ORDER
Vishnu Sahai, J.
1. The appellant aggrieved by the Judgment and Order dated 13-5-1994 passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 27 of 1994, convicting and sentencing him to undergo R.I. for life and to pay a fine of Rs. 500/- in default to undergo R.I. for 6 months, for an offence under section 302 I.P.C. has come up in appeal before us.
2. In short, the prosecution case runs as under:-
On 25-8-1992 the deceased Mahesh along with his friends had a quarrel with Jagannath Wable, son of Haribhau Wable P.W. 6 resulting in Jagannath Wable lodging an F.I.R. against them. On 27-8-1992, Mahesh his friend-Vijay Kharde, Sanjay Sonawane, Kailash Gangurde and Kiran Wagh had gone to the house of Papu Kasar who told them that Jagannath Wable had kicked him when he was demanding one Ganesh Card from the appellant. Consequently, all of them went to the house of Jagannath Wable in Dingarali. Mahesh and Kiran Wagh P.W. 8 went to call him. At that time, the appellant was taking meals at the house of Jagannath Wable. After sometime, the appellant and Jagannath Wable came. Kiran Wagh asked the appellant as to why Jagannath Wable had kicked Papu Kasar. On account of this, there was an exchange of hot words between them. At that time, Vijay Kharde rushed towards Jagannath Wable and the appellant with a knife. It is said that on account of this incident, the appellant and his friend the acquitted accused Bhavdya @ Bhavrao Babulal Jadhav, again came there and asked Mahesh and others to beg pardon from Jagannath Wable’s mother. They also told them that she will not prosecute the complaint lodged against them. It is said that at that time, the deceased Mahesh told the appellant that she had lodged a complaint at his instance and she will hot take back the same. He also asked the appellant to go away. It is said that after threatening Mahesh, the appellant went away.
On the same date (27-8-1992) at about 10/10/45 p.m. the appellant came to the building on the ground floor of which lived Ravikant Panchka P.W. 14 and on the first floor, the deceased Mahesh. The appellant enquired from Ravikant’s brother about Mahesh. He entered inside the house and on seeing Mahesh, took him away from the house. Two to three minutes later, Mahendra @ Raju Pimpale P.W. 7 came and informed Ravikant Panchka that Mahesh was lying in a pool of blood on the steps in front of his house, having suffered stab injuries. Consequently, Ravikant Panchka along with his brother and parents of Mahesh went to the said place. They found Mahesh lying in a pool of blood. Thereafter, they removed Mahesh to Civil Hospital, Nasik.
3. Evidence of Dr. Girish Autade P.W. 3 of Civil Hospital, Nasik is that at about 11.45 p.m. on 27-8-1992, one Mahesh was admitted as a case of stab injury. He examined him and found on his person the following injuries:-
1. Incised wound on the right side of the chest wall 1 cm lateral to the sternum 2.5 cm X 1 cm depth was penetrating the anterior chest-wall.
2. Small incised wound 5 x 2 cm on the left side of the chest wall in the mid clavicle line in the 7th intercostal space. The edges were clean cut.
3. Incised wound on the left thigh anterior aspect 2″ superior to the patela, 3 cm x 1 cm.
4. Incised wound 5 cm x 2 cm in the left supra clavicular region, edges were clean cut.
5. Incised wound on the left shoulder 2 cm x. 2 cm.
His evidence further is that at 0.25 a.m. on 28-8-1992, Mahesh succumbed to his injuries.
4. The F.I.R. of the incident was lodged by Pushpa Panchakehari P.W. 15, mother of the deceased Mahesh, sometimes after midnight same night, at Police Station Bhadrakali. On its basis, P.I. Surendra Patil P.W. 16 registered C.R. No. 215 of 1992.
5. The investigation was conducted in the usual manner by P.I. Surendra Patil P.W. 16 and P.S.I. Manik Akolkar P.W. 12. The latter arrested the appellant at 5 p.m. on 28-8-1992 and handed him over to the former, who in the presence of public panch Dipak Shelar P.W. 4 recovered the cream colour shirt and maroon colour pant (both blood-stained) which the appellant was putting on, under a panchanama. P.I. Patil also sent for a barber Shaikh Hafis P.W. 5 who took the nail clippings of the appellant.
During investigation, the same evening, the appellant told P.S.I. Patil that he had handed over the blood-stained knife to Kiran Ahirrao P.W. 2 and he could have the same recovered. Immediately thereafter along with P.S.I. Patil and Dipak Shelar, the appellant went to the shop known as Regal Tailors where Kiran Ahirrao used to work. He had a talk with him. Thereafter, Kiran Ahirrao brought a blood-stained knife which P.S.I. Patil took into possession under a panchanama,
P.S.I. Patil also recorded the statements of the witnesses under section 161 Cr.P.C. and after completing the investigation, on 24-11-1992, submitted the charge sheet against the appellant and co-accused Bhavadya @ Bhaurao Babulal.
6. Going backwards, the autopsy on the corpse of the deceased Mahesh was conducted on 28-8-1992 (between 7.30 a.m. to 8.30 a.m.) by Dr. Girish Autade P.W. 3 who found on it five incised wounds situated near about the chest region and left shoulder.
On internal examination, he found the lung to be pale and rupture of pulmonary artery.
In the opinion of Dr. Autade, the death was the result of perforation of right lung and right pulmonary vessel with haemothorax. Dr. Autade opined that injury No. 1 which was an incised wound on the right side of the sternum in the 5th intercostal space, 1 cm lateral to sternum 2.5 cm x 1 cm depth penetrating anterior chest-wall was singularly sufficient to cause death in the ordinary course of nature.
7. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence punishable under section 302 I.P.C. and in the alternative with co- accused Bhavdya @ Bhavrao Babulal for an offence under section 302 read with section 34 I.P.C. He pleaded not guilty to the charges and claimed to be tried. His defence was that of denial.
During trial, in all the prosecution examined 16 witnesses. We may straight away mention that there is no eye-witness of the incident and the case rests on circumstantial evidence. The learned trial Judge felt that there was sufficient circumstantial evidence to connect the appellant with the crime and consequently, convicted and sentenced him in the manner stated in para 1 but, acquitted the co-accused Bhavadya @ Bhavrao Babulal Jadhav.
Hence, this appeal.
8. We have heard Mr. S.B. Shetye for the appellant and Mr. I.S. Thakur, Additional Public Prosecutor of the respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment. After the utmost circumspection, we are of the judgment that there is no merit in this appeal and it deserves to be dismissed.
9. As mentioned above, the evidence against the appellant is circumstantial in nature. It is well-settled that circumstantial evidence can only be made a basis for conviction if:-
(a) the circumstances are firmly established against the accused;
(b) they irresistibly lead to the guilt of the accused; and
(c) they are wholly incompatible with the innocence of the accused and they are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused.
10. Bearing in mind the aforesaid norms, we have evaluated the circumstantial evidence. The circumstances adduced by the prosecution are as under: –
(i) on 27-8-1992 at 10.30-10.45 p.m Ravikant Panchka P.W. 14 saw the deceased Mahesh in a hale and hearty condition going along with the appellant;
(ii) Two to three minutes after Ravikant Panchka had seen the deceased Mahesh going along with the appellant, Mahendra @ Raju Pimpale P.W. 7 who resided in his immediate proximity came and told him and Pushpa P.W. 15 (mother of deceased) that Mahesh was lying in a pool of blood on the steps in front of his house;
(iii) Extra-judicial confession of the appellant to Haribhau Wable P.W. 6 and Bhagwan Pimpale P.W. 10;
(iv) Pursuant to the arrest of the appellant on 28-8-1992, at about 5 p.m. recovery of the bloodstained shirt and pant which the appellant had on his person and taking of his nail clippings since there was blood on his nails; and
(v) Recovery of blood-stained knife at the instance of Kiran Ahirrao P.W. 2 who was handed over the said knife by the appellant on 28-8-1992.
11. In our view, the said circumstances have been firmly established.
To establish circumstance (i) we have the evidence of Ravikant Panchka P.W. 14 who resided on the ground floor of the same building on the first floor of which the deceased Mahesh was living. His evidence is that on 27th August, 1992 at about 10.30 to 10. 45 p.m. the appellant came; enquired from his brother where the deceased Mahesh was; thereafter entered inside the house; and left long with the deceased Mahesh.
We have gone through the statement of Ravikant Panchka and we find that the same inspires confidence. He could not be discredited in any manner on the factum of the appellant coming at the purported time and taking the deceased Mahesh who was hale and hearty, along with him. It is true that he is the cousin brother of the deceased but, on that score his evidence cannot be mechanically rejected. It has to be only scrutinised with caution. Having so examined it, we find it to be reliable. Excepting some omissions which do not impair the core of the prosecution case, nothing could be extracted from his cross-examination which would effect his credibility. In our view, his evidence inspires implicit confidence.
So far as the second circumstance is concerned, we have the evidence of Ravikant Panchka P.W. 14, Pushpa Panchakehari P.W. 15 (the mother of the deceased) and Mahendra @ Raju Pimpale P.W. 7 who lived in the immediate proximity of Ravikant Panchka and Pushpa Panchakehari. The evidence of Mahendra @ Raju Pimpale P.W. 7 is that at about 11 p.m. while he and his wife were returning from the kitchen to the living room, they saw Mahesh lying in a pool of blood near the steps of their house, whereupon he immediately went and informed Ravikant Panchka and the parents of Mahesh. Ravikant Panchka P.W. 14 and Pushpa Panchakehari P.W. 15 have corroborated Mahendra’s statement that he had informed them that Mahesh was lying in a pool of blood on the steps of his house.
Mahendra @ Raju Pimpale is a wholly independent witness who had no axe to grind against the appellant and could not be discredited in cross-examination, in any manner. We believe his evidence, as also that of Ravikant Panchka and Pushpa Panchakehari who could not be also discredited in cross-examination, in any manner.
We now come to the third circumstance namely the extra-judicial confession made by the appellant to two witnesses namely Haribhau Wable P.W. 6 and Bhagwan Pimpale P.W. 10.
The evidence of Haribhau Wable shows that his son Jagannath Wable is a friend of the appellant and on 27-8-1992 at about 11.30 p.m. he heard shouts of the appellant calling his son Jagannath whereupon he opened his window. He found the appellant standing there. He told him that he had beaten Mahesh and wanted Jagannath to accompany him. He asked the appellant to go to the police station and consequently, he went away.
We have perused the statement of Haribhau Wable and we find that it inspires confidence. Since his son was the friend of the appellant, in our view, there was no question of his falsely implicating the appellant and deposing about the extra-judicial-confession made by the appellant to him. We find his evidence to be reliable and accept it.
We now take up the extra-judicial confession made by the appellant to Bhagwan Pimpale P.W. 10. His evidence is that on 28-8-1992 at about 1.30 p.m. the appellant along with his friend came to his house; took him aside; told him that he had stabbed Mahesh with a knife and he was hungry, and he should give him food. He gave him food and thereafter, the appellant along with his friend went away. He has also been cross-examined but, could not be discredited in any manner. There are some omissions in his statement under section 161 Cr.P.C. which only affect his evidence on the fringes and not its core. He is a wholly independent witness who had no axe to grind against the appellant. We believe his evidence.
We take up the fourth circumstance. Evidence of P.S.I. Manik Akolkar P.W. 12 shows that he arrested the appellant at 5 p.m. on 28-2-1992 and handed him over to P.I. Patil P.W. 16. The evidence of P.I. Patil P.W. 16 and the public panch Dipak Shelar P.W. 4 shows that the appellant was putting on blood-stained cream colour shirt and maroon colour pant; the said clothes were seized under a panchanama; and nail clippings of the blood-stained nails of the appellant, were taken. The barber who took the nail clippings, one Shaikh Hafis P.W. 5, has also been examined. It is pertinent to point out that neither of these three witnesses had any rancour or animous against the appellant and we find their evidence to be free from blemish.
It is significant to point out that the said articles were sent to the Chemical Analyst who found human blood on all of them and reported that blood on the nail clippings bore ‘O’ group. Since blood of the said group was found on the clothes of the deceased by the Chemical Analyst, it is implicit that the blood group of the deceased was also ‘O’. It is pertinent to point out that the blood of the appellant was also sent to the Chemical Analyst who found it to be of ‘B’ group.
The Supreme Court in para 10 of the decision Khujji @ Surendra Tiwari v. State of M.P., has held that presence of human blood on the recovered articles is a incriminating circumstance.
In our view, the presence of human blood on the shirt and pant of the appellant and blood of ‘O’ group, the blood group of the deceased, on his nail clippings is a very clinching circumstance against him.
Finally, we come to the last circumstance namely recovery of blood -stained knife at the instance of Kiran Ahirrao P.W. 2 to whom the appellant had handed over the said knife on 28-8-1992. His evidence shows that he was doing tailoring work at Chavhata at Regal Tailors. On 28-8-1992, he had worked there till 12.30 p.m. He, thereafter left for lunch and while he was returning after taking his lunch, and was standing at the pan stall, styled as Archana Pan Stall, the appellant and his friend came. The appellant asked him to purchase cigarettes for him. Consequently, he purchased two cigarettes one for the appellant and one for his friend. The appellant thereafter took him aside and told him that somebody was injured at his hands by a knife and forcibly kept the knife in the pocket of his trousers. Thereafter, he (Kiran Ahirrao P.W. 2) went to the tailoring shop and after half an hour, when the owner of the shop was not present, concealed the knife in the loft. Assurance to his evidence is lent by that of public panch Dipak Shelar P.W. 4 and the Investigating Officer P.I. Patil P.W. 16. The latter two witnesses have deposed that at about 6.40 p.m. on 28-8-1992, they along with the appellant came. The appellant asked Kiran Ahirrao P.W. 2 to take out the knife which he had given to him; and thereafter he took out the said knife and handed over to the police. The said knife was seized under a panchanama. We have gone through the evidence of Kiran Ahirrao, Dipak Shelar and P.S.I. Patil and we find the same to be truthful. All these witnesses were independent witnesses and had no axe to grind against the appellant. It is significant to point out that the said knife was sent to the Chemical Analyst who found on it blood bearing ‘O’ group, the blood group of the deceased. In our opinion this circumstance is also highly incriminating and has been proved beyond any shadow of doubt.
12. In our view, all the five circumstances, named above, have been established beyond any pale of doubt and are wholly and only compatible with the inference that it was the appellant who had murdered the deceased Mahesh.
13. We would be failing in our fairness, if we do not refer to the main submission canvassed by Mr. Shetye learned Counsel for the appellant namely that in-as-much as in the copy of the post-mortem report given to the appellant along with the charge sheet papers, there is no mention of ante-mortem injuries it is a mystery as to how many ante-mortem injuries deceased had in reality and therefore, bearing in mind that the deceased did not die instantaneously, conviction of the appellant be down-graded from section 302 to 304 I.P.C. We regret we do not find any merit in this submission. It is true that the Autopsy Surgeon Dr. Autade, P.W. 3 during the course of his cross-examination, stated that Exhibit 17 was the original post-mortem report and Exhibit 20 its copy and the practise is to send the original to the police and to keep a carbon-copy on the record. He also admitted that in the instant case, the converse was done and in the copy of the post mortem report prepared by him, there is nothing in Column No. 17 and he had prepared the copy, an hour after preparing the original. It appears to us that through inadvertance, in the Column No. 17, Dr. Autade P.W. 3 failed to mention the ante-mortem injuries. It should be borne in mind that Dr. Autade P.W. 3 is a wholly independent witness who had no animous or rancour against the appellant and in that view of the matter, on account of this inadvertence, of Dr. Autade, no capital can be made of.
Mr. Shetye also brought to our notice some omissions in the statement of the witnesses recorded under section 161 Cr.P.C. The said omissions in our view, only touch the fringes of their evidence and not the core. The Supreme Court in the decision , Matadin & others v. State of U.P., has in para 3 held that where the omissions are not in respect of vital matters, they have no adverse bearing on the veracity of the witnesses. In such a situation, this submission of Mr, Shetye also has no force.
14. For the said reasons, in our view, the learned trial Judge acted correctly in convicting and sentencing the appellant for an offence under section 302 I.P.C. Considering the circumstance that the appellant intentionally inflicted five injuries with a knife, on the deceased Mahesh, which were accompanied by substantial internal damage and out of which, injury No. 1 was independently sufficient in the ordinary course of nature to cause death, the act of the appellant would fall squarely within the ambit of Clause Thirdly of section 300 I.P.C., which provides that culpable homicide is murder if a person intentionally causes bodily injury which is sufficient in the ordinary course of nature to cause death. Hence, he has been rightly convicted under section 302 I.P.C.
Since the appellant has been awarded lessor of the two sentences under section 302 I.P.C. namely life imprisonment, there can be no question of reducing his sentence.
15. For the said reasons, we confirm the conviction and sentence of the appellant for the offence under section 302 I.P.C. and dismiss this appeal. The appellant is in jail and shall be detained therein till he serves out his sentence.
16. Appeal dismissed.