SUBHASH MARUTI AVASAREversusSTATE OF MAHARASHTRA

A                         SUB HASH MARUTI AV ASA RE
                                      v.
                           ST ATE OF MAHARASHTRA

                                OCTOBER 19, 2006

B                  [S.B. SINHA AND DAL VEER BHANDARl,JJ.]


          Penal Code, 1860-Sections 302 and 323-Murder-By the accused
    and co-accused-Prosecution-Names of accused specifically mentioned by
C   the deceased-Prompt lodging of FIR-Recovery of knife and blood-stained
    clothes-Grudge of the present accused against the deceased was the motive-
    Conviction of all the accused under Section 302 by trial court-High Court
    confirmed the conviction of the present accused-Plea of alibi by the present
    accused-On appeal, held: In the facts of the case, conviction justified-Plea
    of alibi not acceptable as the same was not taken at first instance.
D
          Evidence-Reliance on certificate issued by expert-Non-examination
    of the e.xpert-Effect of--Held: By mere filing of a document, its contents are
    not proved-Certificate issued by an expert should be brought on record by
    examining him.

E         Appellant-Accused No. 3 has been alleged to have caused death of one
    person along with other co-accused. On the day of incident, the deceased had
    gone to a doctor with his wife (PW 2) for medical check up of their son. After
    sometime, PW-2 came back running to the house and informed mother of the
    deceased (PW I) that some persons had picked up quarrel with the deceased.
F   PW-I ran to the spot and found the accused persons assaulting the deceased.
    PW-2, her husband and son-in-law also came there. On being stabbed by
    accused-I, deceased fell down and he was taken to the hospital by PW-I and
    her husband. On the way to hospital the deceased had disclosed the names of
    accused I and 2, and the appellant as his assailants to PSO (PW 9). According
    to P.W.. I appellant had been nurturing grudge against the deceased as he
G   had refused to offer him beer.

          Trial Court, relying on the testimony of PW-I, convicted the accused
    under Section 302 IPC. High Court, confirmed the conviction of accused I, 2
    and the appellant, while acquitted Accused Nos. 4 and 5 of the offence under

H                                        514
              SUBHASH MARUTI AVASARE 1·. STATE OF MAHARASHTRA                515

Section 302 and convicted them for offence under Section 323 IPC.                    A
       In appeal to this Court, appellant contended that P.W-1 could not have
seen the incident as she could not have been informed about the same by P.W.-
2 because she being pregnant could not have covered the distance within a
short time; that the grudge allegedly borne by the appellant could not be held
to be sufficient for causing murder of the deceased; that absence of blood stain     B
on the clothes of PW-1 and her husband was material; that in view of Section
58 of Evidence Act it was not necessary for the appellant to prove the doctor's
certificate having regard to the fact that he was suffering from a compound
fracture and his leg was plastered and this fact was also admitted by PW-1.

      Dismissing the appeal, the Court
                                                                                     c
       HELD: 1. There is no reason to disagree with the findings of the Sessions
Judge as also the High Court. The distance between the place of incident and
the house of P.W.1 is said to be '5 minutes walking distance', being about
500 ft. A lady whose husband was being assaulted, despite being pregnant,            D
would take the risk of running to her house and come back with her mother-
in-law. Similarly, the mother of the deceased must not have lost any time to be
at the place of occurrence with a view to save her son.P. W.2, it is not disputed,
had accompanied the deceased as their son was ailing. When the accused
persons surrounded the deceased, she being a worried person must have
started running. Presence of the accused persons at the place of occurrence,         E
as was stated by P. W.2, cannot be said to be wholly unreliable.
                                                        (518-H; 519-B; 521-DI

      2. There is no reason to disbelieve the testimony of P.W.1 that the
accused No.3 had been nurturing grudge against the deceased and had, thus,
a motive. The families belonged to the lower strata of the society. As had been      F
disclosed by the deceased, P.W.1, the accused No.3 wanted to assault him then
and there on his refusal to offer a bottle of beer. However, on that occasion he
saved himself by running away from the place. (519-C-D(

       3. Death of the deceased being homicidal in nature is not in dispute. It      G
has also not been disputed that the deceased was taken to the hospital by the
prosecution witnesses. Only because no blood stain was found on the clothes
of P.W.1 and her husband, the same by itself may not be sufficient to discredit
them fully. The P.S.O, (P.W.9) inquired from the injured his name as also the
name of his assailants. The deceased disclosed the names of accused Nos. l,
2 and the appellant herein as his assailants. He stated that two other persons       H
    516                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A have also assaulted him and a 'Yadi' to the said effect was prepared by P.W.9.
    Except giving a suggestion, he had not been cross-examined on behalf of
    appellant on the said point There was no reason for the said witness to depose
    falsely before the court. 'Yadi' which was prepared by him was a
    contemporaneous document which can be relied upon.1519-E-GI

B         4. Recovery of knife at the instance of the accused has also not been
    disputed. Blood stained clothes were also recovered from all the accused. The
    First Information Report was also lodged promptly.1519-H; 520-BI

         5. It is not known under what circumstances appellant produced the
C doctor's certificate. Admittedly, it was not proved. The doctor issuing the
  certificate was not examined. Appellant raised a plea of alibi. It was, therefore,
  for him to prove his defence. He failed to prove the same. If the evidence of
  P.W.I is to be accepted on the said point, the same should be considered in its
  entirety. Apart from the fact what was the form of question put to her is not
  known. If he was not present at the time of occurrence or was suffering from
D a compound fracture, it was expected that the questions to the ~ame effect
  would be put to the Investigating Officer. It was not done. Such a plea should
  have been taken at the first instance before the Court of Chief Judicial
  Magistrate when he was produced before him for the first time. If he had·
  already been suffering from a compound fracture on the date of occurrence,
  i.e., 30.10.1996, why did he procure the certificate of an earlier date, i.e.,
E 27.4.1996. Even the purported admission of P.W.1 taken in its entirety would
  go to show that appellant was in a position to walk. Six months' time, even
  otherwise, is sufficient for healing up of an ordinary fracture, if any. By mere
  filing of a document, its contents are not proved. A certificate issued by an
  expert should be brought on record by examining him.1520-D-H; 521-AI
F
           6. It is also not of much significance as to what exact role appellant had
    played. Whether he had instigated the accused No.2 to kill the deceased or
    had caught hold the neck of the deceased, would not be of much significance
    as his presence is not to be disbelieved thereby. Evidently, he llad some role to
    play. Both the courts below have found some overt act on his part. (521-C-DI
G
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1086 of
    2006.

          From the Final Judgment and Order dated 25.11.2005 of the High Court
    of Judicature at Bombay in Criminal Appeal No. 284 of 1999.
H
             SUBHASH MARUT! AVASARh STATE OF MAHARASHTRA [S.B. SINHA,!.]      5J7

           K. Radhakrishnan, S. Udayakumar Sagar, Bina Madhavan and Lawyer's          A
      Knit & Co. for the Appellant.

           V.N. Raghupathy for A.P. Mayee for the Respondent.

           The Judgment of the Court was delivered by
                                                                                      B
           S.B. SINHA, J. Leave granted.

             Appellant herein has been found guilty of commission of murder of one
      Baban alias Babdya along with one Sunil Maruti Avasare, Rakesh Tukaram
      Pawar, Jitendra Bappa Barawkar and Umesh Babanrao Khutwad who also took
      part in the assault, however, were convicted under Section 323 of the Indian    C
      Penal Code.

           The first informant is one Ratnabai Shivaji Pawar, the mother of the
      deceased. She was a maid servant. Her husband was working in a quarry. The
      deceased was working as a fitter.
                                                                                      D
            Appellant herein is known to the family of the deceased. He is a friend
      of the accused No. I. He went to the house of the deceased and inquired his
      whereabouts. He was not there at that time. When the deceased came back
      to his house, his mother informed him thereabout to which he had allegedly
      disclosed that the accused No.3, Rakesh Tukaram Pawar had asked him to          E
      provide a bottle of beer. He had refused whereafter, he was slapped. An
      attempt was also made to assault him with a knife, but he had run away.

             On the day of incident, i.e., 30.10.1996 at about 6.30 p.m., the deceased
      had gone to a clinic of a doctor with his wife Renuka for medical check-up
      of his son Umesh who was ailing. After some time Renuka came back running F
      to the house and informed the informant (P.W.l), that some persons have
      picked up a quarrel with her husband in front of the hospital of Dr. Babar. The
      informant ran to the spot and found that the accused No.2, Jitendra Bappa
      Barawkar had caught hold of the hands of the deceased from his back side;
      whereas accused No. I, Umesh Babanrao Khutwad was holding a knife in his
      hand. Appellant herein caught hold of the neck of the deceased and instigated G
      the other accused to kill him. Accused No. I stabbed the deceased, whereupon
      he fell down. Accused No.4, Sunil Maruti Avasare, and accused No.5, Rakesh
      Tukaram Pawar, also assaulted him with kicks and fist blows. The first informant
      tried to intervene. She was asked not to do so. Her husband, Renuka and son-
-..   in-law also came there. The accused persons ran away in the meanwhile. The H
    518                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A deceased was taken to the local hospital and then carried to Sassoon Hospital.
    He breathed his last there.

           Before the learned Trial Judge, the prosecution, apart from examining
    the first infonnant, examined 15 other witnesses. P. W. l 0, Rajendra Bangal, was
    the Medical Officer. He conducted the post-mortem examination of the deceased
B   on I.I I.I 996 and found 7 external injuries and 5 internal injuries. The cause
    of death was said to be "traumatic and hemorrhagic shock caused by stab
    injuries."

          The learned Trial Judge relied upon the testimonies of P. W. l, mother of
C the deceased and passed a judgment of conviction and sentence.
          Appeals preferred by the accused were disposed of by the High Court
    directing :

           "!. Appeals filed by the accused Nos. I, 2 and 3 are dismissed. Their
               conviction and sentence is maintained.
D
           2.   Appeals filed by the accused Nos. 4 and 5 are partly allowed.
                Accused Nos. 4 and 5 are acquitted of the offence under Section
                302 of IPC but they are sentenced under Section 323 of IPC and
                sentenced to suffer R.I. for one year and fine of Rs. I000/- in
                default R.I. for two months.
E
           3.   All the accused to surrender to the concerned Authorities within
                four weeks from today. After they surrender their bail bonds shall
                stand cancelled. If the accused do not surrender, the trial court
                may take proper steps to send them to custody for undergoing
                sentence.
F          4.    Accused will be entitled for set off as per the Rules."

        Contention of Mr. K. Radhakrishnan, learned Senior Counsel for
  Appellant, in regard to the evidence of P.W. l was that it was not possible for
  her to witness the occurrence as she had been infonned about the incident
G by P.W.2, Renuka, the wife of the deceased. Our attention was drawn to the
  fact that P. W.2 was pregnant and, thus, was not expected to cover the
  distance within a short time as the road was 'sloppy'. It was, thus, likely that
  Renuka had taken some time to run back to her house, inform the first
  informant and then again come back to the place of occurrence.

H         The distance between the place of incident and the house of P.W.l is
       SUBHASHMARUTIAVASARE1·. STATE OF MAHARASHTRA [S.B SINHA,J.]     519

said to be '5 minutes walking distance', being about 500 ft. A lady whose A
husband was being assaulted, despite being pregnant, would take the risk of
running to her house and come back with her mother-in-law. Similarly, the
mother of the deceased must not have lost any time to be at the place of
occurrence with a view to save her son.

      P. W.2, it is not disputed, had accompanied the deceased as their son   B
was ailing. When the accused persons surrounded the deceased, she being
a worried person must have started running. Presence of the accused persons
at the place of occurrence, as was stated by P. W.2, cannot be said to be
wholly unreliable.

      Mr. K. Radhakrishnan would submit that grudge allegedly borne by C
accused No.3, cannot be held to be sufficient for causing murder of the
deceased. We must notice the status of the families of the deceased and
Appellants. They belong to the lower strata of the society. As had been
disclosed by the deceased, P.W.I, the accused No.3 wanted to assault him
then and there on his refusal to offer a bottle of beer. However, on that D
occasion he saved himself by running away from the place. We do not find
any reason to disbelieve the testimony of P. W. I that the accused No.3 had
been nurturing grudge against the deceased and had, thus, a motive.

       Another argument of Mr. Radhakrishnan is that no blood stain was
found on the clothes of P. W.1 and her husband, although they had taken him E
to the hospital. Death of the deceased being homicidal in nature is not in
dispute. It has also not been disputed that the deceased was taken to the
hospital by the prosecution witnesses. Only because no blood stain was
found on the clothes of P. W.1 and her husband, the same by itself may not
be sufficient to discredit them fully. The P.S.O, Baburao Rajaram Nagrale, who F
took the injured to the hospital, examined himself as P.W.9. He inquired from
the injured his name as also the name of his assailants. The deceased disclosed
the names of accused Nos. I, 2 and the appellant herein as his assailants. He
stated that two other persons have also assaulted him and a 'Yadi' to the said
effect was prepared by P.W.9. Except giving a suggestion, he had not been
cross-examined on behalf of Appellant on the said point. There was no reason G
for the said witness to depose falsely before the court. 'Yadi' which was
prepared by him was a contemporaneous document which can be relied upon.

      Recovery of knife at the instance of the accused has also not been
disputed. Blood stained clothes were also recovered from all the accused. The
blood group of the deceased was 'O' and the same blood group was found H
    520                     SUPREME COURT REPORTS [2006] SUPP .. 7 S.C.R.

A on all the seized articles. As per Exhibit 64, blood group of Jitendra Bappa
    Barawkar, accused No.2 was 'AB' and blood group of Sunil Maruti Avasare,
    accused No.4 and the appellant was 'O' and that of Rakesh Tukaram Pawar,
    accused No.5 was 'A'. Blood group of Umesh Babanrao Khutwad, accused
    No. I was also 'A'. It may be placed on record that they were arrested
B   immediately and the blood stained clothes had been recovered from all of
    them.

         It is furthermore not in dispute that the First Information Report was
    lodged promptly.

C       The principal contention of Mr. Radhakrishnan that Appellant herein
  was suffering from a compound fracture and his leg was plastered, which has
  been admitted by P. W. l, cannot be accepted. The learned counsel would
  submit that having regard to the provisions contained in Section 58 of the
  Indian Evidence Act, it was not necessary for the appellant to prove the
  doctor's certificate which was dated 27.4.1996 and thus, the same should have
D been taken on record and marked as an exhibit. We do not know under what
  circumstances Appellant produced the certificate which is dated 27.4.1996.
  Admittedly, it was not proved. The doctor issuing the certificate was not
  examined. Appellant raised a plea of alibi. It was, therefore, for him to prove
  his defence. He failed to prove the same. If the evidence of P.W.1 is to be
  accepted on the said point, the same should be considered in its entirety.
E Apart from the fact what was the form of question put to her is not known.
  The statement of P.W.l, as recorded by the learned Trial Judge, is as under:

            "....... There was plaster to ace No.3 at the time of this incident. It is
            denied the accused No.3 was not able to walk properly at the time to
            this incident."
F
           If he was not present at the time of occurrence or was suffering from
    a compo1md fracture, it was expected that the questions to the same effect
    would be put to the Investigating Officer. It was not done. Such a plea should
    have been taken at the first instance before the Court of Chief Judicial
G   Magistrate when he was produced before him for the first time. If he had
    already been suffering from a compound fracture on the date of occurrence,
    i.e., 30.10.1996, we fail to understand why he had procured the certificate of
    an earlier date, i.e., 27.4.1996. Even the purported admission of P. W.1 taken
    in its entirety would go to show that Appellant was in a position to walk. Six
    months' time, even otherwise, is sufficient for healing up of an ordinary
H
         SUBHASH MARUTI AV ASA RE v. STATE OF MAHARASHTRA [S.B. SINHA,J.j   52 J
fracture, if any. By mere filing of a document, its contents are not proved. A     A
certificate issued by an expe11 should be brought on record by examining him.

      Concurrent findings of fact have been arrived at by the courts below
as against Appellant. The learned Sessions Judge has taken pains to analyse
the evidence of the prosecution witnesses. The High Court has also examined
the matter at some details.                                                        B
       The approach of the learned Sessions Judge and the High Court in
regard to the defence of Appellant may be different, but it is not of much
significance inasmuch as the plea of alibi on the part of Appellant has been
considered at some length.
                                                                                   c
       It is also not of much significance as to what exact roie Appellant had
played. Whether he had instigated the accused No.2 to kill the deceased or
had caught hold the neck of the deceased, would not be of much significance
as his presence is not to be disbelieved thereby. Evidently, he had some role
to play. Both the courts below have found some overt act on his part. We
do not find any reason to disagree with the findings of the learned Sessions       D
Judge as also the High Court. We accept the same.

     We, therefore, dismiss the appeal.

K.K.T.                                                       Appeal dismissed.