the knife will be there in the natural
 course. It was attached soon after the incidence.
 The Chemical Analyzer though has not identified the
 blood group nonetheless found however, blood on the
 knife.

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 9. In our opinion, all this evidence clinches the
 case of the prosecution against the appellant. We
 have therefore, no hesitation in holding that there
 is no merit in this appeal. Accordingly, we confirm
 the judgment passed by the leaned Additional
 Sessions Judge. Appeal dismissed.

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 (SMT. V.K.TAHILRAMANI, J.)(F.I.REBELLO, J.)

Barkya @ Balu Yadav Khalge v. the State of Maharashtra

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Barkya @ Balu Yadav Khalge v. the State of Maharashtra

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