Santosh @ Santukrao Vs. State of Maharashtra  Insc 533 (9 May 2007)
S.B. Sinha & Markandey Katju
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 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
(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
(v) Incised injury on Rt. Side of neck about 1/2 cm x = cm, Red base Regular
(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.
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
14. For the reasons aforementioned, we do not find any merit in this appeal
which is dismissed accordingly.