S.R. Sathe, J.@mdashThe State of Maharashtra has filed this appeal against the judgment and order passed by the Sessions Judge, Ratnagiri in
Sessions Case No. 50 of 1988 whereby the accused was acquitted of the offences punishable u/s 302, 307 and 325 of I.P.C.
2. Brief facts giving rise to this appeal are as under:
Prosecution witness No. 6 Sakharam Ganpat Jadhav was residing at village Tural alongwith his wife Savitri and their children, including his married
daughter Sulochana the wife of the present accused Dilip Raghunath Chavan. Not only that, but even accused had come to their house a day prior
to the date of incident. On that day he had suggested that he would take his wife Sulochana to Sakharappa. However, the prosecution witness No.
6 Sakharam had suggested that first he (accused) should seek some job and secure accommodation for residence and then take Sulochana with
him.
3. On the day of incident i.e. on 2.5.1988 Sakharam returned home in the evening. When he got down from the S.T. bus he found that accused
was waiting for the bus. At that time, accused asked Sakharam as to whether he would be sending Sulochana with him or not. He was in angry
mood. Sakharam tried to pacify him and told him that first he should get job and then take his wife. When Sakharam reached home, his wife
Savitri, the deceased in the instant case told him that she told the accused that he should not take Sulochana till the arrival of Sakharam. On that
day at night Sakharam and other family members waited for a long time with a hope that accused will return for taking meals. However, till late at
night he did not return. Hence, the other family members finished their dinner and went to bed.
4. When prosecution witness Sakharam was sleeping in the courtyard, he received a blow with knife on his stomach. As a result of the same
Sakharam woke up. When he opened his eyes he found that the accused was standing in front of him with knife in his hand and about to give
another blow to Sakharam. Naturally, Sakharam raised shouts. Hearing the said shout his wife Savitri woke up, but the accused also gave knife
blows on her chest and back. She had also raised shouts. Hearing their shouts Sulochana awoke, but the accused gave blow with knife to her also.
When accused was trying to run away from the said place Sakharam tried to catch him, however, he could not succeed and the accused ran away
from the said place. As a result of the knife blows received at the hands of accused Savitri fell on the ground, so also Sakharam.
5. It is the prosecution case, that complainant Adik Mohite who was having his house on the backside of the house of prosecution witness
Sakharam, heard some shouts as ""Marle, Marle"" at about 11.00 or 11.30 p.m. At that very time Ashok and Laxman Sakharam''s children came to
his house weeping and they told that the accused assaulted Sakharam, Sulochana and Savitri. Adik Mohite therefore went to the house of
Sakharam alongwith Ashok and Laxman. He found that Sakharam had sustained injuries. When Adik made queries with him Sakharam told him
that his son in law i.e. accused assaulted him, his wife and Sulochana with knife. Even Savitri also told Adik that accused assaulted her with knife.
Adik gave water to Savitri, however, within 10 to 15 minutes she succumbed to the injuries. On the next day morning, at about 10.00 O''Clock,
Adik went to Sangmeshwar Police Station which was at a distance of about 10 to 12 kilometres from Tural, and lodged a complaint wherein he
narrated the incident and told the police that Sakharam, Savitri and Sulochana disclosed to him that they were assaulted by the accused with knife.
6. On the basis of the said complaint, police registered C.R. No. 35 of 1988 against the accused for the offences mentioned above. Immediately
thereafter i.e. on 3.5.1988 at about 11.15 a.m. police went to Tural and drew the inquest panchanama and sent the dead body for postmortem.
They also drew the panchanama of the place of offence. PSI then recorded the statement of various witneses and arrested the accused at Chiplun
on 4.5.1988. At that time PSI noticed that the clothes which were on the person of the accused were blood stained. Hence, he attached the
clothes under panchanama. When the accused was in the police custody, he made a statement before the police on 7.5.1988 that he would
produce the knife concealed by him in the bushes and accordingly police recorded the statement and thereafter the accused led police and panchas
to the said place and produced the knife. The police attached the said knife which is Article 26 before the Court. The police had also attached the
clothes of the injured as well as the deceased. They sent all the attached property to C.A. The police had also received the postmortem report
wherein the doctor had opined that the death of Savitri was caused due to shock and haemorrhage due to stab injury to chest causing injury to left
lung and heart. After completion of the investigation police submitted chargesheet in the Court of JMFC, Devrukh against the accused for the
offences punishable under Sections 302, 307 and 325 of I.P.C.
7. Finding that the accused was chargesheeted for the offences which were exclusively triable by the Court of Sessions, the learned JMFC,
Devrukh committed the case to the Court of Sessions Ratnagiri.
8. The learned Sessions Judge, Ratnagiri framed charge Exhibit 2 against the accused for the offences mentioned above. The charge was read over
and explained to the accused. He pleaded not guilty and claimed to be tried. From the suggestions put to the prosecution witnesses and from the
statement of accused recorded u/s 313 Cr.P.C. it appears that the defence of the accused was of total denial. According to him as there was some
quarrel between him and Sakharam, he was falsely implicated by Sakharam in the offence in question.
9. In order to prove the charge levelled against the accused, the prosecution has examined as many as 13 witnesses consisting of P.W.1.
complainant Adik Mohite-Exhibit 8, P.W.2 panch Vishram Harekar-Exhibit 10, another panch who acted as panch for the attachment of the
clothes of the accused-P.W.3 Akbar Kapadi-Exhibit 12, P.W.4 panch witness Shanker Shinde-Exhibit 14, P.W.5 another panch Sakharam
Gurav-Exhibit 16, injured eye witness P.W.6 Sakharam Jadhav-Exhibit 20, another injured eye witness P.W.7 Sulochana Chavan Exhibit 21,
witness Raju Mohite Exhibit 22, Dr. Vaidya, who examined Sakharam on 3.5.1988 Exhibit 24, P.W.10 Dr. Satish Desai-Medical Officer,
Sangmeshwar Primary Health Centre-Exhibit 25, another panch witness namely Suresh Gudekar-Exhibit 29, PSI Padmakar Juikar-Exhibit 31 and
P.W. 13 Dr. Kumar Nanaware-Exhibit 42, who did the postmortem on the dead body of Savitri.
10. The prosecution produced several documents such as inquest panchanama Exhibit 6, panchanama of clothes of deceased Savitri - exhibit 9,
panchanama of place of offence - Exhibit 11, panchanama of clothes of accused -Exhibit 13, statement made by accused regarding pointing out
the place where the knife was concealed Exhibit 17, panchanama regarding discovery Exhibit 18, arrest panchanama Exhibit 30, C.A. report
exhibit 34 to 40 and post mortem notes Exhibit 43.
11. After considering the evidence adduced by the prosecution the learned trial judge came to the conclusion that the evidence of doctor
Nanaware who did the post mortem on the dead body of Savitri shows that the injuries sustained by her cannot be caused by the knife alleged to
have been discovered at the instance of accused. According to him when prosecution had specifically come out with a case that the accused
assaulted Savitri and other two injured persons with knife before the court, the evidence of doctor creates doubt about the prosecution version.
According to the learned trial Judge, neither the injured Sakharam nor Sulochana were knowing the name of the assailant till the morning of
3.3.1988. So, according to him though there was some evidence to create suspicion against the accused, the same was not sufficient to prove the
guilt beyond reasonable doubt. He, therefore, acquitted the accused.
12. Being aggrieved by the above mentioned order of acquittal, the State has filed the present appeal. In this appeal before us, the learned APP
submitted that the learned trial Judge has not at all properly appreciated the evidence on record. The learned trial Judge has ignored the important
evidence of the injured eye witness and without giving any valid reason for discarding their testimony given undue importance to some stray
statement that have been made by the doctor and held that the prosecution has not proved the offence in question. He, therefore submitted that the
entire appreciation of evidence done by the learned trial judge being erroneous and faulty, this is a fit case where the Appellate Court can intervene
and allow the appeal and convict the accused for the charges levelled against him. As against this, Shri Kazi, learned Advocate for the accused
submitted that the view taken by the learned trial Judge cannot be said to be unreasonable. According to him it is a possible view and as such in
appeal against acquittal the High Court should not interfere with the finding of acquittal. He, therefore, submitted that the appeal be dismissed.
13. It is not in dispute that about 15 days prior to the date of the incident which is 2.5.1988, the prosecution witness No. 6 alongwith his family
members had started residing at village Tural. It is also an admitted fact that at that time his daughter Sulochana was also residing with him. It is not
in dispute that the incident took place on 2.5.1988 and the dead body of Savitri was found at the place of offence by the police on 3.5.1988.
When the dead body was sent for postmortem and the postmortem was carried out, Dr. Nanaware found the following injuries on the person of
deceased Savitri. The same are mentioned in column 17 of the postmortem notes which are as under:
1. Stab wound 2.00 cm X 0.5 am, transverse over (lt) upper chest, 6.00c.m. above & 3.00 cm lateral to (lt) nipple, margin clear cut, upper margin
slightly contused, depth cavity dee. (1) stab wound, 2.00 X 0.5 cm. transvere, over back in midline over midway of spinal cord, margin clear cut,
edges sharply cut, depth-muscle deep (4.00 c.m). The doctor has also noticed that he found following internal injuries as mentioned in column 19
of the postmortem notes.
Stab wound on (lt) 3rd inter coastal space corresponding to erect wound No. (1) Plura pierce at 3rd left inter coastal space; left hand stab 2cm x
5cm corresponding to external wound No. 1 passing through left lung weapon and had entered left pericardium & pierced left ventricle into cavity,
large hammer pericardial present; large amount of blood and blood clots present in left chest cavity.
The doctor has specifically opined that the injuries found on the person of Savitri were antimortem and the same can be caused due to blow with
knife. He has given the cause of death as shock and haemorrhage due to stab injury to chest, injury to left lung and heart. So, from this evidence
the learned trial Judge has rightly held that the prosecution has proved that the death of Savitri was homicidal. It must be noted that it is not even
the case of the defence that Savitri''s death was not homicidal.
14. The prosecution has examined Dr.Satish Desai, Exhibit 25 who had examined prosecution witness injured Sakharam and prosecution witness
No. 7 Sulochana. He has stated that on examination he found following injuries on the person of Sakharam.
A penetrating wound 1/2 ""to the right of midline oblong shape with gaping of wound intestine and omentum protruding out dimensions are approx.
3"" in length and oblong shape extending from 1"" above the umbilical upwards
He has also stated that he noticed following injuries on the person of Sulochana '' Dipali Dilip Chavan i.e. wife of accused.
1) Incised wound 1"" x 1/2"" and gaping over right breast 1"" above and lateral to nipple.
2) 1/2"" length labour gaping on left thigh 2"" above knee joint on anterior medio aspect.
3) Incised wound 1/2"" length gaping over left thigh anterior lateral aspect 3"" above the knee joint.
4) Incised wound 1"" in length gaping over left thigh posterior lateral aspect 6"" above the knee joint.
15. The main and the material question is whether the death of Savitri and the injuries which were found on the person of Sakharam and Sulochana
were caused at the hands of accused. In order to prove the same, the prosecution has mainly relied on the two injured eye witnesses, namely
P.W.6 Sakharam Ganpat Jadhav-exhibit 20 and P.W.6 Sulochana Dilip Chavan-Exhibit 21 witness Sakharam has categorically stated that on that
day when he was sleeping in the courtyard, he received blow with knife on his stomach and when he opened his eyes and he saw that the accused
was with knife and he was about to give another blow to him. He has further stated that he pushed the accused and put his hand on the stomach
and raised shouts and on hearing the shouts Savitri i.e. his wife woke up and the accused gave knife blows on the back and chest of Savitri and
when both of them raised shouts Sulochana also woke up and the accused gave knife blows on the chest and thigh of Sulochana. This evidence of
Sakharam is fully corroborated by witness Sulochana. This evidence of Sakharam is corroborated by witness Sulochana. She has stated that after
hearing the shouts she woke up and she found that accused was giving the blows to her mother and when she tried to rescue, the accused gave
blows to her with knife and ran away from the said place. It is pertinent to note that she has not stated anything about the blow given by the
accused to Sakharam because even as per Sakharam''s evidence it is only after the time accused gave blow to him on his stomach and he raised
shouts, thereafter Savitri and Sulochana awoke. So, evidence of Sulochana also shows that she is a truthful witness. She has deposed whatever
she had seen. It must be noted that both these witnesses have been examined by Dr. Satish on the next day. At that time he found above
mentioned injuries on their person. He has also stated that the said injuries are possible due to knife blow. It is not at all the case of defence that the
said injuries were not received by these two witnesses at the relevant time or the same were not received due to knife blows. So, under such
circumstances, we find that the evidence of these two eye witnesses is clearly supported by the medical evidence. There is no reason why these
witnesses should leave aside the real culprit and involve the accused who is infact the son in law of P.W. 6 Sakharam and husband of P.W. 7.
Sulochana. It is true that there was some dispute between Sulochana and her husband, but at the same time we can not forget the fact that it was
not a case where the accused was not at all visiting the house of the father in law i.e. Sakharam. On the contrary, we find that even in his statement
u/s 313 Cr.P.C. the accused had clearly admitted that he had been to the house of the prosecution witness No. 6 Sakharam and he was insisting
that Sulochana should be sent alongwith him to Sakharappa and the prosecution witness No. 6 was saying that first the accused should search a
job and place for residence and then take Sulochana alongwith him. So, we find that P.W. 6 was even ready to send Sulochana with him. This also
indicates that the relation between the accused and these prosecution witnesses were not so strained that they would go to the length of involving
him falsely and that too in a case of murder.
16. An attempt has been made on behalf of the prosecution defence to show that according to Sakharam, immediately after receipt of the blow
Sakharam had become unconscious and as such there was not opportunity for him to see the assailant. It is true that Sakharam had sustained
severe injury as a result of which some part of his intestine had come out. However, that does not mean that immediately after the time he received
the blow and he opened his eyes he had not seen the assailant i.e. accused who was very much present there with knife. It is equally true that
subsequently Sakharam became unconscious and he regained consciousness on the next day, but exact time when he became unconscious is not
known. There is no evidence in that behalf. Under such circumstances, one cannot jump to the conclusion that the moment he received the blow he
became unconscious. However, it appears that the learned Trial Judge had not read the cross examination of Sakharam in its proper perspective
and has given undue importance to his stray statement that after he was assaulted he became unconscious and regained consciousness on the next
day. We can not ignore the fact that though he has stated accordingly in the cross examination, he has at the same time stated that immediately after
receiving the blow he had seen the accused. Not only that, but when Adik i.e. the complainant rushed to the house and made query to him he had
even told the name of the accused as the assailant to the complainant. So, one has to read the evidence of the witness as a whole. As the question
was put to the witness in cross examination that he regained consciousness on the next day, he answered in the affirmative. But, that by itself is not
sufficient to jump to the conclusion that he had become unconscious the moment he received the blow. Then it must also be noted that the evidence
of witness Sakharam is not at all shaken or shattered in the cross examination. There are absolutely no material omissions and contradictions in his
evidence. Even then the learned trial Judge without considering his evidence as a whole and ignoring the important aspect that he is not only an eye
witness, but the injured eye witness held that Sakharam''s evidence is not sufficient to prove the guilt of the accused. The learned trial Judge has
observed in paragraph 19 that Sakharam has given admission that as there was quarrel on that day in the morning he suspected assailant to be
accused. We have carefully gone through the entire deposition of Sakharam, but we do not find any such admission given by Sakharam. We are of
the view that the learned trial Judge has in fact totally misquoted the admission mentioned above. If we carefully read the deposition of Sakharam
we find that Sakharam wanted to convey or state that as in the morning there was some dispute, that might have given rise to accused to assault
them. So, the learned trial Judge has infact misread the evidence of Sakharam.
17. It is tried to be suggested that at the relevant time there was dark and as such the injured eye witnesses had in fact no opportunity to see the
assailant. While considering this aspect it must be noted that it has come on record that on that day there was moonlight. Merely because in police
statement the witness had not stated that there was moonlight, it cannot be said that this is a material omission. Besides this, it has also come on
record that there was tube light in the adjoining house. The deceased and the injured were admittedly sleeping in the courtyard, those being
summer days. So, it cannot be said that there was total darkness. Besides, this we cannot ignore the fact that the assailant was not a stranger. So
far as Sulochana is concerned, the assailant is her husband. So, even by looking to the stature and general figure she was in a position to identify
the accused when he was so close to them. There is no evidence in the argument advanced by the defence that there was no opportunity for these
witnesses to identify the assailant.
18. There is another very important drawback in the judgment of the learned trial Judge. It must be noted that the learned trial Judge has not at all
taken into consideration the evidence of witness Sulochana Chavan P.W. 7 - exhibit 21. Thus, we find that the learned trial Judge has totally
ignored the testimony of the injured eyewitness. It must be stated that there is material lacuna in the said judgment and as such it is absolutely
essential for the Appellate Court to consider the entire evidence brought by the prosecution.
19. Witness Sulochana has also categorically stated that she saw accused giving knife blow to her mother. She has also stated that when she tried
to intervene, accused also assaulted her with knife. She also disclosed this immediately to Adik. Nothing in brought in her cross examination so as
to create any doubt about her testimony. There is no reason why she should falsely depose against her husband. So we have no hesitation to
accept her testimony.
20. The prosecution has examined the complainant Adik Baban Mohite at Exhibit 73. It is not in dispute that his house is situated on the backside
of the house of P.W. 6 Sakharam. Adik has stated that at about 11.00 or 11.30 p.m. he heard shouts and at that very time Ashok and Laxman,
children of Sakharam came to him and informed him that accused assaulted Sakharam, Savitri and Sulochana. Certainly, it would have been better
if these two witneses would have been examined, but for the reasons best known to the prosecution these two witnesses namely Ashok and
Laxman who are the children of Sakharam are not been examined. But that by itself is certainly not sufficient to come to the conclusion that the
prosecution has failed to adduce material evidence. It is nobody''s case that these two witnesses had actually seen the incident. So, their non
examination is certainly not fatal to prosecution. Be that as it may, the fact remains that Adik came to know about the alleged incident and he
immediately rushed to the house of deceased. He has stated that at that time he found that Savitri as well as Sakharam had received serious
bleeding injuries and when he made query, both of them told him that accused assaulted them with knife. He has also stated that Sulochana told
him that accused assaulted her with knife. Much is made about the fact that this witness did not take the injured person immediately to the hospital
or that he did not go to the police station or did not give any telephonic call to police. However, the said witness has given justifiable reason for not
doing so. He has stated that though the phone was available in the shop near about, the said shop was closed. He has also stated that there was no
vehicle available for immediately taking the injured to the hospital or for him to go the police station.
21. It is pertinent to note that complainant Adik Baban Mohite is totally an independent witness. It is nowhere even suggested to him that he has
any special interest in the s or injured Sakharam and having any animus against the accused. We find that in his complaint which is lodged after few
hours from the incident, he has specifically mentioned the name of the assailants and his source of coming to know the name of the assailants. If the
theory of defence that Sakharam was not at all in position to speak and was unconscious is accepted then there is no question of Sakharam telling
the name of accused to this witness. It must be noted that on the next day morning this witness has gone to the police station which was at a
distance of 10-12 kilometres and lodged the complaint. All that is suggested to him is that he consulted some persons from Belder community and
then filed the complaint. This is a very vague suggestion. There is nothing to indicate that he lodged the complaint or named the present accused
falsely without coming to know anything about the incident. So due weightage shall have to be given to the evidence of this independent witness
which also clearly supports testimony of the above mentioned two injured eye witnesses.
22. Admittedly police station is at a distance of about 10 to 12 kilometres from the place of offence. It does appear that there is some discrepancy
about whether several other persons had gathered at the place of offence after the incident and if so at what time etc. However, that is not very
material while assessing the evidence of these two injured witnesses and the evidence of complainant. it is pertinent to note that even if we assume
for the sake of argument that when complainant reached at the place of offence Sakharam and Savitri were not in a position to state the name of
the assailant, still so far as Sulochana is concerned she was definitely in a position to tell the name of the assailant. She had also sustained injuries at
his hands. So, if we read evidence of complainant alongwith the evidence of the above mentioned injured eye witness it is very clear that the
prosecution has adduced sufficient evidence to show that it was the accused who assaulted Savitri, Sakharam and Sulochana at the relevant time.
23. The prosecution has examined another witness by name Raju Mohite-Exhibit 22. He is the brother of the complainant. He also resides at the
house of the complainant. He has stated that after the time there was hue and cry he had also rushed towards the house of the deceased and when
he was proceeding accordingly he saw the accused running away from the house. It must be noted that this witness has not stated accordingly for
the first time in the court. There are no omission or contradiction in his evidence. So, there is no reason to disbelieve the evidence of witness Raju.
Even if, we assume for the sake of argument that his evidence is not trustworthy because complainant has not stated that Raju had come there, still
then the entire evidence of prosecution cannot be discarded merely on the ground that the evidence of Raju does not inspire confidence.
24. There is another piece of evidence which also lends support to the prosecution version. The prosecution has brought on record that when the
accused was in the police custody on 7.5.1988 he made a statement before the police that he would produce the knife concealed by him and
accordingly police recorded the statement in presence of panchas and then accused led panchas and the police towards his house and from the
bushes he produced one knife. The prosecution has also come with the case that the knife before the court is the same. The learned trial Judge
disbelieved this evidence mainly on the ground that the knife was recovered from the open space and so it was possible for any one to plant the
same at the said place. This reasoning is not acceptable, particularly when there is nothing on record to indicate that the police had knowledge
about such planting. When the accused has pointed out a particular place and knife was recovered from that place and it has not come on record
that the knife was visible to any one,the observation made by the learned trial Judge does not stand to reasons. From the perusal of the judgment
of the learned trial Judge we find that he has given undue importance to the evidence with regard to the knife and the medical evidence given by Dr.
Kumar Nanaware. The learned trial Judge has observed that Dr. Nanaware has given admission that the injuries sustained by Savitri are not
possible by the knife before the court. Firstly, it must be noted that this is again totally wrong observation made by the learned trial Judge. We do
not find any such specific admission given by the doctor. On the contrary he has categorically stated in his examination in chief that the injuries
sustained by Savitri are possible with knife before the Court. Not only that but even in cross examination he has stated ""I can not say definitely
looking to the length of M.A.No. 26 (knife) the injury mentioned in this particular case cannot be caused by this weapon."" So, it seems that the
learned trial Judge has proceeded completely on wrong footing by holding that the doctor has clearly stated that the injuries in question are not
possible with the knife before the Court. It appears that an attempt was made on behalf of the defence to show that there is some discrepancy in
the nature of the injuries sustained by Savitri and the weapon used for such injuries. An attempt is made to show that the injuries in question cannot
be caused due to knife before the court. Firstly, it must be noted that there is in fact no cogent and convincing evidence to hold specifically that the
injuries in question are not possible by the knife before the Court. Besides this, even if we assume for the sake of argument that in view of doctor''s
evidence it cannot be said that the injuries in question are caused by the knife before the court. But that does not mean that the entire prosecution
story should be thrown over board. Nor such type of evidence is sufficient to discredit the legal, reliable and unimpeachable evidence of two
injured eye witnesses. The learned trial Judge has relied upon the authority 1975 SCC (Cri) 577 wherein it is observed that where the evidence of
witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental
defect in the prosecution case and unless reasonable explanation is given the said defect is sufficient to discredit the entire case. We have carefully
gone through the above mentioned ruling. The facts of the said case and the facts of the case in hand are quite different. In that case there was
conflict between the medical evidence and the ballistic expert''s evidence because that was the case of murder by shooting the person with gun.
Here it is not so. There is no material inconsistency. Some feeble attempt is made to show that the injury in question does not correspond with the
weapon in question. So, the above cited ruling is of no help to the defence. Similarly, the learned trial Judge has also given importance to the
observation made by the Apex Court in a case reported in 1953 Cri.L.J. 1761 wherein it was observed that in a case where death is due to
injuries and wounds caused by lethal weapon it is always duty of the prosecution to prove by expert evidence that it was likely or atleast possible
for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary
that where prosecution has definite or positive case it must prove the whole of the case. The above proposition is not disputed and cannot be
disputed. However, it must be noted that it was also a case where the person was shot dead. So, the facts of the said case and the facts of the
case in hand are different and as such the above cited ruling is of no help to the defence and the learned trial Judge has wrongly relied on the same.
25. It is needless to say that there are various authoritative pronouncement in which it has been held that medical evidence can not over ride direct
evidence about assault by particular weapon when direct evidence is satisfactory and reliable. It has been so held in Punjab Singh Vs. State of
Haryana, . Even in a case Mange Vs. State of Haryana, observed that when there is direct evidence about the time and date of the occurrence the
medical evidence can hardly be relied upon to falsify the evidence of the eye witness because medical evidence is judged by various factors based
on guess and certain calculations. So, merely because in the instant case depth of the injury was not about four inches but it was only about three
and quarter inches or so, we can''t jump to discard the direct evidence of the injured eye witnesses particularly when the same is not at all shown to
be unreliable. As pointed out above it appears that the learned trial Judge has wrongly proceeded with assumption that the doctor has given
admission that the injuries in question are not possible due to knife before the Court. He has attached undue importance to some of the
observations made by Dr. Nanaware in his cross examination made in the trial court long after the postmortem, without correctly and fully
appreciating the overall effect of his evidence. In fact, the learned trial Judge ought to have considered the over all evidence of Dr. Nanaware.
26. It is pertinent to note that the complainant Adik Mohite Exhibit 8, injured eye witness Sakharam Ganpat Jadhav-Exhibit 20, and another
injured eye witness Sulochana Dilip Chavan Exhibit 21 were searchingly cross examined on behalf of the defence, but hardly any material could be
brought out during their cross examination to discredit their evidence. In our considered view the approach of the learned trial Judge was totally
unrealistic, unreasonable and unacceptable. So, in our opinion this is a fit case where it is necessary to interfere with the finding of acquittal
recorded by the learned trial Judge. In view of the above discussion we have no hesitation to hold that the prosecution has in fact brought on
record cogent, consistence and convincing evidence to prove beyond reasonable doubt that at the relevant time the accused assaulted Savitri with
knife and thereby caused her death. He also gave knife blow on the vital part of the prosecution witness Sakharam and thereby caused serious
injury which in the opinion of doctor was sufficient in the ordinary course of nature to cause death. The blows given to Savitri were also on vital
part and Savitri died within few minutes after the assault. So, considering all these aspects we hold that the accused is guilty of the offence of
committing murder of Savitri and causing grevious hurt with deadly weapon to Sakharam. He has also caused injuries with deadly weapon to
Sulochana. Thus, he is guilty of the offences punishable u/s 302 of I.P.C. and 326 of I.P.C. We, therefore, pass the following order:
ORDER
The appeal is allowed.
2. The order passed by the Sessions Judge, Ratnagiri, acquitting the accused of the offences punishable u/s 302 & 326 of IPC is set aside.
Instead, the accused is convicted for the offence punishable u/s 302 of IPC and sentenced to suffer R.I. for life and to pay fine of Rs. 1000/ i.e. to
suffer R.I. for three months.
3. The accused is also convicted for the offence punishable u/s 326 of IPC and sentenced to suffer RI for five years and to pay fine of Rs. 500/-
i.d. to suffer R.I. for one month.
4. The order of acquitting accused of the offence punishable u/s 307 of IPC is upheld.
5. The accused is also convicted for the offence punishable u/s 324 of IPC for voluntarily causing hurt by dangerous weapon to Sulochana and is
sentenced to suffer R.I. for one year and to pay fine of Rs. 300/- i.d. to suffer RI for 15 days.
6. All the substantive sentences to run concurrently.
7. Accused is entitled to get the set off for the period of detention undergone by him in connection with this offence as per Section 428 of Cr.P.C.
8. The accused to surrender bail within eight weeks from today, failing which the trial Court to take necessary steps to arrest the accused and send
him to jail to undergo sentence mentioned above.